Regulatory & Legislative Update
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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
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
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
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
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
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
MSHA Design Manual for Coal
Refuse Impoundments and
Structures
-Big Document
-Lots of Science and Mathematics
-Big Changes
-Need More Time
Legal Update
Still under Attack
-404 / 402 / SMCRA
Chambers Decision Headed for
Richmond (Arguments on May 13)
SRF / Water Treatment Cases Being
Briefed
Legal Update
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
Lots to Do
Strong Coal Market
Maintain and Build Relationships
Hang in There… One Step at a Time
Soapbox
What is Environmental Protection
Soapbox
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
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
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
Working Together to Find the Solution
Working Tirelessly to Grow Trees on Mined Land
Or
Using Electricity, Energy, Paper, Ink and Internet
Bandwidth (i.e. COAL) to Create Judicial Hurdles
Conclusion
Thanks for Your Continued Support of
the Association and the Mine Drainage
Task Force
Questions