Regulatory & Legislative Update

1. Regulatory & Legislative Update Jason Bostic April 22, 2008 West Virginia Mine Drainage Task Force

2. Introduction Legislative Update -Stream Tier Controversy -WQS and Trout Streams -Special Reclamation Fund Regulatory Issues Brief Legal Update

3. 2008 Legislative Session • Tier 2.5 Stream Controversy • Part of Anti-Deg Program • Required List to be Approved by Legislature -Legislative Deadlock Last Year -Changing Numbers -309 (original) -156 (2008) -38 (Committee amendment)

4. 2008 Legislative Session • Frustration on All Sides • Viewed by the Senate as a failed Compromise • After Committee Actions, Amendment on the Floor During Debate on Bill Passage

5. 2008 Legislative Session • Kessler Amendment -Strike Tier 2.5 Category Completely -Return to Tier Definitions that Existed Before Tier 2.5 was Enacted -Problem: Tier 3.0 Definition Too Broad -Why? Before Anti-Deg Implementation Program, Tiers Meaningless • Not Explained on the Floor in Detail

6. 2008 Legislative Session • In the House -Compromise Language to Narrow Scope the Tier 3.0 -Amendment Attempt to Return Tier 3.0 to Pre-Kessler Definition (failed) -Passed the House

7. 2008 Legislative Session • Confusion Over Intent of Amendment and Actual Effect -Try Another Amendment? -Agency Leadership to Resolve -Interpretative Rule -Published Last Week, Open for Comment Until June 3, 2008

8. 2008 Legislative Session • Trout Stream List -W.Va. Has Codified Stream List in WQS Rule -Trout Stream Receive Lower Effluent Limits -Agency-proposed Expansion of List by 300 plus Streams -Validity of Listings Questioned -On the List, There Forever -Limited Ability to Dispute Findings

9. 2008 Legislative Session • Trout Stream List -Senate Amended to Expansion of Codified List -Preserved Everybody’s Rights -WV DEP will Assign Limits to Protect Trout Stream -Permittee can Appeal Limits to EQB

10. 2008 Legislative Session • Senate Bill 751 • Special Reclamation Fund (ABS) • Actuarial Study Indicates the SRF will be in the Red by 2010 • Threat of Litigation • Proposal to Increase per-ton Coal Tax to Prevent Deficiency • Increase from 7 Cents to 14 Cents for One Year

11. 2008 Legislative Session • Other Bills that Passed -SB 641 Water Withdrawal Survey • Bills that Didn’t Pass -Mining Adjacent to Cemetery -Mountaintop Mining Bill

12. Regulatory Issues • Section 404 Permitting -Huntington District is Issuing Permits -Litigation in Kentucky has Halted the Louisville District -Jurisdictional Determinations -New Federal Mitigation Rule

13. Corps of Engineers • My Compliments -Difficult Permitting Workload -Threat of / Under Litigation -Difficult Industry -Protecting the Environment

14. Regulatory Issues • W.Va. Article III / SMCRA Permitting -Stability and Predictability Returned -Agency Facing Personnel Crisis -Dealing with Influx of FOIA Requests -Material Damage Amendment (OSM)

15. Regulatory Issues • State Section 401 Certification -Significant Progress to Address Concerns -Agency Leadership -Environmental Protection Enhanced

16. Regulatory Issues • Section 402 / NPDES -Tracking / Reporting Issues -Lots of Permits and Outlets -Look Forward to Helping the Agency -Resolution Beneficial to Everyone

17. Regulatory Issues • MSHA Design Manual for Coal Refuse Impoundments and Structures -Big Document -Lots of Science and Mathematics -Big Changes -Need More Time

18. Legal Update • Still under Attack -404 / 402 / SMCRA • Chambers Decision Headed for Richmond (Arguments on May 13) • SRF / Water Treatment Cases Being Briefed

19. Legal Update • Corps Litigation Reignited Last Week -New Request for TRO and Preliminary Injunction • Preliminary Injunction to Treat Selenium • MSHA / UMWA Litigation on Mine Rescue Teams

20. Outlook • More of the Same • Hopeful for Positive 4th Circuit Decision • Lots to Do • Strong Coal Market • Maintain and Build Relationships • Hang in There… One Step at a Time

21. Soapbox • What is Environmental Protection ?

22. Soapbox • Recent Testimony in Appeal of Se Orders: Q : Has OVEC ever sought money to explore treatment technologies for selenium in the state of West Virginia and provided that technology to DEP? A: No. Q: Why Not? A:Didn’t Occur to Me.

23. Soapbox Q: Do you know what technology exists in order to meet [Se] limits? A: No, I Don’t. Q: …You don’t know how anyone is going to comply if you end up with these Order rescinded, Right? A:Right.

24. Soapbox • West Virginia Mine Drainage Task Force 30 year history and mission of bringing academia, industry and regulators together to work for practical, scientific-based solutions for issues associated with mining and post-mining water discharges

25. Soapbox • Two National Award Wining Reforestation Efforts in W.Va. -Fola Coal Co. & ICG Eastern • Arbor Day Celebrations at Both -Planting Trees that Will One Day Absorb the CO2 Emissions from the Coal Mined at the Same Site

26. Soapbox

27. What is Environmental Protection ? • Just Want it to Stop, With No Idea How to Solve the Problem Or • Working Together to Find the Solution • Working Tirelessly to Grow Trees on Mined Land Or • Using Electricity, Energy, Paper, Ink and Internet Bandwidth (i.e. COAL) to Create Judicial Hurdles

28. Conclusion • Thanks for Your Continued Support of the Association and the Mine Drainage Task Force • Questions