Legislative & Regulatory Legislative & Regulatory Update Update

Mine Drainage Task Force Symposium Mine Drainage Task Force Symposium Jason Bostic Jason Bostic

West Virginia Coal Association West Virginia Coal Association March 29, 2011March 29, 2011

Overview Overview

Regulatory Update Regulatory Update

Legislature and Legislature and the Coal Industrythe Coal Industry

Litigation Litigation

Outlook Outlook

Update on the “Blueprint”Update on the “Blueprint”The March ContinuesThe March Continues

June 11, 2009 MOU:

-SMCRA (OSM)

-CWA (Corps, EPA)

-Section 401

-Section 402

-Section 404

-NEPA*

SMCRA SMCRA Where Did Our Primacy Go?Where Did Our Primacy Go? What 4 What 4thth Circuit Decisions? Circuit Decisions?

OSM will remove OSM will remove impediments to its impediments to its ability to require ability to require correction of permit correction of permit defects in SMCRA defects in SMCRA primacy states. primacy states.

Reversal of the “Watson Reversal of the “Watson Memo” Memo”

Reinstatement of INE-35Reinstatement of INE-35 TDNs Issued for “Permit TDNs Issued for “Permit

Defects” in W.Va. And Defects” in W.Va. And PAPA

Dueling Permitting Dueling Permitting Where’s the Where’s the

Incentive?Incentive?

SMCRA… SMCRA… What 4What 4thth Circuit Decisions? Circuit Decisions?

““Stream Stream Protection Protection Rule”Rule”

-Plays on Emotion -Plays on Emotion of SBZ Rule, of SBZ Rule, but… but…

-Massive Re-write -Massive Re-write of Fed of Fed Regulations Regulations

-Material Damage -Material Damage -Underground -Underground

Mining too…Mining too…(Subsidence) (Subsidence)

April 1 Guidance DocumentApril 1 Guidance Document(Manifesto)(Manifesto)

Section 402 Permitting

-benthic shift equals violation of state narrative

-500 / 300 conductivity thresholds

-Benchmark conductivity report

Section 404 Section 404 Spruce Mine Spruce Mine

Revocation (Veto)Revocation (Veto) ““ECP” Process ECP” Process Permit Lists Permit Lists Revisions to Revisions to

Mining NWPs Mining NWPs ““Waste Treatment Waste Treatment

Exclusion” Exclusion” -Again, where did -Again, where did those 4those 4thth Circuit Circuit Decisions run off to?Decisions run off to?

State PoliticsState Politics “May You Live in Interesting “May You Live in Interesting

Times”Times”

-Gov. Manchin to Washington via special -Gov. Manchin to Washington via special election election

-Senate President Earl Ray Tomblin to -Senate President Earl Ray Tomblin to Governor’s Office via successionGovernor’s Office via succession

-Mini Constitutional Crisis

-State Supreme Court Ruling

-Yet Another Special Election

2011 Legislative 2011 Legislative SessionSession

1,894 Bills Introduced 1,894 Bills Introduced 191 Passed 191 Passed 1 Bill (so far) vetoed w/o 1 Bill (so far) vetoed w/o

correction message correction message 213 Bills Related to Coal 213 Bills Related to Coal

In Some Form or Fashion In Some Form or Fashion

Specifics– Legislature & CoalSpecifics– Legislature & CoalAgency RulemakingAgency Rulemaking

Senate Bill 121 “Rules Bill” Senate Bill 121 “Rules Bill”

-Water Quality Standards -Water Quality Standards

-Mining & Reclamation Rule -Mining & Reclamation Rule

-Explosives & Blasting Rule -Explosives & Blasting Rule

““Corrections”--- WQStds Rule Corrections”--- WQStds Rule – Removed WV DEP Proposed TDS Standard Removed WV DEP Proposed TDS Standard – Survived Attempts to Restore the Standard Survived Attempts to Restore the Standard

and/or Substitute a Sulfate Standard and/or Substitute a Sulfate Standard

Specifics– Legislature & CoalSpecifics– Legislature & CoalAgency RulemakingAgency Rulemaking

Mining & Reclamation Rule Mining & Reclamation Rule -Removed provisions allowing WV DEP to -Removed provisions allowing WV DEP to force bond release force bond release -Stripped changes that required -Stripped changes that required submission of technically complete submission of technically complete application application -Modified provisions regarding inactive -Modified provisions regarding inactive status (coal refuse structures)status (coal refuse structures)

Explosives & Blasting RuleExplosives & Blasting Rule -Withdrawn -Withdrawn

Specifics– Legislature & CoalSpecifics– Legislature & CoalOriginal LegislationOriginal Legislation

Coal Slurry Coal Slurry (Senate Bill 248)(Senate Bill 248)

-About 14 bills -About 14 bills that addressed that addressed coal slurry: coal slurry: injection and/or injection and/or impoundments impoundments

-Consumed -Consumed remarkable remarkable amount of time amount of time (Education)(Education)

Specifics– Legislature & CoalSpecifics– Legislature & CoalOriginal LegislationOriginal Legislation

Mine Safety Mine Safety -About 20 bills related to various mine -About 20 bills related to various mine safety topics safety topics -Successful in getting Legislative deference -Successful in getting Legislative deference to the Board of Coal Mine Health & Safety to the Board of Coal Mine Health & Safety

Examples: Examples: -methane cut-off of mining equipment -methane cut-off of mining equipment -protection for mine safety -protection for mine safety “whistleblowers” “whistleblowers” -state drug testing program for miners -state drug testing program for miners -lots of UBB-motivated legislation -lots of UBB-motivated legislation

Specifics– Legislature & CoalSpecifics– Legislature & CoalOriginal LegislationOriginal Legislation

Taxes & Fees Taxes & Fees

-House Bill 2955 -House Bill 2955

-Increases / assess certain fees for -Increases / assess certain fees for DMR DMR permit applications permit applications

-Raise approx. $1.6 million for WV -Raise approx. $1.6 million for WV DEP DEP

-1/2 of what agency needs to -1/2 of what agency needs to sustain sustain current DMR staffing following current DMR staffing following loss of loss of synfuel taxes synfuel taxes

Other StuffOther Stuff

No Oil & Gas Legislation No Oil & Gas Legislation

-remarkably contentious issue -remarkably contentious issue

-no agreement between industry -no agreement between industry

-Gov. ERT issues Ex Order -Gov. ERT issues Ex Order Cemetery Access Cemetery Access State Dredge & Fill Program State Dredge & Fill Program Various Tax Increases / Various Tax Increases /

Redistributions Redistributions Water Quality (Dunkard Creek)Water Quality (Dunkard Creek)

Regulatory Stuff Regulatory Stuff

(who needs EPA with (who needs EPA with friends like these)friends like these)

-EQB Decision on -EQB Decision on March 10 re: narrative March 10 re: narrative

-According to the -According to the Board, forces WV DEP Board, forces WV DEP must assign effluent must assign effluent limits for TDS, limits for TDS, conductivity, sulfates conductivity, sulfates because of potential to because of potential to violate narrative violate narrative standard standard

EQB DecisionEQB Decision •!EQB Can’t Write WQStds!

•Only the ***LEGISLATURE*** Can Adopt Changes to WQStds:

-WV SCI is NOT and has NEVER been a WQStd

•House Concurrent House Concurrent Resolution No. 111Resolution No. 111 (Unanimous Adoption in 2010 Session)

Litigation Litigation Here We Go Again:

-New Federal Complaint

-Section 404 Permitting

-Adequacy of Permitting Process:

-Mitigation

-Adverse Impacts

-And On and On…

-Still looking for Those 4th Circuit Decisions….

Outlook Outlook The End of What? The End of What?

Up to Us…Up to Us…

And Finally… And Finally… Somebody… Anybody

PLEASE Pay Attention: HCR 111