August 23, 2010
Joe Blackburn, Director
Lexington Field Office
Office of Surface Mining
Carl Campbell, Commissioner
Department for Natural Resources
Energy and Environment Cabinet
Re: Draft Evaluation Year 2011 Performance Agreement
Dear Joe and Carl:
Thanks for the opportunity to provide some input on the proposed EY 2011 Performance Agreement. Overall, KRC believes the agreement is well-structured and focuses on some program areas that have presented particular challenges in the implementation of the federal Act and approved state program.
My suggestions for possible revision or elaboration of the assessment areas are these, references by program area and page number:
AML Reforestation Efforts
While the Performance Agreement states that the LFO and DNR agree to encourage and explore reforestation efforts on AML reclamation projects, no detail is provided on what avenues will be explored. KRC would hope that the agencies could identify several concrete steps to pursue, including:
a. Partnering with conservation organizations and the ARRI to do plantings on reclaimed AML properties;
b. Making afforestation of reclaimed areas the default post-reclamation land use for AML reclamation projects and for reclamation on bond-forfeited properties, unless the landowner objected to planting trees on the reclaimed property.
AML Enhancement / Remining
A significant impediment to remining sites where existing conditions are generating significant pollution runoff, is the adoption by EPA of regulations, 15 years after the Rahall Amendment to the Clean Water Act, which completely eviscerated what the Rahall Amendment intended, and actually impose a higher standard of treatment than would be the case under a normal water discharge permit. The effect of this was to undercut the approach that Larry Sowder and I had developed to encourage operators to incorporate previously mined hotspot areas into their remining operations. Working with EPA to revisit and revise the Rahall Amendment regulations, would go far to encourage remining of previously mined areas.
CHIA Enhancement Initiative
My name needs correction (FitzGerald).
In addition to water quality parameters, collection of data on flow characteristics is important. A number of studies indicate that the peak response of watersheds to various storm events is changed (increased) depending on the amount of disturbed area within the watershed from mining, and the CHIA may affect the timing or sequencing of disturbances in order to attenuate or flatten peak flows. Collection of flow and rainfall data and the correlation of the two with watershed disturbance patterns is important, in addition to qualitative water data.
(KRC's recommendation on collection of water flow data was accepted.)
As you both know, I have had concerns with REEG-8?s focus on off-site impacts since it was first released, both because damage caused may not manifest itself immediately, and because it is a poor tool for assessing the functioning of various program components. To the extent that evaluation will include collection and analysis of off-site damage information, KRC would recommend that the analysis focus on whether the damage was a result of operator failure to follow the approved MRP, or whether the damage is a result of a failure to predict and engineer to avoid the damage and is a problem with the permitting process. Developing a fault tree for the evaluated situations may identify areas in which programmatic changes are needed.
(KRC's recommendation on identifying the root causes was accepted.)
Inspection Frequency Study
In reviewing inspection frequency, the focus should be both on whether the required number of inspections have been made, and also whether the quality (i.e. thoroughness) of the inspection is within acceptable parameters. The number of inspectable units assigned to each inspector should also be revisited, since over the years since the state program was approved, the number of permits has declined significantly but the number of acres under permit has grown.
AOC / Fill Minimization
KRC appreciates the commitment to review implementation of the FPOP, but encourages the agencies, since this is a new protocol, to increase the number of permits to five and to conduct the reviews in the second and third quarters of the EY in order to more promptly identify any programmatic concerns with the protocol implementation.
(The final agreement increased the number of permits that will be reviewed to 5).
The Council also recommends that the four agencies hold training sessions for the industry and consultants (and public) on how the protocols will be implemented.
(The agencies have committed to the trainings).
Blasting Special Study
The Council would ask that the Blasting Special Study also look at the quality of pre-blast surveys, and on the agencys handling of cases in which the blast is within legal limits but the pre-blast survey and post-blast conditions evidence that damage has occurred.
(The agencies agreed to include a review by OSM of the quality of pre-blast surveys).
Thanks for your consideration of these thoughts. KRC looks forward to working with both of your agencies, and with the both of you, to continue our incremental progress in the full and fair implementation of the protections promised to the citizens of the coalfields and their communities by Congress in 1977.