Regulatory Update Jason Bostic April 10, 2007 West Virginia Mine Drainage Task Force.

Regulatory UpdateRegulatory Update

Jason Bostic Jason Bostic April 10, 2007April 10, 2007

West Virginia Mine Drainage Task ForceWest Virginia Mine Drainage Task Force

Introduction Introduction

Legislative Report Legislative Report

Regulatory Issues Regulatory Issues

Section 404 IssuesSection 404 Issues

Outlook Outlook

2007 Legislative 2007 Legislative SessionSession

Year of Stream Lists Year of Stream Lists

Defense on Safety Issues Defense on Safety Issues


Tier 2.5 Streams Tier 2.5 Streams

-Anti-Deg Program -Anti-Deg Program

Trout Streams Trout Streams

-Water Quality Standards -Water Quality Standards ProgramProgram


Legislative Rulemaking ReviewLegislative Rulemaking Review

Anti-deg Rule and WQS Rule Anti-deg Rule and WQS Rule become legislation become legislation

2007 Legislative Session2007 Legislative Session

Legislative Battle Legislative Battle

-Farmers, Forestry, Oil & Gas, Manufacturers, -Farmers, Forestry, Oil & Gas, Manufacturers, Coal vs. WV DEP, Enviros Coal vs. WV DEP, Enviros

-Tier 2.5 list amended in Senate Judiciary -Tier 2.5 list amended in Senate Judiciary Committee to remove all but 38 streams Committee to remove all but 38 streams from the list from the list

-Senate Judiciary Committee poised to delete -Senate Judiciary Committee poised to delete proposed expansion of the trout stream list proposed expansion of the trout stream list


Meanwhile in the House of Delegates…Meanwhile in the House of Delegates…

-House Judiciary Committee considers -House Judiciary Committee considers all of WV DEP’s rules at onceall of WV DEP’s rules at once

-prematurely “bundled” the rules -prematurely “bundled” the rules into one single piece of legislation into one single piece of legislation

-Entire rule package passed -Entire rule package passed without amendment to House floor without amendment to House floor


Poised for a floor fight Poised for a floor fight

-Assembled enough votes on the floor -Assembled enough votes on the floor to amend rules to delete most of the to amend rules to delete most of the Tier 2.5 streams and to remove the Tier 2.5 streams and to remove the expansion of the trout stream list expansion of the trout stream list

-House leadership refused to add the -House leadership refused to add the bill to the special calendar so that it bill to the special calendar so that it could proceed to amendment stage could proceed to amendment stage


Meanwhile in the Senate…Meanwhile in the Senate…

-All work on WV DEP Rules halts -All work on WV DEP Rules halts in anticipation of receiving House in anticipation of receiving House version of legislationversion of legislation

-Normally, Senate would accept -Normally, Senate would accept House version and make House version and make amendmentsamendments


House refuses to place WV DEP House refuses to place WV DEP rules bill on special calendar rules bill on special calendar

Senate has stopped working on Senate has stopped working on the rules the rules

DEADLOCK DEADLOCK


House Judiciary Committee Chair tries to House Judiciary Committee Chair tries to broker compromise broker compromise

No fewer than six compromises offered by No fewer than six compromises offered by the “anti-deg coalition” the “anti-deg coalition”

Each one would address trout streams Each one would address trout streams and other rule issues as well as tier 2.5 and other rule issues as well as tier 2.5 streams streams

WV DEP and administration consistently WV DEP and administration consistently rejected compromise offersrejected compromise offers

WV DEP wants 156 tier 2.5 streamsWV DEP wants 156 tier 2.5 streams Anti-deg coalition cannot accept all 156 Anti-deg coalition cannot accept all 156

streamsstreams


What Happened?What Happened?

-Legislature adjourned without -Legislature adjourned without completing action on any of the WV DEP completing action on any of the WV DEP rules rules

-Mining & Reclamation-Mining & Reclamation-Explosives & Blasting-Explosives & Blasting

What Happens Now?What Happens Now?-Still hopeful for a compromise-Still hopeful for a compromise-All roads lead to the lawyers…-All roads lead to the lawyers…


Why do we care if the rules failed Why do we care if the rules failed to pass?to pass?

--ALUMINUMALUMINUM

But…But…

-EPA approved the change as -EPA approved the change as though it was permanent though it was permanent


No firewall between No firewall between agencies on a rulemaking agencies on a rulemaking binge and the regulated binge and the regulated

community:community: Industry & the Public


Other Bills Other Bills

-Greenhouse Gas Reporting -Greenhouse Gas Reporting

-Passed during the last -Passed during the last hours hours of the sessionof the session

-Coal Association -Coal Association opposed the opposed the billbill

-Coal mining operations -Coal mining operations exemptexempt


Coal Slurry Study Resolution Coal Slurry Study Resolution

-Reaction to hysteria campaign -Reaction to hysteria campaign conducted by the extremists conducted by the extremists

-Requires WV DEP to conduct a study -Requires WV DEP to conduct a study of groundwater movement of injected of groundwater movement of injected slurry into domestic wells slurry into domestic wells

-Department of health to analyze -Department of health to analyze chemical constituents of slurry chemical constituents of slurry

All of this has been done before, but All of this has been done before, but not enough for the Other Sidenot enough for the Other Side

2007 Legislative Session2007 Legislative Session Bills that failed to passBills that failed to pass

-UMWA on surface mine board -UMWA on surface mine board

-Prohibition on use of belt air -Prohibition on use of belt air

-Prohibition on longwall mining -Prohibition on longwall mining

-Requirement that WV DEP -Requirement that WV DEP perform complete title search on perform complete title search on all lands associated with mining all lands associated with mining permit permit

-Various safety related bills -Various safety related bills

Regulatory IssuesRegulatory Issues

Cascade of Legal Cascade of Legal ActionsActions


Notices of Intent to Sue Notices of Intent to Sue

Selenium Selenium

-Clean Water Act-Clean Water Act

-SMCRA -SMCRA

-Material Damage -Material Damage

-Individual Permit Holders-Individual Permit Holders

Regulatory IssuesRegulatory Issues Notice of Intent to Sue Notice of Intent to Sue Motion to Reopen Bonding CaseMotion to Reopen Bonding Case

-Alleges the Special Reclamation -Alleges the Special Reclamation should hold NPDES permits at should hold NPDES permits at bond forfeiture sitesbond forfeiture sites

-Coal mining effluent limits -Coal mining effluent limits -Alleges the SRF is Insolvent -Alleges the SRF is Insolvent

-Legislature failed to act on -Legislature failed to act on recommendation to establish a trust recommendation to establish a trust

fund fund -But SRF has enough $$$ to last -But SRF has enough $$$ to last

until until 20162016


Final OSM Tennessee Bonding Rule Final OSM Tennessee Bonding Rule

-No Resolution of the AMD -No Resolution of the AMD PolicyPolicy

EPA Re-evaluation of Coal Mining EPA Re-evaluation of Coal Mining Effluents Limits Effluents Limits

Re-submission of Material Damage Re-submission of Material Damage Definition Definition

Regulatory IssuesRegulatory Issues New Programmatic Section 404 New Programmatic Section 404

General Permits General Permits

-Nationwide Permit 21-Nationwide Permit 21Surface Coal Mining OperationsSurface Coal Mining Operations

-Nationwide Permit 49-Nationwide Permit 49Remining OperationsRemining Operations

-Nationwide Permit 50 -Nationwide Permit 50 Underground Mining OperationsUnderground Mining Operations

Section 404 Issues Section 404 Issues Chambers CaseChambers Case

-Challenge of Corps’ Issuance of -Challenge of Corps’ Issuance of IPs to Four Massey Energy IPs to Four Massey Energy

Subsidiaries Subsidiaries

-Coal Association Intervenes to -Coal Association Intervenes to Protect Programmatic Issues Protect Programmatic Issues

Extremists Have Found a New Whipping Extremists Have Found a New Whipping Boy: U.S. Army Corps of EngineersBoy: U.S. Army Corps of Engineers

Section 404 IssuesSection 404 Issues Alleged Pre-mining Stream Assessment Alleged Pre-mining Stream Assessment

Inadequate Inadequate

Alleged Mitigation Unproven and Alleged Mitigation Unproven and Unable to Offset Stream Losses Unable to Offset Stream Losses

Alleged Impacts Significant– EIS Alleged Impacts Significant– EIS Required Required

Alleged Even if EIS was Conducted, Alleged Even if EIS was Conducted, Corps Could not Issue Permits Corps Could not Issue Permits

Section 404 IssuesSection 404 Issues ““Waste Treatment Exclusion”Waste Treatment Exclusion”

-Stream Length Between Toe of Fill and -Stream Length Between Toe of Fill and Sediment Pond Sediment Pond

-Extremists Argue that Segment is -Extremists Argue that Segment is Being Illegally Used for Waste Being Illegally Used for Waste Assimilation Assimilation

-Corps, EPA Have Policy– Length is Part -Corps, EPA Have Policy– Length is Part of a Waste Treatment System and of a Waste Treatment System and Exempt from Section 402 Requirements Exempt from Section 402 Requirements

Section 404 IssuesSection 404 Issues March 23, 2007 DecisionMarch 23, 2007 Decision Judge Usurped the Corps’ Authority; Judge Usurped the Corps’ Authority;

Inserted His Own Beliefs for the Inserted His Own Beliefs for the Discretion of the AgencyDiscretion of the Agency

-Corps Failed to Adequately Measure -Corps Failed to Adequately Measure Stream Stream FunctionsFunctions

-Mitigation Cannot Offset Losses -Mitigation Cannot Offset Losses

-Corps NEPA Analysis Should Extend to -Corps NEPA Analysis Should Extend to Uplands AreasUplands Areas

Section 404 IssuesSection 404 Issues Judge Rescinded the Four Permits Judge Rescinded the Four Permits

Decision Cuts Deep-Decision Cuts Deep--On-site Mitigation -On-site Mitigation -Off-site Mitigation-Off-site Mitigation

Sets the Bar Too High; Ties the Corps’ Hands Sets the Bar Too High; Ties the Corps’ Hands

Judge Bought the Plaintiffs’ Line w/ Respect Judge Bought the Plaintiffs’ Line w/ Respect to Stream Functions to Stream Functions -Endorsed the Theories of Out-of-State -Endorsed the Theories of Out-of-State Environmental Philosophers Over Environmental Philosophers Over Professional Corps’ StaffProfessional Corps’ Staff

Section 404 IssuesSection 404 Issues

Plaintiffs Trying to Add Other Permits to the CasePlaintiffs Trying to Add Other Permits to the Case

-They Have Always Viewed the Case as -They Have Always Viewed the Case as a a Programmatic One Programmatic One

Subsequent Ruling, Judge Prohibited Further Subsequent Ruling, Judge Prohibited Further Placement of Material in Already-Started Fills Placement of Material in Already-Started Fills

-Cannot Raise the Elevation of the Deck -Cannot Raise the Elevation of the Deck of of the Fill Even Though Corps’ the Fill Even Though Corps’ Jurisdiction has Jurisdiction has TerminatedTerminated

Section 404 IssuesSection 404 Issues What Happens Now?What Happens Now?

-Major Slow Down in Corps Permitting (?)-Major Slow Down in Corps Permitting (?)

-Trying Our Best to Keep Decision From -Trying Our Best to Keep Decision From Becoming Programmatic (not much success)Becoming Programmatic (not much success)

-Awaiting a Ruling on Waste -Awaiting a Ruling on Waste Treatment Treatment Exclusion Exclusion

--Richmond, Here We Richmond, Here We Come!Come!

Something Wicked This Something Wicked This Way ComesWay Comes

FOIAs Filed by Same Groups FOIAs Filed by Same Groups

-Louisville District-Louisville District

IPs & NWPsIPs & NWPs

-Pittsburgh District -Pittsburgh District

IPs & NWPsIPs & NWPs

-Huntington District -Huntington District

NWPs NWPs

Section 404 IssuesSection 404 Issues Rapanos Rapanos

-Hopeful that Corps & EPA Finalize -Hopeful that Corps & EPA Finalize Jurisdictional Guidance Soon Jurisdictional Guidance Soon

-Prospect of Each and Every -Prospect of Each and Every Section 404 Permit Being Thrown Section 404 Permit Being Thrown Under the Wheels of the Legal Under the Wheels of the Legal System will Encourage Industry to System will Encourage Industry to Seek a Jurisdictional Challenge Seek a Jurisdictional Challenge

Outlook Outlook (Hint: Think Legal Bills)(Hint: Think Legal Bills)

Enough is EnoughEnough is Enough

WVCA Challenges WVCA Challenges

– Selenium Selenium – Category A Category A – AMD Policy AMD Policy – WV Stream Condition Index WV Stream Condition Index – Jurisdictional WatersJurisdictional Waters

OutlookOutlook Refuse to Give Up and Resort Refuse to Give Up and Resort

Only to the Legal System Only to the Legal System

-Work Through All of This -Work Through All of This

OutlookOutlook WV DEP Funding Issues WV DEP Funding Issues

-Division of Mining & Reclamation Needs -Division of Mining & Reclamation Needs $$$ (well, maybe they need $$$)$$$ (well, maybe they need $$$)

-Review the OSM Required Staffing Levels -Review the OSM Required Staffing Levels

-Work on Resolution that Satisfies -Work on Resolution that Satisfies EveryoneEveryone

OutlookOutlook Selenium Selenium

(the scientifically-indefensible (the scientifically-indefensible standard)standard)-Find a Treatment Solution -Find a Treatment Solution -Site-Specific Criteria -Site-Specific Criteria -Change the WQS -Change the WQS

All of this Would be Easier if We All of this Would be Easier if We Weren’t Fighting in CourtWeren’t Fighting in Court

OutlookOutlook If Selenium is a Problem in If Selenium is a Problem in

West Virginia, Why is it Not a West Virginia, Why is it Not a Problem Elsewhere?Problem Elsewhere?

Why is Selenium Only a Why is Selenium Only a Problem Related to Coal Problem Related to Coal Mining?Mining?

Show Me the ImpactsShow Me the Impacts

OutlookOutlook

Global Climate Change Global Climate Change

-Supreme Court has Fallen Victim -Supreme Court has Fallen Victim to Hysteria to Hysteria

-Back to EPA -Back to EPA

-Time for a Response -Time for a Response

OutlookOutlook Don’t Give Up Don’t Give Up

Not Going to be Easy Not Going to be Easy

Going to Cost Money Going to Cost Money

In the End, We Will Prevail In the End, We Will Prevail

-Appalachian Coal Far Too Important-Appalachian Coal Far Too Important

But Will We Prevail Soon Enough?But Will We Prevail Soon Enough?

Regulatory Update Jason Bostic April 10, 2007 West Virginia Mine Drainage Task Force.

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Transcript of Regulatory Update Jason Bostic April 10, 2007 West Virginia Mine Drainage Task Force.