Transcript Coal Mining Mitigation Briefing

Regulatory Update
Jason Bostic
April 10, 2007
West Virginia Mine Drainage Task Force
Introduction

Legislative Report

Regulatory Issues

Section 404 Issues

Outlook
2007 Legislative Session
 Year

of Stream Lists
Defense on Safety Issues
2007 Legislative Session


Tier 2.5 Streams
-Anti-Deg Program
Trout Streams
-Water Quality Standards Program
2007 Legislative Session


Legislative Rulemaking Review
Anti-deg Rule and WQS Rule become
legislation
2007 Legislative Session

Legislative Battle
-Farmers, Forestry, Oil & Gas, Manufacturers, Coal
vs. WV DEP, Enviros
-Tier 2.5 list amended in Senate Judiciary
Committee to remove all but 38 streams from the
list
-Senate Judiciary Committee poised to delete
proposed expansion of the trout stream list
2007 Legislative Session

Meanwhile in the House of Delegates…
-House Judiciary Committee considers
all of WV DEP’s rules at once
-prematurely “bundled” the rules
into one single piece of legislation
-Entire rule package passed
without amendment to House floor
2007 Legislative Session

Poised for a floor fight
-Assembled enough votes on the floor to
amend rules to delete most of the Tier 2.5
streams and to remove the expansion of the
trout stream list
-House leadership refused to add the bill to
the special calendar so that it could proceed
to amendment stage
2007 Legislative Session

Meanwhile in the Senate…
-All work on WV DEP Rules halts in
anticipation of receiving House version
of legislation
-Normally, Senate would accept House
version and make amendments
2007 Legislative Session


House refuses to place WV DEP rules
bill on special calendar
Senate has stopped working on the
rules
DEADLOCK
2007 Legislative Session






House Judiciary Committee Chair tries to
broker compromise
No fewer than six compromises offered by
the “anti-deg coalition”
Each one would address trout streams and
other rule issues as well as tier 2.5 streams
WV DEP and administration consistently
rejected compromise offers
WV DEP wants 156 tier 2.5 streams
Anti-deg coalition cannot accept all 156
streams
2007 Legislative Session

What Happened?
-Legislature adjourned without completing
action on any of the WV DEP rules
-Mining & Reclamation
-Explosives & Blasting

What Happens Now?
-Still hopeful for a compromise
-All roads lead to the lawyers…
2007 Legislative Session

Why do we care if the rules failed to
pass?
-ALUMINUM

But…
-EPA approved the change as though
it was permanent
2007 Legislative Session
No firewall between agencies
on a rulemaking binge and the
regulated community:
Industry & the Public
2007 Legislative Session

Other Bills
-Greenhouse Gas Reporting
-Passed during the last hours
of the session
-Coal Association opposed the
bill
-Coal mining operations
exempt
2007 Legislative Session


Coal Slurry Study Resolution
-Reaction to hysteria campaign conducted
by the extremists
-Requires WV DEP to conduct a study of
groundwater movement of injected slurry
into domestic wells
-Department of health to analyze chemical
constituents of slurry
All of this has been done before, but not
enough for the Other Side
2007 Legislative Session

Bills that failed to pass
-UMWA on surface mine board
-Prohibition on use of belt air
-Prohibition on longwall mining
-Requirement that WV DEP perform
complete title search on all lands
associated with mining permit
-Various safety related bills
Regulatory Issues
Cascade of Legal
Actions
Regulatory Issues

Notices of Intent to Sue
Selenium
-Clean Water Act
-SMCRA
-Material Damage
-Individual Permit Holders
Regulatory Issues


Notice of Intent to Sue
Motion to Reopen Bonding Case
-Alleges the Special Reclamation
should hold NPDES permits at bond
forfeiture sites
-Coal mining effluent limits
-Alleges the SRF is Insolvent
-Legislature failed to act on
recommendation to establish a trust
fund
-But SRF has enough $$$ to last until
2016
Regulatory Issues



Final OSM Tennessee Bonding Rule
-No Resolution of the AMD Policy
EPA Re-evaluation of Coal Mining
Effluents Limits
Re-submission of Material Damage
Definition
Regulatory Issues

New Programmatic Section 404
General Permits
-Nationwide Permit 21
Surface Coal Mining Operations
-Nationwide Permit 49
Remining Operations
-Nationwide Permit 50
Underground Mining Operations
Section 404 Issues

Chambers Case
-Challenge of Corps’ Issuance of
IPs to Four Massey Energy Subsidiaries
-Coal Association Intervenes to
Protect Programmatic Issues

Extremists Have Found a New Whipping
Boy: U.S. Army Corps of Engineers
Section 404 Issues

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Alleged Pre-mining Stream Assessment
Inadequate
Alleged Mitigation Unproven and Unable to
Offset Stream Losses
Alleged Impacts Significant– EIS Required
Alleged Even if EIS was Conducted, Corps
Could not Issue Permits
Section 404 Issues

“Waste Treatment Exclusion”
-Stream Length Between Toe of Fill and
Sediment Pond
-Extremists Argue that Segment is Being
Illegally Used for Waste Assimilation
-Corps, EPA Have Policy– Length is Part of a
Waste Treatment System and Exempt from
Section 402 Requirements
Section 404 Issues


March 23, 2007 Decision
Judge Usurped the Corps’ Authority; Inserted
His Own Beliefs for the Discretion of the
Agency
-Corps Failed to Adequately Measure Stream
Functions
-Mitigation Cannot Offset Losses
-Corps NEPA Analysis Should Extend to
Uplands Areas
Section 404 Issues




Judge Rescinded the Four Permits
Decision Cuts Deep-On-site Mitigation
-Off-site Mitigation
Sets the Bar Too High; Ties the Corps’ Hands
Judge Bought the Plaintiffs’ Line w/ Respect to
Stream Functions
-Endorsed the Theories of Out-of-State
Environmental Philosophers Over Professional
Corps’ Staff
Section 404 Issues

Plaintiffs Trying to Add Other Permits to the
Case
-They Have Always Viewed the Case as
a Programmatic One

Subsequent Ruling, Judge Prohibited
Further Placement of Material in AlreadyStarted Fills
-Cannot Raise the Elevation of the Deck
of the Fill Even Though Corps’
Jurisdiction has Terminated
Section 404 Issues

What Happens Now?
-Major Slow Down in Corps Permitting (?)
-Trying Our Best to Keep Decision From
Becoming Programmatic (not much success)
-Awaiting a Ruling on Waste Treatment
Exclusion
-Richmond,
Here We Come!
Something Wicked This Way
Comes

FOIAs Filed by Same Groups
-Louisville District
IPs & NWPs
-Pittsburgh District
IPs & NWPs
-Huntington District
NWPs
Section 404 Issues

Rapanos
-Hopeful that Corps & EPA Finalize
Jurisdictional Guidance Soon
-Prospect of Each and Every Section
404 Permit Being Thrown Under the
Wheels of the Legal System will
Encourage Industry to Seek a
Jurisdictional Challenge
Outlook
(Hint: Think Legal Bills)

Enough is Enough

WVCA Challenges
–
–
–
–
–
Selenium
Category A
AMD Policy
WV Stream Condition Index
Jurisdictional Waters
Outlook

Refuse to Give Up and Resort Only to
the Legal System
-Work Through All of This
Outlook

WV DEP Funding Issues
-Division of Mining & Reclamation Needs
$$$ (well, maybe they need $$$)
-Review the OSM Required Staffing Levels
-Work on Resolution that Satisfies Everyone
Outlook

Selenium
(the scientifically-indefensible
standard)
-Find a Treatment Solution
-Site-Specific Criteria
-Change the WQS

All of this Would be Easier if We
Weren’t Fighting in Court
Outlook



If Selenium is a Problem in West
Virginia, Why is it Not a Problem
Elsewhere?
Why is Selenium Only a Problem
Related to Coal Mining?
Show Me the Impacts
Outlook

Global Climate Change
-Supreme Court has Fallen Victim to
Hysteria
-Back to EPA
-Time for a Response
Outlook

Don’t Give Up

Not Going to be Easy

Going to Cost Money

In the End, We Will Prevail
-Appalachian Coal Far Too Important

But Will We Prevail Soon Enough?