Legislative Regulatory Update Jason D Bostic West Virginia
Legislative / Regulatory Update Jason D. Bostic West Virginia Coal Association March 30, 2010
Introduction n Regulatory Review (its been a tough year) -New federal initiatives -OSM -EPA n Spruce Veto Action n Legislative Review n Progress (? )
New Federal Initiatives: OSM n n n 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 n n n n 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… n 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” n EPA: Violation of narrative standards n WV DEP: benthic shift alone NOT a violation n Corps: Water quality issues addressed by WV DEP through Section 402 permit and Section 401 certification process n =Stalemate
EPA Continues to Move n Ecological assessment expanded– consideration of “Regional Advisory Criteria” for conductivity Advisory criteria necessary to allow EPA to interpret STATE narrative standards
Permitting Situation n Three section 404 permits issued since new day of federal involvement n 2/3 heavily conditioned-- compliance with unpromulgated in-stream threshold of conductivity… further development of the operation is conditioned on meeting this (illegal) threshold n Two veto proceedings– Threat in Kentucky and initiation of process in West Virginia
Observations… n 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 n EPA: Permits will cause or contribute to violation of West Virginia waters n WV DEP: NO, that’s not the intended scope or purpose of the WQStds n Corps- defers to the state on water issues
Spruce Mine Veto Action Full EIS conducted n 10 years of review n Permit issued in 2007 n Work on permit started n EPA starts the process n Ask Corps to suspend n Corps collects information and says n NO n EPA issues press release on Friday
Spruce Veto Action… n Only 12 404(c) actions since 1972 n Never used against an already issued and operating permit n EPA “signed off” on the Spruce permit in 2007 n Tonnage, operational / disturbed area reduced
Spruce Veto Action…
Legislative Report: 2010 Regular Session n 3, 370 bills introduced; 219 completed Legislative action n “Quiet” session -no rule packages -everybody wanted to help -House / Senate held hearings on permitting situation
Legislative Details… passed SB 496– WV DEP Advisory Council n SB 507 - Tax credit for the deployment of innovative mine safety technology n SB 518 - New coal-related responsibilities for WV DOE n HCR 50 - Study of tax and fee burden on coal industry n SCR 9 - Opposes national cap & trade legislation n
Legislative Details… FAILED n n 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 n EPA Not to Veto / Revoke the Spruce Mine Permit and…
House Concurrent Resolution 111
House Concurrent Resolution 111
House Concurrent Resolution 111
Summary n n n 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 (? ) Everyone struggling for a solution n Governor, Congressional Delegation, Legislature n n Its all about interpretation and implementation of narrative standards
Questions ? ? ?
- Slides: 26