Legislative / Regulatory Update Jason D. Bostic West Virginia Coal Association March 30, 2010.

Legislative / Legislative / Regulatory UpdateRegulatory Update

Jason D. Bostic Jason D. Bostic West Virginia Coal AssociationWest Virginia Coal Association

March 30, 2010 March 30, 2010

Introduction Introduction Regulatory Review (its been a tough Regulatory Review (its been a tough

year) year) -New federal initiatives -New federal initiatives

-OSM-OSM-EPA -EPA

Spruce Veto ActionSpruce Veto Action

Legislative Review Legislative Review

Progress (?)Progress (?)

New Federal Initiatives: New Federal Initiatives: OSM OSM

Stream Buffer Zone Rule Stream Buffer Zone Rule -Re-examine the 2008 Rule -Re-examine the 2008 Rule -EIS(?) -EIS(?) -AOC -AOC -Material damage -Material damage

Inspection and OversightInspection and Oversight-Independent (and more) inspections -Independent (and more) inspections -Less technical support and technical transfer -Less technical support and technical transfer

activities activities Oversight of State-Issued Permits Oversight of State-Issued Permits

-Use the TDN process to “correct” state permits-Use the TDN process to “correct” state permits Independent report of mine-specific factors to OSM Independent report of mine-specific factors to OSM Think MSHA and WV OMHS&TThink MSHA and WV OMHS&T

EPA EPA

Comments on Section 404 permits Comments on Section 404 permits Review and comment on Section 402 permitsReview and comment on Section 402 permits Waste treatment exclusion Waste treatment exclusion Mitigation Mitigation Various categories of 404 permits Various categories of 404 permits

-original list -original list

-ECP list -ECP list

-”normal” submissions -”normal” submissions Ecological assessment of surface mining Ecological assessment of surface mining

(think EIS) (think EIS) Two permits issued (heavily conditioned)Two permits issued (heavily conditioned)

EPA continued… EPA continued…

Using Section 404 process as Using Section 404 process as ad-hocad-hoc water quality standards program: water quality standards program:

Coal mining causes “significant Coal mining causes “significant degradation” because the degradation” because the

benthic shift observed below benthic shift observed below discharges (of any type) discharges (of any type)

constitutes a violation of constitutes a violation of West West Virginia’sVirginia’s narrative water quality narrative water quality

standardsstandards

Narrative Standard Narrative Standard

EPA vs. West Virginia EPA vs. West Virginia

EPA vs. Corps EPA vs. Corps

““Cold War” Cold War” EPA: Violation of narrative standards EPA: Violation of narrative standards

WV DEP: benthic shift alone NOT a WV DEP: benthic shift alone NOT a violationviolation

Corps: Water quality issues addressed Corps: Water quality issues addressed by WV DEP through Section 402 permit by WV DEP through Section 402 permit and Section 401 certification process and Section 401 certification process

=Stalemate =Stalemate

EPA Continues to MoveEPA Continues to Move

Ecological assessment expanded– Ecological assessment expanded– consideration of consideration of ““Regional Advisory Regional Advisory Criteria”Criteria” for conductivity for conductivity

Advisory criteria Advisory criteria necessary to allow necessary to allow EPAEPA to to interpret interpret STATESTATE narrative narrative

standards standards

Permitting Situation Permitting Situation

Three section 404 permits issued since new Three section 404 permits issued since new day of federal involvement day of federal involvement

2/3 heavily conditioned-- compliance with 2/3 heavily conditioned-- compliance with un-promulgated in-stream threshold of un-promulgated in-stream threshold of conductivity… further development of the conductivity… further development of the operation is conditioned on meeting this operation is conditioned on meeting this (illegal) threshold (illegal) threshold

Two veto proceedings– Threat in Kentucky Two veto proceedings– Threat in Kentucky and initiation of process in West Virginia and initiation of process in West Virginia

Observations…Observations…

Objections know no boundsObjections know no bounds

--NOT aboutNOT about Central Appalachian surface Central Appalachian surface mining mining

--NOT aboutNOT about the size or type (MTM) of mining the size or type (MTM) of mining operation operation

--NOT aboutNOT about valley fills valley fills

--NOT aboutNOT about a treatment solution a treatment solution

-Cannot “reduce, restrict or mitigate” your -Cannot “reduce, restrict or mitigate” your way out of this way out of this

--IT IS ABOUT the proper interpretation IT IS ABOUT the proper interpretation and implementation of federal and state and implementation of federal and state water laws and standards water laws and standards

Recap:Recap:

EPA & Section 404 PermittingEPA & Section 404 Permitting

EPA: Permits will cause or contribute EPA: Permits will cause or contribute to violation of West Virginia waters to violation of West Virginia waters

WV DEP: NO, that’s not the intended WV DEP: NO, that’s not the intended scope or purpose of the WQStdsscope or purpose of the WQStds

Corps- defers to the state on water Corps- defers to the state on water issues issues

Spruce Mine Veto Spruce Mine Veto

ActionAction Full EIS conducted Full EIS conducted 10 years of review 10 years of review Permit issued in 2007Permit issued in 2007 Work on permit Work on permit

started started EPA starts the processEPA starts the process Ask Corps to suspend Ask Corps to suspend Corps collects Corps collects

information and says information and says NONO

EPA issues press EPA issues press release on Friday release on Friday

Spruce Veto Action…Spruce Veto Action… Only 12 404(c) actions Only 12 404(c) actions

since 1972 since 1972

Never used against an Never used against an already issued and already issued and operating permit operating permit

EPA “signed off” on the EPA “signed off” on the Spruce permit in 2007 Spruce permit in 2007

Tonnage, operational / Tonnage, operational / disturbed area reduced disturbed area reduced

Spruce Veto Action…Spruce Veto Action…

Legislative Report: Legislative Report: 2010 Regular Session2010 Regular Session

3,370 bills introduced; 219 completed 3,370 bills introduced; 219 completed Legislative action Legislative action

““Quiet” sessionQuiet” session

-no rule packages -no rule packages

-everybody wanted to help -everybody wanted to help

-House / Senate held hearings on -House / Senate held hearings on permitting situation permitting situation

Legislative Details… Legislative Details… passed passed

SB 496– WV DEP Advisory Council SB 496– WV DEP Advisory Council SB 507- Tax credit for the deployment of SB 507- Tax credit for the deployment of

innovative mine safety technology innovative mine safety technology SB 518- New coal-related responsibilities SB 518- New coal-related responsibilities

for WV DOE for WV DOE HCR 50- Study of tax and fee burden on HCR 50- Study of tax and fee burden on

coal industry coal industry SCR 9- Opposes national cap & trade SCR 9- Opposes national cap & trade

legislation legislation

Legislative Details… Legislative Details… FAILEDFAILED

HB 4001- Limits for TDS/ conductivity at 500; HB 4001- Limits for TDS/ conductivity at 500; schedule, reason and amount of water schedule, reason and amount of water withdrawals, disclosure of oil & gas withdrawals, disclosure of oil & gas discharge water constituents and amounts discharge water constituents and amounts

SB 211- State Section 404-like dredge and SB 211- State Section 404-like dredge and fill regulatory program fill regulatory program

HB 4457 (amended) relating to access to HB 4457 (amended) relating to access to cemeteries… originally coal only… increase cemeteries… originally coal only… increase buffer zone, required “full and free access” buffer zone, required “full and free access” to sites to sites

And… bans on coal slurry injection, coal And… bans on coal slurry injection, coal impoundment construction, etc. impoundment construction, etc.

Senate Concurrent Resolution Senate Concurrent Resolution 6161

EPA Not to Veto / Revoke the Spruce EPA Not to Veto / Revoke the Spruce Mine Permit and…Mine Permit and…

House Concurrent Resolution 111House Concurrent Resolution 111

House Concurrent Resolution 111House Concurrent Resolution 111

House Concurrent Resolution 111House Concurrent Resolution 111

Summary Summary

Interpretation and implementation of Interpretation and implementation of narrative standards is the job of the narrative standards is the job of the Legislature and WV DEP Legislature and WV DEP

Any interpretation of those standards must Any interpretation of those standards must comply with the Legislature’s will and intent comply with the Legislature’s will and intent ((reasonable standards of purity to reasonable standards of purity to protect environment and promote protect environment and promote developmentdevelopment) )

WVWPCA was not and does not afford special WVWPCA was not and does not afford special categories of protection to specific species of categories of protection to specific species of bugs BUT DOES seek to protect the stream bugs BUT DOES seek to protect the stream and aquatic life as a “whole”and aquatic life as a “whole”

Progress (?)Progress (?)

Everyone struggling Everyone struggling for a solution for a solution

Governor, Governor, Congressional Congressional Delegation, Delegation, Legislature Legislature

Its all about Its all about interpretation and interpretation and implementation of implementation of narrative standardsnarrative standards

Questions ???Questions ???