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

2. Introduction Legislative Report Legislative Report Regulatory Issues Regulatory Issues Section 404 Issues Section 404 Issues Outlook Outlook

3. 2007 Legislative Session Year of Stream Lists Year of Stream Lists Defense on Safety Issues Defense on Safety Issues

4. 2007 Legislative Session Tier 2.5 Streams Tier 2.5 Streams -Anti-Deg Program Trout Streams Trout Streams -Water Quality Standards Program

5. 2007 Legislative Session Legislative Rulemaking Review Legislative Rulemaking Review Anti-deg Rule and WQS Rule become legislation Anti-deg Rule and WQS Rule become legislation

6. 2007 Legislative Session Legislative Battle Legislative Battle -Farmers, Forestry, Oil & Gas, Manufacturers, Coal vs. WV DEP, Enviros -Tier 2.5 list amended in Senate Judiciary Committee to remove all but 38 streams from the list -Senate Judiciary Committee poised to delete proposed expansion of the trout stream list

7. 2007 Legislative Session Meanwhile in the House of Delegates… Meanwhile in the House of Delegates… -House Judiciary Committee considers all of WV DEP’s rules at once -prematurely “bundled” the rules into one single piece of legislation -Entire rule package passed without amendment to House floor

8. 2007 Legislative Session Poised for a floor fight Poised for a floor fight -Assembled enough votes on the floor to amend rules to delete most of the Tier 2.5 streams and to remove the expansion of the trout stream list -House leadership refused to add the bill to the special calendar so that it could proceed to amendment stage

9. 2007 Legislative Session Meanwhile in the Senate… Meanwhile in the Senate… -All work on WV DEP Rules halts in anticipation of receiving House version of legislation -Normally, Senate would accept House version and make amendments

10. 2007 Legislative Session House refuses to place WV DEP rules bill on special calendar House refuses to place WV DEP rules bill on special calendar Senate has stopped working on the rules Senate has stopped working on the rules DEADLOCK DEADLOCK

11. 2007 Legislative Session House Judiciary Committee Chair tries to broker compromise House Judiciary Committee Chair tries to broker compromise No fewer than six compromises offered by the “anti-deg coalition” No fewer than six compromises offered by the “anti-deg coalition” Each one would address trout streams and other rule issues as well as tier 2.5 streams Each one would address trout streams and other rule issues as well as tier 2.5 streams WV DEP and administration consistently rejected compromise offers WV DEP and administration consistently rejected compromise offers WV DEP wants 156 tier 2.5 streams WV DEP wants 156 tier 2.5 streams Anti-deg coalition cannot accept all 156 streams Anti-deg coalition cannot accept all 156 streams

12. 2007 Legislative Session What Happened? What Happened? -Legislature adjourned without completing action on any of the WV DEP rules -Mining & Reclamation -Explosives & Blasting What Happens Now? What Happens Now? -Still hopeful for a compromise -All roads lead to the lawyers…

13. 2007 Legislative Session Why do we care if the rules failed to pass? Why do we care if the rules failed to pass? -ALUMINUM But… But… -EPA approved the change as though it was permanent

14. 2007 Legislative Session

15. Other Bills Other Bills -Greenhouse Gas Reporting -Passed during the last hours of the session -Coal Association opposed the bill -Coal mining operations exempt

16. 2007 Legislative Session Coal Slurry Study Resolution Coal Slurry Study Resolution -Reaction to hysteria campaign conducted by the extremists -Requires WV DEP to conduct a study of groundwater movement of injected slurry into domestic wells -Department of health to analyze chemical constituents of slurry All of this has been done before, but not enough for the Other Side All of this has been done before, but not enough for the Other Side

17. 2007 Legislative Session Bills that failed to pass Bills that failed to pass -UMWA on surface mine board -Prohibition on use of belt air -Prohibition on longwall mining -Requirement that WV DEP perform complete title search on all lands associated with mining permit -Various safety related bills

18. Regulatory Issues Cascade of Legal Actions

19. Regulatory Issues Notices of Intent to Sue Notices of Intent to SueSelenium -Clean Water Act -SMCRA -Material Damage -Individual Permit Holders

20. Regulatory Issues Notice of Intent to Sue Notice of Intent to Sue Motion to Reopen Bonding Case Motion to Reopen Bonding Case -Alleges the Special Reclamation should hold NPDES permits at bond forfeiture sites -Coal mining effluent limits -Alleges the SRF is Insolvent -Legislature failed to act on recommendation to establish a trust fund -But SRF has enough $$$ to last until 2016

21. Regulatory Issues Final OSM Tennessee Bonding Rule Final OSM Tennessee Bonding Rule -No Resolution of the AMD Policy EPA Re-evaluation of Coal Mining Effluents Limits EPA Re-evaluation of Coal Mining Effluents Limits Re-submission of Material Damage Definition Re-submission of Material Damage Definition

22. Regulatory Issues New Programmatic Section 404 General Permits New Programmatic Section 404 General Permits -Nationwide Permit 21 Surface Coal Mining Operations -Nationwide Permit 49 Remining Operations -Nationwide Permit 50 Underground Mining Operations

23. Section 404 Issues Chambers Case Chambers Case -Challenge of Corps’ Issuance of IPs to Four Massey Energy Subsidiaries -Coal Association Intervenes to Protect Programmatic Issues Extremists Have Found a New Whipping Boy: U.S. Army Corps of Engineers Extremists Have Found a New Whipping Boy: U.S. Army Corps of Engineers

24. Section 404 Issues Alleged Pre-mining Stream Assessment Inadequate Alleged Pre-mining Stream Assessment Inadequate Alleged Mitigation Unproven and Unable to Offset Stream Losses Alleged Mitigation Unproven and Unable to Offset Stream Losses Alleged Impacts Significant– EIS Required Alleged Impacts Significant– EIS Required Alleged Even if EIS was Conducted, Corps Could not Issue Permits Alleged Even if EIS was Conducted, Corps Could not Issue Permits

25. Section 404 Issues “Waste Treatment Exclusion” “Waste Treatment Exclusion” -Stream Length Between Toe of Fill and Sediment Pond -Extremists Argue that Segment is Being Illegally Used for Waste Assimilation -Corps, EPA Have Policy– Length is Part of a Waste Treatment System and Exempt from Section 402 Requirements

26. Section 404 Issues March 23, 2007 Decision March 23, 2007 Decision Judge Usurped the Corps’ Authority; Inserted His Own Beliefs for the Discretion of the Agency Judge Usurped the Corps’ Authority; Inserted His Own Beliefs for the Discretion of the Agency -Corps Failed to Adequately Measure Stream Functions -Mitigation Cannot Offset Losses -Corps NEPA Analysis Should Extend to Uplands Areas

27. Section 404 Issues Judge Rescinded the Four Permits Judge Rescinded the Four Permits Decision Cuts Deep- Decision Cuts Deep- -On-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 to Stream Functions Judge Bought the Plaintiffs’ Line w/ Respect to Stream Functions -Endorsed the Theories of Out-of-State Environmental Philosophers Over Professional Corps’ Staff

28. Section 404 Issues Plaintiffs Trying to Add Other Permits to the Case Plaintiffs Trying to Add Other Permits to the Case -They Have Always Viewed the Case as a Programmatic One Subsequent Ruling, Judge Prohibited Further Placement of Material in Already- Started Fills Subsequent Ruling, Judge Prohibited Further Placement of Material in Already- Started Fills -Cannot Raise the Elevation of the Deck of the Fill Even Though Corps’ Jurisdiction has Terminated

29. Section 404 Issues What Happens Now? What Happens Now? -Major Slow Down in Corps Permitting (?) -Trying Our Best to Keep Decision From Becoming Programmatic (not much success) -Awaiting a Ruling on Waste Treatment Exclusion - Richmond, Here We Come!

30. Something Wicked This Way Comes FOIAs Filed by Same Groups FOIAs Filed by Same Groups -Louisville District IPs & NWPs -Pittsburgh District IPs & NWPs -Huntington District NWPs

31. Section 404 Issues Rapanos Rapanos -Hopeful that Corps & EPA Finalize Jurisdictional Guidance Soon -Prospect of Each and Every Section 404 Permit Being Thrown Under the Wheels of the Legal System will Encourage Industry to Seek a Jurisdictional Challenge

32. Outlook (Hint: Think Legal Bills) Enough is Enough Enough is Enough WVCA Challenges WVCA Challenges –Selenium –Category A –AMD Policy –WV Stream Condition Index –Jurisdictional Waters

33. Outlook Refuse to Give Up and Resort Only to the Legal System Refuse to Give Up and Resort Only to the Legal System -Work Through All of This

34. Outlook WV DEP Funding Issues WV DEP Funding Issues -Division of Mining & Reclamation Needs $$$ (well, maybe they need $$$) -Review the OSM Required Staffing Levels -Work on Resolution that Satisfies Everyone

35. Outlook Selenium Selenium (the scientifically-indefensible standard) -Find a Treatment Solution -Site-Specific Criteria -Change the WQS All of this Would be Easier if We Weren’t Fighting in Court All of this Would be Easier if We Weren’t Fighting in Court

36. Outlook If Selenium is a Problem in West Virginia, Why is it Not a Problem Elsewhere? If Selenium is a Problem in West Virginia, Why is it Not a Problem Elsewhere? Why is Selenium Only a Problem Related to Coal Mining? Why is Selenium Only a Problem Related to Coal Mining? Show Me the Impacts Show Me the Impacts

37. Outlook Global Climate Change Global Climate Change -Supreme Court has Fallen Victim to Hysteria -Back to EPA -Time for a Response

38. Outlook 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 But Will We Prevail Soon Enough? But Will We Prevail Soon Enough?