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Regulatory Update. Jason Bostic April 10, 2007 West Virginia Mine Drainage Task Force. Introduction . Legislative Report Regulatory Issues Section 404 Issues Outlook . 2007 Legislative Session. Year of Stream Lists Defense on Safety Issues . 2007 Legislative Session.

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Presentation Transcript
Regulatory update
Regulatory Update

Jason Bostic

April 10, 2007

West Virginia Mine Drainage Task Force


  • Legislative Report

  • Regulatory Issues

  • Section 404 Issues

  • Outlook

2007 legislative session
2007 Legislative Session

  • Year of Stream Lists

  • Defense on Safety Issues

2007 legislative session1
2007 Legislative Session

  • Tier 2.5 Streams

    -Anti-Deg Program

  • Trout Streams

    -Water Quality Standards Program

2007 legislative session2
2007 Legislative Session

  • Legislative Rulemaking Review

  • Anti-deg Rule and WQS Rule become legislation

2007 legislative session3
2007 Legislative Session

  • 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

2007 legislative session4
2007 Legislative Session

  • 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

2007 legislative session5
2007 Legislative Session

  • 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

2007 legislative session6
2007 Legislative Session

  • 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

2007 legislative session7
2007 Legislative Session

  • House refuses to place WV DEP rules bill on special calendar

  • Senate has stopped working on the rules


2007 legislative session8
2007 Legislative Session

  • House Judiciary Committee Chair tries to broker compromise

  • 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

  • WV DEP and administration consistently rejected compromise offers

  • WV DEP wants 156 tier 2.5 streams

  • Anti-deg coalition cannot accept all 156 streams

2007 legislative session9
2007 Legislative Session

  • What Happened?

    -Legislature adjourned without completing action on any of the WV DEP rules

    -Mining & Reclamation

    -Explosives & Blasting

  • What Happens Now?

    -Still hopeful for a compromise

    -All roads lead to the lawyers…

2007 legislative session10
2007 Legislative Session

  • Why do we care if the rules failed to pass?


  • But…

    -EPA approved the change as though it was permanent

2007 legislative session11
2007 Legislative Session

No firewall between agencies on a rulemaking binge and the regulated community:

Industry & the Public

2007 legislative session12
2007 Legislative Session

  • Other Bills

    -Greenhouse Gas Reporting

    -Passed during the last hours of the session

    -Coal Association opposed the bill

    -Coal mining operations exempt

2007 legislative session13
2007 Legislative Session

  • 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

2007 legislative session14
2007 Legislative Session

  • 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

Regulatory issues
Regulatory Issues

Cascade of Legal Actions

Regulatory issues1
Regulatory Issues

  • Notices of Intent to Sue


    -Clean Water Act


    -Material Damage

    -Individual Permit Holders

Regulatory issues2
Regulatory Issues

  • Notice of Intent to Sue

  • 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

Regulatory issues3
Regulatory Issues

  • Final OSM Tennessee Bonding Rule

    -No Resolution of the AMD Policy

  • EPA Re-evaluation of Coal Mining Effluents Limits

  • Re-submission of Material Damage Definition

Regulatory issues4
Regulatory Issues

  • New Programmatic Section 404 General Permits

    -Nationwide Permit 21

    Surface Coal Mining Operations

    -Nationwide Permit 49

    Remining Operations

    -Nationwide Permit 50

    Underground Mining Operations

Section 404 issues
Section 404 Issues

  • 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

Section 404 issues1
Section 404 Issues

  • Alleged Pre-mining Stream Assessment Inadequate

  • Alleged Mitigation Unproven and Unable to Offset Stream Losses

  • Alleged Impacts Significant– EIS Required

  • Alleged Even if EIS was Conducted, Corps Could not Issue Permits

Section 404 issues2
Section 404 Issues

  • “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

Section 404 issues3
Section 404 Issues

  • March 23, 2007 Decision

  • 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

Section 404 issues4
Section 404 Issues

  • Judge Rescinded the Four Permits

  • Decision Cuts Deep-

    -On-site Mitigation

    -Off-site Mitigation

  • Sets the Bar Too High; Ties the Corps’ Hands

  • Judge Bought the Plaintiffs’ Line w/ Respect to Stream Functions

    -Endorsed the Theories of Out-of-State Environmental Philosophers Over Professional Corps’ Staff

Section 404 issues5
Section 404 Issues

  • 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

    -Cannot Raise the Elevation of the Deck of the Fill Even Though Corps’ Jurisdiction has Terminated

Section 404 issues6
Section 404 Issues

  • 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!

Something wicked this way comes
Something Wicked This Way Comes

  • FOIAs Filed by Same Groups

    -Louisville District

    IPs & NWPs

    -Pittsburgh District

    IPs & NWPs

    -Huntington District


Section 404 issues7
Section 404 Issues

  • 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

Outlook hint think legal bills
Outlook (Hint: Think Legal Bills)

  • Enough is Enough

  • WVCA Challenges

    • Selenium

    • Category A

    • AMD Policy

    • WV Stream Condition Index

    • Jurisdictional Waters


  • Refuse to Give Up and Resort Only to the Legal System

    -Work Through All of This


  • 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


  • 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


  • 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?

  • Show Me the Impacts


  • Global Climate Change

    -Supreme Court has Fallen Victim to Hysteria

    -Back to EPA

    -Time for a Response


  • Don’t Give Up

  • Not Going to be Easy

  • Going to Cost Money

  • In the End, We Will Prevail

    -Appalachian Coal Far Too Important

  • But Will We Prevail Soon Enough?