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Legislative / Regulatory Update

Legislative / Regulatory Update. Jason D. Bostic West Virginia Coal Association March 30, 2010 . Introduction . Regulatory Review (its been a tough year) -New federal initiatives -OSM -EPA Spruce Veto Action Legislative Review Progress (?). New Federal Initiatives: OSM .

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Legislative / Regulatory Update

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  1. Legislative / Regulatory Update Jason D. Bostic West Virginia Coal Association March 30, 2010

  2. Introduction • Regulatory Review (its been a tough year) -New federal initiatives -OSM -EPA • Spruce Veto Action • Legislative Review • Progress (?)

  3. New Federal Initiatives: OSM • 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

  4. EPA • 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)

  5. EPA continued… • 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

  6. Narrative Standard

  7. EPA vs. West Virginia

  8. EPA vs. Corps

  9. “Cold War” • EPA: Violation of narrative standards • WV DEP: benthic shift alone NOT a violation • Corps: Water quality issues addressed by WV DEP through Section 402 permit and Section 401 certification process • =Stalemate

  10. EPA Continues to Move • Ecological assessment expanded– consideration of “Regional Advisory Criteria” for conductivity Advisory criteria necessary to allow EPA to interpret STATE narrative standards

  11. Permitting Situation • Three section 404 permits issued since new day of federal involvement • 2/3 heavily conditioned-- compliance with un-promulgated in-stream threshold of conductivity… further development of the operation is conditioned on meeting this (illegal) threshold • Two veto proceedings– Threat in Kentucky and initiation of process in West Virginia

  12. Observations… • 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

  13. Recap:EPA & Section 404 Permitting • EPA: Permits will cause or contribute to violation of West Virginia waters • WV DEP: NO, that’s not the intended scope or purpose of the WQStds • Corps- defers to the state on water issues

  14. Spruce Mine Veto Action • Full EIS conducted • 10 years of review • Permit issued in 2007 • Work on permit started • EPA starts the process • Ask Corps to suspend • Corps collects information and says NO • EPA issues press release on Friday

  15. Spruce Veto Action… • Only 12 404(c) actions since 1972 • Never used against an already issued and operating permit • EPA “signed off” on the Spruce permit in 2007 • Tonnage, operational / disturbed area reduced

  16. Spruce Veto Action…

  17. Legislative Report: 2010 Regular Session • 3,370 bills introduced; 219 completed Legislative action • “Quiet” session -no rule packages -everybody wanted to help -House / Senate held hearings on permitting situation

  18. Legislative Details… passed • SB 496– WV DEP Advisory Council • SB 507- Tax credit for the deployment of innovative mine safety technology • SB 518- New coal-related responsibilities for WV DOE • HCR 50- Study of tax and fee burden on coal industry • SCR 9- Opposes national cap & trade legislation

  19. Legislative Details… FAILED • 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.

  20. Senate Concurrent Resolution 61 • EPA Not to Veto / Revoke the Spruce Mine Permit and…

  21. House Concurrent Resolution 111

  22. House Concurrent Resolution 111

  23. House Concurrent Resolution 111

  24. Summary • 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”

  25. Progress (?) • Everyone struggling for a solution • Governor, Congressional Delegation, Legislature • Its all about interpretation and implementation of narrative standards

  26. Questions ???

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