IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA Spring 2024 Term FILED _____________________________ April 10, 2024 No. 23-ICA-72 released at 3:00 p.m. C. CASEY FORBES, CLERK _____________________________ INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA MISSION COAL WIND DOWN CO., LLC, and GILBERT NATHAN, as PLAN ADMINISTRATOR, Petitioners, v. DIRECTOR, DIVISION OF MINING AND RECLAMATION, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent. ________________________________________________________________________ Appeal from the West Virginia Surface Mine Board Chairman Mark G. Schuerger Appeal No. 22-08-SMB VACATED AND REMANDED ________________________________________________________________________ Submitted: February 6, 2024 Filed: April 10, 2024 Christopher M. Hunter, Esq. Jeffrey O. Dye, Esq. Jackson Kelly, PLLC West Virginia Dept. of Environmental Charleston, West Virginia Protection, Office of Legal Services Counsel for Petitioner Charleston, West Virginia Counsel for Respondent Kevin W. Barrett, Esq. Bailey & Glasser LLP Charleston, West Virginia Counsel for Respondent JUDGE DANIEL W. GREEAR delivered the Opinion of the Court. GREEAR, Judge: Plan Administrator Gilbert Nathan and Mission Coal Wind Down Co., LLC (collectively “Petitioners”), appeal the January 23, 2023, Final Order of the West Virginia Surface Mine Board (“Board”) affirming the Director of the Division of Mining and Reclamation’s (“DMR”) Decision and Order for Compliance which ordered Gilbert Nathan to be listed as an owner and controller of Pinnacle Mining Company, LLC (“Pinnacle”) and Seminole West Virginia Mining Complex, LLC (“Seminole”) and required him to update the ownership and control information for both permit holders, and by doing so placed Mr. Nathan on the Applicant Violator System (“AVS”). Having reviewed this matter, we conclude that the Board failed to conduct a proper analysis of whether Mr. Nathan was a “controller” under West Virginia Code of State Rules § 38-2-2.83.d (2020) and West Virginia Division of Environmental Protection v. Kingwood Coal Co., 200 W. Va. 734, 490 S.E.2d 823 (1997). Accordingly, we vacate the January 23, 2023, Final Order and remand this matter to the Board for further proceedings consistent with this opinion. Background In October of 2018, Mission Coal Company, LLC (“Mission Coal”) and its affiliates filed for Chapter 11 Bankruptcy in the United States Bankruptcy Court for the 2 Northern District of Alabama.1 Mission Coal continued to manage and operate their coal mines, including Pinnacle and Seminole, as Debtors-in-Possession. On April 15, 2019, Gilbert Nathan was approved by the bankruptcy court as the Plan Administrator. Pursuant to the bankruptcy court’s Confirmation Order (the “Bankruptcy Plan”), Mr. Nathan would act as the sole officer, director, and manager of Mission Coal to wind down its business. On April 30, 2019, Bluestone Resources, Inc. and Bluestone Oil Corp. (collectively “Bluestone”) entered into an “Asset Purchase Agreement” and “Contract Operator Agreement” with Petitioner. Under the terms of the Operator Agreement, Bluestone was to become the permittee of the various mining permits (including associated water discharge and air emission permits) issued by the West Virginia Department of Environmental Protection (“DEP”) for the Pinnacle Mining Complex. Bluestone was also to assume Petitioner’s obligations such as reclamation, remediation, cleanup at the Pinnacle Mine Complex and was to be …
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