A federal appeals court in Washington, DC, Friday denied a mining company's petition to overturn FERC orders authorizing the construction of REX-East, the last leg of the Rockies Express Pipeline LLC (REX).

Cleveland, OH-based Murray Energy Corp. challenged the orders issued by the Federal Energy Regulatory Commission (FERC) in 2008 and 2009, saying that REX-East failed to collaborate with Murray Energy to consider the safety concerns involved in building a pipeline over an active mining area in eastern Ohio (see Daily GPI, July 24, 2008).

The 639-mile REX-East portion, which runs from Audrain County, MO, to Monroe County, OH, crosses land above the Century Mine, an underground longwall coal mine owned and operated by Murray Energy. REX completed construction of the pipeline over the Century Mine in August 2009; gas began blowing in November 2009.

Murray Energy operates about 19 mines in five states, including Ohio, Illinois and Kentucky. REX-East is the final leg of the 1,678-mile Rockies Express Pipeline, which transports Rocky Mountain gas to Midwest and eastern markets.

"Longwall mining causes the surface above to subside in a planned, controlled manner as coal seams are extracted. This subsidence places stress on pipelines that cross the mine area. Too much stress may rupture a pipeline and cause an explosion that would put at risk the safety of nearby persons and property. Concerned by the substantial hazard the REX-East pipeline poses to several hundred workers in the Century Mine, Murray [petitioned] for review of [the] two orders," the ruling by the U.S. Court of Appeals for the District of Columbia Circuit said.

Murray Energy argues that FERC should not have approved construction of REX-East because the pipeline had not fulfilled condition 147 of the May 2008 order approving the line, which required REX to "develop in collaboration with [Murray] a construction plan that maintains 'pipeline integrity and operation' without impeding Murray's mining activities," the three-judge panel said.

Murray Energy interpreted condition 147 to mean that REX-East must file an alternative route that avoided Murray's coal reserves. "It seems clear to us that REX satisfied whatever collaboration requirement existed," the court said. "Absent evidence of bad faith on REX's part, and Murray has shown none, we are reluctant to read 'collaboration' as requiring anything more than what REX did. FERC reasonably concluded on the basis of substantial evidence that REX satisfied condition 147's requirement of collaboration."

As for Murray Energy's safety concerns, "expert reports establish that substantial evidence supports FERC's conclusion that REX's plan will adequately ensure pipeline safety," the court said.

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