Performance Agreement
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Kentucky Performance Agreement |
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INTRODUCTION
The purpose of this document sets forth the basic procedures and coordination between the
Lexington Field Office (LFO) of the Office of Surface Mining (OSM) and the Kentucky
Department for Surface Mining Reclamation and Enforcement (DSMRE) in order to establish and
implement an effective oversight program of regulatory and abandoned mine land (AML)
reclamation activities in Kentucky during the period October 1, 1997, through September 30,
1998. A second function of this document represents LFO's annual workplan by business line and
program activity in support of the Fiscal Year 1998 Annual Performance Plan for the Appalachian
Region. As a result, the Fee Compliance Section (120), the AML Emergencies Section (230), and
the Federal Lands Section (340) are not related to the oversight program, but are included in this
agreement.
This document underscores the shared commitment by DSMRE and LFO in implementing the
purposes and goals of the Surface Mining Control and Reclamation Act (SMCRA) of 1977
through the approved State regulatory program. This document outlines an overall strategy that
emphasizes a partnership for measuring "on-the-ground" reclamation success, off-site impacts,
focuses on specific program areas jointly selected for special emphasis during this evaluation year,
provides for general assessment by LFO of the approved regulatory program, and other business
lines and program activities unique to LFO. It is understood that the document is evolutionary in
nature and in no way limits input by outside stakeholders or modifications agreed to by the above
agencies as implementation is achieved.
The overall objectives of this agreement are:
A. Development of a joint comprehensive plan for implementing a Title V oversight strategy
including business lines and program activities unique to LFO for Evaluation Year 1998.
B. Establishment of specific program areas targeted for special emphasis during Fiscal Year
1998, that will be completed jointly by DSMRE and LFO as outlined in this document and
required by OSM's Directives REG-8 and AML-22. It is recognized that some studies may
be longer than one year in duration.
C. Changes and/or additions to this document will be reviewed by the DSMRE/LFO Work
Group for joint recommendations to management.
D. Special studies projected, but not developed at this time, will be mutually discussed by the
DSMRE/LFO Work Group for joint recommendations to management. Plans for these
studies will be outlined in a narrative format and placed as attachments to this Agreement.
E. LFO will take the lead in the development of oversight reports with full assistance by
DSMRE. Drafts will be provided to team members and management for review and
comment before completing the final report. The results of these reports will be
incorporated into the Annual Evaluation Report.
F. DSMRE and LFO agree to provide the appropriate level of personnel and type of expertise
required to complete these special studies. Where noted in this document, DSMRE and
LFO agree to provide personnel to timely complete joint oversight inspections. DSMRE
and LFO agree to notify one another promptly of any joint inspection cancellation or delay.
LFO further understands certain timeframes must be adhered to on certain joint inspections
in order for DSMRE to meet mandated deadlines.
G. DSMRE agrees to promptly address recommendations and any problems identified during
development of these oversight evaluation reports.
H. DSMRE agrees to continue providing program information through the SMIS computer
tapes as agreed to in the Memorandum of Understanding.
I. LFO will follow the Ten-Day Notice process and Federal enforcement process outlined in
OSM Directive INE-35.
J. LFO will carry out all those business lines and program activities that are unique to OSM's
program in Kentucky, which includes 120, 230, and 340.
FINANCIAL MANAGEMENT100
o Fee Compliance 120
PLANS:
A. LFO will conduct an estimated 20 site investigations during fiscal year 1998 for
compliance with provisions requiring submittal of OSM-1, "Coal Reclamation Fee
Reports" or payment of any Abandoned Mine Lands fees. LFO will issue an
estimated 15 Notices of Violation against any person in violation of these
requirements in accordance with criteria established by the Division of Compliance
Management or the Division of Financial Management. In addition, LFO will
conduct an estimated 15 follow-up inspections, issue five failure-to-abate Cessation
Orders, and refer four cases for alternative enforcement action.
B. LFO will assist the Division of Financial Management on an estimated 20 requests
for obtaining information as to the status of permits that have not filed OSM-1,
"Coal Reclamation Fee Reports" or who submit information which appears to be in
error.
C. LFO will assist the Division of Compliance Management on an estimated 10
requests for tonnage/production estimates on minesites in Kentucky.
ENVIRONMENTAL RESTORATION 200
o State Performance Evaluation 220
PLANS:
LFO will conduct results-oriented reviews in accordance with this document. The
following activity for fiscal year 1998 is projected:
A. Active-Construction Site Visits
Monthly Progress Meetings - DSMRE will notify LFO of the date and time of each
monthly progress meeting on AML reclamation projects. OSM will attend as many
progress meetings as possible.
Change Order Meetings - DSMRE will notify LFO of the date and time of each on-site
visit to discuss any non-administrative change order for AML construction
project contracts which require prior written approval by the Division Abandoned
Mine Lands under the Division of Abandoned Mine Lands Policy Directive,
"Change Orders," dated August 23, 1995. LFO agrees to attend these site visits if
OSM personnel are available.
It is projected that LFO will complete 70 active construction site visits on an
estimated 70 State Abandoned Mine Lands reclamation projects expected to be
active in fiscal year 1998.
B. Final Site Visits - LFO will attempt to attend all scheduled final inspections with
State representatives if LFO personnel are available. Guidance in Directive AML-22
states that oversight of a State AML program will be results oriented. LFO and
DSMRE agree that this policy will help achieve this goal.
It is projected that LFO will complete 25 final construction site visits during fiscal
year 1998.
C. Post-Construction Inspections - Guidance in Directive AML-22 states that on-the-ground
reclamation should provide long-term success. LFO will conducted 25
post-construction site visits on completed reclamation projects in Evaluation Year
1998. The review samples will be randomly selected non-water supply projects
completed for at least two full growing seasons and less than five years prior to the
start of the evaluation year. DSMRE will be offered the opportunity to accompany
LFO personnel during the site visits. The projects will be evaluated for
maintenance needs, success of the revegetation operation, and long-term success
and effectiveness of the various reclamation techniques used to accomplish the
goals of the project.
In addition to this review, LFO will conduct post-construction site visits as needed
to address specific project situations. If time is available, LFO will request
DSMRE to participate.
It is projected that LFO will complete seven post-construction site visits for routine
grant project monitoring.
D. Unannounced Site Visits - LFO reserves the right to conduct site visits on State
AML reclamation projects at any time to perform oversight without notifying
DSMRE. If the LFO's inspector identifies a concern, he will contact the appropriate
State project management personnel prior to completing a report. The LFO
inspector will discuss the concerns identified during the inspection and provide
DSMRE an opportunity to explain the site conditions.
E. Concern Resolution - If an LFO inspection report identifies a concern that the
LFO inspector does not consider resolved, LFO will transmit the report to DSMRE
in a letter. In the letter, LFO will request a written explanation of the concern and
DSMRE's completed or intended actions to address the concern. If the concern
remains unresolved after evaluation of DSMRE response, LFO will request an
office or onsite visit to further discuss the concern.
F. LFO will provide for Stakeholder involvement in the development and
implementation of this document.
G. LFO will enhance cooperation and team work with DSMRE for continued program
improvement.
H. LFO will encourage and continue to explore the DSMRE assumption of the
emergency program through ongoing discussions.
I. LFO will investigate all citizen complaints (estimate - 4) relating to DSMRE
Abandoned Mine Lands program.
o Emergencies 230
PLANS:
A. LFO will conduct all preliminary investigations of citizen complaints alleging
emergency situations and determine if a potential emergency situation exists.
B. LFO will refer all potential emergency complaints, resulting from preliminary
investigations, to the Appalachian Regional Coordinating Center for final
consideration as a declared Federal emergency project.
C. Upon formal notification of Appalachian Regional Coordinating Center final
decision on potential emergency complaints, LFO will refer ineligible complaints
(estimate - 16), eligible, high priority, non-emergency situations (estimate - 24),
and reclamation work remaining after completion of declared Federal emergency
projects (estimate - 12) to DSMRE Abandoned Mine Lands Program.
D. LFO will report any potential problems affecting compliance with the requirements
to meet the National Environmental Policy Act or the National Historic
Preservation Act.
E. LFO will provide project assistance to the Federal Reclamation Program as needed,
to include project monitoring, additional investigation, etc.
F. LFO will refer all non-emergency conditions to DSMRE Abandoned Mine Lands
reclamation program within seven working days of receipt of formal Appalachian
Regional Coordinating Center final decision.
o Program Development and Maintenance 250
PLANS:
LFO will provide the Appalachian Regional Coordinating Center with field support to
award and administer annual grants, such as:
A. Authorization to Proceed (ATP) Requests
1. Pre-Authorization Site Visits - LFO will field verify no fewer than one
third of the ATP requests. These sites will be selected randomly unless
LFO or DSMRE determines that a particular ATP request warrants field
verification. LFO projects it will complete 20 pre-authorization sites visits
on an estimated 45 "Authorization to Proceed" with construction requests
from DSMRE.
2. LFO will evaluate and accept State completion of the requirements to meet
the National Environmental Policy Act, resulting in either Environmental
Assessment or categorical exclusion documentation.
3. LFO will provide DSMRE an authorization to proceed determination for
proposed reclamation projects within 20 working days from receipt of a
complete authorization to proceed request.
B. Guidance Documents
DSMRE will provide LFO a copy of all written directives or memoranda containing
programmatic guidance or office operating procedures to implement and/or
accomplish the goals of DSMRE's AML plan. This does not include personnel and
clerical guidance documents.
C. Water Supply Projects - DSMRE will provide LFO a list of water supply studies
and will notify LFO when a study is complete. DSMRE and LFO agree that one
water supply project study that was conducted under the criteria established in the
technical guidelines drafted by the joint DSMRE/OSM team in EY 1997 will be
evaluated by OSM in EY 1998. The selected project study will be evaluated by
OSM upon completion and prior to design and construction. LFO agrees to
evaluate the study and provide comments within 21 days of receipt of the study
from DSMRE. Assuming the selected project is authorized, LFO intends to
conduct a comprehensive review of the selected project upon completion of the
construction work. The guidelines for this review will be jointly developed in EY
1998 and the study conducted by OSM no earlier than EY 1999.
D. Grants - The ARCC grants staff plans on conducting the following reviews to
ensure that:
1. Drawdowns and disbursements of monies and accounting of program
income are accomplished in accordance with requirements for Federal
funds.
2. All required audits and implementation of all appropriate audit
recommendations are being performed, and
3. Submission of applications, financial reports, progress reports, and close-out
reports are timely.
E. AML Technical Project Review - LFO will provide technical review of State
Abandoned Mine Lands projects to make recommendation on site conditions
affecting closeout of the fiscal year 1994 Thirteenth and 1995 Fourteenth Annual
State Abandoned Mine Lands Construction Grants. This will involve evaluation of
about 20 projects and may involve an estimated 30 site visits during the fall of 1997
and summer of 1998.
F. Small Operators Assistance - The purpose of this special study is to assure that
SOAP permits can be identified and tracked for review following issuance. LFO
will select five approved permits that obtained SOAP assistance within the past 18
months. Each permit will be reviewed to determine if the information obtained and
paid for is allowable under Kentucky's approved program.
G. Construction Management
1. DSMRE will provide LFO a copy of construction plans, specifications, and
other documents at the time each AML construction project is advertised for
bids.
2. DSMRE will utilize departmental personnel employees to provide on-site
construction monitoring and inspection services, unless otherwise provided
in the Authorization to Proceed.
3. DSMRE will notify LFO in writing prior to execution of any non-administrative
change order for AML construction project contracts which
required prior written approval by the Director of the Division of
Abandoned Mine Lands under the Division of Abandoned Mine Lands
Policy Director "Change Orders," dated August 23, 1995, or as amended,
and schedule an on-site meeting. This notification will include a copy of all
available documentation supporting the change order. LFO will, to the
extent practicable, attend all such on-site meetings. Any concerns LFO
identifies will be given directly to DSMRE in a manner that does not
interfere with contractor negotiations, unless DSMRE otherwise requests
more public comment. An analysis of LFO findings from these inspections
will be included in the Annual Report.
H. Appalachian Clean Streams Initiative (ACSI) - DSMRE and LFO recognize the
importance of the ACSI. It is agreed that we will work to promote ACSI programs
and efforts.
1. We agree to promote citizen, industry, and other government agency
involvement in identification of ACSI sites and seeking outside funding of
ACSI reclamation projects.
2. DSMRE agrees to incorporate the objectives of the ACSI in planning and
selection of AML reclamation projects where possible.
3. DSMRE agrees to notify LFO of AML sites with ACSI characteristics
during their normal inventory and project selection activities. LFO will use
this information to further build an inventory of ACSI sites and investigate
alternative funding sources.
4. OSM will take the lead and DSMRE agrees to consider working with OSM
to:
a. Develop a guidance document that provides assistance to citizens in
promoting and implementing clean streams projects.
b. Develop a Geographical Information System component that
captures the appropriate data associated with the Appalachian Clean
Streams Initiative.
c. In conjunction with Stakeholders, develop and locate Acid Mine
Drainage remediation expertise.
d. Solicit input from Stakeholders to determine potential Appalachian
Clean Streams sites.
e. Maintain an Appalachian Clean Streams Initiative clearinghouse.
f. Maintain participation in the Rock Creek and Mt. Victory Task
Forces.
g. Continue to obtain base line data as to the occurrence of Acid Mine
Drainage impact of streams in Kentucky.
I. Maintenance of the Approved Reclamation Plan - DSMRE agrees to take the
necessary actions to amend the AML plan to address changing requirements of
Public Law 95-87 and adapt to current program conditions and needs. DSMRE and
LFO agree to keep an open dialogue on the current program maintenance needs and
State plans and actions to accomplish needed maintenance. LFO will administer
Abandoned Mine Lands plan amendments in a timely manner.
The last outstanding program issue is the 30 CFR Part 884.15 letter dated
September 26, 1994, that concerns changes needed to DSMRE AML program.
J. Abandoned Mine Land Inventory System (AMLIS) - LFO will evaluate
DSMRE maintenance of the Abandoned Mine Lands Inventory System. DSMRE
agrees to use the electronic data input authority to work toward the goal of entering
all known Kentucky AML sites into the AMLIS. DSMRE agrees to work with
LFO on a plan to enter all known AML sites not entered in the AMLIS and ensure
prompt entry of all future new AML sites into the AMLIS. LFO agrees to work
with DSMRE to determine any assistance LFO can provide to accomplish these
goals, including the possibility of data entry.
K. OSM Technical Assistance - LFO will serve as DSMRE's primary source for
technical and policy information relating to the implementation of SMCRA. LFO
will respond to all DSMRE requests for assistance or information in an accurate
and timely manner.
L. Data Transfer - DSMRE agrees to explore the feasibility of providing OSM with
data from their AML complaint tracking/project development and project
accounting databases on electronic media on a periodic basis. In past years,
DSMRE has provided printouts of their project accounting database on a monthly
basis. Providing the data on electronic media would reduce paper consumption and
re-entry of data by OSM for oversight and grant monitoring purposes.
M. Remining (10) - DSMRE and OSM recognizes that remining represents an
opportunity to potentially reclaim thousands of acres of abandoned mine lands at
reduced or no expense to the government or the taxpayers. It is agreed that we will
continue working together to collectively develop incentives that will encourage
economically-viable and beneficial remining operations that will reclaim
abandoned minesites within the framework of the existing laws and regulations.
The Remining Team, composed of personnel from DSMRE, LFO, Division of
Water, U.S. Corps of Engineers, and a member from the Kentucky Resources
Council, will actively seek involvement from the industry, the environmental
community, the public, and the regulatory community toward removing
impediments and encouraging the reclamation of AML sites through remining.
Specific objectives include:
1. To continue existing partnerships with DSMRE, the industry, the
environmental community, and other appropriate stakeholders. The
Kentucky Remining team will meet monthly.
2. It is agreed that both agencies will work to identify AML sites in Kentucky
that will provide environmental benefits if remined. DSMRE agrees, within
the scope of existing resources, to notify OSM of AML sites with remining
potential during their normal routine inventory and project development
activities. Utilize inspection staff to promote remining.
3. To identify existing impediments to remining in DSMRE and recommend
changes to the Act or regulations, as appropriate.
4. Monitor sites until completion and report "on-the-ground " results.
5. DSMRE and OSM will evaluate how to measure remining sites by October
1998.
6. LFO will assist DSMRE in conducting outreach programs for all interested
parties, and develop a list of potential remining sites in DSMRE. DSMRE
and LFO will conduct outreach visits to proposed remining operations.
7. DSMRE and LFO will evaluate proposed projects and develop solutions
with coal industry participation.
8. DSMRE will submit, as appropriate, the remining program changes to
OSM. OSM will review program changes within 180 days of their
submittal.
POST ACT RECLAMATION 260
o PLANS:
A. LFO will solicit project proposals on post-Act sites from DSMRE for referral to the
Appalachian Regional Coordinating Center during fiscal year 1998.
B. LFO will conduct all preliminary investigations on citizen complaint sites alleging
post-Act emergency complaint conditions.
C. LFO will refer potential post-Act emergency situations to the Appalachian Regional
Coordinating Center for final consideration as a declared Federal Post-Act Program
emergency project. This includes preparation of a "statement of litigation status" if
the site is proposed for construction. Refer non-emergency sites to DSMRE.
D. LFO will provide project assistance to the Federal Reclamation Program as needed,
to include project monitoring, additional investigations, etc.
ENVIRONMENTAL PROTECTION 300
o State Performance Evaluation 320
PLANS:
LFO will conduct results-oriented reviews in accordance with REG-8, as well as the
following agreements negotiated with Kentucky. The following activity for fiscal year
1998 is projected:
A. Complete Inspections (315) - This study will include joint, complete field
inspections. Samples will be jointly selected at random of actively producing
minesites (AP, A-1, and A-2) and Phase I (P-1) bond release sites from current lists
provided by DSMRE and random numbers by OSM. Procedures will be those
followed historically by LFO and DSMRE on random sample inspections and will
include the office review of the aerial overflight tapes prior to conducting the field
inspection. LFO will evaluate the inspection frequency and industry compliance for
each complete inspection. For each underground mining operation selected, LFO
and DSMRE will jointly review the outcrop barrier and subsidence control plans.
B. Phase III Bond Releases (130) - These complete inspections will be conducted
jointly by LFO/DSMRE. Selection of these sites will be made from referrals to
OSM by the Regional Administrators. For each underground mining operation
selected, LFO and DSMRE will jointly review the outcrop barrier and subsidence
control plans. If a scheduling conflict arises, DSMRE will conduct the inspection
originally scheduled. OSM will select one out of three permits by the random
sample selection process. OSM will promptly identify any problems found during
the joint bond release inspections. When a TDN is processed as a result of a joint
bond release inspection, DSMRE will suspend processing the bond release until
responding to the TDN.
C. Bond Forfeiture (10) - LFO will evaluate all of Kentucky's permanent program
bond forfeitures on forfeited sites where the bond had been readjusted to meet the
recommendations of the July 1993 Joint Bond Steering Committee report.
Minesites will be reviewed to determine the amount of reclamation completed or to
be completed with the available bond monies. Reclamation cost estimates will be
made on those sites inspected.
D. Post-Bond Release (10) - A special study initiated in EY 1997 by LFO is
reviewing the long-term effectiveness and revegetation success of coal refuse and
preparation plants following the Phase III bond release. The study will specifically
evaluate sites to determine the reclamation success where both four feet and less
than four feet of soil cover were used. LFO will develop an inventory of these post-bond
release sites as well as the scope of the study. A total of 10 federal field
inspections are projected in this evaluation year. The London Area Office will
complete the final report.
E. Baseline Water Monitoring (8) - This study, which was initiated in EY 1996, is
evaluating the quality of the hydrologic baseline data (surface and groundwater)
submitted prior to permit issuance. The evaluation is focusing on the
appropriateness of sampling point location, quality of data gathered, condition of
surrounding watershed, and completeness of the water user inventory.
Approximately 25 permit applications/sites (20-East and 5-West) were randomly
selected from permit applications filed with DSMRE. Eight additional inspections
are planned for EY 98. Study methodology includes an administrative review of
the information submitted by the applicant followed by a joint field review. The
field review consists of an evaluation of site conditions and water sampling results.
DSMRE will supply a geohydrologist with assistance from LFO staff and
reclamation specialists.
F. Preparation Plant Reclamation (25) - The study initiated in EY 1997 has
developed an inventory of sites which have been sitting idle for an extended
number of years. Twenty-five (25) additional sites will be selected for complete
inspections in EY 1998 for compliance with the Kentucky program. Sites where
AMD has or is currently being treated will be added to DSMRE's inventory of
AMD sites. The study will be conducted by a joint team from OSM and DSMRE.
An interim report will be completed earlier in the evaluation year to present the
team's findings and recommendations on the first year's inspections.
G. Prime Farmland - This special study is a joint evaluation of DSMRE's
performance in identifying prime farmland acreage that meets compliance of
productivity standards, especially in regards to the requirement to prove corn
production. The study will be jointly completed in the fall of 1997. A joint report
will be prepared which will be included in the EY 1998 Annual Evaluation Report.
Joint inspections will be conducted with DSMRE of minesites that have
successfully raised a corn crop and are proposing to measure the crop for
productivity. Samples will be taken in accordance with TRM-19 regardless of the
companies' sampling procedures. In addition to sampling, the field of plots will be
measured to determine the acreage of corn produced if the company method is
either the plot or whole field harvest. A total of 10 sites are projected for joint
review.
H. Blasting - LFO will conduct a two-part special study in EY 1998. The final
reports will be included in the EY 1998 Annual Evaluation Report.
1. Complaints - LFO personnel will complete an administrative review by
analyzing the SMIS database for all blasting complaints received in
Evaluation Year 1997. The review will (a) categorize the complaints (i.e.,
nuisance, ground vibration, air blast damage, and fly rock), and (b)
determine whether the violations were issued during the normal inspection
process or in response to citizen complaints. It is unlikely that follow-up
inspections will be necessary but, if needed, will be completed jointly with
DSMRE.
2. Blast Plan Review - LFO will conduct an in-depth review of blast plan
compliance during all complete inspections of active mining operations.
The review will include:
a. Compliance with the vibration compliance method
b. Completeness and adequacy of blast records
c. Procedures to control flyrock and protect the public
In addition, all flyrock events will be reviewed by LFO's blasting team
jointly with DSMRE's blasting representative.
I. Off-site Impacts - DSMRE's program for protecting the environment and public
from off-site impacts will be evaluated by collecting and analyzing known off-site
damage resulting from surface and underground coal mining. A new database and
verification process was developed. DSMRE will supply LFO with all Inspector's
Violation Statements for non-compliances and cessation orders. DSMRE will work
with OSM to identify off-site impacts from bond forfeiture sites. The Inspector's
Violation Statement will include all violations written and assessed during EY 1998
and all outstanding violations as of October 1, 1997.
Data will also be gathered from two other sources. These are (1) disposition of
OSM Ten-Day Notices and (2) OSM verification through inspector interviews
and/or field measurements of off-site impacts during oversight and bond forfeiture
inspections. Final results of this study will be included in the EY 1998 Annual
Evaluation Report with a mid-year report provided to DSMRE in May 1998.
J. Surface Mining Information System - Two studies are planned which will
include the review and analysis of the SMIS data provided bi-annually to LFO. The
results of each report will be included in the Annual Evaluation Report.
1. Enforcement Study - The study will consist of an evaluation and
interpretation of the violation information from SMIS for all inspectable
units. Non-compliances and Cessation Orders will be reviewed for numbers
and types of performance standards violated, length of abatement periods,
penalty assessed, etc. In addition, the enforcement records for each
company will be analyzed. The number of inspectable units, where there
were violations cited and those where there were not violations, will be
reported. Any trends identified will be documented and discussed with
DSMRE prior to finalization of the EY 1997 Annual Report.
2. Inspection Frequency Study - The study will consist of an evaluation of
SMIS data for all inspectable units to assure that all required partial and
complete inspections have been conducted by DSMRE. This information
will be supplemented by observations on inspection frequency during each
complete random oversight inspection.
K. Office of Hearings and Appeals - LFO will request the Office of Hearings and
Appeals (OHA) to provide the files for all petitions for award of costs and expenses
that OHA received during a specific time period. These petitions will be
reviewed by an Attorney from the Knoxville Office of the Field Solicitor to
determine if applicable regulations are being followed.
o Applicant Violator System 320
PLANS:
A. LFO will provide coordination and consultation between DSMRE and the
Applicant Violator System Office.
B. LFO will review ownership and control information for permitees and operators on
all complete inspections. AVS will be reviewed to assure the information is the
same as that found in the permit review and during the on-site inspection.
o Federal Lands 340
PLANS:
A. LFO will conduct an inspection and enforcement program on all surface coal
mining operations located on Federal Lands in Kentucky. LFO projects that an
estimated 534 (218 Complete, 316 Partial) Federal inspections will be carried out
on Federal permits in Kentucky during Fiscal Year 1998, unless the proposed
Cooperative Agreement is approved.
B. LFO will respond to citizen requests for inspection in a timely and appropriate
manner.
C. LFO will conduct 25 ownership and control verification inspections.
D. LFO will issue an estimated 10 Federal Notice of Violations and two Cessation
Orders during Fiscal Year 1998, and conduct 30 follow-up inspections to assure
compliance with required remedial measures.
E. LFO will assist the Knoxville Field Office (KFO) permitting unit by obtaining on-site
information on five permit applications and 15 permit revisions or amendments
during Fiscal Year 1998.
F. LFO will process five bond release applications with on-site evaluation inspections.
G. LFO will assist KFO in conducting Valid Existing Rights analysis and
determinations.
H. OSM will continue processing the proposed Cooperative Agreement for State
regulation of surface coal mining operations on Federally-owned lands in
Kentucky. Prior to State assumption of Federal Lands permits, LFO will assist
DSMRE in:
1. LFO will develop and implement a roll-out plan to conduct joint inspections
with DSMRE for a minimum of one quarter prior to the State assuming
regulatory primacy.
2. LFO and KFO will conduct two (one-half day) orientation training sessions
to facilitate transfer of the permitting function on Federal lands.
I. Complete outreach and address concerns of all parties with an interest in Federal
Lands.
J. LFO intends to enhance the working relationship with the Corps of Engineers to
improve the drainage into the Corps reservoirs.
o Program Development and Maintenance 360
PLANS:
A. LFO assist in the awarding and administration of Kentucky's annual grants.
B. LFO will coordinate administration of DSMRE's Regulatory program amendments
in a timely manner. OSM and DSMRE need to develop a rulemaking schedule for
resolution of outstanding 30 CFR 732 letters, required amendments listed in 30
CFR 917.16, and 30 CFR 884 letters for the AML program.
The outstanding 30 CFR Part 732 letters are dated February 22, 1985, August 22,
1988, February 7, 1990, and June 10, 1996. The issues Kentucky submitted include
subsidence, siltation structures, and updates to regulations to comply with the
Energy Policy Act of 1992. The program issues that remain include definition of
affected areas and roads.
Another outstanding program issue is the regulation changes required by
amendments in accordance with 30 CFR 917.16. The issues that remain include
timing of public newspaper advertisements, Environmental Protection Agency
concurrence on effluent limits, bond pool cap, and definition of "knowingly" in the
Kentucky statutes.
C. LFO will implement oversight procedures to evaluate DSMRE's program
consistency with the agency policy statement from the National Wildlife
Federation/West Virginia Highlands Conservancy Notice of Intent to Sue. LFO
will evaluate these measures on each complete inspection through development of a
specialized narrative report.
D. DSMRE plans to review its policies and procedures for probable hydrologic
consequences (PHC) material in the permit applications and the cumulative
hydrologic impact assessment (CHIA) on permit decisions. This effort is also
intended to achieve the objective of the acid mine drainage initiative. LFO will
assist, if requested, with any improvements in the areas of PHC and CHIA.
E. ACID MINE DRAINAGE PREVENTION: This initiative provides for
implementation of an overall strategy for reclaiming mines in a manner preventing
long-term pollution. This comprehensive program will include pollution
prevention technology, inspection procedures, and State and Federal program issue
resolution.
DSMRE plans to develop a comprehensive AMD prevention plan for the State.
Upon development of this plan, LFO and DSMRE will modify the performance
agreement with additional specific steps to be completed this evaluation year.
In the interim, the following two efforts will continue:
(1) GIS (10) - Complete input of data into the AMD inventory. OSM will take
the lead in developing the GIS database with assistance from ARCC/WRCC
technical personnel. Approximately 10 field inspections will be conducted
using the GPS units to locate additional sites and maintain the current AMD
inventory. DSMRE geohydrologist will not be available for these
inspections. OSM will contact DSMRE prior to conducting these
inspections to make arrangements for a joint inspection. DSMRE is
responsible for keeping the statewide AMD inventory.
(2) Treatment Costs - LFO will gather information on all oversight
inspections on sites that are treating AMD. DSMRE will assist LFO by
providing an inventory of sites where AMD is currently being treated. OSM
inspectors will conduct field inspections to obtain pertinent data from the
permittee relating to AMD treatment. This includes 1) type and method of
AMD treatment, 2) amount of AMD being treated, 3) yearly cost of
treatment, and 4) success of treatment. Those sites will be located by GPS,
and this information will be added to the AMD inventory and provided to
DSMRE.
F. ENERGY POLICY ACT: This initiative provides for implementation and
oversight of the provisions of the Energy Policy Act of 1992. Under the Energy
Policy Act of 1992, all underground coal mining operations conducted after
October 24, 1992, must:
OSM's activity in this area will consist of the following:
* An assessment of each State's efforts in amending its program to be
consistent with the provisions of the Energy Policy Act of 1992.
This will include a summary discussion of the status of the 30 CFR
732 actions pending in each State.
* EPACT Implementation - A special study to review DSMRE's
implementation of the water replacement provisions of EPACT will
be initiated. OSM will compile a list of all citizen complaints
alleging a water loss that DSMRE was received since July 16, 1994,
the effective date of their water replacement regulation. Fifteen
permits will be randomly selected from this list. The complaints
associated with these permits will be reviewed to determine if
DSMRE actions were consistent with requirements of EPACT.
G. Grants - Contractual Services - A cyclical review of existing contractual services
to the Administration and Enforcement Grant for FY 1997 will be evaluated in EY
1998. An overview of the Memorandum of Agreement (MOA), the reporting
requirements, and history of expenses will be investigated. The agencies with
MOA's include Kentucky State Nature Preserves, Kentucky Heritage Council,
Kentucky Fish and Wildlife, Department of Mines and Minerals, Department of
Military Affairs, and Eastern Kentucky University.
TECHNOLOGY DEVELOPMENT AND TRANSFER 400
o Training (R&T) & (AML) 410/450
PLANS:
A. LFO will assist ARCC and Headquarters by providing instructors for training and
course development.
B. LFO will cultivate State partnerships to build a network of experienced trainers for
DSMRE/regional/national training effort.
o Technical Assistance (R&T) & (AML) 420/440
PLANS:
A. Blasting - To address many of citizens' concerns and historical problems
associated with blasting, DSMRE and LFO agree to participate in the National
Blasting Work Group initiated by OSM.
B. Down-Dip Underground Mines - OSM and DSMRE have found that above
drainage underground mines have caused serious off-site problems in Kentucky.
To facilitate the highly complex, technical analysis and field evaluation, a study
was initiated in EY 1996. File review and issue papers were completed in EY
1997. The study is pending completion of the final report. Field reviews where
completed by LFO will include locating these sites in the field by GPS units and
eventual placement in a GIS database.
1. Outcrop Barrier - Due to the importance and complexity of this study, a
separate Performance Agreement was drafted. Signature of the DSMRE
Commissioner was obtained on January 22, 1996. The initial phase
included the use of three LFO reclamation specialists directed by the LFO
mining engineer. DSMRE agreed to provide adequate technical assistance
to complete this project and drafting a report of the study. Issues found
during the study were referred to DSMRE, Field Services, for review and
enforcement actions as required. Reviews of 20 high priority sites have
been completed by DSMRE. Final joint review of these issues will be
completed in EY 1998.
LFO will complete a follow-up, special study in EY 1998 on non-priority
issues referred to the State. These issues included outcrop barriers,
subsidence control plans, and portal closure. The follow-up review will
include a review of permit files in DSMRE Regional Offices by LFO
reclamation specialists. A total of 50 issues will be selected with site
inspections completed as necessary. Results will be included in the final
report. A draft report will be provided within two months of the project's
completion.
2. Authorized Punch-outs/Underground Mining - Both DSMRE and OSM
have had recurring problems with unauthorized breeches of the outcrop
barrier or punch-outs. Punch-outs pose problems not only short-term for
adequate reclamation, but possibly long-term for preventing water build-up
in down-dip underground mines. Authorizing punch-outs on the "front end"
could help alleviate many problems associated with down-dip underground
mines. The study would be a technical discussion group composed of
OSM, MSHA, DMM, DOW, DSMRE, and selected industry representatives
to explore the feasibility both in technical terms and programmatic
requirements of permitting punch-outs. No site visits are anticipated.
C. Durable Rock Fills - LFO and DSMRE agree to scope out a special study to
review the long-term stability of durable rock fills. LFO will require technical
assistance from ARCC to develop the study which is planned for EY 1999. No
field inspections are projected in EY 1998.
D. LFO will provide technical support for State and Federal enforcement activity and
technical assistance to DSMRE in litigation.
E. LFO will assist in policy development, rulemaking, and technical issue resolution.
1. Sediment Ponds - LFO and DSMRE agree to complete two special studies
regarding the design of sediment ponds. Both studies were initiated in EY
1997.
* Design Standards - DSMRE is working with the University of
Kentucky on a study to obtain data on the current design standards
on sediment ponds. Of specific concern is the design criteria for
meeting the instantaneous limit of .5 ml/L settleable solids during a
precipitation event. OSM will provide field assistance and technical
reviews as requested by DSMRE. A draft report will be completed
and circulated to Dr. Richard Warner and Tom FitzGerald prior to
completion.
* Drainage Control - A joint special study will review the adequacy
of drainage control in watersheds impacted by surface mining. The
study will focus on determining if drainage from surface mines is
causing off-site impacts to downstream areas. Field reconnaissance
will consist of delineating watershed boundaries, measuring
watershed acreage, verifying that sediment structures are built as
designed and/or certified, and reviewing alleged off-site damage.
The data collected in the field will then be evaluated to determine if
the ponds are appropriately sized to accommodate the drainage they
are receiving.
The study team will consist of DSMRE and OSM engineers and
field inspection personnel. Samples will be drawn from citizen
complaints received by DSMRE during calendar years 1997 and
1998 where the complainant alleges off-site impacts due to drainage
from surface mines. A total of 10 sites are planned for review.
Results of the report will be included in the EY 1998 Annual
Evaluation Report.
2. Permitting Public Roads - A multiple-interest work group is examining
the definitions "affected area" and "surface coal mining operations" with
regard to permitting sections of public roads.
3. Valley Fills - LFO is coordinating discussions with other Federal agencies
about the loss of stream headwaters and aquatic habitat resulting from
extensive use of valley fills. The relationship of the Clean Water Act
(Sections 401, 402, and 404) with SMCRA is important and germane to
understanding agency roles in administering these provisions. Initially this
discussions involved only representatives of Federal agencies, including
USFWS, USCOE, USEPA, and OSM. When appropriate, the discussions
will include DSMRE, the Kentucky Division of Water, and the Kentucky
Department of Fish and Wildlife.
4. Conservation Agreement - Copperbelly Water Snake - The Conservation
Agreement for the Copperbelly Water Snake has been developed in order to
expedite conservation measures needed for the continued existence and
recovery of the species. The agreement focuses on two objectives. The first
is to eliminate or significantly reduce significant threats to the copperbelly
water snake. The second is to enhance and/or stabilize specific areas of
occupied and historic habitat as identified in the agreement. Through the
Conservation Agreement, we will work to meet these objectives. The
Copperbelly Water Snake Conservation Team, including our designated
representative, will coordinate the activities of the Agreement.
o Technology Transfer 430/460
PLANS:
A. LFO will assist with the Appalachian Regional Coordinating Center in
dissemination of technical information. This includes Technical
Information Processing, research studies, technical investigations,
experimental practices, etc. LFO will monitor three existing experimental
practices, and process two new projects.
B. LFO will assist DSMRE by conducting quarterly joint complete inspections
on the Jenny Wiley Golf Course project in Floyd County on the area mined
by Costain Coal Company. In addition, OSM and DSMRE will attend a
monthly interagency coordination meeting until the mining is completed.
C. Citizen Complaint Team - OSM and DSMRE recognize that our primary
customers are citizens of the coalfields and the general public who are
affected by SMCRA. It is the highest intent of both agencies to be
responsive to their concerns and to allow them full access to information
needed to understand and evaluate the effect of mining on their health,
safety, general welfare, and property. To that end, a work group composed
of DSMRE's Frankfort staff, LFO staff, and LFO field personnel have
initiated periodic meetings to review the manner in which we communicate
with the citizens. Some of the planned initiatives will include:
1. Conducting outreach meetings and training efforts, such as joint
teaching in public schools and other interested organizations.
2. Meet with citizens to explore new ideas of outreach, such as
conducting training on pre-mine well surveys.
D. Electronic Permitting - DSMRE has developed and initiated an electronic
permitting project. Once implemented, coal permitting would improve the
service levels offered to the regulated community and the citizens of the
Commonwealth. The scope of the project includes:
1. Electronic submittal of surface coal mine products.
2. Electronic review of the submitted documents.
3. Document imaging of existing permit documents.
4. Improve permit review work flow routing and broaden public and
regional office access to permit information.
LFO vigorously endorses this initiative and will assist DSMRE in obtaining
funding and will assist with any software developed if requested.
EFFECTS ON OTHER AGREEMENTS
This oversight agreement terminates and replaces the Performance Agreement between OSM and
the Commonwealth of Kentucky signed by the Commissioner of DSMRE on October 31, 1996.
SIGNATURES
Representing OSM and DSMRE, the following officials agree to the objectives and steps outlined
in this Agreement:
Office of Surface Mining
Lexington Field Office
/s/ William J. Kovacic /d/ 11/17/97
William J. Kovacic Date
Field Office Director
Kentucky Department for Surface Mining
Reclamation and Enforcement
/s/ Carl E. Campbell /d/ 11/17/97
Carl Campbell Date
Commissioner