Company Name: CONSOL Energy Inc.
Public Availability Date: March 23, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
January 2, 2007
United States Securities and Exchange Commission
Division of Corporate Finance
Office of Chief Counsel
100 F Street, NE
Washington, DC 20549
Ladies and Gentlemen:
On behalf of our client CONSOL Energy Inc., a Delaware corporation (the
"Company"), we are submitting this letter pursuant to Rule 14a-8(j) of the
Securities Exchange Act of 1934, as amended (the "Act"), in reference to the
Company's intention to omit the Shareholder Proposal (the "Proposal") filed by
the Office of the Comptroller of New York City on behalf of five pension funds
(collectively, the "funds") for which the New York City Comptroller serves as
trustee or custodian or both1 (the "Proponent") from the Company's 2007 proxy
statement and form of proxy relating to its Annual Meeting of Shareholders
tentatively scheduled for May 2, 2007. The definitive copies of the 2007 proxy
statement and form of proxy are currently scheduled to be filed pursuant to Rule
14a-6 on or about March 27, 2007. We hereby request on behalf of the Company
that the staff of the Division of Corporation Finance (the "Staff") confirm that
it will not recommend any enforcement action to the Securities and Exchange
Commission (the "Commission") if, in reliance on one or more of the
interpretations of Rule 14a-8 set forth below, the Company excludes the Proposal
from its proxy materials. Pursuant to Rule 14a-8(j)(2), enclosed herewith are
six copies of the following materials:
1). This letter which represents the Company's statement of reasons why omission
of the Proposal from the Company's 2007 proxy statement and form of proxy is
appropriate and, to the extent such reasons are based on matters of law,
represents a supporting legal opinion of counsel; and
2). The Proposal, attached hereto as Exhibit A, which the Proponent submitted.
Please acknowledge receipt of this letter by stamping the extra enclosed copy
and returning it to our messenger, who has been instructed to wait.
Background
The Proposal requests that a committee of independent directors of the Board
issue a report:
"on how the company is responding to rising regulatory, competitive and public
pressure to significantly reduce carbon dioxide and other emissions from the
company's current and proposed power plant operations. The report should be
provided by September 1, 2007 at a reasonable cost and omit proprietary
information." (emphasis added)
Discussion of Reasons for Omission
I. Rule 14a-8(i)(5)THE PROPOSAL MAY BE OMITTED IF IT RELATES TO OPERATIONS
WHICH LACK RELEVANCE TO THE COMPANY'S BUSINESS.
A company is not required to include a proposal which lacks relevance to its
business. Specifically, if the proposal relates to operations which account for
less than 5 percent of the company's total assets at the end of its most recent
fiscal year, for less than 5 percent of its net earnings and gross sales for its
most recent fiscal year and is not otherwise significantly related to the
company's business. As described in the Company's most recent Annual Report on
Form 10-K, the Company is one of the largest coal producers in the United States
and operates in two principal business units: coal (mining, preparation and
marketing of steam coal and metallurgical coal) and gas (the production of
pipeline quality coalbed methane gas). The Company is not an electric utility
and is not in the business of operating power plants to generate electricity.
For its fiscal year ended December 31, 2005, the Company had total revenue and
other income of approximately $3.8 billion, net earnings of approximately $581
million and total assets of $5.1 billion. The Company does not operate any power
plants. The only interest the Company has in any power plant is through CNX Gas.
CNX Gas is a listed New York Stock Exchange company of which the Company owns
approximately 83%. The Company's gas operations are primarily conducted through
CNX Gas. CNX Gas through a joint venture with a major eastern power utility owns
an interest in an 88-megawatt, gas fired, electric generating facility in
Virginia. The facility does not operate year round and is operated by the
utility on an as needed basis to meet its peak load demands for electricity. As
of year end 2005 as well as of the nine months ended September, 2006, the
investment in this facility represented less than 1% of the Company's (as well
as CNX Gas') total assets, CNX Gas' share of the revenues from it represented
less than 1% of the Company's (as well as CNX Gas') gross sales and CNX Gas'
share of the net earnings represented less than 1% of the Company's (as well as
CNX Gas') net income. This peaker facility is not significant and the Proposal
lacks relevance to the Company.
II. Rule 14a-8(i)(6)THE PROPOSAL MAY BE OMITTED IF THE COMPANY LACKS THE POWER
OR AUTHORITY TO IMPLEMENT THE PROPOSAL.
A company is not required to include a proposal which the company lacks the
power or authority to implement. Neither the Company nor CNX Gas operate any
power plants. The Company cannot address or take actions to reduce carbon
dioxide or other emissions from power plants. Thus, the Company lacks power and
authority to address emissions from power plant operations.
Conclusion
For the reasons given above, we respectfully request that the Staff not
recommend any enforcement action from the Commission if the Company omits the
Proposal from its 2007 proxy materials. If the Staff disagrees with the
Company's conclusion to omit the proposal, we request the opportunity to confer
with the Staff prior to the final determination of the Staff's position.
Notification and a copy of this letter is simultaneously being forwarded to the
Proponent.
Should you have any questions or require additional information, please contact
the undersigned at (412) 562-8953.
Very truly yours,
/s/
Lewis U. Davis, Jr.
cc: William C. Thompson, Jr.
Comptroller, City of New York
-----FOOTNOTES-----
1 The five funds on whose behalf the proposal was submitted are the New York
City Employees' Retirement System, the New York City Teachers' Retirement
System, the New York City Police Pension Fund, the New York City Fire Department
Pension Fund and the New York City Board of Education Retirement System.
[INQUIRY LETTER]
November 6, 2006
Mr. P. Jerome Richey
Vice President, General Counsel and Secretary
Consol Energy, Inc.
1800 Washington Road
Pittsburgh, PA 15241
Dear Mr. Richey:
The Office of the Comptroller of New York City is the custodian and trustee of
the New York City Employees' Retirement System, the New York City Teachers'
Retirement System, the New York City Police Pension Fund, and the New York City
Fire Department Pension, and custodian of the New York City Board of Education
Retirement System (the "funds"). The funds' boards of trustees have authorized
me to inform you of our intention to offer the enclosed proposal for
consideration of stockholders at the next annual meeting.
I submit the attached proposal to you in accordance with rule 14a-8 of the
Securities Exchange Act of 1934 and ask that it be included in your proxy
statement.
Letters from The Bank of New York certifying the funds' ownership, continually
for over a year, of shares of Consol Energy, Inc. common stock are enclosed. The
funds intend to continue to hold at least $2,000 worth of these securities
through the date of the annual meeting.
We would be happy to discuss this initiative with you. Should the board decide
to endorse its provisions as company policy, our funds will ask that the
proposal be withdrawn from consideration at the annual meeting. Please feel free
to contact me at (212) 669-2651 if you have any further questions on this
matter.
Very truly, yours,
/s/
Patrick Doherty
pd:ma
Enclosures
[APPENDIX]
CLIMATE CHANGE
Submitted by William C. Thompson, Jr., Comptroller, City of New York, on behalf
of the Boards of Trustees of the New York City Pension Funds
WHEREAS:
In 2005, the scientific academies of 11 nations, including the U.S., stated
that, "The scientific understanding of climate change is now sufficiently clear
to justify nations taking prompt action. It is vital that all nations identify
cost-effective steps that they can take now, to contribute to substantial and
long-term reductions in net global greenhouse gas emissions."
A 2004 Conference Board report declared that, "scientific consensus that the
climate is changing is growing steadily stronger over time; Corporate boards
will be increasingly expected to evaluate potential risks associated with
climate change; and, the global economy will become less carbon-intensive over
time...The real questions are what the pace of the transition will be and who
will be the winners and losers."
U.S. power plants are responsible for nearly 40 percent of the country's carbon
dioxide emissions, and 10 percent of global carbon dioxide emissions.
In June 2005, a majority of U.S. Senators voted in favor of a resolution stating
that, "...Congress should enact a comprehensive and effective national program
of mandatory, market-based limits on emissions of greenhouse gases that slow,
stop, and reverse the growth of such emissions..."
Over the past several years, AEP, Cinergy, DTE Energy, TXU, and Southern Company
have issued comprehensive reports to shareholders about the implications of
climate change for their businesses. AEP stated, "some initial mandatory
reductions of greenhouse gas emissions are likely in the next decade..."
Nine northeastern states are developing the Regional Greenhouse Gas Initiative,
which aims to significantly reduce emissions from electric power companies and
develop a market to trade emissions allowances. California plans to reduce the
state's emissions of greenhouse gases to 2000 levels by 2010, 1990 levels by
2020, and 80 percent below 1990 levels by 2050.
In February 2005, the Kyoto Protocol took effect, imposing mandatory greenhouse
gas limits on the 148 participating nations. Companies with operations in those
nations must reduce or offset some of their greenhouse gas emissions. For
example, companies with operations in Europe can make reductions using the
European emissions trading program, where CO2 has regularly traded for more than
$20 per ton.
The California Public Utilities Commission now expects all utilities to add a
greenhouse gas cost of $8/ton of CO2 in all long-term power contracts, and the
Colorado Public Utilities Commission agreed that Xcel Energy should assume a $9
per ton cost for a new coal power plant.
RESOLVED: Shareholders request a report [reviewed by a board committee of
independent directors] on how the company is responding to rising regulatory,
competitive, public pressure to significantly reduce carbon dioxide and other
emissions from the company's current and proposed power plant operations. The
report should be provided by September 1, 2007 at a reasonable cost and omit
proprietary information.
[INQUIRY LETTER]
February 7, 2007
BY EMAIL AND EXPRESS MAIL
Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
Re: Consol Energy Inc.; Shareholder Proposal submitted by the New York City
Pension Funds
To Whom It May Concern:
I write on behalf of the New York City Pension Funds (the "Funds") in response
to the January 2, 2007 letter sent to the Securities and Exchange Commission
(the "Commission") by Lewis U. Davis, Jr. of the firm of Buchanan, Ingersoll &
Rooney, counsel to Consol Energy Inc. ("Consol" or the "Company"). In that
letter, the Company contends that the Funds' shareholder proposal (the
"Proposal"), seeking a report on the Company's response to pressures to reduce
emissions from its power plants, may be omitted from the Company's 2007 proxy
statement and form of proxy (the "Proxy Materials") pursuant to Rules
14a-8(i)(5) and (i)(6) under the Securities Exchange Act of 1934. Based upon my
review of the Proposal, as well as the Company's January 2, 2007 letter and Rule
14a-8, it is my opinion that the Proposal may not be omitted from the Company's
2007 Proxy Materials. In particular, greenhouse gas emissions from power plants
and other sources, and the resulting climate change, are major social issues,
and an appropriate subject for a Proposal to Consol, which owns a 50% share in
two power plants through a joint venture of its CNX Gas subsidiary. At the same
time, the Company's website emphasizes that a key part of the Company's
strategic plan is for it to own more coal and gas-fired power plants. As such,
power plants, and the emissions from them, are significantly related to the
Company's business, notwithstanding that those operations currently account for
less than 5% of the Company's assets and revenues. Accordingly, the Funds
respectfully request that the Division of Corporation Finance (the "Division")
deny the relief that the Company seeks.
I. The Proposal
The Proposal consists of a series of whereas clauses followed by a resolution.
The whereas clauses set out current information with respect to emissions of
carbon dioxide and other greenhouse gases, the resultant climate change, and
steps that are being taken to address the problem. The Resolved clause then
states:
RESOLVED: Shareholders request a report [reviewed by a board committee of
independent directors] on how the company is responding to rising regulatory,
competitive, public pressure to significantly reduce carbon dioxide and other
emissions from the company's current and proposed power plant operations. The
report should be provided by September 1, 2007 at a reasonable cost and omit
proprietary information.
II. The Company's Opposition and the Funds' Response
In its January 2, 2007 letter, the Company requested that the Division not
recommend enforcement action to the Commission if the Company omits the Proposal
under SEC Rules: 14a-8(i)(5) (excludible as relating to operations which account
for less than 5 percent of the company's total assets, net earnings and gross
sales, and not otherwise significantly related to the company's business); and
14a-8(i)(6) (company lacks power to implement proposal). Pursuant to Rule
14a-8(g), the Company bears the burden of proving that the exclusions apply. As
detailed below, the Company has failed to meet that burden and its request for
"no-action" relief should accordingly be denied.
A. The Proposal is Significantly Related to the Company's Business as a Whole
and May Not Be Omitted Under Rule 14a-8(i)(5).
Consol has a 50% interest in power plants known as The Buchanan Generation, LLC,
Units 1 and 2, through a joint venture between its 83% subsidiary, CNX Gas, and
Allegheny Energy Supply. Consol claims that it may omit the Proposal under Rule
14a-8(i)(5) because those power plant operations account for much less than 5%
of its assets and revenues, and so "lack relevance to the Company's business."
The Company's letter adds: "The Company is not an electric utility and is not in
the business of operating power plants to generate electricity." (Letter at p.
2). As detailed below, not only are greenhouse gas emissions a major public
concern, but Consol's own public statements also show that expanding its power
plant operations is a key part of its long-term strategy. For both of those
reasons, the Proposal is "otherwise significantly related" to the Company's
business under Rule 14a-8(i)(5), regardless of the fact that power plants
currently account for less than 5% of its assets and revenues. The Proposal,
therefore, may not be omitted.
In adopting the (c)(5) predecessor to the (i)(5) exclusion in 1976, the
Commission stated that this exclusion is not to be applied mechanically, and
"the Commission does not believe that subparagraph (c)(5) should be hinged
solely on the economic relativity of a proposal." That is because "there are
many instances in which the matter involved in a Proposal is significant to an
issuer's business even though the significance is not apparent from an economic
standpoint." Release No. 34-12999 (December 3, 1976). Moreover, as the
Commission stated in 1983, in situations "where the proposal has reflected
social or ethical issues, rather than economic concerns, raised by the issuer's
business, and the issuer conducts any such business, no matter how small, the
staff has not issued a `no-action' letter with respect to the omission of the
proposal..." (Emphasis added.) Release No. 34-20091 (August 16, 1983).
Here, the Proposal is a proper one, both because it raises significant social
issues that pertain directly to the Company's current power generation
operations through the CNX Gas joint venture, and also because the Company has
repeatedly stated its intention to greatly expand those operations.
Emissions of carbon dioxide and other greenhouse gases, as the major cause of
global climate change, are now a subject of great social concern. In his January
23, 2007 State of the Union address, President Bush spoke of the need "to
confront the serious challenge of global climate change." See
www.whitehouse.gov/news/releases/2007/01/20070123-2.html On February 2, 2007, as
also reported on the White House website, "The United States joined 112 other
nations in finalizing and approving a landmark climate change science report."
www.whitehouse.gov/news/releases/2007/02/20070202.html As summarized by the
leader of the U.S. delegation at the meeting that approved the report, it
includes "the finding that the Earth is warming and that human activities have
very likely caused most of the warming of the last 50 years." Id. The report's
Summary for Policymakers, at www.ipcc.ch/SPM2feb07.pdf, specifically notes that
"Most of the observed increase in globally averaged temperatures since the
mid-20\th/ century is very likely due to the observed increase in anthropogenic
greenhouse gas concentrations" and that "Continued greenhouse gas emissions at
or above the current rates would cause further warming and induce many changes
in the global climate system during the 21\st/ century that would very likely be
larger than those observed during the 20\th/ century." Id. at pp. 10 and 13
(emphases in original). The Proposal thus raises significant social issues
directly related to the Company's business. Those serious social policy issues,
by themselves, should preclude the use of Rule 14a-8(i)(5) as a basis for
omitting the Proposal.
Moreover, the Company has stated that expanding its current ownership of power
plants is a key part of its forward-looking strategy. As detailed below, Consol
has consistently highlighted its joint venture ownership interest in its two
power plants, and has also represented its future intention to be a "major
stakeholder" in future power plants for the generation of electricity from coal
or methane gas.
Consol's intent to be a "major stakeholder" in future power plants would be
particularly significant to the Company and its shareholders, and the greenhouse
gas emissions from such plants would also be a heightened social concern,
because Consol has some of the nation's largest holdings of coal and methane gas
to fuel such power plants. As noted in the Company's January 26, 2007 press
release announcing its latest quarterly dividend:
CONSOL Energy Inc., through its subsidiaries, is the largest producer of
high-Btu bituminous coal in the United States. In addition, the company is a
majority shareholder in one of the largest U.S. producers of coalbed methane,
CNX Gas Corporation.
The Company's public emphasis on the future significance and expansion of its
power plant operations is clear from the homepage of its website,
consolenergy.com. A prominent box at the top and center of that homepage
flashes, in alternation, six key facts and images about the Company. One of
those images shows an electrical transformer, with the statement "CONSOL
recently entered into a joint venture in an 88 megawatt power generation
station." (A screen print of that homepage, and copies of all other webpages and
press releases from Consol's website cited in our letter, are appended to this
letter as Exhibit A). Clicking on the "Learn More" link leads to the CNX
Ventures webpage, at consolenergy.com/main.asp?c=CNXVentures. The entire
emphasis of that page is on Consol's power plant operations. It is headed "CNX
Ventures seeks to expand CONSOL Energy's core businesses of coal and gas by
developing partnerships with others." Two of three subheadings then refer to the
power plants: "CONSOL Energy enters into the power generation business. Coalbed
methane-fired power station in Virginia joint venture" and "The Buchanan
Generation, LLC, Units 1 and 2 are a joint venture with Allegheny Energy
Supply." Both subheadings provide links to a Consol press release about its
power plant venture with Allegheny.
That press release then explains how the power plants are a strategic key to
Consol's future:
"This plant is the first step in a long-term goal to add fuel-linked power
generation to our portfolio of products," said J. Brett Harvey, president and
chief executive officer of CONSOL Energy. "We have successfully moved CONSOL
Energy from a coal mining company to a multi-fuel energy producer with the
development of our coalbed methane gas operations. Linking power generation to
our fuel production is a next logical step for us to take in our strategic
evolution."
Tying that strategic evolution to Consol's production and reserves, the press
release then adds "Harvey noted that coal and gas, the two fuels CONSOL Energy
produces, supply two-thirds of U.S. electricity generation." Id.
Other materials on Consol's website similarly emphasize that using the Company's
plentiful coal and gas to fuel Consol's expanded future power plant operations
is a key to the Company's strategic plans. In a 2003 keynote address to mining
professionals, Consol's President and CEO stated:
Today I see two models [for coal producers]. One dominant, one emerging.
* * *
The second model is one that is just beginning to emerge. Here, the core idea
will be to create a new energy producing company, not built around hydrocarbons
as the oil industry did, but built around electricity. However, this is not the
simple backward integration model of the regulated utility industry. It will be
the aggregation of power, coal and natural gas assets - linked, yet independent.
Coal and gas, while providing fuel to in-house generating assets will
nevertheless not be captive to the generation. They will stand on their own.
Each marketing product not only to its generation partner but also to the market
at large.
I see the power-coal-gas model as a very powerful one, capturing value all along
the production chain, maximizing the value of each component part, serving an
enormous and growing market.
Similarly, the text on the webpage "About CONSOL Energy" emphasizes the
Company's strategic move into electricity production: "Through expansion and
acquisitions, CONSOL Energy has evolved from a single-fuel mining company into a
multi-energy producer of coal, gas and electricity."
www.consolenergy.com/main.asp?c=AboutConsol
Consol has continued in 2007 to represent publicly that expanded Company power
plant operations are a core part of its future strategy. A January 11, 2007
press release, posted on Consol's website, publicized the two new pilot-project
power plants that Consol had just completedin addition to its existing joint
venture power plants with Allegheny Energy Supply. Consol's release, titled
"CONSOL Energy Demonstrates Two Clean Power Generation Technologies Using
Alternative Fuels," stated in part:
CONSOL Energy Inc. (NYSE:CNX), along with several partners, has successfully
demonstrated two clean power generation technologies which make use of
alternative fuels, including coal waste and coal-based methane, a greenhouse
gas.
"Along with all of our partners, CONSOL Energy is extremely pleased with the
performance and potential applications of these technologies," said J. Brett
Harvey, CONSOL Energy president and chief executive officer. "With demand for
electricity anticipated to grow during the next decade, we believe these clean
power technologies, and others like them, will help to meet that demand while
controlling emissions of greenhouse gases."
"Our goal is to be a major stakeholder in such projects to ensure the
environmentally sound and efficient use of coal, methane gas and alternative
fuels."
In sum, the Company's own statements make clear that its current power plant
operations are but the beginning of what the Company hopes will be a major
Company power plant business. Such plants fueled by Consol's massive coal and
gas holdings could, of course, also be a major source of new greenhouse gas
emissions, and so both Consol shareholders and the general public have a real
interest in learning how the Company is responding to pressures to reduce carbon
dioxide and other emissions.
Because both Company shareholders and the general public have a legitimate
interest in how Consol will deal with the emissions from its current and future
power plants, the (i)(5) exclusion has no application here. In a number of
cases, the Division has denied requests for "no-action" relief under Rule
14a-8(i)(5) where company operations were "otherwise significantly related to
the company's business," although the assets, earnings and sales related to
those operations did not meet the Rule's 5% thresholds, often by a wide margin.
See, e.g., Bank of America Corp. (Jan. 12, 2007) (proposal seeking reduction of
company's investments in Israel; no-action relief denied despite company
statement that it had "no revenues or net income from operations present in
Israel... no employees, branches or [ATMs] in Israel.... The Corporation has de
minimus assets in Israel, its only two Israel based subsidiaries having been
dormant for a number of years."); General Electric Co. (Jan. 28, 2005) (proposal
seeking report on company operations in Iran; Staff wrote that "We are of the
view that the proposal is `otherwise significantly related to' GE's business");
Conoco Phillips (Jan. 5, 2004) (proposal seeking report on environmental damage
from potential future oil drilling in Arctic National Wildlife Refuge; no-action
relief denied despite company statement that such "potential operations ...
account for zero percent of the Company's total assets and for zero percent of
its net earnings and gross sales at the end of 2003, the Company's most recent
fiscal year"); Halliburton Company (March 14, 2003) (proposal seeking report on
company operations in Iran); Halliburton Company (February 26, 2001) (proposal
seeking report on company projects in Burma).
The Company's current and prospective power plant operations distinguish Arch
Coal, Inc. (Jan. 19, 2007), in which, without objection from the Funds, the
Staff granted no-action relief with respect to the Funds' identical Proposal, on
the basis of the company's "representation that Arch Coal does not have any
power plant operations." Here, Consol has existing power plant operations, and
has publicly represented that it intends to expand them significantly.
Accordingly, Rule 14a-8(i)(5) provides no basis for the Company to exclude the
Funds' Proposal, which raises an issue of great social concern, and also relates
directly to a current and expanding part of the Company's business.
B. The Company Can Fully Implement the Proposal, and so the Proposal Cannot be
Omitted Under Rule 14a-8(i)(6)
Consol makes the further argument that the Proposal can be omitted under Rule
14a-8(i)(6) because "Neither the Company nor CNX Gas operate any power plants.
The Company cannot address or take actions to reduce carbon dioxide or other
emissions from power plants." (Consol letter at p.3). That argument fails for
two reasons. First, as shown above, Consol is a joint venturer in existing power
operations through CNX Gas; as its website proclaims "CONSOL Energy enters into
the power generation business." It is also planning on expanding its power plant
ownership and/or operations. As such, Consol would be in a position to take
steps, or to require a co-venturer to take steps, to reduce carbon dioxide and
other emissions. Second, in any event, the Proposal does not require Consol
itself to reduce emissions, but only to report on how it is responding to
pressure to reduce emissions. Consol can certainly issue a report, even if, as a
"major stakeholder" in power plants, it does not directly operate those power
plants. Accordingly, Consol can fully implement the Proposal by issuing the
requested report, and so Rule 14a-8(i)(6) provides no basis for the Company to
exclude the Funds' Proposal.
III. Conclusion
For the reasons stated above, the Funds respectfully submit that the Company's
request for "no-action" relief should be denied. Should you have any questions
or require any additional information, please contact me.
Thank you for your time and consideration.
Sincerely,
/s/
Richard S. Simon
Cc: Lewis U. Davis, Esq.
Buchanan, Ingersoll & Rooney PC
One Oxford Center
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
[STAFF REPLY LETTER]
March 23, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: CONSOL Energy Inc. Incoming letter dated January 2, 2007
The proposal requests a report reviewed by a board committee of independent
directors on how the company is responding to rising regulatory, competitive,
and public pressure to significantly reduce carbon dioxide and other emissions
from the company's power plant operations.
We are unable to concur in your view that CONSOL may exclude the proposal under
rule 14a-8(i)(5). Accordingly, we do not believe that CONSOL may omit the
proposal from its proxy materials in reliance on rule 14a-8(i)(5).
We are unable to concur in your view that CONSOL may exclude the proposal under
rule 14a-8(i)(6). Accordingly, we do not believe that CONSOL may omit the
proposal from its proxy materials in reliance on rule 14a-8(i)(6).
Sincerely,
/s/
Tamara M. Brightwell
Special Counsel
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