Transcript Regulatory & Legislative Update

Regulatory & Legislative
Update
Jason Bostic
April 22, 2008
West Virginia Mine Drainage Task Force
Introduction
Legislative
Update
-Stream Tier Controversy
-WQS and Trout Streams
-Special Reclamation Fund
Regulatory
Brief
Issues
Legal Update
2008 Legislative Session
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Tier 2.5 Stream Controversy
Part of Anti-Deg Program
Required List to be Approved by
Legislature
-Legislative Deadlock Last Year
-Changing Numbers
-309 (original)
-156 (2008)
-38 (Committee amendment)
2008 Legislative Session
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Frustration on All Sides
Viewed by the Senate as a failed
Compromise
After Committee Actions, Amendment on
the Floor During Debate on Bill Passage
2008 Legislative Session
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Kessler Amendment
-Strike Tier 2.5 Category Completely
-Return to Tier Definitions that Existed
Before Tier 2.5 was Enacted
-Problem: Tier 3.0 Definition Too
Broad
-Why? Before Anti-Deg Implementation
Program, Tiers Meaningless
Not Explained on the Floor in Detail
2008 Legislative Session

In the House
-Compromise Language to Narrow
Scope the Tier 3.0
-Amendment Attempt to Return Tier
3.0 to Pre-Kessler Definition (failed)
-Passed the House
2008 Legislative Session

Confusion Over Intent of Amendment
and Actual Effect
-Try Another Amendment?
-Agency Leadership to Resolve
-Interpretative Rule
-Published Last Week, Open for
Comment Until June 3, 2008
2008 Legislative Session

Trout Stream List
-W.Va. Has Codified Stream List in
WQS Rule
-Trout Stream Receive Lower Effluent
Limits
-Agency-proposed Expansion of List by
300 plus Streams
-Validity of Listings Questioned
-On the List, There Forever
-Limited Ability to Dispute Findings
2008 Legislative Session

Trout Stream List
-Senate Amended to Expansion of
Codified List
-Preserved Everybody’s Rights
-WV DEP will Assign Limits to
Protect Trout Stream
-Permittee can Appeal Limits to
EQB
2008 Legislative Session
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Senate Bill 751
Special Reclamation Fund (ABS)
Actuarial Study Indicates the SRF will
be in the Red by 2010
Threat of Litigation
Proposal to Increase per-ton Coal Tax
to Prevent Deficiency
Increase from 7 Cents to 14 Cents for
One Year
2008 Legislative Session
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Other Bills that Passed
-SB 641 Water Withdrawal Survey
Bills that Didn’t Pass
-Mining Adjacent to
Cemetery
-Mountaintop Mining Bill
Regulatory Issues

Section 404 Permitting
-Huntington District is Issuing
Permits
-Litigation in Kentucky has Halted the
Louisville District
-Jurisdictional Determinations
-New Federal Mitigation Rule
Corps of Engineers

My Compliments
-Difficult Permitting Workload
-Threat of / Under Litigation
-Difficult Industry
-Protecting the Environment
Regulatory Issues

W.Va. Article III / SMCRA
Permitting
-Stability and Predictability Returned
-Agency Facing Personnel Crisis
-Dealing with Influx of FOIA Requests
-Material Damage Amendment (OSM)
Regulatory Issues

State Section 401 Certification
-Significant Progress to Address
Concerns
-Agency Leadership
-Environmental Protection Enhanced
Regulatory Issues

Section 402 / NPDES
-Tracking / Reporting Issues
-Lots of Permits and Outlets
-Look Forward to Helping the Agency
-Resolution Beneficial to Everyone
Regulatory Issues
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MSHA Design Manual for Coal
Refuse Impoundments and
Structures
-Big Document
-Lots of Science and Mathematics
-Big Changes
-Need More Time
Legal Update
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Still under Attack
-404 / 402 / SMCRA
Chambers Decision Headed for
Richmond (Arguments on May 13)
SRF / Water Treatment Cases Being
Briefed
Legal Update
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Corps Litigation Reignited Last Week
-New Request for TRO and Preliminary
Injunction
Preliminary Injunction to Treat
Selenium
MSHA / UMWA Litigation on Mine
Rescue Teams
Outlook

More of the Same

Hopeful for Positive 4th Circuit Decision
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Lots to Do
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Strong Coal Market

Maintain and Build Relationships
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Hang in There… One Step at a Time
Soapbox
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What is Environmental Protection
Soapbox
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Recent Testimony in Appeal of Se Orders:
Q:
Has OVEC ever sought money to
explore treatment technologies for
selenium in the state of West Virginia
and provided that technology to DEP?
A:
No.
Q:
Why Not?
A:
Didn’t Occur to Me.
Soapbox
Q:
Do you know what technology exists in
order to meet [Se] limits?
A:
No, I Don’t.
Q:
…You don’t know how anyone is going
to comply if you end up with these
Order rescinded, Right?
A:
Right.
Soapbox
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West Virginia Mine Drainage Task
Force
30 year history and mission of bringing
academia, industry and regulators
together to work for practical,
scientific-based solutions for issues
associated with mining and postmining water discharges
Soapbox
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Two National Award Wining
Reforestation Efforts in W.Va.
-Fola Coal Co. & ICG Eastern
Arbor Day Celebrations at Both
-Planting Trees that Will One Day
Absorb the CO2 Emissions from the
Coal Mined at the Same Site
Soapbox
What is Environmental Protection ?

Just Want it to Stop, With No Idea How to Solve
the Problem
Or
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Working Together to Find the Solution
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Working Tirelessly to Grow Trees on Mined Land
Or
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Using Electricity, Energy, Paper, Ink and Internet
Bandwidth (i.e. COAL) to Create Judicial Hurdles
Conclusion
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Thanks for Your Continued Support of
the Association and the Mine Drainage
Task Force
Questions