!..,+ ~ Accordingly, the Board grants Appellants' Motion to Withdraw Appeal and Appeal No. 11- Appellants, Appellee, ORDER ENVIRONMENTAL QUALITY BOARD

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1 --=-- ENVIRONMENTAL QUALITY BOARD WEST VIRGINIA HIGHLAND CONSERVANCY, INC., OHIO VALLEY ENVIRONMENTAL COALITION, and SIERRA CLUB, Appellants, v. Appeal No EQB THOMAS L. CLARKE, Director, Division of Mining and Reclamation, West Virginia Department of Environmental Protection, and Appellee, FOLA COAL COMPANY, Intervenor. ORDER On December 28; 201l, Appellant filed its Motion to Withdraw Appeal stating the parties have reached a settlement agreement which resolves all matters presented.iu. the instant appeal and, as a result, and pursuant to the terms of the Settlement Agreement and Release, attached hereto, Appellants move to withdraw their appeal. Accordingly, the Board grants Appellants' Motion to Withdraw Appeal and Appeal No EQB is dismissed from the Board's dockel!..,+ ~ It is so ORDERED and ENTERED this ~~ day of February, Environmental Quality Board

2 WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD WEST VIRGINIA HIGHLAND CONSERVANCY, INC., OHIO VALLEY ENVIRONMENTAL COALITION, and SIERRA CLUB, Appellants, v. Appeal No EQB THOMAS L. CLARKE, Director, Division of Mining and Reclamation, West Virginia Department of Environmental Protection, Appellee, FOLA COAL COMPANY, LLC, Intervenor. CERTIFICATE OF SERVICE This is to certify that T, Jackie D. Shultz, Clerk for the Environmental Quality Board, have this day, the 23 rd day of February, 2012, served a true copy of the foregoing ORDER to all parties in Appeal No EQB, by mailing the same via United States Mail, with sufficient postage, to the following address: via certified first-class mail: J. Michael Becker, Esquire Joseph Lovett, Esquire Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV Certified Mail # ~~ Robert G. McLusky, Esquire Douglas J. Crouse, Esquire Jackson Kelly PLLC P.O. Box 553 Charleston WV Certified Mail # /' via personal service: Thomas L. Clarke, Director Division of Mining and Reclamation WV Department of Environmental Protection th Street, S.E. Charleston, WV Joseph L. Jenkins, Esquire Office of Legal Services WV Department of Environmental Protection th Street, S.E. Charleston WV 25304

3 WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., OHIO V ALLEY ENVIRONMENTAL COALITION, and SIERRA CLUB Appellants, v. Appeal No EQB THOMAS L. CLARKE Director, Division of Mining and Reclamation West Virginia Department of Environmental Protection Appellee v. FOLA COAL CO. LLC, Intervenor. APPElLANTS' MOTION TO WITHDRAW APPEAL The parties to this appeal have reached a settlement agreement, which resolves all matters presented in the instant appeal. See Ex. A. Settlement Agreement and Release. As a result, and pursuant to the terms of the agreement, Appellants hereby move to withdraw their appeal. Respectfully submitted West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Sierra Club

4 By Counsel, V~ ~ J. lchael Becher (WV Bar No ) J seph Lovett (WV Bar No. 6926) Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV

5 CER~CATEOFSERVICE This is to certify that I, J. Michael Becher, attorney for Appellants, have this day, the 28 th of December 2011, served a true copy of the foregoing Appellants' Motion to Withdraw Appeal to all parties in Appeal No EQB, by mailing the same via United States Mail, with sufficient postage to the following addresses: Joseph Jenkins Office of Legal Services WV Department of Environmental Protection t1i Street, S.E. Charleston, WV Robert G. McLusky Douglas J. Crouse Jackson Kelly, PLLC P.O. Box 553 Charleston, WV Jackie Shultz (6 copies plus original) WVEQB th Street S.E. Charleston, WV L BECHER (WV Bar No ) Co sel for Appellants Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV (304) Counsel for Appellants

6 WEST VIRGINIA ENVIRONMENTAL QUALITV BOARD CHARLESTON, WEST VIRGINIA WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., OHIO V ALLEY ENVIRONMENTAL COALITION, and SIERRA CLUB Appellants, v. Appeal No EQB THOMAS 1. CLARKE Director, Division of Mining and Reclamation West Virginia Department of Environmental Protection Appellee, v. FOLA COAL COMPANY LLC, Intervenor. SETTLEMENT AGREEMENT AND RELEASE 1. This Settlement Agreement and Release ("Agreement") is made and entered into as of December 22, 20 It ("Effective Date") by and among Appellants West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition and Sierra Club, Appellee Thomas 1. Clarke, Director, Division of Mining and Reclamation, West Virginia Department of Environmental Protection, and Intervenor Fola Coal Company. DEFINITIONS 2. Whenever the terms listed below are used in this Agreement, the definitions shall apply.

7 3. "Appellants" shall mean the West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Sierra Club, collectively. 4. "Appellee" shall mean the West Virginia Department of Environmental Protection. S. "Board" shall mean the West Virginia Environmental Quality Board 6. "Invervenor" shajl mean Fola CoaJ Company, LLCand all associated entities. 7. "Parties" shall mean Appellants, Appellee, and Intervenor, colh::ctively. APPLICABILITY 8. This Agreement shall apply to and is binding on the Parties and all persons acting on their behalf. RECITALS 9. WHEREAS, Appellants filed Appeal No EQB with the Board on May 13, 2011 alleging WVDEP's issuance of West Virginia National Pollutant Discharge Elimination System (WVINPDES) Permit No. WV on April 15,2011 was improper; 10. WHEREAS, Appellee and Intervenor have contested the allegations raised by Appellants during the course of this appeal; and 1 I. WHEREAS, the Parties wish to resolve all claims as between them relating to Appellee's issuance of WVINPDES Pennit WVl without any admission as to the contested claims raised in Appellants' Appeal; 12. NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and intending to be legally bound, the Parties, agree as set forth below; 13. The Parties agree that this Agreement will avoid prolonged litigation, that this Agreement represents a resolution of all allegations made and claims that were or could have

8 been asserted in Appeal No EQB, and that this Agreement is fair. reasonable and in the public interest; 14. Within 30 days of the Effective Date of this Agreement. Intervenor agrees to request a modification to add the following conditions into Permit WVl , for Foia Coal Company's Tomahawk Surface Mine: a. Bi monthly (twice monthly) sampling requirements and immediately effective selenium limits on Outlets 001 through 004 of 4.7 ~g11 average monthly concentration and 8.2 ~g/i daily maximum concentration, provided nothing in this agreement prohibits Fola Coal Company from using the results of such monitoring to demonstrate that it has no reasonable potential of violating State water quality standards an'd seeking to terminate such effiuent limits ; 15. Once submitted, Intervenor agrees to pursue the above-mentioned modification until it is issued and not to challenge any of the above listed conditions. 16. Further, Intervenor agrees to perform WET testing in accordance, with the schedule below in, both Ike Fork and Twentymile watersheds. The sampl ing for the WET tests will be taken from a single point in each of the two watersheds and as close as possible to discharges from the Tomahawk Mine. Before the first sampling event, Fola shall propose and seek Appellants' approval of the two WET sampl ing sites. In the event of a disagreement, the parties may submit the dispute to the Court. Four tests shall be taken from one site in each of the two watersheds during the first two years of active coal removal on site. Intervenor agrees to perform at least one test in each of the following seasons: 1) "Spring" ~ between March 22 and June 21; 2) "Summer" - between June 22 and September 21; 3) 'Fall" - between September 22 and December 21; 4) "Winter" - between December 22 and March 21.

9 17. The results of the ahove referenced tests shall be sent to Appellants and Appellee. within 10 days of completion of testing at the fohowing addresses: Mike Becher Appalachian Mountain Advocates ').0. Box 507 Lewisburg, West Virginia Jeff Parsons WVDEP - Division of Mining and Reclamation th Street SE Charleston, West Virginia Appellee agrees to process the above-mentioned modification in a timely manner and to include each of the above conditions, as requested by Intervenor. 19. Appellants agree to file a motion to withdraw the instant appeal within 10 days of the Effective Date of this Agreement. GENERAL PROVISIONS 20. Nothing in this Agreement shall prevent Appellants or Appellee from enforcing the terms ocpermit WV I , including the terms and conditions made applicable to that permit through the modification described in this Agreement. 21. Nothing in this Agreement shall prevent any party from pursuing or challenging any future modification, reissuance, or renewal of the instant permit, except as specifically detailed in this Agreement. 22. This Agreement shall terminate upon the renewal of Permit WV I The terms of this Agreement shall not be changed, revised, or modified except by written instrument signed by each of the Parties to this Agreement; 24. The Parties reserve alllega\ and equitable rights and defenses available to them to enforce or defend the provisions of this Agreement. Before any party invokes such rights to

10 interpret, enforce, or modify this Agreement, that party shall send written notice to the other Parties outlining the nature and requesting informal negotiations among the principals and counsel to resolve the matter. If the parties are unable to resolve the matter within } 0 business days from the date of the notice (or within an additional period of time agreed to by the Parties), any party may invoke its rights. 25. The undersigned representative(s) for each Palty certifies that he or she is fully authorized by the Party or Parties whom he or she represents to enter into the terms and conditions of this Agreement and to bind them legally to it By Counsel, 1. ichael Becher (W.Va. Bar No ) Joseph M. Lovett (W.Va. Bar No. 6926) Cotlnselfor Appel/ants Appalachian Mountain Advocates P.O. Box 507 Lewisburg, WV (304) Date: December 22, Va. Bar No. 9680). r Appellee EP/Office of Legal Services ''' Street, S.E. Charleston. WV (304) Robert G. McLusky (W. Va. B ) Douglas J. Crouse (W. Va. Bar No ) Counsel for Intervenor Jackson Kelly, PLLC P.O. Box 553 Charleston, WV Date: December 22, 2011