Annual Evaluation Summary Report

of

WEST VIRGINIA

for

Evaluation Year 1998

October 1, 1997 to September 30, 1998

I. Introduction 1

II. Overview of the Coal Mining Industry 1

III. Overview of Public Participation in the Regulatory

and Abandoned Mine Land Programs 3

IV. Major Accomplishments/Issues/Innovations in the Regulatory Program 4

V. Success in Achieving the Purposes of SMCRA - Regulatory Program 8

Off-Site Impacts 8

Reclamation Success 9

Customer Service 9

VI. OSM Assistance - Regulatory Program 10

VII. General Oversight Topic Evaluations - Regulatory Program 12

VIII. Abandoned Mine Land Reclamation Program 18

APPENDIX A: Tabular Summary of Core Data to Characterize the Program

Table 1 -- Coal Production A-2

Table 2 -- Inspectable Units A-3

Table 3 -- State Permitting Activity A-4

Table 4 -- Off-Site Impacts A-5

Table 5 -- Annual State Mining and Reclamation Results A-6

Table 6 -- State Bond Forfeiture Activity A-7

Table 7 -- State Program Staffing A-8

Table 8 -- Funds Granted to State by OSM A-9

Table 9 -- AML Needs and Accomplishments Since Program Approval A-10

APPENDIX B: State Comments on the Report B-1

APPENDIX C: OSM Response to State Comments C-1

I. Introduction

The Surface Mining Control and Reclamation Act of 1977 (SMCRA) created the Office of Surface Mining (OSM) in the Department of the Interior. SMCRA provides authority to OSM to oversee the implementation of and provide Federal funding for State regulatory and abandoned mine land programs that have been approved by OSM as meeting the minimum standards specified by SMCRA. This report contains summary information regarding the West Virginia programs and their effectiveness in meeting the applicable purposes of SMCRA as specified in section 102. This report covers the period of October 1, 1997, to September 30, 1998. Detailed background information and comprehensive reports for the program elements evaluated during the period are available for review and copying at OSM's Charleston Field Office, 1027 Virginia Street, East, Charleston, West Virginia, phone (304) 347-7158.

The following acronyms are used in this report:

AMD Acid mine drainage

AML Abandoned Mine Land

AOC Approximate Original Contour

CFR Code of Federal Regulations

CHFO Charleston Field Office

EPA U.S. Environmental Protection Agency

ERIN Environmental Resources Information Network

EY 1998 Evaluation Year 1998 (October 1, 1997, to September 30, 1998)

NPDES National Pollutant Discharge Elimination System

OSM Office of Surface Mining

SMCRA Surface Mining Control and Reclamation Act

SMIS Surface Mine Information System

SRF Special Reclamation Fund

WVDEP West Virginia Division of Environmental Protection

II. Overview of the West Virginia Coal Mining Industry

Coal has been mined in West Virginia using underground methods since the early 1700's. Underground mining increased throughout the 1800's and into the 1950's. Surface mining began around 1916, but significant production did not occur until World War II. Mining activities occurring prior to passage of SMCRA in 1977 resulted in many unreclaimed or under-reclaimed areas within the State. Currently, the Abandoned Mine Land (AML) inventory contains a record of 2,088 such sites.

West Virginia's demonstrated coal reserve base totals 36 billion tons. The State's estimated recoverable coal reserves at producing mines totaled 1.7 billion tons in 1997. Seventy-one percent of the coal reserves are recoverable through underground mining methods. West Virginia ranks fourth in the country in coal reserves. Coal occurs in all but two of the State's 55 counties. Minable seams occur in 43 of the 55 counties. Of the 117 identified coal seams in the State, 62 seams are minable using current technology.

Coal production in West Virginia accounts for about 16 percent of the Nation's total production. In 1997, West Virginia produced 178 million tons of coal, making it the second largest coal producing State (see Table 1, Appendix A). The average price per ton of coal mined in West Virginia during 1997 was $26.64. The price of West Virginia coal has declined steadily since 1991.

Underground mines produce approximately 68 percent of the State's total coal production. Fourteen of the Nation's seventy-six longwall mining operations are in West Virginia. Longwall operations produced 23 percent of the State's total coal production in 1997. However, continuous mining operations continued to account for most of the State's underground production.

Contour, area, mountaintop-removal, and multiple-seam mining operations are the most common methods of surface mining in the State. With advances in mining technology, surface mines are becoming larger and more complex. Thirty-two percent of the coal produced in West Virginia is by surface mining methods. Since 1988, underground coal production in the State has increased by 0.6 percent, but surface mine production has increased by 6 percent. Mountaintop and multiple-seam mining operations are largely responsible for the increased surface coal production. Mountaintop-mining operations comprise only 17 percent of the State's total surface mining operations, but account for about 44 percent of the acres under surface mining permits.

West Virginia has nearly 3,000 mining permits. The number of new permits issued annually by the State has declined, but the complexity and size of the operations have increased. Approximately 80 percent of the State's permits are active and require monthly inspections by the West Virginia Division of Environmental Protection (WVDEP). Underground mines account for about 41 percent of the total permits and surface mines account for 36 percent. The remaining 23 percent consists of other facilities, including such things as preparation plants, refuse piles, loading facilities, and haulroads.

Approximately 78 percent of the coal produced in West Virginia is used domestically, with 22 percent of that coal being consumed within the State. Most coal produced in West Virginia is used to generate electricity. Metallurgical coal comprises 79 percent of West Virginia's coal exports to foreign countries. West Virginia is the leading metallurgical coal exporter in the Nation.

About 400 companies produce coal in West Virginia. Due to increased mechanization and consolidation in the mining industry, more than 4,734 mining jobs have been lost in the State since 1993, even though coal production has increased by 7 percent. The State's coal mining industry directly employs approximately 18,245 people with a payroll of about $900 million. Seventy-seven percent of the miners in the State work in underground mines. Forty-six percent of the miners in the State are employed in Boone, Mingo, Raleigh, and Logan Counties. It is estimated that the coal industry generates approximately 60,000 additional coal-related jobs.

Coal accounts for nearly 13 percent of the Gross State Product, a measure of the total value of all goods and services produced in the State. West Virginia's coal industry pays more than $185 million annually in business and severance taxes to State and local governments and another $180 million in Federal taxes. The coal industry accounts for nearly 27 percent of the State's business tax, and approximately 10 percent of the statewide property tax collections are paid by the coal industry. Overall, it is estimated that every $1 billion worth of coal production generates $3.5 billion throughout the economy.

III. Overview of the Public Participation Opportunities in the Regulatory and Abandoned Mine Land Oversight Processes and the State Program

During the evaluation year, a new Director for the WVDEP, Michael P. Miano, was appointed May 1, 1998. Throughout the year, WVDEP and OSM officials met with representatives of various citizens, environmental, and industrial groups including:

• West Virginia Highlands Conservancy

• West Virginia Organizing Project
• West Virginia Mining and Reclamation Association
• West Virginia Coal Association
• Ohio Valley Environmental Coalition
• Contractor's Association of West Virginia
• Various watershed associations and local groups.

In order to provide information to the public, the Charleston Field Office (CHFO) maintains a mailing list of organizations and individuals that have been active in regulatory and AML issues in West Virginia. On several occasions during the evaluation year, OSM requested input from these groups and individuals on various oversight and program related documents. Office staff routinely interacts with individuals and groups throughout the year and has both hosted open meetings and attended meetings of various organizations. The Field Office Director also attended the Citizens Surface Mine Tour which was designed and implemented by citizen organizations with assistance from WVDEP's Office of Mining and Reclamation and Office of the Environmental Advocate.

The approved Abandoned Mine Land Reclamation Plan also provides opportunities for public participation. These include public interaction during the processing of citizen complaints concerning abandoned mine land problems; publishing newspaper notices seeking comment on each proposed construction project before requesting funding approval from OSM; and, holding public meetings concerning proposed changes to the State AML Reclamation Plan.

In addition to those provided through OSM, the approved West Virginia regulatory program affords many additional opportunities for public participation. In the permitting process, each application for a new or revised permit must be advertised and interested parties given the opportunity to comment. The WVDEP may also be requested to hold an informal conference to discuss the application prior to making a decision to issue or deny the permit. Citizens are also given the opportunity to participate in the inspection and enforcement process by filing written citizen complaints concerning specific issues at particular mine sites. They may also seek administrative review of WVDEP decisions by the West Virginia Surface Mine Board or judicial review through the State court system.

The WVDEP held several meetings with citizen groups concerning issues directly affecting their communities. They met with citizens to discuss blasting, dust control, subsidence, water loss, acid mine drainage and other issues. The WVDEP has been instrumental in the development of the watershed management framework and other initiatives to preserve, protect, and restore stream water quality. The WVDEP's Office of Environmental Advocate also offers a means for public participation by working with individuals and groups on a variety of environmental issues within the State.

IV. Major Accomplishments/Issues/Innovations in the West Virginia Regulatory Program

Accomplishments/Innovations

Environmental Resources Information Network (ERIN)

ERIN is an electronic database that the WVDEP uses to track permitting, inspection, and enforcement actions. During the evaluation period, the WVDEP continued upgrading ERIN, which is based on Oracle software. It is estimated that ERIN is about 80 percent complete in its development. Currently, all permitting and inspection activities can be monitored through ERIN. In the next few months, the WVDEP intends to allow public access to ERIN through the Internet. During the upcoming year, the State also plans to add other features to expand permit documentation under ERIN. They include, but are not limited to, the identification of the number, type, size, location, and certification date of excess spoil fills, and the name, type, location, and certification date of sediment control structures.

The WVDEP plans to initiate electronic permitting in the near future. The State will provide for the review and approval of operator reassignments (MR-19) through ERIN. The initial phase will begin at the Logan Regional Office and be expanded to include the other regional offices as the bugs are eliminated from the system.

Impact Assessment Model

During the evaluation period, West Virginia University, in cooperation with the WVDEP, worked on the development of a hydrologic assessment model. The model is intended for use in predicting mine impacts from surface and underground mines on surface waters that effect the hydrologic balance, the development of cumulative hydrologic impact assessments, assessing stream loadings, setting of effluent limits, or conducting water quality investigations. The assessment model is in the development stages. The Office of Mining and Reclamation staff is currently being trained in the use of this model and plans to add a groundwater module during EY 1999.

WVDEP Web Site

The WVDEP continued improving its web site, which was recognized by an independent evaluator to be one of the best in the country. The site gets more than one million hits per year and was developed entirely in-house. Through the WVDEP web page, an individual can retrieve statistical information concerning active, abandoned, or forfeited mine sites. This information can be retrieved on a county and/or watershed basis. The site also includes information on the size, level of development, and amount of toxic discharges being released into watersheds throughout the State. Individuals can retrieve maps on-line that show various geographic and spatial features.

Governors Task Force

In June 1998, Governor Underwood created a 16-person task force to study the effects of mountaintop mining. The task force consisted of three committees: Committee on the Impact to the Economy, Committee on the Impact on the Environment, and Committee on the Impact on the People. Each committee held meetings throughout the evaluation period and solicited information from various interest groups and the public on mountaintop mining. The three committees reported their findings to the task force, which compiled the findings into a final report that was published December 2, 1998.

The recommendations were extensive and included calls for research on the environmental and economic effects of mountaintop mining; establishment of a State office to regulate the impact of mountaintop removal on people; establishment of a nationwide stream mitigation policy; discontinuance of fish and wildlife habitat as a postmining land use and the development of commercial forestland as a preferred postmining land use; rigorous enforcement of existing regulatory requirements, including water quality and approximate original contour (AOC) guidelines; and, examination by the Legislature of whether public values compel restrictions on the degree of alteration of the landscape and the environment with regard to large-scale mountaintop-mining operations.

The Governor sent the final report to the Legislature without any recommendations. The Governor has stated publicly that he intends to follow generally the recommendations of the task force. However, the Governor does not want to rescind the entire stream mitigation law or establish an office within the WVDEP to regulate the impact of mountaintop-removal mining on people.

Watershed Management Framework and Clean Water Action Plan

During the evaluation year, both WVDEP and OSM participated with other state and federal agencies in efforts associated with the West Virginia Watershed Management Framework and the Clean Water Action Plan. The Watershed Management Framework is West Virginia's plan for coordinating the operations of existing water quality programs and activities to better achieve shared water resource management goals and objectives. This management initiative involves using watersheds as a way to organize and focus federal and state agency partners' activities.

A component of the West Virginia Watershed Management Framework is the Clean Water Action Plan, a federal initiative introduced early in 1998 to help chart a course toward fulfilling the original goals of the Clean Water Act for restoring and protecting the nation's water resource

Issues

OSM identified several program issues which will require significant efforts to resolve. Some of these items have been identified in previous evaluations.

The Alternative Bonding System

The WVDEP bonding system is inadequate to complete land reclamation. Although WVDEP maintains its bond fund was established to fund land reclamation, not water treatment, the WVDEP has expended bond fund money for chemical treatment at four forfeiture sites. These expenditures were considered in the computations to determine the adequacy of the bond pool. Under current projections, the bond fund will not be sufficient to eliminate the backlog of unreclaimed forfeiture sites for 10 to 20 years without any consideration of other sites added for water treatment. OSM continues to hold the position that the bond system must be adequate to abate pollution in addition to addressing "Land Reclamation." There are approximately 100 forfeiture sites producing polluted discharges that impact receiving streams that are not being addressed.

Required Program Amendments

The WVDEP is overdue in satisfying requirements to amend its program in approximately 26 areas as of September 30, 1998. These areas are identified in Federal Register notices of required program amendments and by 30 CFR Part 732 notifications. These revisions are necessary to ensure that the State's approved program is consistent with the Federal requirements. Some progress was made over the past year on issues such as subsidence control and water replacement. However, many issues, some several years old, are yet to be addressed. OSM and WVDEP have agreed to make the resolution of these issues a top priority during EY 1999.

Mountaintop Removal AOC/Post Mining Land Use

During the review period, OSM found that some mountaintop-removal operations with AOC variances had been approved with unauthorized postmining land uses, and some documentation required for approving the designated postmining land use was missing from the permit application. In addition, OSM found that the State's AOC policies and procedures were applied inconsistently or were too broad. The State's approved program also contained language differences for mountaintop-removal and steep-slope mining operations that may have contributed to these problems and will require further attention.

Litigation

On July 16, 1998, the West Virginia Highlands Conservancy and ten individuals filed suit against the U.S. Army Corps of Engineers (COE) and the WVDEP [BRAGG v. ROBERTSON, Civil Action No. 2:98-636 (S.D. W.Va.)]. Counts one through ten allege that the WVDEP failed to fulfill its nondiscretionary responsibilities under SMCRA and the Clean Water Act. Counts eleven through thirteen allege that the COE failed to fulfill its statutory responsibilities under the National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. Four more counts were added on December 30, 1998 and January 6, 1999 (two allegations each against the COE and WVDEP) for a total of 17 counts. The allegations pertain to the creation of earth and rock fills in valleys adjacent to surface coal mining operations, particularly where such fills cover ephemeral, intermittent, or perennial streams.

On April 18, 1996, the West Virginia Mining and Reclamation Association ( WVMRA), the West Virginia Coal Association (WVCA), and the Tri-State Coal Operators Association, Inc. filed a complaint in the U.S. District Court for the Southern District of West Virginia [West Virginia Mining and Reclamation Association (WVMRA) v. Babbitt, Civil Action No. 2:96-0371 (S.D. W.Va.)] challenging certain OSM decisions contained in the February 21, 1996, Federal Register notice regarding a proposed State program amendment, including the decision to make approval of the amendment retroactive. On October 29, 1997, the parties reached a settlement agreement with respect to six of the seven counts contained in the complaint. The other count, pertaining to the use of passive treatment systems after final bond release, was decided in OSM's favor. A final rule was published in the Federal Register on July 14, 1998, that announced the proposed settlement agreement and addressed five of the six counts of the complaint which were addressed in the settlement agreement. The remaining count is the subject of another proposed rulemaking.

On July 14, 1998, the WVCA appealed OSM's July 14, 1998, decision to vacate the retroactive approval of an amendment to the West Virginia surface mining program [West Virginia Coal Association (WVCA) v. Babbitt, Civil Action No. 2: 98-0899 (S.D. W.Va.)]. The amendment requires permit applicants to be current in the payment of Workers' Compensation premiums before they can receive permits, and also requires mine operators to comply with the requirement to pay such premiums. This case was still pending at the close of the evaluation period.

V. Success in Achieving the Purposes of SMCRA as Measured by the Number of Observed Off-Site Impacts and the Number of Acres Meeting the Performance Standards at the Time of Bond Release - Regulatory Program

To further the concept of reporting end results, the findings from performance standard evaluations are being collected for a national perspective in terms of the number and extent of observed off-site impacts, the number of acres that have been mined and reclaimed and which meet the bond release requirements for the various phases of reclamation, and the effectiveness of customer service provided by the State. Individual topic reports are available in the CHFO which provide additional details on how the following evaluations and measurements were conducted.

Off-Site Impacts

An evaluation was conducted of all West Virginia permits to assess the effectiveness of the State program in protecting the environment and the public from off-site impacts resulting from surface coal mining and reclamation operations. The majority of the State's 3,070 mining permits were found to have no off-site impacts.

From October 1, 1997, through June 30, 1998, the State conducted 18,701 inspections resulting in the issuance of 1,022 enforcement actions. These actions involved 308 off-site impacts on 161 permits. The number of permits with off-site impacts last year was 280, roughly 6.3 percent of the permits. In comparison, the State made an improvement of about 1 percent in the number of permits affected and a reduction of nearly 43 percent in the number of sites with off-site impacts over last year. The figures representing resources affected, and degree and type of impact are located on Table 4.

The Special Reclamation team from WVDEP conducted an inventory of sites forfeited from 1980 through September 1998. WVDEP assumes responsibility for reclamation at the 287 forfeiture sites, which requires continuous planning, maintenance, and monitoring activities. The review found 66 percent of the forfeited sites did not impact off-site resources.

Water was found to be the most commonly affected resource on the forfeited and nonforfeited sites. Unfortunately, the consequences to the hydrologic resources tend to be major or moderate on forfeited sites as opposed to minor problems at nonforfeited sites. Land damage, which also tends to be characterized as major or moderate, accounts for slightly less than 10 percent of the impacted resources.

Reclamation Success

The CHFO evaluated the effectiveness of the WVDEP program in ensuring successful reclamation on lands affected by surface coal mining operations. Success was determined on the basis of the number of acres that meet the bond release standards.

Table 5 of Appendix A contains information relating to State bond release activity. The WVDEP granted final bond release on 152 sites covering 6,549 acres. During final bond release, WVDEP evaluates postmining land use/productivity, successful permanent vegetation, and ground and surface water quantity and quality restoration.

Phase III Bond Release inspections were conducted on six permits to evaluate the effectiveness of West Virginia's Bond Release Program. The sites inspected demonstrate fully satisfactory reclamation and shows that West Virginia is conducting its Bond Release Program in accordance with applicable law, regulations, and policies. The reported bond release activities can be used as indicators of standards of reclamation success.

Table 6 indicates State bond forfeiture activity.

Customer Service

The CHFO evaluated the effectiveness of customer service provided by the WVDEP. CHFO monitored the State's responses to complaints and requests for assistance and services. The timeliness, accuracy, completeness, and appropriateness of the State's actions were evaluated. CHFO found WVDEP responds to complaints in a timely manner and meet the program requirements. CHFO also noted that WVDEP made several special efforts to provide interested parties with forums to express their concerns as discussed in Section III.

VI. OSM Assistance - Regulatory Program

Federal funds in the amount of $43,365,181 were made available to the State during the evaluation period. Table 7 in Appendix A indicates the State staffing existing to enforce the approved State program. Table 8 identifies the specific amounts awarded for each program.

Blasting Evaluation

During EY 1998, CHFO participated on an investigation team that included WVDEP technical specialist to determine if alleged blasting damage to nine homes in the Beech Creek area (Mingo County) was mining related. The investigation team did not discover any pattern of damages occurring to structures in the Beech Creek area that was the result of mining operations. A team was established during EY 1998 to evaluate off-site blasting impacts. Two meetings were held and further meetings were postponed because of other priorities.

Assistance to COE and WVDEP in Identifying Causes of AMD

In 1997, the U.S. Army Corps of Engineers (COE) conducted a reconnaissance study that suggested that some post-SMCRA sites may be adversely affecting the water quality of Fords Run, Maple Run, and Brains Creek within the Tygart River Watershed. As a result of this study, CHFO in cooperation with the WVDEP, conducted several joint inspections of these sites. The purpose of these inspections was to determine if the pollutional discharges on Maple Run were the result of abandoned mines or post-SMCRA mining operations that have received final bond release.

During the evaluation period, CHFO provided its initial findings to the WVDEP. On February 9, 1998, the WVDEP commented on those findings. In March and June 1998, OSM conducted additional site visits to try to determine the sources of certain questionable discharges into Maple Run. OSM provided the COE a preliminary assessment and update on the continuing investigation into the discharges in May 1998. At that time, OSM concluded that some pollutional discharges were the result of abandoned mines, but remained concerned that certain discharges may be related to post-law mining. Other priorities have prevented completion of review efforts.

Remining

OSM and WVDEP held joint meetings at state and field levels to discuss remining and a statement of mutual intent. The WVDEP does not elect to pursue this element further at this time. Remining incentives and impediments have been documented and are kept updated for West Virginia. The WVDEP is currently investigating two possible sites for

remining, but is also awaiting approval of zero percent rule to pursue Title IV. OSM and WVDEP continue to pursue viable "remining-daylight" type projects that could incorporate Title IV money to reduce or eliminate AMD.

Valley Fill Mitigation Team

The Governor's Task Force on Mountaintop Mining cites environmental impacts due to placement of valley fills in streams. Besides the task force, the U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (COE), and the U.S. Department of the Interior - Fish and Wildlife Service (FWS) and OSM are working together to conduct a joint Federal evaluation of the environmental impacts and regulation of valley fill activities in the Appalachian coalfields region.

OSM Technical Training

OSM provided technical training to 54 WVDEP regulatory staff during EY 1998.

Underground Mine Pools

OSM continued to provide technical assistance to WVDEP regarding the flooding of underground mine voids. As a result of many decades of underground mining on the Pittsburgh Coal Seam, the voids left by mining have either flooded or are in the process of flooding. In 1996, the mine voids filled to near-land surface and a discharge was predicted. Under an order from EPA, the mine operator routed water with high concentrations of iron from the mine that was nearing discharge to an adjacent mine that was not yet flooded. The water would travel through the voids until it would be pumped to the surface at a water treatment facility. Several meetings with various agencies including OSM, EPA, WVDEP, and the National Mined Land Reclamation Center (NLMRC) were held during EY 1998 in order to develop a work plan for studying the effects of mine pool buildup and to consider possible solutions to the problems created.

Part of the overall work plan included the development of a drilling program for the purpose of installing monitoring wells into several of the mines. Information gathered from the wells will augment information from existing boreholes as well as provide information about the mine pool where there are no known boreholes. Drill program specifications were completed during EY 1998 with drilling anticipated to begin early in EY 1999.

In other assistance to WVDEP, OSM initiated review of underground mine permits for the adequacy of the hydrologic balance protection sections (probable hydrologic consequences, hydrologic reclamation plan, and the cumulative hydrologic impact assessment sections). The information gathered will be used to develop guidance for WVDEP as well as other states that permit extensive underground mines.

VII. General Oversight Topic Evaluations - Regulatory Program

Aerial Inspections

This evaluation focused on 22 randomly selected sites which received a Phase II or Phase III bond release since October 1, 1996, in areas of the state where there is a higher than normal probability for AMD. Also, six active mountaintop-operation sites were randomly selected to determine if drainage was properly controlled and two shadow areas of active large underground mines utilizing the longwall method of mining were reviewed to determine whether subsidence breaks were evident.

After studying the findings from these inspections, CHFO developed the following conclusions:

• Of the 22 sites in areas where AMD potential exists, 14 sites showed no indication of the presence of AMD. The eight remaining sites had discoloration in and about the streams that indicated the possible presence of AMD. From the air, it is impossible to tell if the water is actually discolored or if stains on the ground and rocks are from previous discharges. On-the-ground follow-up inspections were not conducted due to the workload associated with other high priority projects. The sites where there appeared to be a problem will be reviewed as part of our EY 1999 review.

• All of the bond release sites appear to have achieved the approved postmining land use.

• Drainage appeared to be properly controlled on the active mountaintop-operation sites.

• No subsidence was evident on the active longwall mining sites reviewed.

Alternative Bonding System Adequacy

A joint WVDEP/OSM team is reviewing and evaluating the State's bonding system, specifically whether the Special Reclamation Fund (SRF) has or will have sufficient resources to perform land reclamation at all pending sites with permit revocations and bond forfeitures which are now its responsibility. For the purposes of this review the need for treatment of acid-mine drainage was not considered, only the land reclamation to regrade the site and establish suitable vegetative cover. During the previous evaluation period, the first part of this review determined that the site-specific bonding regulations implemented by the WVDEP would not generate sufficient revenue from the forfeited

bonds to perform land reclamation at all new sites with permit revocations and bond forfeitures, and that the SRF would continue to rely on some of the supplemental revenue sources to complete land reclamation.

The second phase of the review looked at revenues generated and expenditures incurred under the SRF. The review concluded that the SRF would be insufficient to reduce the backlog of unreclaimed areas for up to 20 years based in part on the rate of existing expenditures for water treatment. The WVDEP only expends funds for water treatment at four sites of the approximately 100 sites with pollution discharges. The other existing sites and any future bond forfeitures with water problems were not included in the calculations of available funds for land reclamation.

OSM and WVDEP are currently reviewing the draft report on this issue to determine corrective action.

Acid Mine Drainage Inventory

In the EY 1997 evaluation report, OSM reported that at the beginning of the 1998 review period, OSM and WVDEP would be involved in discussions about the data and draft summary report for the 1996 acid mine drainage inventory. It was anticipated that following those discussions and any necessary modifications, that a final report about the mine drainage inventory would be published, made available to the public, and summarized in this annual report.

However, because of other issues WVDEP and OSM were involved with during the evaluation year, the final report was delayed. Discussions between OSM and WVDEP on this matter are now continuing and it is anticipated the WVDEP will finalize the acid mine drainage inventory report sometime after the first of the year.

The preliminary findings reported in last years oversight report are basically unchanged. The WVDEP has committed to conduct a third inventory of active mine drainage during the EY 1999 evaluation period. The assessment of data collected during the 1996 inventory season showed that 816 of 16,800 permitted discharge points at 457 permitted mine sites exhibited water quality problems. The discharge from the 457 permitted mine sites represent between 90,000 to 95,000 gallons per minute and combined acid/metal loading (if untreated) of approximately 82,000 tons per year. WVDEP inspectors assessing the severity of water quality problems at these sites determined that 54 percent of the total sources were severe. Conclusions from the final report of the 1996 mine drainage inventory and inventory results from this evaluation year will be reported in the EY 1999 report.

Eligible Inspector Charges

The review covering the EY 1998 evaluation period determined that WVDEP inspectors had charged OSM's FY 1997 Administration and Enforcement Grant for non-coal quarry inspections. OSM tracked down over 2,000 hours at a cost of more than $45,000 that was improperly charged to the grant. However, there may be other program-eligible costs the WVDEP is entitled to that have not been charged to the program. OSM will continue the review of this element during the EY 1999 evaluation period.

Implementation of Program Revisions Prior to Approval

Federal regulations provide that no changes in a State program can take effect without OSM approval. In a 1994 ruling, the West Virginia Supreme Court reaffirmed the Federal requirement providing that changes in State law or regulations could not take effect without OSM approval. To comply with this requirement, the WVDEP includes an addendum in its regulations to identify provisions that have not been approved by OSM.

OSM will continue to work with the State and approve program amendments as expeditiously as possible. OSM will continue monitoring program activities to ensure that unapproved requirements are not implemented.

Conflict of Interest

The WVDEP, in cooperation with OSM, continued its efforts to resolve problems identified in previous years concerning the management of its conflict of interest program. On January 5, 1998, the WVDEP submitted to OSM formal procedures adopted by the State which outline the process for employees to appeal final actions or orders concerning prohibited employment or financial interests. On March 12, 1998, the WVDEP adopted procedures for maintaining and disposing of statements of financial and employment interests in accordance with West Virginia state laws.

During the review period, the WVDEP completed its evaluation of statements of employment and financial interests filed by more than 400 employees during 1996 and 1997. The State has expedited its review process by using an electronic database to track statements received and reviewed in prior years. With the completion of these actions, the State has resolved all outstanding issues that OSM identified regarding the administration of its conflict of interest program.

OSM Inspections

During the evaluation period, CHFO conducted a total of 180 inspections, including 31 complete and 98 partial random sample oversight inspections. The partial inspections concentrated on hydrologic balance and backfilling and grading. The additional 51 inspections included 23 citizen complaints, 21 reclamation fees, and 7 various other types of inspections.

Fifty-three of the 180 inspections concerned the non-payment of reclamation fees, which also included subsequent follow-up of these actions. Additionally, two of the inspections were document reviews concerning follow-up of state actions. When you deduct these inspections, a total of 125 inspections were conducted to evaluate the State Program.

The inspections revealed a total of 78 violations on 52 of the 125 inspections. Forty-four additional violations were issued involving the non-payment of reclamation fees which is not covered by the State Program. This shows that violations of the State Program were observed on 41.6 percent of the inspections. The State took appropriate action on all but one of the violations. One Federal violation was written.

Table 2 in Appendix A indicates the number of inspectable units for WVDEP for EY 1998. Table 3 indicates the permitting actions conducted by WVDEP for EY 1998.

Evaluation of Large Steep Slope Mines with AOC variances and Alternative Post Mining Land Use Approval

The CHFO completed a draft West Virginia Oversight Evaluation Report on Approximate Original Contour and Postmining Land Use on December 8, 1998, and opened a public comment period until January 15, 1999. The following is a summary of the issues that were identified during an evaluation of State activities involving AOC variances and postmining land uses for mountaintop-removal and steep-slope mining operations.

• Overall, OSM's oversight evaluation indicated an industry trend of proposing to return mine sites to AOC rather than obtaining an AOC variance. Also, the evaluation revealed that policies or procedures used for determining when a mining operation's reclamation plan satisfies requirements established for AOC were either applied inconsistently or were overly broad, resulting in varied interpretations of what constitutes AOC.

• A major source of confusion over what qualifies as "mountaintop-removal" mining operations, which require a variance from AOC, arose from WVDEP's method of classifying, in its permitting database, various mining methods were called mountaintop operations, regardless of whether an AOC variance had been obtained.

• OSM identified three significant areas in which the language of the approved State program differed from that of SMCRA and the Federal regulations. These language differences, which may have contributed to some of the other problems addressed in the report, related to the following areas: (1) documentation of the need and the market for the designated postmining land use, (2) use of "woodlands" as an approved postmining land use, and (3) allowing "public use" instead of "public facility (including recreational facilities) use" as a postmining land use.

• The oversight evaluation found that mountaintop-removal permits had been issued with postmining land uses--"forestry" and "fish and wildlife habitat"--not authorized in the approved State program, although a program amendment to authorize "fish and wildlife habitat and recreation lands" was pending before OSM.

• OSM found that all of the mountaintop-removal permits with AOC variances lacked at least some of the documentation required for approving the designated postmining land use.

• OSM found four situations where steep-slope AOC variances had been granted, but where mountaintop-removal AOC variances would have been more appropriate because the entire coal seam or seams had been removed.

• Finally, the approved West Virginia program does not limit approval of an AOC variance for a steep-slope mine to the specific postmining land uses that are specified in SMCRA.

In general, OSM proposed that any reforms that resulted from the evaluation be applied prospectively, and that existing mining operations, some of which were initially permitted many years ago, be altered only to the extent practicable. OSM requested that, in addition to those permits which were examined for the evaluation, the WVDEP review all existing permits with AOC variances and apply the reforms prospectively.

Small Operator Assistance Program (SOAP)

During the evaluation period, West Virginia's regulatory oversight agreement was amended to provide for the evaluation of WVDEP's Small Operator Assistance Program (SOAP). The purpose of the review was to determine how the program operates and to assess the funding of specific SOAP services. The review was conducted in June and July 1998, and the final report was issued in October 1998.

The review determined that the WVDEP is generally implementing SOAP in accordance with its approved permanent regulatory program. However, the review disclosed that some SOAP services provided by the WVDEP appear to go beyond what is allowed under the State and Federal requirements. OSM and WVDEP have initiated a review of the questionable SOAP services. In addition, a more detailed review of SOAP will be conducted next year to gain a better understanding of the services allowed under SOAP and the costs associated with them.

Stream Mitigation

On April 8, 1998, Governor Underwood signed Senate Bill 145 (Stream Mitigation Bill) into law and became effective on June 12, 1998. The law established a water quality certification program for surface mining operations as mandated under Section 401 of the Federal Clean Water Act. OSM initiated a preliminary review of the Bill to determine if it relates directly to SMCRA which would thus require a program amendment. A final decision has not been rendered.

The most controversial aspect of the law concerned the increase of the threshold limit for effected watershed areas from 250 aces to 480 acres. With this change, applicants could fill streams with nearly twice as large drainage areas without doing any mitigation. The law also provides that the mitigation amount may not exceed $250,000 per acre of stream disturbed.

The WVDEP has not issued any permits using the new standards. In August 1998, the governor directed the WVDEP to use the stricter standards set forth in the former State guidelines when issuing permits. The governor also created a task force to review this requirement along with other concerns in more detail.

Required Program Amendments

As of September 30, 1998, West Virginia had twenty outstanding required program amendments. In addition, the State has six 30 CFR 732 notifications that have not been satisfied relating to revegetation, incidental coal extraction, subsidence and water replacement, ownership and control, alternative bonding system, and multiple topics, including definitions, permitting, Small Operator Assistance Program, bond release, impoundments, backfilling and grading, coal mine waste disposal, and prime farmland. While some progress has been made on certain issues, several outstanding requirements are now several years old.

The WVDEP has drafted additional revisions to its program and submitted them to the Legislative Rulemaking Review Committee for consideration during the upcoming session with the exception of subsidence and water replacement. With the exception of revisions related to subsidence and water replacement, most of the revisions submitted to OSM pertained to provisions that were unrelated to the required amendments or the 30 CFR 732 notifications. State and Federal efforts to develop language which would satisfy the outstanding program requirements were delayed due to other priorities. Resolution of these outstanding issues will be a top priority for OSM during the upcoming evaluation year.

Other Topics Not Completed

Other work plan topics that there were started during the evaluation period but were suspended due to consideration of other workload priorities include:

• Civil Penalty Documentation

• Mountaintop Mining Design and Construction (Drainage Control System).

• Permit Renewals

• Show Cause Process

• Water Replacement and Subsidence Evaluation (EPACT)

• AMD Prevention Review of Problem Permits

VIII. Abandoned Mine Land Reclamation Program (AMLR)

General

The mission of the AMLR program is to reclaim abandoned mine sites by abating hazards, reducing/mitigating adverse effects of past mining, and restoring adversely affected lands and water to beneficial uses. WVDEP's Office of Abandoned Mine Lands is successfully accomplishing this mission in West Virginia.

The State conducts all AML reclamation in West Virginia. OSM has approved four primary AML components:

• The regular construction program abates high priority, non-emergency problems. OSM approved it on February 23, 1981.
• The emergency program abates emergency problems caused by abandoned coal mining practices. OSM approved it on August 26, 1988.
• Water supply provisions allow the State to repair or replace water supplies where the damage results from mining occurring primarily before August 3, 1977. OSM approved them on July 25, 1990.

• The acid mine drainage set aside program allows the State to use 10 percent of its annual grant allocation to reclaim watersheds impacted by acid mine drainage. The program was approved on March 26, 1993, and WVDEP funded the first project on August 23, 1995.

The State's AMLR program received Appalachian Clean Streams Initiative funding from OSM in 1997 for $975,000 and in 1998 for $536,000. The State will receive $1,080,000 during fiscal year 1999 for additional AMD projects. The State proposed to conduct three projects with 1997 Clean Streams funds. Designs for two of the three projects (Paint Creek of the Kanawha River, Kanawha County and Sovern Run of the Big Sandy River, Preston County) are nearing completion with construction cost estimated at nearly $2 million for both projects. The third project (Abram Creek of the North Branch of the Potomac River, Grant County) currently involves a feasibility study and is a partnership between the U.S. Army Corps of Engineer and the State of Maryland. Buffalo Creek in Logan County and Grass Run in Lewis County are project sites for 1998 Clean Stream funds. The State has started construction operations at the Lewis County site and is in the preliminary design phase for the Buffalo Creek project.

West Virginia's AMLR is recognized as a leader in the application of AMD remediation techniques. Their progressive approach is also reflected in the agency's creation of the AML Stream Restoration Group.

The State's AMLR is also in the forefront with its support of watershed groups through the Stream Partners Program it coordinates. This program is implemented in cooperation with three other State agencies and was established to provide seed grants ($5,000) to community-based organizations to help enhance and protect watersheds. The West Virginia Legislature budgets $100,000 annually for distribution to qualifying watershed organizations.

Noteworthy Accomplishments

Construction Activities

In the non-emergency program, West Virginia started 37 construction projects during this evaluation period at a total cost of $15,370,073. During last year's evaluation period, the state started 6 projects for a total cost of $11,874,000. This is an increase of one project and $3,496,073. During the evaluation period, 30 projects were completed for a total cost of $14,047,795. This is an increase of 18 projects completed for a total cost of $10,907,773 from each year.

Emergency Projects

During this evaluation period, the State received approval for 69 emergency projects at a total estimated cost of $ 3,234,950. These same projects totaled $1,808,956 when awarded as construction contracts. Final costs are not yet available for all projects in this group.

OSM Technical Assistance

Technical assistance by OSM was provided for the evaluation of three AML sites. Three bore hole camera investigations of the Schaefer water well, Grandstaff subsidence problem, and Hutchinson subsidence problem were conducted during EY 1998.

Data Enhancements

In this evaluation period, the State also completed the conversion of their AML inventory to a digital-based geographic information system (GIS). This will allow the State to provide a better level of service to the public in identifying the location of abandoned mine land problems.

Emergency Personnel and Procedures Workshop

In response to OSM's April 28, 1997, issuance of the revised Federal Assistance Manual, WVDEP and OSM personnel conducted an Emergency Program Procedures Workshop. The workshop addressed the history of the AML Emergency Program and explained procedural changes. The workshop was attended by WVDEP and OSM personnel.

Technical Training

OSM provided technical training to 15 WVDEP AML staff during EY 1998.

Results of Enhancement and Performance Reviews

Throughout the course of EY 1998, WVDEP and OSM conducted five performance and enhancement reviews. A brief description of these reviews and their results follows.

Acid Mine Drainage Planning Session

In recent years, the AMLR program has incorporated acid mine drainage (AMD) remediation projects with land reclamation activities at abandoned sites. Primarily, WVDEP implements "passive" systems to improve water quality at these sites. The systems neutralize the acidity by adding alkalinity and removing metals from the mine water. This is achieved through various methods including limestone drains, cells, wetlands, and ponds. These systems are designed for low maintenance and have a life expectancy of approximately 20 years. Passive technologies are relatively new and varying degrees of success have been experienced.

OSM and WVDEP agreed early in the review period to assess the success of their efforts and consider opportunities for improvement. In late March of 1998, WVDEP and OSM staff met to discuss the State's AMD remediation program. Many ideas were generated from this initial meeting. A subsequent meeting was proposed to develop a plan but has been indefinitely postponed due to other activities and leadership changes at the WVDEP.

OSM and WVDEP plan to continue this effort during the next evaluation year.

AML Reclamation Contract Compliance

During the course of EY 1998, a joint WVDEP and OSM Oversight Team conducted a review of seven completed AMLR projects to see if the projects were being constructed as required by the contract agreement. It was decided to restrict the contract items examined to readily measurable surface drainage items common to all projects reviewed.

Four emergencies and three regular projects were selected for review. OSM found all culvert and other open-channel drainage items reviewed were installed in accordance with contract requirements. The cross-section of the drainage items generally conformed to the details and requirements of the contract.

The linings of the open-channel drainage generally conformed to the detailed requirements of the contract, although minor variations were noted.

The reclamation of all sites reviewed was determined to range from good to excellent.

Abandoned Mine Land Emergency Oversight

During EY 1998, the CHFO conducted oversight field reviews at six projects: four subsidence disturbances and two AML surface burning incidents.

Of these six projects, an OSM site visit prior to project approval was made at two sites. At these prebid conference evaluations, the contract documents were determined to be in accordance with the scope of work proposed by the State and approved by OSM.

Final inspections were conducted on the other four project sites. For those projects, all work was completed consistent with the approved project scope of work. OSM found no problems with the final products on the four final inspections.

Project Selection

In the 1997 Evaluation Report, the State proposed to develop a project tracking system that would list inventory sites and new complaints. Complaint investigators and other AML staff would periodically review this list. Planning staff would rank the projects based on comments from other reviewers and would select new projects for planning. During the review period, the planning staff decided to incorporate this new list into the

digitized AML database. This would provide a planning list that was linked to the inventory mapping base, and everyone in the AML office would have access to the list. This is expected to be working in the upcoming year.

NEPA Compliance on AML Projects

The CHFO started a review of the State's compliance with the National Environmental Policy Act (NEPA) in the AML program. The review team randomly selected ten projects for a file review to determine if all of the required permits and environmental clearance letters were present. Additionally, the team planned to review ten active construction projects to see if the measures planned for construction were actually in place. However, the workload in the CHFO did not allow the completion of this study. The remaining file reviews and construction project reviews will be completed this spring.

Accomplishments and Inventory Reports

The State records the accomplishments of their abandoned mine land program in the Abandoned Mine Land Inventory System. Table 9 of Appendix A lists the cumulative accomplishments in West Virginia. A comparison of this table with the EY 1997 West Virginia Evaluation Report shows that West Virginia reclaimed 1.5 miles of clogged streams, 20,299 lineal feet of dangerous highwalls, 59 dangerous impoundments, 168 acres of dangerous piles and embankments, 18 acres of dangerous slides, and 57 portals during the evaluation year.

Table 9 in Appendix A indicates AML needs and accomplishments since State program approval.

The following tables present data pertinent to mining operations and State and Federal regulatory and abandoned mine land activities within West Virginia. They also summarize funding provided by OSM and WVDEP staffing. Unless otherwise specified, the reporting period for the data contained in all tables is October 1, 1997, to September 30, 1998. Additional data used by OSM in its evaluations of West Virginia's performance is available for public review in evaluation files maintained by CHFO.

OFF-SITE IMPACTS
RESOURCES AFFECTED			People			Land			Water			Structures
DEGREE OF IMPACT			minor	moderate	major	minor	moderate	major	minor	moderate	major	minor	moderate	major
TYPE OF IMPACT AND TOTAL NUMBER OF EACH TYPE	Blasting	14	9			5
	Land Stability	85				75	2		8
	Hydrology	183				1			178	3			1
	Encroachment	26		1		24	1
	Other
	Total	308	9	1		105	3		186	3			1
OFF-SITE IMPACTS ON BOND FORFEITURE SITES
RESOURCES AFFECTED			People			Land			Water			Structures
DEGREE OF IMPACT			minor	moderate	major	minor	moderate	major	minor	moderate	major	minor	moderate	major
TYPE OF IMPACT AND TOTAL NUMBER OF EACH TYPE	Blasting	-
	Land Stability	9				8		1
	Hydrology	85							12	42	31
	Encroachment	-
	Other	-
	Total	94				8		1	12	42	31