Performance Agreement
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Colorado Performance Agreement |
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The Colorado Department of Natural Resources
Division of Minerals and Geology
and
The Office of Surface Mining Reclamation and Enforcement
Denver Field Division
Evaluation Year 1998
Table of Contents
Introduction
Part A - Performance Measures and Oversight Topic
I. Performance Measures
II. Oversight Topics
III. Other Oversight Study
IV. Oversight Inspections
Part B - Colorado Internal Reviews in Lieu of OSM Oversight Studies
Part C - Pending Colorado Program Oversight Studies
Part D - Transfer of State Program Information
Part E - Public Participation
Part F - Signatures
Introduction
The following five parts include specific topics, goals, performance measures, and inspections for
the conduct of oversight for 1998. Oversight will be largely spearheaded, directed and reported by
the Colorado Oversight team. This team includes representatives of the Colorado Division of
Minerals and Geology (DMG) and the Office of Surface Mining Reclamation and Enforcement
(OSM), Denver Field Division (DFD). Oversight and team activities will be conducted within the
framework created and agreed to in the "Oversight Agreement" signed February 7, 1996, as a multi
year agreement.
The 1998 evaluation year (EY) will commence on October 1, 1997, and extend through September
30, 1998. This agreement refers to oversight to be conducted in EY98.
Part A - Performance Measures and Oversight Topics
I. Performance Measures
OSM, in its September 30, 1997, Directive REG-8, "Oversight of State Regulatory
Programs" document, has prescribed a method for reporting information gleaned from its
oversight program. With the exceptions noted in Sections A through B below, the 1998
Colorado Annual Evaluation Report will follow that format. The Colorado Oversight Team
has agreed that for a more accurate reporting of Colorado activities, some changes to the
REG-8 format are required in the form of supplemental tables to the annual report as
described in Section B below.
A. Off-Site Impacts
An off-site impact will be determined to be mitigated when the applicable enforcement
action has been terminated and the abatement completed as mandated by DMG. In order for
OSM to verify that an impact has been mitigated, a representative of OSM may accompany
the DMG inspector on any follow up inspection for enforcement actions citing off-site
impact. This process will be organized as follows:
Step 1 - DMG inspector identifies problems, issues enforcement action.
Step 2 - DMG Senior Environmental Protection Specialist (Senior) reviews
enforcement action, determines whether off-site impact has occurred.
Step 3 - If the Senior determines that there has been no off-site impact
(negative determination), OSM will not be directly involved. If there
is a positive determination, he or she notifies OSM.
Step 4 - DMG notifies OSM of upcoming inspection for termination of
enforcement action. OSM may accompany inspectors.
OSM may accompany the DMG on the follow-up inspection or review DMG's determination
of whether the problem has been abated. If OSM accompanies DMG on the follow-up
inspection, they would be present for only the portion of the inspection that pertains to the
enforcement action, and would not conduct oversight of the entire inspection.
OSM will observe DMG's determination of whether or not the impact has been mitigated as
directed in the enforcement action issued by DMG. The type and degree of impact would
be derived from DMG's notice of violation, inspection report, and documentation of the
assessment of any civil penalty.
Should OSM have questions or concerns regarding the prescribed abatement or with DMG's
termination of the enforcement action, resolution would occur as described in the "Part V -
Resolving Issues" section of the Oversight Agreement. OSM would not initiate federal
enforcement without first affording DMG every possible opportunity to resolve the problem.
Conflicts between DMG and OSM will not take place in the presence of the operator, nor
would the OSM representative direct the operator to perform abatement other than that
required by DMG.
The value for "Total number of observations made to evaluate mine sites or permits for
off-site impacts" on the lower portion of Table 4 will include the total number of DMG complete
inspections, special focus inspections concentrating on off-site impact, Notices of Violation
for off-site impact, citizens' complaints alleging off-site impact, and other inspections which
assess off-site impact during EY98. The Team will decide, at its quarterly meetings, which
other inspections should be included in the number of observations. Other inspections might
include bond release inspections or citizen complaints directed to OSM.
B. Additional Tables for the Annual Report
The team will prepare additional tables, as it deems necessary, to more accurately describe
the Colorado program for the annual report. One additional table will include the total
number of acres disturbed, backfilled, graded, topsoil replaced, and seeded in the prior year.
Since operators do not always apply for bond releases as reclamation is completed, tracking
of bond releases alone is not an accurate measure of the success of the Colorado program.
Tracking the progress of reclamation will allow for an additional measure of Colorado's
success.
This information does not become available to DMG until after February of each year, and
will be provided to OSM as soon as it becomes available. DMG will provide the table in
final, electronic form to facilitate OSM including it in the report. The 1998 report will reflect
reclamation completed during the calendar year 1997.
Another additional table will provide information on the status of reclamation of forfeited
sites. Tables now required by REG-8 track only those sites where reclamation is complete.
If a site were forfeited in a given year, and the reclamation initiated but not yet complete, the
table would not show any reclamation activity for that year. A number of the sites in
Colorado have required more than one season to complete reclamation. To report
reclamation activity each year, it is necessary to include an additional table which would
include the site name, reclamation work completed during the evaluation year, cumulative
reclamation work completed, initial funds amount, funds expended during the evaluation
year, cumulative fund expenditures, and remaining funds.
II. Oversight Topics
Of the potential performance measures and oversight topics which are listed in Part III,
Section D of the February 6, 1996 Oversight Agreement, the following have been selected
for EY98. The definitions included with each topic are provided only to define the limits of
review and to define the goal for which DMG will have been deemed successful in its
program implementation.
A. Prevention of Off-Site Impacts
1. Roads
Haul roads outside of a sedimentation pond network typically found at most mining
operations have the potential to cause high amounts of sediment to be discharged
from the haul road locations. Haul roads that will be the subject of this special focus
review will be those roads that have drainage leaving an area which does not report
to a sedimentation pond. The review will concentrate only on the hydrologic
consequences of haul roads. Actual discharge from the road may or may not be
observed during this review. Designs of haul road drainage structures will not be
analyzed as a part of this review unless field conditions indicate a failure of the
structure.
The focus of this topic will be to determine how effectively DMG is implementing
its approved program to prevent off-site impacts associated with road construction
and maintenance. For the purpose of this review, off-site is considered to be the area
undisturbed by mining operations adjacent to, and down slope from, the selected
road. Road construction and maintenance requirements are found in Sections 4.03
and 4.17 of the Rules and Regulations of the Colorado Mined Land Reclamation
Board for Coal Mining (Rules).
Definition of Off-Site Impacts:
The construction, maintenance, and post-mining conditions of roads into and across
the site of operations will control or prevent erosion and siltation, pollution of water,
and damage to public or private property. To the extent possible using the best
technology currently available, haul roads shall not cause damage to fish, wildlife,
and related environmental values and shall not cause additional contributions of
suspended solids to streamflow or to runoff outside the permit area. Any such
contributions shall not be in excess of limitations of State or Federal laws.
Measurement:
A determination of no off-site impact is made when the oversight team can determine
that the construction and maintenance of the road under review has controlled or
prevented the conditions listed in the definition above. An off-site impact would
only be identified if a road violation has an impact on the values listed above. Road
performance standard violations that do not affect a value listed above will not be
considered an off-site impact.
Sample Population:
Three operations for this special focus were selected based on the size and extent of
roads, type of operation, and location. The inspections will be unannounced.
Schedule for Review
This special focus will be conducted during the EY98 review period.
2. Blasting
This blasting special focus was conducted and completed during the last evaluation
period. The team believes that doing this special focus again would be worthwhile
since last year's review of this topic identified certain parts of mine blasting
programs where DMG and OSM were able to obtain improved operating methods.
Last year's review of this topic did identify one condition that resulted in an
enforcement action. The condition did not result in an off-site impact, however.
Each operation has an approved blasting plan designed to prevent off-site impacts.
The focus of this topic will be to determine how effectively DMG is implementing
its approved program to prevent off-site impacts attendant to blasting operations.
Blasting requirements subject to this review are defined in Sections 4.08.1, 4.08.2,
4.08.4, 4.08.5, and 4.08.6 of the Rules and Regulations of the Colorado Mined Land
Reclamation Board for Coal Mining (Rules).
Definition of Off-Site Impacts:
Blasting shall be conducted to prevent injury to persons, damage to public or private
property outside the permit area, adverse impacts to underground mine workings, and
change in the course, channel, or availability of surface or ground waters outside the
permit area. Exceedances of airblast and ground vibration limitations are not in and
of themselves off-site impacts; however, exceedances are recognized as an indicator
of increased potential for off-site impacts. Flyrock, including blasted material
traveling along the ground, that extends beyond the permit boundary or beyond the
line of property owned or leased by the permittee will be considered an off-site
impact.
Measurement:
A determination of no off-site impact will be made when the oversight team can
determine that the operation, during the evaluation year, has been conducting blasting
operations to prevent the conditions listed in the definition above. In order to
ascertain that there are no off-site impacts from a blasting operation, the team will
verify the following:
* The operator is conducting all of the required monitoring.
* Complete blasting records are generated for each blast.
* Flyrock is not evident beyond the specified areas.
* There are no patterns of airblast or ground vibration exceedances.
The team, including any ad hoc members, will jointly develop a review procedure for
each site prior to commencing the review. Off-site structure surveys will not be
conducted as a course of this review. Unannounced airblast and ground vibration
monitoring will be conducted by the team.
DMG and/or the operator, at DMG's discretion, will develop and implement a plan
for remediation of any blasting operations where it has been determined that
detrimental off-site impacts have occurred or are likely to occur.
Sample Population:
Three mine sites where active blasting operations are occurring have been selected.
The inspections will be unannounced to ensure unbiased seismic monitoring.
Schedule for Review:
This special focus review will be conducted during the EY98 review period. Blasting
records reviewed will be for the twelve month period prior to the inspection.
B. Reclamation Success - Phase I Bond Release
The focus will be to determine how effectively DMG is implementing its approved
program to ensure successful reclamation in that mining operations are being
backfilled and regraded in accordance with approved plans.
Each operation has an approved postmining topography as part of the reclamation
plan. The map and plan indicate the post-mining contours, elevations, and landscape
characteristics including maximum allowable slopes, the density, location and size
of any reconstructed watersheds, and the approved post-mining drainage plan. The
approved maps and plans will be the basis for comparison in determining the success
of reclamation at a given site.
Definition of Successful Reclamation for Phase I Bond Release:
The permittee has successfully completed backfilling, regrading, and drainage control
in accordance with the approved reclamation plan.
Measurement:
A determination of successful reclamation is made when DMG can determine that
areas which have been backfilled and regraded are in accordance with the approved
plan. Methods for determining success may include the following:
* Comparing a topographic map of the reclaimed topography, based on aerial
photography or land survey, to a map of the approved postmining topography.
* Surveying slopes on the site and comparing the results to slopes measured on
the postmining topography map.
* On site visual comparison of the reclaimed area to the postmining topography
map.
* Comparison of aerial photographs to the postmining topography map.
* Measurement of gradients, dimensions, verification of appropriate channel
lining (if required), and observations of the general condition and density of
reconstructed watersheds.
* Review of previous DMG Bond Compliance Inspections which verified
backfilling and grading and drainage reconstruction in accordance with the
approved post-mining topography.
* On site verification that all roads have been reclaimed in accordance with the
approved plan, or that any remaining roads are approved for permanent
retention.
* On site verification that all structures have been demolished in accordance
with the approved plan, or that any remaining structures are approved for
permanent retention.
* Review of final certification documents for excess spoil fills or refuse piles.
* Review of any slope stability monitoring being conducted.
Sample Population:
The Team will review three of the Phase I Bond Release applications received during
the evaluation year.
Schedule for Review:
This special focus review will be conducted during the EY98 review period.
However, if less than three Phase I applications are received, review of this topic will
continue into the 1999 evaluation year.
C. Public Participation - Bond Release
Each operation requesting a bond release is required to provide notification of such
request to the public in a specific manner. Persons having an interest in the bond
release may also be allowed access to the permit area for the purpose of gathering
information relevant to the release request and those persons with a valid legal
interest which might be adversely affected by release of the bond have the right to file
written objections. Those persons filing written comments or objections may also
request an informal conference to resolve the issues. These requirements are found
in Section 3.03.2 of the Colorado Rules.
Definition of Public Participation - Bond Release
Each operation requesting a bond release is required to provide public notification
of each request through publication in a newspaper of local circulation and written
notice to adjoining property owners, surface owners, appropriate local government
bodies, municipalities, regional planning commissions, boards of county
commissioners, county planning agencies, sewage and water treatment authorities,
and water conservancy and water conservation districts in the locality in which the
mining operations took place. DMG is also required to notify landowners of pending
bond release inspections, and advertise a public notice of proposed bond release
decisions.
Measurement
A determination can be made that the public was afforded opportunity for input when
the team can determine that:
À"À operators and DMG have published notification in a newspaper as required,
À"À operators and DMG have provided written notification to all parties as
required.
Sample Population
The team will study all operations that have submitted a bond release application for
which DMG has issued a proposed decision during the period October 1, 1997
through June 30, 1998.
Schedule for Review
The review will be conducted and finalized during this evaluation year.
III. Other Oversight Study - Permit Stipulations
Part III.C. of the February 6, 1996 Oversight Agreement between DMG and DFD allows the
Team to conduct special in-depth studies which the Team has agreed are critical to successful
implementation of selected areas of Colorado's program. During the planning phase of the
1998 Evaluation Year, DFD raised concerns, based on an Interior Board of Land Appeals
case, No. 83-575, about some of the stipulations DMG had placed on decisions to approve
various permitting actions. DFD proposed that the Team evaluate the appropriateness of
stipulations DMG imposes during EY 98. The Team agreed that review of this topic is
appropriate.
Purpose:
The purpose of the review will be to determine whether or not the stipulations DMG places
on permitting decisions are appropriate. Generally, a stipulation will be deemed appropriate
when it can be determined that the stipulation does not circumvent the requirements to
provide certain information, plans, and/or data described in the Rules and which are required
to be included in a complete application for a new permit, permit renewal, or revision to a
permit .
Criteria:
Prior to embarking on the review, the Team will mutually agree upon more specific criteria
based on Colorado's regulations and any legal guidance available from past court rulings
which are identified by the Team and agreed to be relevant. Stipulations imposed in 1997
will be reviewed to assist in the determination of the criteria.
Method of Review:
The Team will review all stipulations imposed by DMG, through the first nine months of the
evaluation year. Each stipulation will be judged against the criteria outlined above. If the
Team finds that the stipulation is appropriate, no further action will be required. If the
stipulation is deemed inappropriate by the Team, it will be reported as described below.
Reporting:
The Team will generate a report of its findings. Included in the report will be:
* a description of the review methodology and criteria,
* a summary of the sample size and type (administrative, hydrology, vegetation,
compliance information, etc.) of the stipulations which were reviewed,
* the total number of stipulations which were found to be appropriate and inappropriate
by type,
* a description of any stipulations which were found to be inappropriate, to include:
- the reason the stipulation was deemed inappropriate,
- the current status of the stipulation,
- a description of any mitigation deemed necessary to correct the inappropriate
stipulation,
* recommendations of the Team to ensure that future stipulations are issued in
accordance with the criteria set forth in the review,
* a timetable for implementation of the Team's recommendations.
IV. Oversight Inspections
In addition to the special focus inspections described above, OSM will conduct oversight on
five DMG complete inspections. The five inspections will be a sample of sites remaining
after the exclusion of sites to be visited under a special focus and sites for which the bond
has been forfeited. The selection of those five sites will be carried out collectively by the
Colorado Oversight Team. Part B - Colorado Internal Reviews in Lieu of OSM Oversight Studies
DMG will not conduct internal reviews this year given the scope of oversight topics and inspections
selected.
Part C - Pending Colorado Program Oversight Studies
All special focus topics analyzed during EY97 have been completed. There are no pending studies.
Part D - Transfer of State Program Information
The steps to be taken during development of the process have been/will be as follows:
1. DMG has migrated to a new system. Migration planning and programming have
included a function to allow electronic transfer of program data. Programming is
underway to create the desired function in the new database. In late 1995 DMG
received a draft copy of the "Core Data Set" which OSM in currently interested in
receiving on a regular basis. This new data set is not entirely included in the previous
data set. Some additional data which the OSM now desires can be easily included
in the current programming structure. Others could not be easily included. Therefore,
DMG, will have to conduct some additional re-programming in order to begin to
capture the remainder of the data elements.
2. Testing of the data function will take place once the new system is in place.
3. Electronic data will be transmitted to DFD along with hard copies of program
information for a period of three months, if appropriate, to allow DFD to conduct
necessary quality checks.
4. Any discrepancies in the quality of electronic data will be attended to and corrected.
5. DMG will conduct re-programming in order to capture outstanding data elements
which could not be included in the initial programming effort.
Part E - Public Participation
The Team organized and conducted public outreach meetings to notify the public and solicit public
participation regarding the 1998 Evaluation Year Oversight Plan. In addition to advertising the
public meetings in a newspaper of state-wide distribution, approximately 125 letters were sent to
industry, consultants, environmental groups, and citizens. None of the people that attended the
meetings were concerned coal field citizens or representatives of an environmental group. DMG and
OSM will again hold public meetings to solicit comments for next evaluation year's agreement,
however, the team will discuss other methods by which the public can provide comments regarding
oversight and program implementation.
OSM will post legal notice in a newspaper of state-wide distribution announcing completion of the
EY97 Annual Report and EY98 Oversight Agreement. The notice will inform the public where they
may get copies of these documents and encourage public participation in the oversight process.
Part F - Signatures
Representing the Colorado Department of Natural Resources, Division of Minerals and Geology, and
the Office of Surface Mining Reclamation and Enforcement, Denver Field Division, the following
parties agree to the purpose, goals, and anticipated actions proposed in this Attachment to Oversight
Agreement. This agreement can be nullified and/or modified at any time based on the agreement of
the parties.
Susan J. McCannon Date
Coal Program Supervisor
Division of Minerals and Geology
Colorado Department of Natural Resources
James F. Fulton Date
Director
Denver Field Division
Office of Surface Mining Reclamation and Enforcement