Regulatory Legislative Update Jason Bostic April 22 2008
Regulatory & Legislative Update Jason Bostic April 22, 2008 West Virginia Mine Drainage Task Force
Introduction n. Legislative Update -Stream Tier Controversy -WQS and Trout Streams -Special Reclamation Fund n. Regulatory n. Brief Issues Legal Update
2008 Legislative Session Tier 2. 5 Stream Controversy n Part of Anti-Deg Program n Required List to be Approved by Legislature -Legislative Deadlock Last Year -Changing Numbers -309 (original) -156 (2008) -38 (Committee amendment) n
2008 Legislative Session n Frustration on All Sides n Viewed by the Senate as a failed Compromise n 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 n Not Explained on the Floor in Detail n
2008 Legislative Session n 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 n 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 n 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 n 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 n Special Reclamation Fund (ABS) n Actuarial Study Indicates the SRF will be in the Red by 2010 n Threat of Litigation n Proposal to Increase per-ton Coal Tax to Prevent Deficiency n Increase from 7 Cents to 14 Cents for One Year n
2008 Legislative Session n Other Bills that Passed -SB 641 Water Withdrawal Survey n Bills that Didn’t Pass -Mining Adjacent to Cemetery -Mountaintop Mining Bill
Regulatory Issues n 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 n My Compliments -Difficult Permitting Workload -Threat of / Under Litigation -Difficult Industry -Protecting the Environment
Regulatory Issues n 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 n State Section 401 Certification -Significant Progress to Address Concerns -Agency Leadership -Environmental Protection Enhanced
Regulatory Issues n Section 402 / NPDES -Tracking / Reporting Issues -Lots of Permits and Outlets -Look Forward to Helping the Agency -Resolution Beneficial to Everyone
Regulatory Issues n MSHA Design Manual for Coal Refuse Impoundments and Structures -Big Document -Lots of Science and Mathematics -Big Changes -Need More Time
Legal Update n Still under Attack -404 / 402 / SMCRA n Chambers Decision Headed for Richmond (Arguments on May 13) n SRF / Water Treatment Cases Being Briefed
Legal Update n Corps Litigation Reignited Last Week -New Request for TRO and Preliminary Injunction n Preliminary Injunction to Treat Selenium n MSHA / UMWA Litigation on Mine Rescue Teams
Outlook n More of the Same n Hopeful for Positive 4 th Circuit Decision n Lots to Do n Strong Coal Market n Maintain and Build Relationships n Hang in There… One Step at a Time
Soapbox n What is Environmental Protection ?
Soapbox n 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 n 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 post-mining water discharges
Soapbox n Two National Award Wining Reforestation Efforts in W. Va. -Fola Coal Co. & ICG Eastern n Arbor Day Celebrations at Both -Planting Trees that Will One Day Absorb the CO 2 Emissions from the Coal Mined at the Same Site
Soapbox
What is Environmental Protection ? n Just Want it to Stop, With No Idea How to Solve the Problem Or n Working Together to Find the Solution n Working Tirelessly to Grow Trees on Mined Land Or n Using Electricity, Energy, Paper, Ink and Internet Bandwidth (i. e. COAL) to Create Judicial Hurdles
Conclusion n Thanks for Your Continued Support of the Association and the Mine Drainage Task Force n Questions
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