Transcript Legislative / Regulatory Update

Legislative / Regulatory
Update
Jason D. Bostic
West Virginia Coal Association
March 30, 2010
Introduction
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Regulatory Review (its been a tough year)
-New federal initiatives
-OSM
-EPA
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Spruce Veto Action
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Legislative Review
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Progress (?)
New Federal Initiatives:
OSM
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Stream Buffer Zone Rule
-Re-examine the 2008 Rule
-EIS(?)
-AOC
-Material damage
Inspection and Oversight
-Independent (and more) inspections
-Less technical support and technical transfer activities
Oversight of State-Issued Permits
-Use the TDN process to “correct” state permits
Independent report of mine-specific factors to OSM
Think MSHA and WV OMHS&T
EPA
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Comments on Section 404 permits
Review and comment on Section 402 permits
Waste treatment exclusion
Mitigation
Various categories of 404 permits
-original list
-ECP list
-”normal” submissions
Ecological assessment of surface mining (think EIS)
Two permits issued (heavily conditioned)
EPA continued…
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Using Section 404 process as ad-hoc water
quality standards program:
Coal mining causes “significant
degradation” because the benthic
shift observed below discharges (of
any type) constitutes a violation of
West Virginia’s narrative water
quality standards
Narrative Standard
EPA vs. West Virginia
EPA vs. Corps
“Cold War”
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EPA: Violation of narrative standards
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WV DEP: benthic shift alone NOT a violation
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Corps: Water quality issues addressed by
WV DEP through Section 402 permit and
Section 401 certification process
 =Stalemate
EPA Continues to Move
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Ecological assessment expanded–
consideration of “Regional Advisory
Criteria” for conductivity
Advisory criteria necessary to
allow EPA to interpret STATE
narrative standards
Permitting Situation
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Three section 404 permits issued since new day of
federal involvement
2/3 heavily conditioned-- compliance with unpromulgated in-stream threshold of conductivity…
further development of the operation is
conditioned on meeting this (illegal) threshold
Two veto proceedings– Threat in Kentucky and
initiation of process in West Virginia
Observations…
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Objections know no bounds
-NOT about Central Appalachian surface mining
-NOT about the size or type (MTM) of mining
operation
-NOT about valley fills
-NOT about a treatment solution
-Cannot “reduce, restrict or mitigate” your way out
of this
-IT IS ABOUT the proper interpretation and
implementation of federal and state water
laws and standards
Recap:
EPA & Section 404 Permitting
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EPA: Permits will cause or contribute to
violation of West Virginia waters
WV DEP: NO, that’s not the intended scope
or purpose of the WQStds
Corps- defers to the state on water issues
Spruce Mine Veto Action
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Full EIS conducted
10 years of review
Permit issued in 2007
Work on permit started
EPA starts the process
Ask Corps to suspend
Corps collects
information and says
NO
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EPA issues press
release on Friday
Spruce Veto Action…
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Only 12 404(c) actions since
1972
Never used against an
already issued and
operating permit
EPA “signed off” on the
Spruce permit in 2007
Tonnage, operational /
disturbed area reduced
Spruce Veto Action…
Legislative Report:
2010 Regular Session
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3,370 bills introduced; 219 completed
Legislative action
“Quiet” session
-no rule packages
-everybody wanted to help
-House / Senate held hearings on
permitting situation
Legislative Details… passed
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SB 496– WV DEP Advisory Council
SB 507- Tax credit for the deployment of
innovative mine safety technology
SB 518- New coal-related responsibilities for
WV DOE
HCR 50- Study of tax and fee burden on coal
industry
SCR 9- Opposes national cap & trade
legislation
Legislative Details… FAILED
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HB 4001- Limits for TDS/ conductivity at 500;
schedule, reason and amount of water
withdrawals, disclosure of oil & gas discharge
water constituents and amounts
SB 211- State Section 404-like dredge and fill
regulatory program
HB 4457 (amended) relating to access to
cemeteries… originally coal only… increase buffer
zone, required “full and free access” to sites
And… bans on coal slurry injection, coal
impoundment construction, etc.
Senate Concurrent Resolution 61
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EPA Not to Veto / Revoke the Spruce Mine
Permit and…
House Concurrent Resolution 111
House Concurrent Resolution 111
House Concurrent Resolution 111
Summary
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Interpretation and implementation of narrative
standards is the job of the Legislature and WV DEP
Any interpretation of those standards must comply
with the Legislature’s will and intent (reasonable
standards of purity to protect environment
and promote development)
WVWPCA was not and does not afford special
categories of protection to specific species of bugs
BUT DOES seek to protect the stream and aquatic
life as a “whole”
Progress (?)
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Everyone struggling
for a solution
Governor,
Congressional
Delegation,
Legislature
Its all about
interpretation and
implementation of
narrative standards
Questions ???