Performance Agreement
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Virginia Performance Agreement |
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PERFORMANCE AGREEMENT
The purpose of this performance agreement between the Office of Surface Mining Reclamation
and Enforcement's (OSM) Big Stone Gap Field Office (BSGFO), and the Virginia Department of
Mines, Minerals and Energy/Division of Mined Land Reclamation (DMME/DMLR) is to:
Assure the continued constructive relationship currently held by the BSGFO and the
DMLR as each endeavors to accomplish the goals of the Surface Mining Control and
Reclamation Act (SMCRA) and the Virginia Coal Surface Mining Control and
Reclamation Act of 1979;
Assure that their respective roles in ensuring State primacy are maintained;
Assure that OSM's goals for the following national priorities are met: Remining for Real,
Appalachian Clean Streams, and Acid Mine Drainage (AMD); and
Assure that oversight of the Virginia Regulatory and Abandoned Mine Land (AML)
Programs is implemented in accordance with the provisions of OSM Directives REG-8,
Oversight of State Regulatory Programs and AML-22, Evaluation of State and Tribal
Abandoned Mine Land Programs.
The provisions, understandings and agreements necessary to assist OSM and DMLR in achieving
these common goals are:
1. BSGFO is, in summary, r equired by OSM D irectiv es REG-8 and AML-22 to: develop
and execute a performance agreement with the sta te; p lan and conduct oversight
activities involving inspections, independent r eviews and technical analyses;
prepare reports and documents in accordance with REG-8, AML-22 and other national
and regional policies or procedures; develop operational procedures consistent with
national and regional policies; coordinate technical and other assistance with the Regional
Director; interact on a routine and continuing basis with citizens, State and local coal
associations, and environmental organizations to identify their areas of concern, which
will be major factors in determining where OSM will focus its resources; provide appropriate
assistance to the state, if necessary; and, prepare an annual evaluation report for Evaluation
Year (EY) 1997 on the Virginia Program by December 1, 1997.
2. BSGFO and DMLR will, pursuant to OSM Directives REG-8 and AML-22, prepare
and execute a performance agreement and workplan for EY 99 prior to September 30,
1998.
3. BSGFO and DMLR agree to cooperatively support the Remining For Real Initiative
including those processes described in the Big Stone Gap Field Office Remining For Real
Workplan, Evaluation Year 1998, Attachment C.
4. BSGFO and DMLR agree to cooperatively support the Appalachian Clean Streams
Initiative including those processes described in the Big Stone Gap Field Office
Appalachian Clean Streams Initiative, Annual Work Plan 1998, Attachment D.
5. BSGFO will work with DMLR this evaluation year to assure an up to date inventory of
potential Acid Mine Drainage (AMD) Title V sites. DMLR will participate in the
Regional OSM/Interstate Mining Compact Commission (IMCC) work group
working on the AMD inventory and related Title V AMD issues. BSGFO and DMLR will
exchange information related to this effort.
6. BSGFO and DMLR have established, with the opportunity for citizen and industry input,
program areas targeted for special review emphasis during EY 1998 (Described in
Attachment A) where the evaluation of the target areas will be conducted jointly by
teams of both BSGFO and DMLR personnel. We have clearly outlined the review scope
and methodology to be used in conducting the reviews. DMLR will name a contact
person or persons for each Performance Agreement/Workplan item to coordinate and/or
participate in the review.
It is recognized that additional review t opics may be added to this document based upon
review findings, stakeholder suggestion, un planned events, or OSM Regional or National
directive. Changes to this document will be developed by the OSM/DMLR Workplan Development
Team and forwarded to management. DMLR will be afforded the opportunity to participate in other
oversight studies conducted during the evaluation year, if they choose to do so.
7. OSM and DMLR staff will promptly address and discuss implementation issues and
problems identified during EY 98 in a manner that produces clear descriptions of those
problems and issues and leads to action plans or solutions which are mutually agreeable
to both the BSGFO and the DMLR. OSM and DMLR management will diligently work
to timely resolve any area of concern once the OSM/DMLR review team advises them of
the need for management assistance.
8. OSM and DMLR will review any areas of the Virginia program identified as problematic
or deficient during the Evaluation Year 1997 to determine whether or not satisfactory
resolution has been achieved.
9. OSM will prepare its evaluation reports and maintain its evaluation files pursuant to the
provisions of REG-8, Appendix I, parts H and I .
10. BSG FO will serve DMLR as an external source for technical and policy information
relating to the implementation of SMCRA by keeping current with this information and
by responding to all DMLR requests for assistance or information in an accurate and timely manner.
11. D MLR will continue the transmittal, to the BSGFO, of program data relating to
permitting, inspection, enforcement and bonding, in the agreed upon format. DMLR and
OSM will work to continue the computerized transmission of program data from DMLR to the
BSGFO and enhance the capability to download DMLR's data to BSGFO's system.
12. OSM encourages DMLR to conduct internal reviews of its own program areas in lieu of
having the BSGFO conduct special oversight studies or routine oversight. Additionally,
DMLR will continue to gather and provide to OSM, the data necessary to fulfill the
reporting requirements of OSM Directive REG-8.
13. OSM and DMLR will emphasize on-the-ground/end- results success of the State program
in achieving the purposes of the Act in the evaluation of the Virginia Approved Programs.
14. OSM and DMLR agree it is their intent to conduct joint inspections o f permits selected
for review in the evaluations identified in Attachment A or oth erwise inspected by OSM.
OSM personnel will arrange their schedule with the appropri ate state inspector at least approximately
one week prior to the inspection date and will, if requested, advise of the specific permit selected for
evaluation on the work day prior to the scheduled field inspection date. DMLR field personnel will
continue to notify OSM by telephone of the scheduled bond release inspection date at least one week
prior to such inspection.
On any joint inspection OSM recognizes that DMLR's inspector will take the lead in conducting
the joint complete inspection and OSM will defer to all appropriate state actions. In furtherance
of the shared commitment both inspectors will openly and fully discuss observed site condition
and planned actions, prior to the initiation of such actions.
On any inspection which DMLR advises it can not attend, OSM may decide to conduct an
independent inspection, promptly advising DMLR of the results. However, it will
continue to be standard procedure for both inspectors to accommodate, to the maximum
extent possible, the scheduling needs of both.
15. OSM recognizes DMLR is the entity primarily respons ib le for investigating citizen
complaints relating to mining operations in the S tate . When OSM's staff receives
an oral complaint, determined to not constitut e eithe r a significant imminent
environmental harm to land, air or water resources or an imminent danger to the health
and safety of the public, OSM will record the data and refer the complaint to DMLR by telephone.
DMLR agrees to promptly contact the complainant and appropriately address the citizen concern.
BSGFO will send the complainant an informational package, with a copy to DMLR, which
explains the Virginia program regulations regarding citizen complaints and appeal procedures
and OSM complaint/inspection involvement pursuant to 30 CFR 842.12 (a).
If BSGFO determines an alleged condition involving any Virginia mine, oral or written,
may constitute either a significant imminent environmental harm to land, air, or water
resources or an imminent danger to the health and safety of the public, BSGFO will orally
notify DMLR and afford DMLR the opportunity to conduct an immediate inspection with
OSM. If DMLR is unable to conduct the immediate inspection for any reason, BSGFO
will conduct such inspection, will initiate and follow up on the appropriate enforcement action
and advise DMLR of the results of their inspection.
Whe n BSGFO receives a written complaint which it determines alleges a non imminent
harm or non imminent danger condition which would, if true, constitute a violation of
the Virginia Program, BSGFO will forward the allegation to DMLR by the way of a ten day
notice, and thereafter follow the criteria contained in OSM Directive I & E 24.
16. OSM policy, which was outlined in its Directive AML 15-1, provides that O SM will , if
required, utilize its notice of violation and failure to abate cessat ion order authorities to
enforce its regulatory provisions involving reporting o f coal production for fee payment
purposes, for reclamation fee payment requirements and for failure to provide access to records
for fee compliance audit. The policy provides that no such enforcement action may be issued in
a state with an approved regulatory program until a ten day notice has been issued to the state
and the state has not taken action or shown good cause for not doing so, unless the state has
waived the opportunity to address these types of violations.
Virginia has interpreted its program at 4 VAC 25-130-773.17 (g) as requiring the
payment of reclamation fees, but requiring neither the submittal of for m OSM-1
(reporting of tons produced) nor the requirement to prov ide access to records for audit.
Virginia has waived the receipt of ten day notices for both failure to report tonnage produced
subject to the reclamation fee and for failure to provide access to records for audit.
Therefore, w hen BSGFO receives any request for enforcement action for fa ilure to pay
reported fee liability it will promptly issue a ten day notice and forward such request to
DMLR for state enforcement. When BSGFO receives any request for enforcement action to
either require the reporting of coal production or for an entity's failure to allow access to records
for audit purposes, BSGFO will take direct federal enforcement actions to require compliance
with its regulatory provisions.
17. OSM will comply with its two acre inspection responsibility under the Settlement
Agreement in Civil Action 81-2238 by independently conducting a minimum of 60
follow up inspections to assure completion of appropriate enforcement actions on all
violations and to close the remaining 39 case files.
18. BSGFO agrees to support DMLR's commitment to the development of electronic
permitting and mapping in Virginia.
19. OSM and DMLR had previously agreed, as currently provid ed in OSM Directive REG-8
(Part II C 2 a.), on the application of the definition of "approximate original
contour" for inspection and evaluation purposes. That definition is codified at 4 VAC 25-130-700.5
and clarified by DMLR Memorandum 5-95, Highwall Settlement Guidelines, dated August 3, 1995
and OSM acknowledgment letter dated August 3, 1995.
20. OSM and DMLR agree that the reviews contained in the EY 97 Performance
Agreement/Work plan involving Title V Bond Forfeiture Rele ase Reclamation, Phase III
Bond Release, and Active/Reclamation-Active Permits (Off Sit e Impacts and
Reclamation Success) will continue in EY 98 and in future evaluation years with the
reviews beginning on October 1st of this year and the same date in subsequent evaluation
years. In order to facilitate the efficient utilization of staff and mutual understandings, OSM
and DMLR will strive to finalize the future modifications of this agreement regarding these
reviews prior to the beginning of subsequent evaluation years.
21 . BSGFO and DMLR agree that, as provided in the informal review decision on ten
day notice (TDN) 94-130-287-002, they will work together to develop an understanding
during Evaluation Year 1998 of what constitutes an incidental boundary revision to
existing permits.
22. BSGFO and DMLR agree to meet and finalize in February, 1998 a written plan to
resolve the concerns identified in the EY 1997 review of hydrologic data involving active
and reclamation-active permits.
23. In EY 98 BSGFO will include as part of its complete Phase III bond release evaluation
review of DMLR's written findings that groundwater quality, quantity and recharge
capacity have been protected and that surface water qual ity and quantity restoration
have been achieved, as provided under current Directive REG-8.
24. By February 27, 1998 BSGFO and DMLR agree to develop review criteria and a schedule
to determine the progress and success of DMLR in implementing the provisions of the
Energy Policy Act of 1992. This review plan will be incorporated into this and/or the
EY 99 Performance Agreement.
25 . As part of its outreach efforts DMLR will develop, publish and distribute bulletins
providing information on mining and reclamation technology developments, DMME
services and events such as the recent court action involving individual criminal
prosecution of certified blasters for not insuring blasting requirements are followed.
26. DMLR agrees to conduct an evaluation involving no-notice seismic monitoring and
report their findings to OSM by September 1, 1998. See page 18 of 25 for details.
27. BSGFO and DMLR agree to jointly review the vibrati on phenomenon sometimes
associated with longwall and high extraction mining. The vibration s felt in the
community surrounding such mining continues to be a source of significant public
concern. The review will focus upon documentation of the extent of the phenomena and
of types and degree of impacts to structures. The review may establish a basis for further
analysis of the cause, impacts and need for preventative or mitigation measures.
28. BS GFO and DMLR agree to conduct a survey of the eastern coal producing states to
determine if education, town meetings or operator public relations have an impact on
blasting complaints when such operations are conducted in or near communities. The
eview will attempt to determine, if such complaints are low, what activity resulted in the
low complaint rate.
29. OSM agrees to provide DMLR technical assistance in reviewing amendments submitted
as a result of the DMLR on going review of slurry disposal impoundments.
30. BSGFO will conduct approximately 50 independent mine site inspections necessary to
monitor and assure compliance with its Settlement Agreement executed on 07/19/1996 to
resolve ownership and control disputes between OSM and Pittston Coal Company.
31. BSGFO and DMLR will continue to share a responsibility to assure 100 percent of the
environmental documents prepared for AML construction projects and/or sites adequately
describe the work scope and ensure National Environmental Policy Act (NEPA)
compliance prior to obligating Federal funds for construction. (See Attachment B)
Results of this shared commitment will be reported in the Annual Report.
32 . DMLR will, pursuant to its approved AML program provisions, investigate all
potential AML emergency situations, and submit for OSM approval a complete Request
For Emergency Declaration package. OSM will complete processing of the Request For
Emergency Declaration within 24 hours of receiving a complete package. To facilitate
scheduling and timely processing DMLR will continue to advise OSM of pending requests
for emergency declaration and OSM and DMLR may conduct the required joint site visit
while the required inter-agency coordination process is being completed by DMLR.
33. OSM will provide DMLR notice by July 31, of the opportunity to submit
nominations for Post-Act projects for funding with civil penalty funds. (A Post-Act project
is one where the land was affected by a coal mining practice that occurred after
August 3, 1977, where inadequate funds are available for reclamation.)
34. DMLR has advised it wishes to amend its approved AML program. DMLR will promptly
submit and OSM agrees to review within 180 days of submission the amendment
to the
Virginia AML Program which will incorporate within the program the special trust
fund option of the special set-aside program for AML hazard abatement according
to the priorities of Section 403 (a) of SMCRA.
35. Relative to Virginia's Title IV Program, DMLR has asked and OSM has agreed to cooperatively:
* Study the feasibility and potential benefits for the Virginia AML program to use
the Community Benefit Lien Waiver and Area-Wide Project Lien Waiver
concepts (formerly contained within
rescinded OSM Directive AML-16) to reduce administrative costs and project start
delays associated with performing individual appraisals and lien determinations;
* Study whether the OSM policy for determining what constitutes a
significant increase in fair market value (also formerly contained within rescinded
OSM Directive AML-16) should be applied in Virginia's lien determination
process and whether the policy should be updated and reimplemented; and
* Work to clarify whether the lien determination provisions are applicable to
post-act interim program sites.
These tasks will be completed by September 30, 1998.
36. BSGFO and DMLR will work cooperatively in an atte mpt to develop a long term
solution to correct or control the AMD problem created by the Upper Mason Blowout
AML Emergency within the Straight Creek watershed of the North Fork of the Powell
River in Lee County Virginia. The work will involve exploration of potential funding sources
for continued AMD treatment, on the ground reconnaissance to locate surface water
infiltration into the abandoned underground mine, survey of underground mine inspectors
from DMME and MSHA to identify potential infiltration from active underground mines
and a technical analysis by OSM and DMLR hydrologists of the hydrologic changes in
the area. DMLR and OSM will invite the participation of personnel
from the other Federal and State environmental agencies in this effort to resolve this
AMD problem.
Representing the Virginia Department of Mines, Minerals and Energy/Division of Mined Land
Reclamation and the Office of Surface Mining Reclamation and Enforcement, Big Stone Gap
Field Office, the following parties agree to the purpose, goals and anticipated actions proposed in
this Performance Agreement.
Benny R. Wampler Date Robert A. Penn Date
Deputy Director Field Office
Director
Virginia Department of Mines, Big Stone Gap Field Office
Minerals, and Energy/ Division Office of Surface Mining
Of Mined Land Reclamation Reclamation and Enforcement
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Inspections of active and reclamation-active permits to
evaluate off site impacts and reclamation success.
Population size: All permits designated by DMLR as "active" and "reclamation-active."
Sample size: 135 permits stratified to obtain a sample mixture of surface, underground,
and other types of operations. Permits selected for inspection in the
watersheds review of the implementation of the approved plans for the
protection of fish and wildlife resources will be excluded from this
sample. Permits not previously inspected by OSM which are in the
"active" "or "reclamation-active" status will be included as part of the
sample.
Review scope and methodology:
OSM will conduct complete inspections on each sampled operation to determine compliance
with the Virginia permanent regulatory program, the approved permit, the approved mining and
reclamation plan and will verify that the operator has received the required AVS approval.
During these inspections data will be gathered to record off site impacts, compile general
compliance statistics (such as, but not limited to, sites without violations, performance standards
in violation, and frequency of violation occurrence) and document any other findings which may
show a trend, potential program concern, program accomplishments, or need for future
evaluation.
Approximately six months into this evaluation OSM will conduct an analysis to determine if
there is a need for a focused review (s) development based on the data existing at that time.
At the conclusion of each inspection OSM will prepare an inspection report and supplements
detailing the findings related to the on-the-ground status of each site and providing DMLR a
copy.
Beginning date: 10/01/97
Completion date: 08/31/98 Site Inspections
09/30/97 Report
Assistance requested from ARCC: None
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Inspections in two selected watersheds to evaluate off site
impacts and reclamation success and implementation of
approved plans for the protection of fish and wildlife
resources.
Population size: Approximately 15 Title V permits in two selected watersheds.
Sample size: Approximately 15 permits
Review scope and methodology:
All DMLR inspection reports on all permits created subsequent to the permit amendments
involving the protection of fish and wildlife resources in the two selected watersheds will be
evaluated for compliance findings, including fish and wildlife resource protection plans. Permits
in each watershed will be selected for field review. A random sample of 25% of the population
will be selected for an on the ground in depth analysis of water quality related standards. Any site
with concerns identified in the inspection report file review will be included in the field review
sample. OSM will conduct these partial inspections on each operation to record off site impacts
utilizing its standard form for this purpose. Evaluation of the implementation of and adherence to
the fish and wildlife resource protection plans will be included.
At the conclusion of each inspection OSM will prepare an inspection report and supplements
detailing the findings related to the on-the-ground status of each site and provide DMLR a report
copy.
Beginning date: 10/01/97
Completion date: 08/31/98
Assistance requested from ARCC: None
FY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Phase III Bond Release Reclamation Success
Population Size: All permanent program permit Phase III reclamation bond release
applications received by DMLR between September 1, 1997, and August
31, 1998.
Sample Size: Fifty percent of the population (approximately 40 applications) will be
reviewed to evaluate Phase III (complete) bond release procedures and
complete "on the ground" reclamation success.
Review Scope and Methodology:
Throughout the review period (between September 1, 1997, and August 31, 1998), DMLR will
notify the OSM review team of each Phase III bond release application received; and OSM will
sample for review and attend 50 percent (approximately 40 sites) of the bond release inspections
conducted by DMLR.
Permit file reviews, complete joint bond release site inspections, and administrative follow-up
inspections will be conducted on the sampled mining operations to evaluate DMLR performance
in processing Phase III bond release applications and properly releasing bond liability based upon
approved State program requirements. The review will determine whether DMLR has:
* provided public notice of all Phase III bond release applications and properly notified all
interested parties of it's intent to release the bond;
* evaluated the reclamation success on all permit parcels for which complete bond release
has been requested, to ensure site reclamation in accordance with the approved
reclamation plan and State program performance standards; and
* documented all applicable bond release standards have been attained before complete
bond release is granted.
Beginning date: 09/01/97
Completion date: 10/31/98
Assistance requested from ARCC:None
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Applicant Violator System
Population Size: All transfer, assignment, or sale (TAS) and permit applications processed
during EY97.
Sample Size: Ten TAS and permit applications processed during EY97.
Review Scope and Methodology: Permit file reviews will be conducted to determine if the State
is properly operating, maintaining, and using the AVS in accordance with current standards. The
State's implementation of the AVS/MOU and compliance with the ownership and control
regulations will also be reviewed. Directive INE-32 and AVS oversight guidance documents will
be referenced in conducting the AVS oversight review. The TAS/permit applications will be
reviewed to determine if the State is timely and accurately entering appropriate data into the AVS
and researching the applications through the AVS and other data resources.
Beginning Date: January 12, 1998
Ending Date: February 15, 1998
Assistance requested from ARCC: None
OSM EY 1998 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Public Participation: Coordination with Other Agencies
Population Size: All new permits and all significant revisions processed during EY 1997.
Sample Size: Fifty percent of all new permits and 25 percent of the significant revision
applications will be reviewed.
Review Scope and Methodology:
Permit files will be reviewed to determine compliance with the public participation and
coordination requirements of 4 VAC 25-130-773.12 and 773.13. The emphasis of the review
will be on coordination/comment with other state, local, and federal agencies. The scope of the
review will be sufficiently broad to address other sections of the Virginia regulations (not
specifically listed herein) requiring public comment or coordination.
OSM requests that DMLR name an individual to coordinate/participate in the review. The
DMLR representative may help formulate the guidelines for the review, participate in the actual
review, assist in the preparation of the report, and assist in the presentation of findings to
management.
Beginning date: January 2, 1998
Completion date: February 15, 1998
Assistance requested from ARCC: None
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Bonding- Verification of bond instrument validity, value
and lack of restrictions (Follow-Up to EY 93 Review)
Population Size: All bonds received on new permits during EY 97.
Sample Size: Ten bond instruments processed during EY 97.
Review Scope and Methodology: As required by REG-8, a follow-up review will be conducted
to determine if Virginia continues to implement its actions initiated in EY 94 to resolve the
following concerns:
o notarization of the signatures of the principal's and surety's representative and
documentation of the official's legal capacity on the bond form,
o continually monitoring bond documents to ensure that the cumulative amount of bond
does not exceed the stated authority on the Power of Attorney,
o requiring surety companies to execute the Power of Attorney and the bond form on the
same date, and
o requiring authorization documents for all persons signing bond forms on behalf of the
principal that are not listed in Item B.2 of the Permit Application Form (DMLR-PT-34).
Beginning Date: March 12, 1998
Ending Date: April 25, 1998
Assistance requested from ARCC: None
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Bond Forfeiture Release Reclamation
Population Size: All permanent program permits where:
* DMLR has forfeited the reclamation bond; and
* DMLR has completed forfeiture reclamation for five years or more
(at any time prior to or during the review period ending 08/31/98).
Sample Size: Fifty percent (approximately 5 EY 97 and approximately 5 EY 98 permits)
of all permanent program permits within the population.
Review Scope and Methodology:
Permit file reviews and joint site inspections will be conducted on the sampled bond forfeitures
to evaluate DMLR performance in forfeiting and using bonds to complete reclamation, based
upon approved State program requirements. The review will evaluate whether DMLR has
adhered to approved program procedures in:
* collecting forfeited bonds in a timely manner;
* pursuing and completing any attendant litigation;
* promptly initiating and completing forfeited site reclamation in accordance with State
program performance standards.
Throughout the review period, DMLR will notify the OSM review team leader when each
forfeited permit has reached the five-year "completed reclamation" threshold; and OSM will add
to the sample each forfeited permit that has reached the five-year "completed reclamation"
threshold.
Due to limited number of sites available for sampling and evaluation in EY 97, this review will
continue into EY98 and will be finalized and reported in EY98
Beginning date: 10/01/96 and Continuing From EY 97 Through EY 98
Completion date: 08/31/98
Assistance requested from ARCC: None
OSM EY98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Program Element: Administrative and Judicial Review
Population Size: All of the following Virginia permanent regulatory program administrative and
judicial review actions taken by or requested from DMLR between October 1, 1995, and
September 30, 1996:
* improvidently issued permit notices
* informal hearings requested pursuant to permitting, decisions not to inspect or enforce,
bond releases, and notice of violation (NOV) and cessation order (CO) issuances
* administrative reviews requested on DMLR actions related to permitting, decisions not to
inspect or enforce, bond releases, and NOV and CO issuances
* formal hearings requested pursuant to NOV and CO issuances and the review and
reconsideration decisions related to such formal hearings
* temporary relief hearings requested pursuant to NOV and CO issuances
Sample Size: The following population percentages will be reviewed to evaluate DMLR
success in implementing OSM recommendations from the EY 1994 review of this program
element:
* 100% of improvidently issued permit notices
* 50% of informal hearings requested pursuant to permitting, decisions not to inspect or
enforce, bond releases, and notice of violation (NOV) and cessation order (CO) issuances
* 50% of administrative reviews requested on DMLR actions related to permitting,
decisions not to inspect or enforce, bond releases, and NOV and CO issuances
* 100% of formal hearings requested pursuant to NOV and CO issuances and the review
and reconsideration decisions related to such formal hearings
* 100% of temporary relief hearings requested pursuant to NOV and CO issuances
Review Scope and Methodology:
DMLR file reviews will be conducted for the sampled administrative and judicial review actions
to determine whether DMME/DMLR has 1) adhered to Virginia permanent program regulations
governing administrative and judicial review and 2) implemented the following OSM
recommendations from the EY 1994 review of this program element:
* Consistently identified 4 VAC 25-130-773.21(c) in improvidently issued permit notices
as the Virginia program provision under which the permittee or any person with affected
interests has a right to apply for administrative and judicial review of the notice.
* Applied the criteria specified in applicable Virginia program regulations to consistently
deny all untimely informal hearing requests for administrative review of DMLR
enforcement (regardless of whether requests were received by mail or in person).
* Interpreted no request for informal or formal administrative review of DMLR
enforcement to operate as an enforcement stay.
* Documented when the hearing was closed in informal hearing decisions on DMLR
actions related to permitting, decisions not to inspect or enforce, bond releases, and NOV
and CO issuances.
* Applied the criteria specified in applicable Virginia program regulations to assure
decisions were rendered timely following administrative review of DMLR actions related
to permitting, decisions not to inspect or enforce, bond releases, and NOV and CO
issuances.
* Ensured that informal hearing decisions rendered pursuant to requests for administrative
review of DMLR enforcement were consistent with approved Virginia program
requirements.
* Granted temporary relief from DMLR enforcement only when all three temporary relief
criteria specified under Virginia's approved permanent program had been met.
* Not used the temporary relief forum to reduce civil penalty assessments where no petition
to review the assessment had been filed and where the penalty amount had not been paid
into escrow.
* Ensured that, before reducing any civil penalty in a hearing, a formal hearing petition was
submitted to contest the proposed civil penalty assessment and the proposed penalty
amount was paid into escrow until a formal penalty hearing was held and the
administrative and judicial review process was complete.
* Not used the temporary relief forum to relieve a permittee from having to comply with
the approved Virginia program provision that requires an irrevocable commitment upon
any permittee who elects to participate in the pool bond fund upon permit issuance.
* Ensured that any formal hearings officer decisions rendered inconsistent with approved
Virginia program requirements were properly remedied or overturned during agency
review and reconsideration.
Sampled file documents considered for review during this follow-up evaluation will include:
* informal hearing requests, temporary relief requests, formal hearing requests, review and
reconsideration requests, and judicial appeals filed to review DMLR decisions related to
permitting, potential improvidently issued permit notices, bond release actions, bond
forfeiture actions, citizen complaints (decisions not to inspect or enforce), show cause
order (SCO) issuances, NOV and CO issuances, and civil penalty assessments
* associated improvidently issued permit proposed suspension and rescission notices,
SCOs, NOVs, and Cos
* certified mail service documents associated with administrative and judicial review
requests
* informal hearing and formal hearing scheduling notices
* posting and newspaper publication documentation for informal and formal hearing
scheduling notices
* hearing motions and petitions associated with the review sample requests
* written informal hearing findings
* formal hearing transcripts
* written decisions rendered by hearings officers on temporary relief and formal hearing
requests
* review and reconsideration actions and written decisions rendered by the DMME
Information obtained from interviews with DMLR representatives will also be incorporated in
the review. A topic-specific evaluation report will be generated at the close of the review.
Review findings, conclusions, recommendations, and resolutions will be presented in the EY
1998 annual report for Virginia.
Beginning date: 10/01/97
Completion date: 08/31/98
Assistance requested from the ARCC: Legal assistance from the Office of the Field Solicitor may
be requested during the review.
OSM EY 1998 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Regulatory Program Element: Seismic Monitoring of Blasting Activities
Population Size: All Virginia surface mining permits actively conducting blasting
operations
Sample Size: Sample size will be dependent upon the availability of seismic monitoring
equipment, duration of no-notice monitoring conducted at selected sites,
and staff availability.
Review Scope and Methodology:
BSGFO will designate a representative to work with DMLR staff on this review. DMLR will
conduct additional unannounced seismic monitoring of the peak particle velocity and air blasts at
locations near sampled surface mine sites actively conducting blasting operations. Sites will be
selected by the reviewers with preference given to sites with prior citizen complaints.
The review will determine, at appropriate intervals, whether:
*Blasting is being conducted to assure that the maximum peak particle velocity and air
blast are within established standards, at selected sites; and
* Following cessation of the monitoring at each site, the operators blasting records are
consistent with the determinations of the no-notice seismic monitoring.
DMLR will continue to verify quarterly that blasting is being conducted by certified blasters.
DMLR will also verify that blasting related to any citizen complaint investigated during the
review period was conducted by certified blasters.
OSM and DMLR staff involved in the review will assure that the monitoring remains
unannounced. At the conclusion of the review period DMLR will report to OSM the results of
the review for inclusion in the OSM report and data relating to the monitoring and analysis will
be released. The report will summarize the enforcement actions taken as a result of the blasting
violations identified from this review.
Beginning date: November 15, 1997
Completion date: September 1, 1998
Assistance requested from ARCC: None
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
AML program Element: On the Ground Non-Emergency Construction Management
Population size: All non-emergency abandoned mine land projects in a construction active
status from October 1, 1997 through August 31, 1998.
Sample Size: Seventy five percent (approximately 10 sites for EY 97 and approximately
10 sites for EY 98) of the active abandoned mine projects will be selected
randomly to reflect, to the extent possible, activities over all of the
coalfield regions.
Review Scope and Methodology:
DMLR will be asked to designate a representative or representatives to participate in the review
and report development. During the review period DMLR will notify the OSM Field Office of
AML sites that are in the active construction stage and the estimated project time frame, for
scheduling purposes. Joint DMLR/OSM site visits will be conducted to evaluate on the ground
site conditions. DMLR project files, including engineering plans and specifications will be
reviewed to determine contract requirements. Documents generated during the environmental
document development will be reviewed to determine any site specific permits or mitigation
measures required to comply with the intergovernmental or interagency consultation process.
The review will determine whether on the ground active construction activities complied with: 1)
contract terms, 2) adhered to any specified permit or mitigation measures developed in the NEPA
process and 3) on any site where the project has advanced to an adequate completion stage,
determine whether the AML features have been effectively abated.
Due to the limited number of sites available for sampling and evaluation in EY 97, this review
will continue into EY 98 and will be finalized and reported in EY 98.
Beginning Date: 10/01/96 and continuing from EY 97 through EY 98
Completion Date: 08/31/98
Assistance requested from ARCC: None
OSM EY98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Program Element: AML Appraisals and Lien Eligibility Determinations
Population Size: All abandoned mine land (AML) emergency and non-emergency project
sites where construction was initiated during EY 1997 (between October
1, 1996 and September 30, 1997).
Sample Size: Fifty percent of the population (approximately eight construction sites)
will be reviewed to evaluate DMLR performance in implementing this
program element.
Review Scope and Methodology:
Project site file reviews will be conducted for the sampled AML construction sites to evaluate
whether DMLR performance in conducting land appraisals and making lien eligibility
determinations has adhered to Virginia's approved AML Reclamation Plan, the regulations
governing appraisals and liens set forth in Part 4 VAC 25-130-882 of the Virginia permanent
program and Section 45.1-264 through 45.1-269 of the Code of Virginia, and the following
criteria:
* Notarized real estate appraisals were obtained from independent realty appraisers.
* State appraisal standards were consistent with generally accepted appraisal practice.
* The notarized appraisal information was the basis for determining the existence of
significant or non-significant land value increases.
* Real estate appraisals were performed before the lien was waived.
* The Congressional intent expressed in SMCRA, Title IV 408 and Virginia law
governing liens were followed.
* DMLR determined whether real estate parcel(s) were lienable or non-lienable prior to the
start of reclamation.
Sampled project file documents considered for review during the evaluation will include:
* plans, factual data, and specifications furnished to the appraiser to make the unreclaimed
condition appraisal (before), reclaimed condition appraisal (after), and any updated
reclaimed condition appraisal;
* the appraisal standards required by DMLR;
* the unreclaimed condition appraisal, reclaimed condition appraisal, and updated
reclaimed condition appraisal (when more than six months was required to complete
reclamation);
* factual data used by DMLR in determining whether to place, waive, or exempt a lien
against land reclaimed;
* right of entry, lien/non-lien determination, and lien exemption/waiver documents;
* construction contracts;
* inspection reports; and
* any written procedures used by DMLR in the appraisal and lien eligibility determination
process.
Information obtained from interviews with DMLR representatives will also be incorporated in
the review. A topic-specific evaluation report will be generated at the close of the review.
Review findings, conclusions, recommendations, and resolutions will be presented in the EY
1998 annual report for Virginia.
Beginning date: 10/01/97
Completion date: 08/31/98
Assistance requested from ARCC: As needed from the Realty Specialist
OSM EY98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Program Element: Drawdowns and Disbursements of OSM Grant Funding
Population Size: All drawdowns from OSMRE grants occurring within Fiscal Year 1998
Sample Size: A minimum number of drawdowns (occurring within one Fiscal Year
1998 quarter) required to determine whether there have been any changes
in the method of drawing funds or time frames established in the
previously conducted Level I review.
Review Scope and Methodology:
Review of DMME/DMLR drawdowns and disbursements of OSM grant funding will be
conducted to determine whether the drawdowns and disbursements of Federal funds are in
conformity with the Grants Management Common Rule codified by the U.S. Department of the
Interior at 43 CFR Part 12, Subpart C; the OSM Federal Assistance Manual Chapter 5-55; and
the following criteria:
* Drawdowns were limited to the minimum amounts needed and timed to
correspond with the actual, immediate cash requirements of DMME/DMLR in
order to carry out the approved Virginia regulatory and abandoned mine land
(AML) programs.
* Drawdown timing and amounts were as close as administratively feasible to actual
disbursement by DMME/DMLR for direct program costs and the proportionate
share of any allowable indirect costs.
* Drawdowns were properly accounted for and in accordance with Federal grant
funding requirements.
Beginning Date: 10/01/ 1997
Completion Date: 08/31/ 1998
Assistance requested from the ARCC: ARCC grants specialist will conduct this review.
OSM EY98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Program Element: Financial Administration of Grant Funds (Salaries and Wages)
Population Size: All expenditures from OSMRE grants awarded in Fiscal Year (FY) 1995
and FY 1996
Sample Size: Expenditures relative to closed FY 1995 and FY 1996 grants and closed
FY 1995 and FY 1996 AML administrative cost categories
Review Scope and Methodology:
Review of closed FY 1995 and FY 1996 OSMRE grants and closed FY 1995 and FY 1996 AML
administrative cost categories will be conducted to determine whether the following criteria were
met:
* Salaries and wages of employees chargeable to more than one grant or cooperative
agreement were supported by appropriate time distribution records.
* The method used produced an equitable distribution of time and effort.
* Expenditures were in conformity with the Grants Management Common Rule
codified by the U.S. Department of the Interior at 43 CFR Part 12, Subpart C; the
OSM Federal Assistance Manual Chapter 1-95.
Beginning Date: 10/01/1997
Completion Date: 08/31/1998
Assistance requested from the ARCC: ARCC grants specialist will conduct this review.
OSM EY 98 OVERSIGHT WORKPLAN
VIRGINIA
ENHANCEMENT AND PERFORMANCE REVIEW
Program Element: Financial Administration of Grant Funds (Program Income)
Population Size: All income generated from OSMRE grants awarded in Fiscal Year (FY)
1995 and FY 1996
Sample Size: Income receipts relative to closed FY 1995 and FY 1996 grants and closed
FY 1995 and FY 1996 AML administrative cost categories
Review Scope and Methodology:
Review of closed FY 1995 and FY 1996 OSMRE grants and closed FY 1995 and FY 1996 AML
administrative cost categories will be conducted to determine whether the following criteria were
met:
* Program income from all sources were reported.
* Records of income were kept in the same manner as required for funds provided
by OSMRE grants.
* Funds were used to further the purposes of the grant program for which the award
was made.
* Expenditures were in conformity with the Grants Management Common Rule
codified by the U.S. Department of the Interior at 43 CFR Part 12, Subpart C; the
OSM Federal Assistance Manual Chapter 1-420.
Beginning Date: 10/01/1997
Completion Date: 08/31/1998
Assistance requested from the ARCC: ARCC grants specialist will conduct this review.
PROCESSING OF ENVIRONMENTAL DOCUMENTS REQUIRED BY NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969 (NEPA)
For each proposed non emergency AML construction project, DMLR will submit to OSM a final
environmental document, a new or updated Problem Area Description (PAD), if needed, and an
AML Inventory System (AMLIS) printout showing the features that will change from
"unfunded" to "funded" based on the estimated budget for the project. OSM will review each
environmental document and conduct a joint OSM/DMLR site visit to assure that all pertinent
consultations have been completed and the environmental document includes the resolution of all
consultation comments/concerns and site specific impacts. The review will also assure that all
necessary permits and proposed borrow/disposal areas have been identified. OSM will work with
DMLR to revise the environmental document if a revision is found to be needed and will provide
DMLR a copy of the site visit report outlining the needed revision. OSM will issue a Finding of
No Significant Impact/Authorization To Proceed within twenty working days of a completed
request package from DMLR.
In cases of emergencies, all the above procedures will apply unless abatement measures are
required sooner than when the regular NEPA process can be completed. DMLR will submit to
OSM a completed Emergency Request package (unless an extreme situation exists) and then a
joint DMLR/OSM inspection will be conducted to confirm that the project meets the emergency
criteria. Those cases where abatement measures are required as soon as possible will be
documented by OSM in an Emergency Impact Significance Determination, upon the completion
of minimum expedited consultations by DMLR with the State Historic Preservation Officer and
the U. S. Fish and Wildlife Service. During the joint site visit other necessary agency
consultations and field findings will be agreed upon. PAD updates, if needed, and AMLIS
funding changes will be submitted to OSM after project completion. Emergencies will be treated
as priority duties.
OSM will continue to work with DMLR to negotiate streamlined consultation processes with
consulting agencies regarding emergency abatement work to further improve the NEPA process.