Performance Agreement
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Ohio Performance Agreement |
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Performance Agreement
between
The Ohio Department of Natural Resources
Division of Mines and Reclamation
and
The Office of Surface Mining Reclamation and Enforcement
October 1997
Final
Contents
Part I. Purpose of This Agreement
Part II. Shared Program Goals
Part III. Evaluation Plan
Part IV. Resolving Issues
Part V. Joint Database of State Program Information
Part VI. Shared Training and Other Assistance
Part VII. Signatures
Attachment A Shared Goals of Ohio and OSM
Attachment B Oversight Activities
Attachment C Oversight Inspections
Attachment D Pending Regulatory Issues
Attachment E Ohio Program Conditions and Requirements
Attachment F OSM Assistance Activities
Part I. Purpose of This Agreement
The purpose of this performance agreement between the Office of Surface Mining
Reclamation and Enforcement (OSM), and the Division of Mines and Reclamation, Ohio
Department of Natural Resources (Ohio), is to:
1) Foster a shared commitment to implement the Surface Mining Control and
Reclamation Act (SMCRA) through the Ohio State regulatory and
Abandoned Mined Land (AML) reclamation programs by identifying shared
goals and working as partners to accomplish those goals;
2) Discuss and address issues in a manner that produces clear descriptions of
those issues and mutually agreeable solutions;
3) Identify solutions to problems that allow for incremental problem-solving to
meet both short-term and long-term goals;
4) Focus joint problem-solving on the main goal of making improvements,
rather than on solidifying differences of opinion;
5) Develop an atmosphere of shared resources and ideas to enhance our
problem-solving ability in the context of a State/Federal partnership; and
6) Ensure that both parties understand each other's goals and responsibilities
for the coming Evaluation Year.
OSM will make this performance agreement a part of the Evaluation File maintained for
public review of our oversight efforts.
Part II. Shared Goals
Ohio and OSM have established shared goals. These shared goals, the actions that OSM
and Ohio will take to meet these goals, and the status of these actions are listed in
Attachment A. OSM, with Ohio's assistance, will update Attachment A as necessary to
reflect changes in the status of the joint actions. (Note: Both Ohio and OSM have
established other goals to fulfill their own individual program needs.)
Part III. Evaluation Plan
A. Introduction
OSM's Directive REG-8 establishes the framework within which OSM conducts oversight
of State programs. This agreement reflects the flexibility and latitude provided by the
directive.
The Oversight and Inspection Office in the Appalachian Regional Coordinating Center
(ARCC) in Pittsburgh, which includes the Columbus Area Office will conduct OSM's
oversight of the Ohio Program
Through this agreement, OSM and Ohio have identified the basic concept of oversight and
assistance to the Ohio Program. The identified oversight and assistance in the
attachments to the agreement reflect Ohio's and OSM's view of the highest priority areas
for review and areas that need assistance.
This agreement is supplemented by Attachments A through F. These attachments
describe the specific oversight focus areas, OSM inspections, pending issues and status
from past oversight, program conditions, and assistance efforts. The basic terms of this
agreement will apply to future years to eliminate the need to develop a new agreement
each year. The attachments will be updated annually to reflect changes in status and new
oversight and assistance areas.
OSM and Ohio may modify this agreement as issues are resolved, as new issues arise,
or as work priorities change.
B. Continuous Oversight
OSM will conduct oversight of the Ohio programs as an ongoing process throughout the
year. This process will involve analysis of Ohio inspection findings, program data, grant
reports, Ohio internal control reports, and other information routinely provided by or
available to Ohio. OSM's oversight will stress prevention, detection, and prompt correction
of any problems noted. The oversight inspection criteria for OSM's planned oversight
inspections are included as Attachment C.
C. Special Oversight Studies
In addition to continuous oversight, OSM may conduct special in-depth studies of selected
areas of Ohio's program each year. These oversight studies will emphasize overall "on-the-ground"
success of reclamation and how effectively the Ohio program is meeting the
goals of SMCRA. Oversight studies will also recognize any innovative Ohio approaches
to managerial efficiency, problem resolution, or environmental protection, and will
recognize any areas of outstanding implementation of Ohio's approved program.
The selected oversight topic areas are shown in Attachment B. OSM will update
Attachment B as necessary to reflect the current status of oversight studies and any
changes that occur.
Before beginning oversight identified in Attachment B, OSM will develop, in consultation
with a designated Ohio contact person, written outlines that will describe the anticipated
scope, methodology, time period, population size, sampling scheme, and sample size of
the proposed review. These reviews need not rely exclusively on random sampling. The
review outlines will also describe any assistance that Ohio or other branches of OSM will
provide during the course of the study. OSM will provide a minimum of ten working days
for Ohio to review and comment on each draft review outline.
D. Public Participation
a. Public Outreach
Section 102(I) of SMCRA stresses the importance of involving all parties in the
development and enforcement of State and Federal programs. OSM and Ohio currently
have a public outreach program that includes:
Ohio:
DMR newsletter and Tech Topics
Public rulemaking notice mailing list
Statute/rule subscription service
Periodic mailings to the mining industry and consultants on topics of interest
Council of Unreclaimed Strip Mined Land biennial reports
Various publications such as the Wildlife Manual
Educational materials such as "Let's See Trees" video, poster, and display
Staff participation in "Partnering in Environmental Education"
Annual AML public outreach meetings held throughout the State
DMR website
Meeting with groups and individuals who express an interest in mining activities
OSM:
Evaluation and Administrative Record public files
Monthly newsletter
Federal Register notice mailing list
Public comment periods announced in the Federal Register
Annual oversight/evaluation reports
OSM Home Page on Internet
Meeting with groups and individuals who express an interest in mining activities
Ohio and OSM agree to continue to evaluate and improve this outreach program.
OSM Directive REG-8 requires that OSM develop an outreach program that solicits public
comments regarding OSM's oversight process, recommendations for review topics within
the Ohio program, and suggestions for improvements to future annual evaluation reports.
As a part of outreach, OSM and Ohio agree to jointly meet periodically with industry and
environmental special interest groups to discuss areas of interest and to seek input from
such groups. OSM/Ohio will seek input from those individuals and groups who have
specifically expressed interest in the mining and AML programs.
Ohio may use input from such meetings as an indication of the public's perception of its
performance and to obtain input on perceived problem areas.
E. Measurement of On-the-Ground Reclamation Success
OSM's approach to oversight, developed in conjunction with States and directed by OSM
Directive REG-8, specifies two measurements for evaluating and reporting the success of
a State Program in achieving the environmental performance standards (on-the-ground
success) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA). These two
measurements are the number of mined acres meeting the performance standards for
each phase of bond release and the number and extent of off-site impacts caused by
mining and reclamation. To evaluate and report on these measurements, Ohio and OSM
cooperatively developed the data necessary and the evaluation methods in 1996. Ohio
and OSM may review and revise these methods for future evaluation of these areas as
necessary.
Part IV. Resolving Issues
A. Issue Resolution Methods
Ohio and OSM will strive to resolve issues, in a cooperative manner, immediately as those
issues arise. OSM and Ohio may use any of the following mechanisms to resolve issues:
Discussions at meetings of OSM and Ohio staff;
Joint data collection and evaluation to determine the actual extent and/or causes
of perceived problems;
Creation of joint problem-solving teams comprised of staff from both offices;
Joint solicitation of third-party assistance to clarify or arbitrate perceived problems;
Discussion at specially scheduled meetings between Ohio and OSM officials; and/or
Joint OSM-Ohio preparation of written plans with steps agreed upon by both parties
to resolve problems.
B. Issues Pending Resolution
The issues presently pending resolution and their status are listed in Attachment D. OSM
will update these attachments with Ohio's assistance as necessary, to reflect the current
status of the issues.
Part V. Joint Database of State Program Information
Ohio and OSM will continue to work on the establishment of a joint database system with
a goal of eliminating most, if not all, of the duplication of effort in handling of hard copy
information. Ohio and OSM will jointly plan and create this database. Ohio will have the
primary responsibility for maintaining and updating the database. The existence of this
database will maximize consistency between Ohio and OSM data; reduce duplication of
files and documents; and reduce the paperwork required of the industry and handled by
both Ohio and OSM. The development of this shared database system is now underway
in the permitting and bonding areas through joint Ohio/OSM efforts.
Database development will be directed at providing information that will enable Ohio and
OSM to report on the size, impact, and results of mining and reclamation in Ohio, plus the
day-to-day program activity. Until the joint database is developed so that OSM can access
and retrieve information, Ohio will provide to or assist OSM in obtaining information relative
to the State Program to enable OSM to fulfill customer requests and to fulfill annual
reporting requirements about the Ohio Program. Such information is necessary to
characterize the size, scope, and level of activity of the Ohio Program. The information will
be provided to or made available for OSM upon request and on an annual basis at the end
of each evaluation year. Information includes general inspection, enforcement, permitting,
and other information that Ohio has provided in the past.
Part VI. Assistance
Ohio and OSM will provide training and assistance to each other as needs and capabilities
develop. Specific assistance topics are identified in Attachment F.
Part VII. Signatures
Representing the Ohio Department of Natural Resources, Division of Mines and
Reclamation, and the Office of Surface Mining Reclamation and Enforcement, the following
parties agree to the purpose, goals, and anticipated actions proposed in this performance
agreement:
_/signed______________11/2/97___ _/signed________________10/29/97__
Lisa J. Morris Date George Rieger Date
Chief Program Manager
Inspection & Enforcement Office
Division of Mines and Reclamation Office of Surface Mining
Attachment A. Shared Goals of Ohio and OSM1
1) Ensure long-term solvency of the Ohio Alternative Bonding System by
revising and implementing the Improvement and Monitoring Plan for the
alternative bonding system.
2) Further the joint efforts now underway to protect the hydrologic balance both
on and off-site by addressing the findings from past OSM evaluation reports;
by designing and implementing inspection, evaluation, and permitting
procedures for preventing acid mine drainage; and by fully participating in
OSM's Appalachian Clean Streams Initiative.
3) Evaluate and use methods that measure on-the-ground results and impacts
to assess the effectiveness of Ohio's programs in fulfilling the purposes of
SMCRA.
4) Continue to develop and improve Ohio's automated data processing and
reporting capabilities.
5) Perform joint reviews and problem-solving to ensure that Ohio program
requirements are met and are performed in an effective and efficient manner.
6) Take prompt action on mined lands that pose imminent danger to public
health and safety.
7) Remove barriers and provide incentives to remining to achieve
environmental gains through the remining of abandoned mined lands.
8) Develop a mutual understanding between Ohio DMR, the OHPO, and OSM
on cultural/historic resources consistent with the National Historic
Preservation Act
Attachment B. Oversight Activities
Achievement of performance standards at the time of bond release and
follow up on consideration of hydrologic impacts at the time of bond release
OSM lead person is Dan Schrum. Ohio contacts are Harry Payne and Bill
Sterling concerning the hydrologic impact portion of the study. OSM
inspectors will continue to contact Ohio inspectors to schedule inspections
on sites for evaluating bond releases.
Evaluation of the number and degree of off-site impacts
OSM lead person is Mark Balaj. No specific Ohio contacts are assigned.
However, Dave Clark was Ohio's prior contact on this topic. OSM inspectors
will continue to contact Ohio inspectors to schedule inspections for this
evaluation.
Review of the NEPA compliance process to identify any areas where the
timeliness and effectiveness of compliance could be improved
Review of AML construction monitoring.
Review of Ohio's AML project design and construction accomplishments
OSM lead persons on the preceeding three topics are Max Luehrs and
Steffan Koratich who will be developing a proposed approach for evaluating
the AML program considering these areas either through one or more
oversight studies. Ohio contacts will be determined once a draft approach
is developed.
Review of Ohio's public participation requirements and activities in permitting
OSM lead person is Dave Agnor. Ohio contact is Bill Sterling.
Review effectiveness of Ohio's permitting requirements in preventing
landslides.
OSM lead person is Steffan Koratich. Ohio contact is Bill Sterling and an
Ohio engineer, yet to be determined.
Timeliness of bond release processing
OSM lead persons are Steffan Koratich and Mike Hiscar. Ohio contacts are
Dave Clark, Brad Burwell, and Terri Hufford or Linda Trent.
Monitoring minesite compliance at active operations through OSM
inspections.
OSM inspectors will continue to contact Ohio inspectors to provide
opportunity for joint inspections.
OSM will communicate with the appropriate Ohio contact when developing the evaluation
methodology. In most cases, a draft study outline will be provided to Ohio for comment
prior to the start of the evaluation unless there is no change from the methodology used
in the past.
Attachment C. Oversight Inspections
OSM and Ohio agree with the oversight inspection stratification and selection criteria
identified below.
The general oversight inspection concept will be to direct inspection resources to problem
identification, resolution, and assistance, rather than inspection and enforcement process-oriented.
OSM will evaluate compliance with applicable performance standards during on-site inspections
and ensure that any problems are properly addressed as required by the
Ohio Program and SMCRA. However, OSM and Ohio recognize that identified problems
may have several potential resolutions that achieve successful protection and restoration
of the environment. The oversight inspection theme is to work with all parties to identify
and solve problems that have prevented or may prevent the achievement of environmental
performance standards.
In oversight evaluations and inspection reports, on-the-ground impacts will be analyzed to
determine the extent of impact and to identify and address the underlying cause of these
impacts.
OSM will notify appropriate Ohio managers of individual inspection findings that may be
symptomatic of programmatic problems or of isolated incidents of which they should be
aware. OSM will continue to provide notice to Ohio inspectors to provide the opportunity
for joint inspections.
Inspection Type and Criteria:
OSM's inspection activities will include:
Approximately 50 inspections, randomly selected, primarily of active producing sites
and sites on which OSM has not conducted an inspection within the last five years,
with the focus of on-the-ground performance standards rather than administrative
standards. These inspections are general program implementation monitoring
inspections.
Approximately 50 bond release inspections to evaluate on-the-ground success
through achievement of performance standards at the time of bond release.
Approximately 50 inspections to specifically evaluate the number and degree of off-site
impacts. Additional inspections will be conducted to obtain information on any
off-site impacts that may be occurring on unreclaimed bond forfeiture sites.
Approximately 10 inspections to follow-up on the success of contemporaneous
reclamation policy changes (follow-up to prior studies)
Approximately ten site visits with the OSM/Ohio AMD Team to identify sites with
potential for AMD. Approximately 30 inspections to determine sites with post-reclamation
AMD discharges. These site visits are dependent upon the AMD
Team's work plan.
Approximately 30 AML site inspections to verify compliance with programmatic
goals, contractual requirements, and NEPA considerations
Follow-up inspections as necessary to address past issues as described in
Attachment D Attachment D. Pending Regulatory Issues Identified during Past Evaluation
Years (Status as of October 15, 1997)
The following is a list of unresolved issues identified by OSM special studies conducted
during previous evaluation years and identified in previous Annual Evaluation Reports. If
OSM and Ohio have already taken or agreed to follow-up actions and due dates, those
actions and dates are listed in parentheses. OSM and Ohio will use the mechanisms
discussed in Part IV.A to work resolve of these issues during the Evaluation Year.
A. Continuous obligation to ensure bond fund solvency. (Status: Ohio and OSM
entered into an agreement addressing the findings of the actuarial review of
the Ohio ABS. Revisions are necessary to reflect changes in information
collection and reporting. The plan has not been formally revised, although
Ohio and OSM have agreed to revise it. Steffan Koratich and Jeff MacDonald
will provide formal revisions of the plan to DMR and OSM managers for
consideration following a meeting in October to clarify database and reporting
matters.)
B. Hydrology Oversight Review for Geologic and Hydrologic Data; Surface and Ground
Water Monitoring; Handling of Toxic Wastes; and Sediment Pond Design,
Construction, and Maintenance (EY 93)
1. Ohio does not have a process to consistently evaluate baseline data. The
absence of a process results in the acceptance of incorrect data.
a. Completion and implementation date for the PPD on QAQC on
hydrologic sampling and field marking of monitoring points. (Status:
Ohio has implemented internal use of forms and guidelines for
addressing QAQC for water sampling as a prototype for
development of associated PPD. Ohio committed to having a
draft PPD for comment by November 30, 1997. OSM will review
the PPD and compare them with the study recommendations.)
b. Timetable for transferring the data from the Inforex system into the
dBase compatible format and the development of a process for using
the historic data to determine when field sampling is needed to
validate application data. (Status: Ohio will contract with a
consultant to develop a data system for hydrologic monitoring
information by December 1, 1997. Once the programming is
completed, Ohio will also contract for the transfer of the
hydrology data from the old Inforex system into the new system.
The Inforex data will be transferred by June 1,1998.)
2. Ohio's method of establishing seasonal variation is not adequate.
a. Completion date for incorporating changes for determining the
seasonal variation in quantity and quality of water for each monitoring
point. (Status: Ohio has identified a team including DMR, OSM,
industry, and others to develop recommendations. The team has
not yet met but will be meeting before the end of November,
1997.)
3. Ohio is approving plans that contain only a general description of the
segregation and isolation of toxic materials, not specific details.
a. Completion date for developing guidelines for reviewing and
approving disposal plans for toxic-producing materials.
b. Completion date for developing guidelines for reviewing and
approving disposal plans for toxic-producing materials and ensuring
that applicant has identified sufficient quantity and equipment for
placing the isolating material. (Status: This matter has been
reassigned back to an Ohio hydrologist and draft guidelines are
expected by December 15, 1997. Draft guidelines will be
provided to the AMD Team and others to review.)
4. Ohio does not adequately review design criteria for sedimentation ponds.
Ohio approves designs based on inadequate design parameters for storm
runoff, ground cover and condition, and the physical characteristics of the
watershed draining into the ponds. These deficiencies resulted in
construction of undersized ponds with a high likelihood of effluent violations
at the design storm event.
a. Methodology and time schedule for implementing a revised process
for reviewing sediment pond designs to address the individual
findings. (Status: Ohio, OSM, and industry formed a team to
evaluate this matter and to develop standard pond designs that
will be based on BTCA. The team is progressing on several
different approaches to address concerns raised by all parties.
Although the team has not been active in recent months, Ohio
will reactivate the team and renew its efforts.)
C. OSM identified in 1996 that Ohio does not have a process for considering
hydrologic impacts at the time of bond release. Ohio agreed to develop guidelines
that will provide a process for such an evaluation for inspection staff . (Status:
Ohio and OSM will meet to develop an approach to address this matter when
developing the oversight approach for evaluating this area in EY 98. DMR
has provided some guidelines to the inspection staff in the past but
overall implementation may not be occurring. Ohio and OSM will look
at considerations for determining impacts.
D. Ohio agreed to develop guidelines for the inspection staff to address landslides and
necessary actions to permanently repair recurring slide areas. (Status: Ohio has
reassigned a new engineer to develop guidelines. Ohio and OSM
representatives involved with this topic will meet in October, 1997 to move
forward on this issue and set a target date for completion.)
E. Ohio agreed to develop guidelines for evaluating stream buffer zone variance
requests. (Status: OSM, industry, and DMR are working as a team to develop
these guidelines. The Team has developed drafts and are discussing them
within the team. Another meeting will be scheduled before the end of
November, 1997 to address comments received on the draft.)
F. Ohio is continuing to monitor progress at getting sites where mining has been
completed for more than two years to meet Phase II standards and acquire bond
release. (Status: This is an on going endeavor and will be expanded to
address sites that have not been released five years after seeding.)
G. Ohio is implementing terms of an inspection management improvement plan.
(Status: Ohio will continue to follow the commitments in the plan. Ohio will
be converting the inspection reporting system to ACCESS and expects to
complete the conversion by the end of December, 1997. A prototype is
expected by the third week of November. Ohio is working with the contractor
to include error checking routines, elimination of the capability to duplicate
report narratives from month to month, and improved reporting capability in
the new system. Field input will be considered in developing the new system
and with improvements to allow effective monthly management reports to be
developed. Ohio will provide OSM data disks with raw inspection reports on
the 20th of each month with corrected quarterly reports on overall inspection
management on the 30th of each month following the end of each quarter.
Attachment E. Ohio Program Conditions and Requirements
(Status as of June 8, 1998 )
A. 30 CFR Part 733 Actions
OSM has issued no Part 733 actions to Ohio.
B. 30 CFR Part 732 Actions
Part 732 issue in Ohio concerns the Ohio Alternative Bonding System (ABS). On
October 1, 1991, OSM notified Ohio that it must revise the Ohio program so that the ABS
will have sufficient funds to complete the reclamation plans for any areas in default at any
time. An actuarial analysis of Ohio's Alternative Bonding System (ABS) as of December
31, 1992, found that Ohio's ABS is solvent if certain assumptions are fulfilled. In February
1994, Ohio reported that its ABS continues to have a $1.5 million deficit. On June 30,
1995, Ohio and OSM updated an Improvement and Monitoring Plan for the Ohio ABS.
Carrying out this plan will resolve the deficiencies noted in the October 1, 1991, Part 732
letter.
On February 24, 1997, OSM informed Ohio of program changes that must be made to
address changes to SMCRA and Federal rules resulting from the Energy Policy Act. Ohio
is currently evaluating its program to determine if legislative or regulatory changes are
necessary to address the bonding provisions of EPACT and Federal rules.
On July 8, 1997, OSM informed Ohio of several program areas where Federal rules had
changed since 1988. Ohio must address these changes to remain as effective as the
Federal standards. Ohio is evaluating this notice and will provide a plan to revise its
program as necessary.
C. Program Conditions
Ohio has one program condition remaining at 30 CFR 935.11 from OSM's 1982 approval
of the Ohio permanent regulatory program. Ohio still must demonstrate that its Alternative
Bonding System (ABS) will assure timely reclamation at the sites of all operations for which
bond has been forfeited. OSM is now dealing with the issues of bond adequacy and State
alternative bonding programs on a national level. As discussed above, OSM issued a Part
732 letter to Ohio on this issue on October 1, 1991.
Attachment F. OSM Assistance Activities
Ohio and OSM will participate on the following problem-solving teams:
Remining Task Force - to remove barriers that prevent remining and seek
incentives to encourage more remining.
Pond Design Team - to improve drainage controls and to improve pond
designs so that pond discharges meet effluent limits.
Revising annual reclamation segment/reporting policy - to encourage
contemporaneous reclamation by changing the annual reporting process so
that bond releases can occur prior to submission of annual maps that show
areas to be reclaimed.
AMD/ACSI Team - to continue to implement the AMD/ACSI agreement and
to develop guidelines concerning permitting and inspection of toxic material
handling plans.
ADP/database development - to develop a joint database that reports both
on programmatic activity and mining and reclamation activities.
Development of stability guidelines - assist Ohio's development of guidelines
for the inspection staff to use to ensure stability of unstable areas.
Stream buffer zone guidelines - assist Ohio's development of guidelines for
evaluating stream buffer zone variance requests.
Temporary inactive status - assist Ohio with follow-up on its internal review
of procedures concerning mines that have been in temporary inactive status
for extended periods of time.
Assisting in updating Ohio's enforcement procedure guidelines