The Interstate Mining Compact Commission: Seeking to Secure State Sovereignty in the Minerals Arena

Transcription

1 The Interstate Mining Compact Commission: Seeking to Secure State Sovereignty in the Minerals Arena Interstate Mining Compact Commission (IMCC) Gregory E. Conrad Executive Director

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3 What is the IMCC? Established 1971 by a Group of Mining States Under the auspices of the Council of State Governments Multi-State Government Organization Recommendatory in Nature and does not have Regulatory Powers Represents Natural Resource/Environmental Protection Interests of the 21 Full Member & 5 Associate Member States on Both Coal & Noncoal/Hardrock Mining Issues in Washington, DC 3

4 IMCC Membership Full Membership: enactment of state legislation required authorizing entry Associate Membership: letter from the Governor requesting associate membership Associate members receive all membership benefits but are non-voting members Member States: Alabama Alaska Arkansas Illinois Indiana Kentucky Louisiana Maryland Missouri New York North Carolina North Dakota Ohio Oklahoma Pennsylvania South Carolina Tennessee Texas Utah Virginia West Virginia Associate Members: Colorado Mississippi New Mexico Nevada Wyoming 4

5 Alaska s Entry into IMCC 2012: Compact Legislation Passed in Alaska s House but not Senate April 12, 2013: Compact Legislation s Primary Sponsor Senator Cathy Giessel s Efforts Resulted in the Legislation (Senate Bill 2) Being Passed by Alaska s Legislature on this Date April 15, 2013: Governor Sean Parnell Signed the Legislation and Alaska Became a Full Member of IMCC 5

6 Purposes of the Compact are to advance the protection and restoration of land, water and other resources affected by mining through the encouragement of programs in each of the party states that will achieve comparable results in protecting, conserving and improving the usefulness of natural resources and to assist in achieving and maintaining an efficient, productive and economically viable mining industry. 6

7 IMCC Standing Committees: Abandoned Mine Lands Coal Section Environmental Affairs Noncoal Section Environmental Affairs Mine Safety & Health Education Work Group Awards Resolutions Finance & Administrative 7

8 How IMCC Operates Member State Governor Serves as IMCC Commissioner Governor Appoints Official Representative Representative or Duly Appointed Alternate State Delegate Represents Governor on IMCC Committees 8

9 Powers of the Compact Study of Mining Operations, Processes and Techniques Study of Conservation, Adaptation, Improvement and Restoration of Land and Related Resources Affected by Mining Gathering / Dissemination of Information Making Recommendations (States / Federal Agencies / Capitol Hill) Cooperating with the Federal Government and any Public or Private Entities Having an Interest in Subjects within the Purview of the Compact OBJECTIVE: Strike an appropriate balance between the need for minerals and the protection of the environment. 9

10 Member Communications Memorandums/E-Memos Annual Reports The Compact Quarterly Newsletter Special Reports and Surveys Examples of Past/Recent Reports: IMCC Noncoal Mineral Resources Report Revised 2013 Overview of Financial Assurance Programs for Mine Reclamation State Regulation of Blasting: Policy Procedure and Practice -- Survey Responses State Regulation of Subsidence -- Survey Responses Enhancements to State Mine Safety and Health Programs 10

11 Benchmarking Initiatives / Annual Meetings / Symposiums / Workshops 11

12 IMCC: A United Voice for the States The Interstate Mining Compact Commission is unique in its role as the only state membership organization representing the states interests in Washington, DC on issues related to mining. We recognize that individual states have the power to establish and maintain programs of land and other resource development, restoration and regulation appropriate to cope with the surface effects of mining. (IMCC Strategic Plan) IMCC member states believe a united position in dealing with the federal government affords us a decided advantage. Our commission feels strongly that the collective voice of many is important in our efforts to preserve and advocate states rights. (IMCC Strategic Plan) 12

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15 IMCC: Experience and Expertise in DC IMCC is recognized in Washington, DC for our experience and expertise on mining issues. At request, IMCC has testified on behalf of the states at congressional hearings, some recently including the topics of: Good Samaritan protections for hardrock abandoned mine cleanups Stream protection requirements for surface coal mining operations Hardrock financial assurance requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Legislation to enhance funding for states to reclaim abandoned coal and hardrock mines The impact of the federal budget on state grant programs IMCC Consulted by the General Accountability Office IMCC Consulted by the National Academy of Sciences IMCC s Participation Sought for Advisory Bodies, Steering Committees, and State/Federal Teams 15

16 Ed Fogels, Deputy Commissioner, Alaska Department of Natural Resources, testifying at the October 10, 2013 House Subcommittee on Energy and Mineral Resources hearing focused on EPA v. American Mining Jobs: The Obama Administration s Regulatory Assault on the Economy 16

17 Federal Budget / State Grant Funding IMCC Testimony to House and Senate Appropriations Committee re. Administration s Proposed FY 2014 Budget State grants essential for full implementation of state and tribal regulatory programs under the Surface Mining Reclamation and Control Act (SMCRA) and Clean Water Act (CWA) States have the most direct and critical responsibilities for conducting regulatory operation State Responsibilities: permitting, inspection and enforcement, overseeing timely reclamation, minimizing impact of mineral extraction on people and the environment 17

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20 automatic spending reductions demonstrate Washington dysfunction [and show how government leaders] relinquished their responsibility to govern to a blunt instrument. The Heritage Foundation 20

21 Critical and Strategic Minerals Legislation Development of Critical and Strategic Minerals Legislation H.R Recently passed in House -- No list of critical minerals; expansive opportunity for minerals to be considered critical month time limit for federal permitting S Recently Introduced in Senate by Senator Murkowski -- Establishes list of 20 critical minerals -- Requires periodic reports from various agencies chronicling delays in mineral permitting -- Requires periodic reports which will continuously assess and reassess the critical minerals list and designation methodology Basic Purpose of Both Bills: To streamline the permitting process for minerals designated as critical 21

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23 Possible Timeline for Environmental Regulatory Requirements for the Utility Industry Revised Ozone NAAQS Ozone (O 3 ) CAIR Vacated Begin CAIR Phase I Seasonal NOx Cap CAIR Remanded SO2 Primary NAAQS SOx/NOx/Visibility Transport Rule Proposal Issued (CAIR Replacement) NOx Primary NAAQS Ozone NAAQS Revision CSAPR Issued (CAIR/Transport Rule Replacement) CO2 Regulation (PSD/BACT) CAIR/Transport Effluent EPA Action Guidelines on Regional Proposed Rule Haze/BART Expected SOX/NOx Secondary NAAQS GHG NSPS Final 316(b) Final Rule Expected PCB Proposed Rule Expected Water Effluent Guidelines Final Rule Expected 316(b) Compliance 1-8 yrs After Final rule PM Transport Rule PCB Phase-out GHG NSPS Implementation (existing sources) Effluent Guidelines Compliance 0-5+ yrs After Final Rule BART (Visibility) Deadline at Some Plants '08 '09 '10 '11 '12 '13 '14 '15 '16 '17 CAMR & Delisting Rule vacated EPA Notice - Regional Haze SIPS Overdue Begin CAIR Phase I Annual NOx Cap Begin CAIR Phase I Annual SO2 Cap PM/PM2.5 PCB ANPR Proposed Rule for CCBs Management 316(b) Proposed Rule HAPs MACT Proposed Rule Proposed PM-2.5 NAAQS Revision GHG NSPS Proposal Ash HAPs MACT Final Rule Expected Expected Final PM-2.5 NAAQS Revision CSAPR Phase I Reductions Ozone Transport Rule Final Rule for CCBs Mgmt Hg/HAPS CSAPR Phase II Reductions HAPS MACT Compliance 3 yrs After Final Rule PCB Final Rule Expected (start of phase-out period) CO2 Begin Compliance Requirements Under Final CCB Rule (ground water monitoring, double liners, closure, dry ash conversion) Adapted from Wegman (EPA 2003) Updated

24 Congressional Efforts to Prevent Train Wreck H.R would require additional regulatory analyses related to economic impacts H.R. 2542, the Regulatory Flexibility Act, concerning impacts to small businesses H.R. 2824, Passed by the House Natural Resources Committee, would prohibit the Office of Surface Mining from promulgating a rule on stream protection (IMCC testified in support of this bill) Congressional riders offered on appropriations bills to restrict funding for the development/implementation of various rules or initiatives by federal agencies. Some examples include: Anticipated EPA rule on financial assurance for the hardrock mining industry Rules or documents pertaining to the definition of waters of the United States Expansion of the storm water discharge program under the Clean Water Act EPA s new role on greenhouse gas new source performance standards 24

25 Office of Surface Mining Coal Issues Coal: IMCC Deals Extensively with the Federal Office of Surface Mining on Issues such as: Federal Oversight of State Regulatory Programs (SMCRA) Title IV & Title V State Program Grants Under SMCRA Administration and Reauthorization of the Abandoned Mine Land Program Some Other Significant OSM Issues and Rulemakings OSM Budget and Appropriations Issues Stream Protection Rule Mine Placement of Coal Combustion Residues Temporary Cessation of Operations Rule Cost Recovery Rule Impoundments Geomine Database Pilot Project Water Quality Requirements for Coal Mining Permits Impact of Hydraulic Fracturing on Coal Mines Indiana Bat Protection & Enhancement Guidelines Limited Liability Rule Bonding Ten-Day Notices Permit Termination Cost Recovery Rule Dam Safety Rule Civil Penalty Rules 25

26 IMCC and Congressional Efforts IMCC Works Extensively with Congressional Offices and Committees on Capitol Hill in Washington, DC on Issues which Include, among others: Good Samaritan Legislation Department of Interior, Mine Safety and Health Administration, Environmental Protection Agency, Bureau of Land Management Budget Matters National Strategic and Critical Minerals Production Act State Primacy Issues Federal Agency Oversight Issues (OSM, EPA, MSHA, BLM) Mining Law Reform Funding for State Regulatory Programs and the Abandoned Mine Land Programs 26

27 Monday Creek Restoration Project 27

28 It has come to pass that federalism has become something that gets enforced, at least in part, by the Supreme Court of the United States. The [Affordable Care Act] health care decision really does underscore that this is a court that cares about federalism principles. General Paul Clement, Former U.S. Solicitor General 28

29 Recent IMCC Participation in Litigation IMCC has been active in litigation on behalf of its member states, particularly with respect to preserving state primacy under national environmental laws. Amicus curiae brief submitted in Montana case Amicus curiae brief submitted in Oklahoma case Amicus curiae briefs submitted in two cases in North Dakota 29

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31 OSM Stream Protection Rule Would replace the final rule adopted December 2008 and the 1983 stream buffer zone rule Tens of thousands of comments submitted on the advanced notice of proposed rulemaking and the EIS scoping process Has attracted wide interest on Capitol Hill four oversight hearings held by the House Natural Resources Committee or one of its Subcommittees Raised as topic of concern in almost all congressional oversight hearings re. OSM proposed budgets beginning in FY 2010 House Natural Resources Committee recently approved H.R. 2824, a bill to scrap the new rulemaking in deference to the December 2008 rule 31

32 OSM Stream Protection Rule 11 states participating as cooperative agencies and have provided input on various chapters of the EIS States have serious concerns about implementation, including: Term Material damage to the hydrologic balance addressed by the rule -- Contained in each state s program -- OSM s definition of the term will have consequences in all states -- Such terms have been necessarily left to each state to define based on their unique circumstances (differences in geology, hydrology, and terrain) 55+ different options set forth by OSM in draft EIS chapters: Ideas explored in past rulemakings or EIS s Concepts that have proven elusive or difficult to implement 32

33 OSM Stream Protection Rule Ulterior motives in draft EIS? An attempt by OSM to reconcile a larger, undefined set of standards for water quality protection being advocated by EPA and the U.S. Army Corps of Engineers, rather than just its own requirements under SMCRA? Must consider in context with development in June 2009 of EPA/DOI/Corps MOU re. Surface Coal Mining in Appalachia Overarching concerns re. conductivity, total dissolved solids, and numerical and narrative biologic water quality standards which have nationwide implications No agreement among federal agencies on what those standards should be In some areas, i.e. setting of narrative water quality standards, feds play no role as Clean Water Act leaves determinations solely to states 33

34 Office of Surface Mining Coal Issues Coal: IMCC Deals Extensively with the Federal Office of Surface Mining on Issues such as: Federal Oversight of State Regulatory Programs (SMCRA) Title IV & Title V State Program Grants Under SMCRA Administration and Reauthorization of the Abandoned Mine Land Program Some Other Significant OSM Issues and Rulemakings OSM Budget and Appropriations Issues Stream Protection Rule Mine Placement of Coal Combustion Residues (CCRs) Temporary Cessation of Operations Rule Cost Recovery Rule Impoundments Geomine Database Pilot Project Water Quality Requirements for Coal Mining Permits Impact of Hydraulic Fracturing on Coal Mines Indiana Bat Protection & Enhancement Guidelines Limited Liability Rule Bonding Ten-Day Notices Permit Termination Cost Recovery Rule Dam Safety Rule Civil Penalty Rules 34

35 Mine Placement of CCRs (Coal Ash) Excerpted from: Managing Coal Combustion Residues in Mines, National Research Council 35

36 Congress on CCRs House recently passed H.R Mine Placement of CCRs remains the province of OSM Mine placement should not be woven into EPA s rulemaking on disposal of CCRs at power plants Prohibits EPA from designation CCRs as hazardous waste under Subtitle C of RCRA Prognosis for passage in Senate is slim 36

37 OSM Cost Recovery Rulemakings OSM considering 3 rulemakings 1) Applies to federal programs administered by OSM 2) Applies to federal lands where states operate programs pursuant to cooperative agreements with OSM 3) Applies to state regulatory programs House Interior Appropriations Committee Rejected OSM proposed cuts to state program grants Directed OSM and Administration to discontinue efforts to push states to raise fees on the industry Bill provides the necessary funds for state programs Significantly more expensive to implement a federal program than to continue state program funding Rejected need for enhanced OSM oversight of state programs Refused additional $$ or FTE s for oversight in OSM budget Strong language supporting state primacy! 37

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39 Ten-Day Notices Office of Surface Mining (OSM) Oversight Ten-Day Notices (TDNs) recent increase across the country Past use of a Ten-Day Letter under OSM Directive on TDNs (INE-35) respected states roles and program integrity and allowed states first opportunity to handle complaints Impacts on state programs -- Require enormous amounts of staff time to respond to allegations of TDNs and Notices of Intent to Sue (NOIs) which often follow -- Can require states to defer action on other program priorities (i.e. permit reviews, enforcement actions, program amendments) -- May subject state to Part 733 action re. takeover of state program Many NOIs being filed in federal courts challenging aspects of SMCRA, especially in relation to the Clean Water Act 39

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42 Successes in Cooperation with Federal Agencies Performance measures re. federal oversight under SMCRA Remining incentives for the coal industry (including adjustment of applicable NPDES permitting requirements and water quality standards) Applicant/Violator System Potential approaches for the regulation of coal combustion wastes by EPA and OSM Reforestation best practices Geo-spatial, geo-referenced data base that captures permitting information for coal mines in Appalachia State/federal effort to identify budget and funding priorities for state and federal programs under SMCRA 42

43 Coordination with Other State Organizations Western Governors Association (WGA) National Association of Abandoned Mine Land Programs (NAAMLP) Western Interstate Energy Board (WIEB) Association of Clean Water Administrators (ACWA) Groundwater Protection Council (GPC) Interstate Oil and Gas Compact Commission (IOGCC) 43

44 Coordination on Isses Good Samaritan protections AML Reauthorization CERCLA financial assurance State grant funding U.S. Extractive Industries Transparency Initiative (EITI) 44

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46 EPA to the Rescue! 46

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48 CERCLA Hardrock Financial Assurance Rulemaking Federal pre-emption? How much financial assurance? ~ Prospective, not remedial ~ Uncertain conditions > Removal of hazardous waste > Water treatment Forms of financial assurance? ~ Third-party forms of self bonding? ~ Fund trusts prospectively? ~ Insurance 48

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51 IMCC Education Initiative IMCC Education Work Group formed in

52 Photos from Nevada Teacher Workshops 52

53 IMCC Minerals Education Teacher Workshop 53

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55 Alaska Resource Education Winner: 2011 IMCC Minerals Education Award, Public Outreach Category Dick Mylius (L) and Joe Wehrman (R), of the Alaska Department of Natural Resources, accepting the award on behalf of Alaska Resource Education during the 2011 Awards Banquet. The banquet is held each year in conjunction with IMCC s Annual Meeting. 55

56 IMCC Minerals Education Calendar 56

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58 2013 Winner Coal Category Vigo Coal Operating Company, Inc. -- Indiana 58

59 2013 Winner Small Operator Category Continental Coal, Inc. -- Missouri 59

60 2011 Winner Noncoal Category Frozen Ropes Baseball Company, LLC New York 60

61 2011 Winner Coal Category Patriot Coal Company, LP -- Kentucky 61

62 2008 Winner Noncoal Category The Arundel Corporation -- Maryland 62

63 Full Time Staff: IMCC Staff & Operations 45 Years of Service to the States Gregory E. Conrad, Executive Director Beth A. Botsis, Deputy Executive Director Ryan Ellis, Legislative & Regulatory Affairs Specialist Part Time Staff: Phyllis Plummer, Bookkeeper Office Location/Address: The office is located in the Washington, DC suburbs. 445 Carlisle Drive, Suite A Herndon, VA Phone: / Fax: Website: Greg Conrad gconrad@imcc.isa.us Beth Botsis bbotsis@imcc.isa.us Ryan Ellis rellis@imcc.isa.us 63

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