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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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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?