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

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

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

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

2008 Legislative Session Kessler Amendment 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 Broad -Why? Before Anti-Deg Implementation Program, Tiers Meaningless Not Explained on the Floor in Detail Not Explained on the Floor in Detail

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

2008 Legislative Session Confusion Over Intent of Amendment and Actual Effect 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

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

2008 Legislative Session Trout Stream List Trout Stream List -Senate Amended to Expansion of Codified List -Preserved Everybodys Rights -WV DEP will Assign Limits to Protect Trout Stream -Permittee can Appeal Limits to EQB

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

2008 Legislative Session Other Bills that Passed Other Bills that Passed -SB 641 Water Withdrawal Survey Bills that Didnt Pass Bills that Didnt Pass -Mining Adjacent to Cemetery Cemetery -Mountaintop Mining Bill

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

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

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

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

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

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

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

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

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

Soapbox What is Environmental Protection What is Environmental Protection?

Soapbox Recent Testimony in Appeal of Se Orders: 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: Didnt Occur to Me.

Soapbox Q:Do you know what technology exists in order to meet [Se] limits? A:No, I Dont. Q:…You dont know how anyone is going to comply if you end up with these Order rescinded, Right? A: Right.

Soapbox West Virginia Mine Drainage Task Force 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

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

Soapbox

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

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