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Important Decision Secured for BGD Energy Client and Industry


BGD client Vigo Coal Company and its affiliate Liberty Mine, LLC, have won an important decision before the Indiana Office of Environmental Adjudication, which found that the Sierra Club and Hoosier Environmental Council, objectors to a Water Quality Certification did not have “aggrieved or adversely affected” status so as to have standing for administrative review. The company was represented by attorney David R. Joest, a member of BGD’s Energy Practice Group, and attorney Joseph W. Friedmann ably assisted with matter research. Both practice from the firm’s Evansville office.

Vigo Coal Company is one of the most environmentally committed companies in the energy industry. It has won five Excellence in Mining Awards from the Indiana Department of Natural Resources, three awards from the U.S. Department of Interior Office of Surface Mining (including the Good Neighbor Award) and four outstanding reclamation awards from the Interstate Mining Compact Commission.

Decision Background

The company’s application for a Water Quality Certification in connection with a small mine expansion was granted by the Indiana Department of Environmental Management, but that certification was appealed by two groups claiming associational standing to seek review on behalf of one person who was a member of both groups. Chief Environmental Law Judge Mary L. Davidsen held that this member did not show aggrieved or adversely affected status, and that administrative review was not available based upon the appellant’s generalized concern as a member of the public.

Energy Industry Impact

The decision is important to the energy industry. In the past, the critical statutory thresholds regarding standing were interpreted so broadly that almost any allegation of concern about certification resulted in the court finding an interest sufficient to allow a person to participate in the case. Even if those affected by mining (generally, neighboring residents and landowners) were entirely satisfied with the activities at the mine, others could bring appeals; this caused delay and expense to the entire energy industry with little, if any, environmental benefit. This decision marks the first time the industry has successfully invoked the Indiana statutory standard regarding standing against a major environmental organization.

The decision should have a positive impact on a regional level as well. More than 75 percent of Indiana’s electricity comes from coal, and the Hoosier State is in the top 10 of coal-producing states in the nation. In Kentucky, almost 90 percent of electricity used in the state comes from coal. Last year, Kentucky had the second highest coal employment in the U.S., employing more than 9,500 people in surface mines, undergroucoal-pic-2nd mines, offices and in preparation plants.

To learn more about David R. Joest and his practice, please visit his profile.

To learn more about Joseph W. Friedmann and his practice, please visit his profile.

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