Regulatory & Legislative Update Jason Bostic April 22, 2008 West Virginia Mine Drainage Task Force.

Regulatory & Legislative Regulatory & Legislative

UpdateUpdate

Jason Bostic Jason Bostic April 22, 2008April 22, 2008

West Virginia Mine Drainage Task ForceWest Virginia Mine Drainage Task Force

Introduction Introduction

Legislative UpdateLegislative Update

-Stream Tier Controversy -Stream Tier Controversy

-WQS and Trout Streams -WQS and Trout Streams

-Special Reclamation Fund -Special Reclamation Fund

Regulatory IssuesRegulatory Issues

Brief Legal UpdateBrief Legal Update

2008 Legislative Session2008 Legislative Session

Tier 2.5 Stream Controversy Tier 2.5 Stream Controversy Part of Anti-Deg Program Part of Anti-Deg Program Required List to be Approved by Required List to be Approved by

LegislatureLegislature

-Legislative Deadlock Last Year -Legislative Deadlock Last Year

-Changing Numbers -Changing Numbers

-309 (original) -309 (original)

-156 (2008) -156 (2008)

-38 (Committee -38 (Committee amendment)amendment)

2008 Legislative Session2008 Legislative Session Frustration on All Sides Frustration on All Sides

Viewed by the Senate as a failed Viewed by the Senate as a failed Compromise Compromise

After Committee Actions, Amendment After Committee Actions, Amendment on the Floor During Debate on Bill on the Floor During Debate on Bill Passage Passage

2008 Legislative Session2008 Legislative Session

Kessler Amendment Kessler Amendment

-Strike Tier 2.5 Category Completely -Strike Tier 2.5 Category Completely

-Return to Tier Definitions that -Return to Tier Definitions that Existed Before Tier 2.5 was Enacted Existed Before Tier 2.5 was Enacted

-Problem: Tier 3.0 Definition Too -Problem: Tier 3.0 Definition Too

Broad Broad

-Why? Before Anti-Deg -Why? Before Anti-Deg Implementation Program, Tiers Implementation Program, Tiers Meaningless Meaningless

Not Explained on the Floor in DetailNot Explained on the Floor in Detail

2008 Legislative Session2008 Legislative Session

In the House In the House

-Compromise Language to Narrow -Compromise Language to Narrow

Scope the Tier 3.0 Scope the Tier 3.0

-Amendment Attempt to Return Tier -Amendment Attempt to Return Tier

3.0 to Pre-Kessler Definition (failed)3.0 to Pre-Kessler Definition (failed)

-Passed the House -Passed the House

2008 Legislative Session2008 Legislative Session

Confusion Over Intent of Confusion Over Intent of Amendment and Actual Effect Amendment and Actual Effect

-Try Another Amendment? -Try Another Amendment?

--Agency Leadership to Agency Leadership to ResolveResolve

-Interpretative Rule -Interpretative Rule

-Published Last Week, Open -Published Last Week, Open for for Comment Until June 3, 2008 Comment Until June 3, 2008

2008 Legislative Session2008 Legislative Session Trout Stream List Trout Stream List

-W.Va. Has Codified Stream List in -W.Va. Has Codified Stream List in WQS Rule WQS Rule -Trout Stream Receive Lower -Trout Stream Receive Lower Effluent Effluent

Limits Limits -Agency-proposed Expansion of List -Agency-proposed Expansion of List by 300 plus Streams by 300 plus Streams -Validity of Listings Questioned -Validity of Listings Questioned -On the List, There Forever -On the List, There Forever -Limited Ability to Dispute Findings -Limited Ability to Dispute Findings

2008 Legislative Session2008 Legislative Session

Trout Stream List Trout Stream List

-Senate Amended to Expansion of -Senate Amended to Expansion of Codified List Codified List

-Preserved Everybody’s Rights -Preserved Everybody’s Rights

-WV DEP will Assign Limits to -WV DEP will Assign Limits to Protect Trout Stream Protect Trout Stream

-Permittee can Appeal Limits -Permittee can Appeal Limits to to EQB EQB

2008 Legislative Session2008 Legislative Session Senate Bill 751 Senate Bill 751 Special Reclamation Fund (ABS) Special Reclamation Fund (ABS) Actuarial Study Indicates the SRF Actuarial Study Indicates the SRF

will be in the Red by 2010 will be in the Red by 2010 Threat of Litigation Threat of Litigation Proposal to Increase per-ton Coal Proposal to Increase per-ton Coal

Tax to Prevent Deficiency Tax to Prevent Deficiency Increase from 7 Cents to 14 Cents Increase from 7 Cents to 14 Cents

for One Year for One Year

2008 Legislative Session2008 Legislative Session

Other Bills that Passed Other Bills that Passed

-SB 641 Water Withdrawal -SB 641 Water Withdrawal Survey Survey

Bills that Didn’t Pass Bills that Didn’t Pass

-Mining Adjacent to -Mining Adjacent to

Cemetery Cemetery

-Mountaintop Mining Bill -Mountaintop Mining Bill

Regulatory Issues Regulatory Issues Section 404 PermittingSection 404 Permitting

-Huntington District is Issuing -Huntington District is Issuing Permits Permits

-Litigation in Kentucky has Halted -Litigation in Kentucky has Halted the the

Louisville District Louisville District

-Jurisdictional Determinations -Jurisdictional Determinations

-New Federal Mitigation Rule -New Federal Mitigation Rule

Corps of EngineersCorps of Engineers My Compliments My Compliments

-Difficult Permitting Workload -Difficult Permitting Workload

-Threat of / Under Litigation -Threat of / Under Litigation

-Difficult Industry -Difficult Industry

-Protecting the Environment -Protecting the Environment

Regulatory IssuesRegulatory Issues W.Va. Article III / SMCRA W.Va. Article III / SMCRA

PermittingPermitting

-Stability and Predictability Returned -Stability and Predictability Returned

-Agency Facing Personnel Crisis -Agency Facing Personnel Crisis

-Dealing with Influx of FOIA Requests-Dealing with Influx of FOIA Requests

-Material Damage Amendment -Material Damage Amendment (OSM) (OSM)

Regulatory IssuesRegulatory Issues State Section 401 CertificationState Section 401 Certification

-Significant Progress to Address -Significant Progress to Address

Concerns Concerns

--Agency LeadershipAgency Leadership

-Environmental Protection -Environmental Protection Enhanced Enhanced

Regulatory IssuesRegulatory Issues Section 402 / NPDESSection 402 / NPDES

-Tracking / Reporting Issues -Tracking / Reporting Issues

-Lots of Permits and Outlets -Lots of Permits and Outlets

-Look Forward to Helping the Agency -Look Forward to Helping the Agency

-Resolution Beneficial to Everyone -Resolution Beneficial to Everyone

Regulatory IssuesRegulatory Issues MSHA Design Manual for Coal MSHA Design Manual for Coal

Refuse Impoundments and Refuse Impoundments and StructuresStructures

-Big Document -Big Document

-Lots of Science and Mathematics -Lots of Science and Mathematics

-Big Changes -Big Changes

-Need More Time -Need More Time

Legal Update Legal Update

Still under Attack Still under Attack

-404 / 402 / SMCRA -404 / 402 / SMCRA

Chambers Decision Headed for Chambers Decision Headed for Richmond (Arguments on May 13) Richmond (Arguments on May 13)

SRF / Water Treatment Cases SRF / Water Treatment Cases Being Briefed Being Briefed

Legal UpdateLegal Update Corps Litigation Reignited Last Corps Litigation Reignited Last

Week Week -New Request for TRO and -New Request for TRO and Preliminary Injunction Preliminary Injunction

Preliminary Injunction to Treat Preliminary Injunction to Treat Selenium Selenium

MSHA / UMWA Litigation on Mine MSHA / UMWA Litigation on Mine Rescue Teams Rescue Teams

Outlook Outlook More of the Same More of the Same

Hopeful for Positive 4Hopeful for Positive 4thth Circuit Decision Circuit Decision

Lots to Do Lots to Do

Strong Coal Market Strong Coal Market

Maintain and Build RelationshipsMaintain and Build Relationships

Hang in There… One Step at a Time Hang in There… One Step at a Time

Soapbox Soapbox What is Environmental Protection What is Environmental Protection

??

SoapboxSoapbox Recent Testimony in Appeal of Se Orders:Recent Testimony in Appeal of Se Orders:

QQ :: Has OVEC ever sought money to Has OVEC ever sought money to explore treatment technologies for explore treatment technologies for selenium in the state of West Virginia selenium in the state of West Virginia and provided that technology to DEP?and provided that technology to DEP?

A: A: No. No.

Q:Q: Why Not? Why Not?

A:A: Didn’t Occur to Me.Didn’t Occur to Me.

SoapboxSoapbox

Q:Q: Do you know what technology Do you know what technology exists in exists in order to meet [Se] limits? order to meet [Se] limits?

A:A: No, I Don’t.No, I Don’t.

Q:Q: …You don’t know how anyone is …You don’t know how anyone is going going to comply if you end up with to comply if you end up with these these Order rescinded, Right? Order rescinded, Right?

A:A: Right.Right.

SoapboxSoapbox

West Virginia Mine Drainage Task West Virginia Mine Drainage Task Force Force

30 year history and mission of 30 year history and mission of bringing academia, industry and bringing academia, industry and regulators together to work for regulators together to work for practical, scientific-based solutions practical, scientific-based solutions for issues associated with mining for issues associated with mining and post-mining water discharges and post-mining water discharges

SoapboxSoapbox

Two National Award Wining Two National Award Wining Reforestation Efforts in W.Va. Reforestation Efforts in W.Va.

--Fola Coal Co. & ICG EasternFola Coal Co. & ICG Eastern

Arbor Day Celebrations at Both Arbor Day Celebrations at Both

-Planting Trees that Will One Day -Planting Trees that Will One Day Absorb the CO2 Emissions from Absorb the CO2 Emissions from the Coal Mined at the Same Site the Coal Mined at the Same Site

SoapboxSoapbox

What is Environmental What is Environmental Protection ?Protection ?

Just Want it to Stop, With No Idea How to Just Want it to Stop, With No Idea How to Solve the ProblemSolve the Problem

Or Or

Working Together to Find the SolutionWorking Together to Find the Solution

Working Tirelessly to Grow Trees on Mined Working Tirelessly to Grow Trees on Mined Land Land

OrOr

Using Electricity, Energy, Paper, Ink and Using Electricity, Energy, Paper, Ink and Internet Bandwidth (i.e. COAL) to Create Internet Bandwidth (i.e. COAL) to Create Judicial HurdlesJudicial Hurdles

Conclusion Conclusion Thanks for Your Continued Thanks for Your Continued

Support of the Association and Support of the Association and the Mine Drainage Task Force the Mine Drainage Task Force

Questions Questions