Legislative & Regulatory Update Mine Drainage Task Force Symposium Jason Bostic West Virginia Coal Association March 29, 2011

Overview Regulatory Update Regulatory Update Legislature and the Coal Industry Legislature and the Coal Industry Litigation Litigation Outlook Outlook

Update on the Blueprint The March Continues June 11, 2009 MOU: -SMCRA (OSM) -CWA (Corps, EPA) -Section 401 -Section 402 -Section 404 -NEPA*

SMCRA Where Did Our Primacy Go? What 4 th Circuit Decisions? OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states. OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states. Reversal of the Watson Memo Reversal of the Watson Memo Reinstatement of INE-35 Reinstatement of INE-35 TDNs Issued for Permit Defects in W.Va. And PA TDNs Issued for Permit Defects in W.Va. And PA Dueling Permitting Dueling Permitting Wheres the Incentive? Wheres the Incentive?

SMCRA… What 4 th Circuit Decisions? Stream Protection Rule Stream Protection Rule -Plays on Emotion of SBZ Rule, but… -Massive Re-write of Fed Regulations -Material Damage -Underground Mining too… (Subsidence)

April 1 Guidance Document (Manifesto) Section 402 Permitting -benthic shift equals violation of state narrative -500 / 300 conductivity thresholds -Benchmark conductivity report

Section 404 Spruce Mine Revocation (Veto) Spruce Mine Revocation (Veto) ECP Process ECP Process Permit Lists Permit Lists Revisions to Mining NWPs Revisions to Mining NWPs Waste Treatment Exclusion Waste Treatment Exclusion -Again, where did those 4 th Circuit Decisions run off to?

State Politics May You Live in Interesting Times -Gov. Manchin to Washington via special election -Senate President Earl Ray Tomblin to Governors Office via succession - Mini Constitutional Crisis -State Supreme Court Ruling -Yet Another Special Election

2011 Legislative Session 1,894 Bills Introduced 1,894 Bills Introduced 191 Passed 191 Passed 1 Bill (so far) vetoed w/o correction message 1 Bill (so far) vetoed w/o correction message 213 Bills Related to Coal In Some Form or Fashion 213 Bills Related to Coal In Some Form or Fashion

Specifics– Legislature & Coal Agency Rulemaking Senate Bill 121 Rules Bill Senate Bill 121 Rules Bill -Water Quality Standards -Mining & Reclamation Rule -Explosives & Blasting Rule Corrections--- WQStds Rule Corrections--- WQStds Rule –Removed WV DEP Proposed TDS Standard –Survived Attempts to Restore the Standard and/or Substitute a Sulfate Standard

Specifics– Legislature & Coal Agency Rulemaking Mining & Reclamation Rule Mining & Reclamation Rule -Removed provisions allowing WV DEP to force bond release -Stripped changes that required submission of technically complete application -Modified provisions regarding inactive status (coal refuse structures) Explosives & Blasting Rule Explosives & Blasting Rule-Withdrawn

Specifics– Legislature & Coal Original Legislation Coal Slurry Coal Slurry (Senate Bill 248) (Senate Bill 248) -About 14 bills that addressed coal slurry: injection and/or impoundments -Consumed remarkable amount of time (Education)

Specifics– Legislature & Coal Original Legislation Mine Safety Mine Safety -About 20 bills related to various mine safety topics -Successful in getting Legislative deference to the Board of Coal Mine Health & Safety Examples: Examples: -methane cut-off of mining equipment -protection for mine safety whistleblowers -state drug testing program for miners -lots of UBB-motivated legislation

Specifics– Legislature & Coal Original Legislation Taxes & Fees Taxes & Fees -House Bill Increases / assess certain fees for DMR permit applications -Raise approx. $1.6 million for WV DEP -1/2 of what agency needs to sustain current DMR staffing following loss of synfuel taxes

Other Stuff No Oil & Gas Legislation No Oil & Gas Legislation -remarkably contentious issue -no agreement between industry -Gov. ERT issues Ex Order Cemetery Access Cemetery Access State Dredge & Fill Program State Dredge & Fill Program Various Tax Increases / Redistributions Various Tax Increases / Redistributions Water Quality (Dunkard Creek) Water Quality (Dunkard Creek)

Regulatory Stuff (who needs EPA with friends like these) (who needs EPA with friends like these) -EQB Decision on March 10 re: narrative -According to the Board, forces WV DEP must assign effluent limits for TDS, conductivity, sulfates because of potential to violate narrative standard

EQB Decision !EQB Cant Write WQStds! Only the ***LEGISLATURE*** Can Adopt Changes to WQStds: -WV SCI is NOT and has NEVER been a WQStd House Concurrent Resolution No. 111House Concurrent Resolution No. 111 (Unanimous Adoption in 2010 Session)

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 4 th Circuit Decisions….

Outlook The End of What? The End of What? Up to Us…

And Finally… And Finally… Somebody… Anybody PLEASE Pay Attention: HCR 111