III.    Overview of the Public Participation Opportunities in the Oversight Process and the State Program

During this evaluation period the Pennsylvania Department of Environmental Protection (PADEP) continued several ongoing initiatives and undertook several important new initiatives that provided opportunity for public involvement, one of which was its bonding program.

Since gaining primacy in 1982, Pennsylvania has bonded mines under either of two systems, a conventional bonding system (CBS) covering underground mines and refuse disposal and an alternative bonding system (ABS) for surface mines, refuse reprocessing, and coal preparation plants.  The ABS consisted of a site-specific bond and supplemental reclamation fee to a bond pool that could be used for funding reclamation of any ABS site in the event of forfeiture.  In evaluation year 2001, PADEP initiated the process of converting existing permits bonded under the ABS, to a CBS through individual bond adjustments based on revised bonding rate schedules.  PADEP conducted extensive outreach on the issue with citizens, the coal industry, the legislature and the congressional delegation.  During this evaluation period, PADEP completed the transition to a conventional bonding program.  The transition included the conversion of 664 permits; 366 of which required additional bond.  The conversion review process involved recalculating the bond amount based on the costs associated with reclamation of abandoned mines and a coordinated review by the technical and compliance staffs in the district offices.  Continued implementation of the program involves frequent review of the site status and recalculation of bond amounts on an annual basis.

During this evaluation period, PADEP provided members of the public and the coal industry a unique opportunity to be part of the process by which it amends its approved SMCRA program.  To address amendments required by the Federal Energy Policy Act, PADEP and OSM operated under a team approach and provided special outreach meetings and documents to industry and citizen groups.  The agencies have extensive public involvement during formal rulemaking; however, PADEP and OSM obtained industry and citizen input much earlier in the process to ensure that proposed rules would effectively address complicated and controversial issues.

Annually, the Field Office develops a workplan to review and support the implementation of Federal SMCRA, through Pennsylvania=s Abandoned Mine Reclamation and Regulatory Programs.  The document is provided to PADEP with the intent of developing and finalizing a joint workplan for both oversight activities and support of approved SMCRA program initiatives.

Opportunities for public interaction and input were provided during workplan development with citizen groups and with the coal industry.  A copy of the 2003 work plan is available from the HFO.

Examples of public involvement included:

A. THE PADEP PROGRAMS

• Citizen’s Advisory Council

PADEP solicits and/or receives public input on proposed changes to the Pennsylvania mining program from the Citizens Advisory Council (CAC).  Since its creation in 1971, the CAC has been actively involved in Commonwealth environmental issues.  The Council is the only legislatively mandated advisory committee with the comprehensive charge to review all environmental legislation, regulations and policies affecting PADEP.

During this evaluation year, mine pool issues were the focus of attention for the CAC.  In the past, some Pennsylvania underground coal mines were operated in a manner that allowed mine water to discharge to the surface when the mines were closed and abandoned.  While this type of mining is no longer approvable under PADEP regulations, the impact of past mining practices is a current and on-going concern to the environment.  In those circumstances where flooded and abandoned underground coal mines will discharge polluted water to the surface, federal and state laws require coal operators to maintain pool levels through a pump and treat mechanism.  While these mechanisms can be very effective in preventing pollutional discharges, the process can be very expensive with the expectation that the pumping will continue forever.  The CAC reported that, as of the December 2002, there were as many as 140 mine operators actively treating water on 270 mine sites using 376 separate treatment facilities.  The concern of mine company closures and how to address the impacts that could result from these closures is a topic of ongoing discussion.

·        Mining and Reclamation Advisory Board

The Mining and Reclamation Advisory Board (MRAB) was created in 1984 by Act 181 of the Pennsylvania General Assembly.  The Board's purpose is to assist PADEP in expending reclamation funds provided by the Pennsylvania Surface Mining Conservation and Reclamation Act and to advise PADEP on matters pertaining to mining and reclamation.  The MRAB also advises PADEP on abandoned mine land reclamation issues.  Significant public involvement in the PADEP regulatory program occurs through MRAB.  The MRAB and its subcommittees address a number of coal program areas each year and publish an annual report on its activities.

During this evaluation year, the MRAB formed a sub-committee (The Orphan Mine Discharge Task Force) to research possible treatment funding sources and explore the potential for industrial uses for polluted mine water in an effort to assist PADEP in dealing with orphan mine discharges.  A policy book will be established in which documents could be added and changed by resolution of the Board.  This book will be a living document in which changes can be made as the needs arise.  As of June 30, 2003, the task force is planning to present a draft resolutions report to the MRAB meeting in July 2003.

In addition to its focus on mine drainage, the MRAB provided comments to PADEP’s draft remining incentive report during this evaluation year and provided a recommendation to the Environmental Quality Board (EQB) to approve a proposed change to 25 Pa. Code 86.152(a) concerning bond adjustment.  The language of 86.152(a) was changed to be consistent with the Federal regulations.

·        The Environmental Quality Board

The EQB is a 20 member independent board that adopts all PADEP regulations.  The Board, which is chaired by the Secretary of PADEP, includes members from 11 state agencies, the CAC and the State Senate and House of Representatives.  PADEP, through the EQB, requests comments on all proposed regulations and holds public hearings or public meetings to provide citizens with the opportunity to provide input.  The EQB addresses all comments received on proposed rules in the preamble of the final rules that are published in the Pennsylvania Bulletin.  The Pennsylvania Bulletin is available for public review on the PADEP Internet site.  During this evaluation period, the board met once and did not address regulatory issues pertaining to coal mining.

·        The Environmental Hearing Board

The Environmental Hearing Board (EHB) is an independent quasi-judicial agency that includes a Chairman and four members.  Members are administrative law judges with a minimum of five years of relevant legal experience.  The EHB has the sole power to hear and decide appeals of PADEP’s actions.  Litigants have the right to appeal EHB decisions to the Commonwealth Court. This evaluation period, the EHB issued a number of decisions related to the approved state program.

On September 12, 2002, (Colt Resources, Inc. v. DEP) the Board denied a motion for partial summary judgment in an appeal of a civil penalty assessment under the Surface Mining Act.  Pursuant to Section 18.4 of the Surface Mining Act and the Commonwealth Court’s holding in Kent Coal Mining Co. vs DER, the Board determined that a party who appeals a civil penalty assessment issued under Section 18.4 may challenge both the amount of the penalty and the fact of the underlying violation, even where that party has not appealed the compliance order that gave rise to the civil penalty.

On December 31, 2002, (Consol Pennsylvania Coal, Co. v. DEP) the Board modified a condition in an underground mining permit that authorized development mining, but required that an additional permit revision be granted before full-extraction mining could proceed.  The Board retained the part of the condition that made the issuance of that additional permit revision contingent upon compliance with regulations related to mining and hydrologic balance requirements.  The Board struck the part of the condition that was based upon the application of the Dam Safety and Encroachments Act and certain water discharge requirements in the regulations.  The board determined that the Dam Safety and Encroachments Act and the permitting regulations at 25 Pa. Code Chapter 105 do not apply to the subsidence impacts of underground mining beneath watercourses.  The Board also stated that 25 Pa Code Chapter 93, which applies to “discharges” does not apply to the subsidence impacts of underground mining.  The Board further determined that the Clean Streams Law and the water protection provisions of 25 Pa. Code Chapters 86 and 89 apply to the subsidence impacts of underground mining. In permitting and regulating the subsidence impacts of underground mining, the Board found that the Department is not limited to the Bituminous Mine Subsidence and Land Conservation Act and Subchapter F of 25 Pa. Code Chapter 89.  On March 10, 2003, EHB rescinded its findings concerning the applicability of Chapter 93.

(Maple Creek Mining, Inc v. Intervenors= PADEP, James, Emma, Charles Alvin Lapp, and Barbara Jean Litman).  Under the Mine Subsidence Act, if the Department orders a mine operator to compensate a landowner for damages caused by mine subsidence, in order to successfully perfect the appeal of such an order, the mine operator must deposit the ordered compensation amount in an escrow account within 60 days of receiving the order.  In this case, Maple Creek was responsible for subsidence damage to structures and failed to deposit the ordered compensation within the appropriate timeframe in accordance with Section 1406.5(e) of the Mine Subsidence Act.  PADEP issued three orders directing Maple Creek to pay compensation.  Maple Creek then appealed the orders.  The owners of the damaged property intervened and filed a motion to dismiss the coal company appeals on the basis that Maple Creek had failed to deposit the ordered compensation amount as required.  According to Maple Creek’s brief, it did not deposit the ordered compensation in a timely manner because it had been in settlement negotiations with the Department.  They further asserted, and the Department concurred, that the delay was done with the express consent of the Department.  In its decision, the Board found that Maple Creek had not followed the plain language of Section 5.5(e) of the Mine Subsidence Act which requires that an appeal not be considered unless the mine operator deposits the compensation amount within 60 days of receiving the Department’s order.  The fact that Maple Creek’s delay in depositing the compensation amount was done with the consent of the Department was not a mitigating factor. 

·        Public Participation in Permitting, Inspection and Enforcement Activities

The PADEP regulatory program receives public input throughout the permitting, inspection, compliance monitoring and enforcement processes.  With respect to permitting activity during this evaluation period, PADEP approved 64 permits.  PADEP provided opportunities for public comments on the adequacy of the permit applications prior to permit issuance.  The areas of concern addressed in these comments on permit applications are subsidence control plans, blasting plans, sediment controls, post-mining land use, hydrologic balance protection, and the adequacy of maps and supporting information.

With respect to inspection, compliance monitoring and enforcement activity during the evaluation year, the public may submit both informal and formal complaints on ongoing and completed mining operations, and bond release requests.  PADEP received and investigated approximately 469 citizen complaints, of which 376 were successfully resolved.  The remaining complaints were pending resolution at the close of the evaluation period.  Complaints can be directed to many aspects of the mining activities including stream pollution from erosion and mine drainage, blasting effects on structures and water supplies, damage to public roads, mining off-permit, and dust.

B.  DEVELOPMENT AND IMPLEMENTATION OF OVERSIGHT AGREEMENTS

HFO maintained an open process for industry and citizen involvement in oversight activities through the annual workplan.  The plan was provided to PADEP and interest groups for comment or suggestion of additional oversight initiatives that should be incorporated into the plan.  HFO also met with interested groups to explain the proposed and ongoing activities and to discuss their comments.

C. General Outreach BY OSM

OSM continued interacting with citizens groups, industry and other State and Federal agencies on oversight and State program initiatives.  The Field Office met with industry representatives such as the Pennsylvania Coal Association (PCA) and attended the MRAB meetings to provide input on oversight initiatives and explain new OSM programs.

OSM continues to provide assistance to PADEP and numerous local groups and associations in promoting the cleanup of Acid Mine Drainage (AMD) impacted streams through the Appalachian Clean Streams Program (ACSP).  Since 1996, when the program was first funded, about $12.4 million in clean stream grants have been awarded to Pennsylvania.  PADEP has identified 26 projects across the coalfields of Pennsylvania to receive this funding.  So far, 15 projects have been completed, 6 are in construction, and 5 are in design. These projects are being accomplished in partnership with other agencies and watershed groups to maximize the effectiveness of the cleanup effort.  The Field Office attends workshops, and individual watershed meetings throughout the year in support of AMD clean-up efforts and PADEP programs.  Also, under the umbrella of ACSP, OSM has budget authority to enter into project agreements with local non-profit watershed groups to remediate AMD.  Under this program OSM has funded 35 watershed cooperative agreement assistance projects in Pennsylvania for a total amount of $2.9 million.  During the evaluation period, 7 new cooperative agreement projects were funded, and one increase in award was funded.  The total amount awarded in the 2003 evaluative period was $769,792.  These projects involve multiple partners, providing financial and other assistance.  PADEP is providing financial and technical assistance on a significant number of these projects, and the Field Office has noted an increasing number of applicant referrals from Growing Greener watershed coordinators due to budget constraints in that program.

D.         Program Amendments

The program amendment process offers the public, industry, and citizen groups an opportunity to have input into the maintenance of the approved Pennsylvania program.  During this evaluation period, OSM acted on a number of formal and informal amendments.

On December 27, 2001, OSM published a final rule (66 FR 67010-67067) regarding the repair and/or compensation for damage to structures or water loss caused by subsidence from underground mining.  The formal amendment submission included State Act 54 of 1994, enacted on June 22, 1994, amending the Bituminous Mine Subsidence and Land Conservation Act (Act 54) and implementing rules set forth in Volume 28, Pennsylvania Bulletin, 2761-2791, June 13, 1998.  OSM’s final rule (PA 841.48) contained 47 required amendments to be addressed by PADEP.  As a result of these findings, PADEP filed suit in Federal District Court on February 25, 2002, challenging OSM’s final rule.  OSM and PADEP agreed that effective resolution of the required amendments was the highest priority to both agencies, and immediately began a series of initiatives to resolve the issues.  Throughout this review period, OSM and PADEP continued operating under a team approach to develop possible resolutions of each required amendment.  The OSM/PADEP team also provided special outreach meetings and documents to the PCA and Pennsylvania citizen group representatives to gain their perspectives on proposed solutions to the various issues.  As of the end of the review period, OSM and PADEP have completed drafts of state and federal rules that address all of the 47 required amendments.  The proposed rules will be formally offered for public comment during the upcoming evaluation year.  The OSM/PADEP cooperative effort has proven to be a very effective approach to resolving complex and controversial issues.  Under the team approach, OSM and PADEP staff analyzed legislative and regulatory requirements, solicited comments from citizen and industry representatives, and prepared joint proposals consistent with both agencies goals and with state and federal law.  Effective coordination and leadership by PADEP staff has established the basis for a new cooperative rulemaking process.  The new cooperative approach operates within existing state and federal rulemaking requirements to improve public commenting opportunities and to both simplify and shorten the process for modifying the approved Pennsylvania program.

During this evaluation period, OSM completed the review of a program amendment that was submitted by PADEP on November 22, 1999 (PA 861.03).  In this amendment, Pennsylvania proposed to revise its program for designating areas as unsuitable for surface mining.  In the final rule, which was published in the Federal Register (68 FR 40147-40154) on July 7, 2003, OSM approved the amendment with the exception of 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) to the extent that these sections would allow Pennsylvania more time to complete action on a lands unsuitable petition than is allowed by the Federal regulations at 30 CFR 764.19(b).

As reported last year, Pennsylvania submitted a proposed amendment to revise 25 Pa. Code Chapters 210 and 211 pertaining to the use and handling of explosives and the licensing of blasters.  These regulations had not been revised since the early 1970’s.  The chapters were reorganized and rewritten for clarification to reflect the progress of technology and research of the effects of blasting.  The Final Rule will be published in the Federal Register in July 2003.

OSM reviewed and approved a PADEP program amendment on November 6, 2002, (67 FR 67528-67531) to revise 25 Pa. Code Sections 86, 87, and 89.  The approved provisions pertained to the criteria used for permit approval or denial, and performance standards for retention of roads following the completion of surface coal mining activities.

In addition, OSM reviewed and approved two program amendments submitted by PADEP pertaining to hydrologic monitoring and correction of a cross-reference error.  When the final rule on these amendments is published in the Federal Register in August 2003, OSM will remove two required amendments coded in 30 CFR 938.16.

As stated in our 2002 report, OSM conditionally approved Act 114 (PA 837.01) amending the Coal Refuse Disposal Control Act until PADEP submits an amendment showing the implementation of these changes in the Pennsylvania regulations.  As a result, seven required amendments were coded in 30 CFR 938.16.  On December 20, 2001, PADEP submitted a proposed amendment to satisfy these seven conditions.  OSM is working with PADEP to finalize the amendment.

IV.    Major Accomplishments/Issues/Innovations in the Pennsylvania Program

·        Accomplishments/Innovations

During this evaluation year, OSM and PADEP cooperated to address the OSM October 1, 1991, notice to PADEP under 30 CFR 732.17, that the Pennsylvania ABS was not in conformance with SMCRA and Federal regulations.  Key components of the resolution were PADEP’s completion of the process to require full cost bonding on all active mine sites covered by the ABS, the provision of $5.5 million in general revenues by the Pennsylvania legislature to make up for a land reclamation funding shortfall under the prior ABS, and the development of a statewide plan to address pollutional discharges from sites forfeited under the ABS.  PADEP will utilize the inventory of long-term pollutional discharges on bond forfeiture sites to prioritize efforts to address mine drainage impacts on a watershed basis.  A noteworthy aspect of the resolution of OSM’s 1991 notice was PADEP’s commitment to developing a detailed description of bond program enhancements in coordination with OSM.  PADEP and OSM jointly reviewed the issues associated with the 1991 notice and developed a detailed statement of PADEP resolution activities that form the basis for resolution of the 1991 notice.  The document has been entered into the Harrisburg Field Office Administrative Record (PA 802.28) to provide public access.  On June 12, 2003, OSM notified PADEP that the bond program enhancements were sufficient to satisfy the 1991 notice.

Pennsylvania continues to be successful developing remining initiatives aimed at reclaiming lands through additional mining activity.  PADEP has been pro-active in working with other agencies to identify options to existing regulatory requirements to facilitate remining operations.  As noted in previous years, a number of remining incentives were included in amendments to Pennsylvania SMCRA (Act 173 of February 1993).  PADEP=s remining efforts were an important part of the “Reclaim PA” initiative announced on October 23, 1998.  The success of this program has been significant in achieving reclamation of mined lands that otherwise would have remained in an unreclaimed and degraded state.  Reclaim PA is a statewide approach to maximizing reclamation of Pennsylvania=s abandoned mineral extraction legacy.  Reclaim PA contains a number of program initiatives that integrate existing and newly created resources.  With respect to the coal program, Reclaim PA provides incentives to operators that do remining; reduces the legal and environmental risks to the operator; and reduces the paperwork required for operators to remine abandoned mine lands (AML).  In addition, part of the initiative includes incentives for mine operators to remine and reclaim abandoned mines at no cost to taxpayers.  This initiative by the state has resulted in almost one thousand acres of land being returned to productive, pre-mining uses, has reduced sedimentation of streams and has enhanced the potential for over-all improvements to stream water quality, quantity and habitats.  During this evaluation year, the Pennsylvania mining industry initiated 26 remining projects involving 770 acres for a total reclamation value of $2,115,449.

PADEP has also achieved reclamation success through “reclamation in-lieu-of civil penalty” payments.  This year PADEP negotiated “reclamation in-lieu-of civil penalty” agreements for 2 sites with a reclamation value of $13,810.

On March 26, 1999, OSM approved an amendment to the Pennsylvania AML program to improve the efficiency of the Pennsylvania program by allowing the government financed construction contract (GFCC) exemption in Section 528 of SMCRA to be applied in cases involving less than 50% financing.  The exemption applies in the limited situation where the construction constitutes a government approved and administered abandoned mine land reclamation project under Title IV of SMCRA.  Pennsylvania has continued to excel in implementing this program.  As of June 30, 2002], Pennsylvania awarded 12 GFCC sites representing reclamation of approximately 85.5 acres for an estimated reclamation savings of $600,000.

PADEP=s mining bureaus, the Bureau of Mining and Reclamation, the Bureau of District Mining Operations and the Bureau of Abandoned Mine Reclamation (BAMR), provided significant support to AMD remediation efforts.  These Bureaus provide technical and financial assistance to local agencies, municipalities and watershed groups, develop watershed restoration plans, collect stream data, and implement AMD treatment plans.  A number of state and locally administered AML and AMD abatement projects were funded under Pennsylvania=s Growing Greener program.  Growing Greener funds are appropriated by the Pennsylvania Legislature and are not part of those awarded by OSM from the Title IV Abandoned Mine Reclamation Fund.  In several projects, Growing Greener funds were combined with ACSP funds to enhance the partnership approach to AMD cleanup.  ACSP Projects completed this year, in financial partnership with Growing Greener funds, are the Newkirk Mines, Melcroft Phase I, and Argentine Central.  The total cost of these three projects is $282,087, with  $126,394 from the ACSP and $155,693 from Growing Greener.  Seven of the 26 Pennsylvania ACSP projects also have Growing Greener funds as a part of the project construction budget.  OSM has awarded PADEP $12.4 million in grants for ACSP projects, for the cleanup of streams contaminated by AMD.  Fifteen projects have been completed, six are in construction and five are in design.  These are partnership projects, with local watershed groups, private companies and other state and Federal agencies contributing time and financial resources.

During the review period, PADEP requested and received approval for a new Hydrologic Unit Plan (HUP) under the Pennsylvania AMD 10% set-aside program.  The new HUP was to address a potential discharge from an underground mine that threatens the lower sections of Dunkard Creek and portions of the Monongahela River.  Pennsylvania now has 20 Hydrologic Unit plans approved by OSM and has completed 15 projects.  Other projects are ongoing.  Approximately $32.36 million in grant deposits and interest have come into the 10% set-aside fund since its inception.  As of the end of this review period, there was a balance of $20.26 million in the 10% set-aside fund.  BAMR staff involved in the AMD Set-Aside program have provided a valuable service to watershed groups by conducting stream sampling, attending meetings, giving advice and guidance on how to get started in cleaning-up streams, and helping develop partnerships for AMD abatement activities.

Pennsylvania's AML program continued to make good progress in traditional areas of abandoned mine land reclamation such as dangerous highwall removal, subsidence control, and sealing shafts and portals.  Specific accomplishments include completion of 25 major projects and 17 smaller state work force projects. Reclamation included 24,950 linear ft. of highwall (125 acres of land), and 6.90 acres of Hazardous Water Bodies.

During this evaluation period, OSM and PADEP engaged in a cooperative effort to address the backlog of required amendments to the Pennsylvania program.  PADEP and HFO have worked closely over the past evaluation period to resolve many of the amendments and have developed a review scheme to facilitate resolution of the remaining required amendments.  The status of this issue, including a detailed description of progress this year, is provided in the “Program Amendments” section (Page 7) of this report.

·        Issues

Pollutional mine drainage continues to be a major issue in Pennsylvania.  This year, PADEP and OSM continued their cooperative approach to the development and maintenance of a statewide inventory of long-term pollutional discharges (AMD Inventory) from sites mined under the Pennsylvania primacy program (after July 30, 1982).  The purpose of the inventory is to help determine the magnitude of the potential harm from AMD, to assess the potential for use of passive treatment technologies to address problem sites, to identify the amount of bond available to treat the discharges and to estimate the cost to abate the pollution.  PADEP has done an excellent job in providing accurate, up-to-date information to this system.  PADEP has also been successful in early identification of discharges and in requiring operators to provide active/passive treatment to mitigate off-site impacts.

One of the most significant aspects of the mine drainage issue is the potential for underground mine discharges.  Underground mine discharges represent the most significant flows in the AMD Inventory.  For example, the average flow from underground mines in the inventory was 454 gallons per minute (gpm) while the average flow from all other mine types was only 44 gpm.  Pollution loads are also proportionally high for underground mines.  PADEP is currently addressing several such discharges abandoned by bond forfeited - bankrupt permittees.

Subsidence from longwall mining operations is the subject of numerous citizen inquiries received every year by PADEP and OSM.  An emerging issue is the impact of subsidence from longwall mining on surface water resources; including springs, ponds and streams.  PADEP has taken aggressive action to address cases of surface water loss as they have occurred.

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

OSM’s national regulatory program oversight guidelines known as REG-8 requires an evaluation of off-site impacts, reclamation success, and a component of customer service in its annual oversight work plan with PADEP.  Summaries of those areas of evaluation are discussed below.

The purpose of this evaluation was to carry out the oversight activity required under OSM=s Directive REG-8, with regard to monitoring off-site impacts occurring from surface coal mining operations.  This year’s study employed a two-phase approach.  The first phase involved a file review of all state enforcement actions taken during the first six months (October 1, 2002 through March 31, 2003) of the evaluation period to identify and characterize any off-site impacts coincident to the violations.  Field visits were conducted as necessary to verify the nature and extent of the impacts.  In the second phase, off-site impacts findings from OSM’s 172 random inspections were compared to the findings from the phase one state file review. This study was developed as part of the HFO annual work plan agreement with Pennsylvania.

·        Data Presentation and Discussion:

The review analyzed the off-site impacts in terms of types of resources affected by the impact, degree of impact and the type of impact.  The types of resources affected for the purposes of the study were people, land, water and structures.  The degree of impact was divided into three levels. Those levels are: (1) minor impact or impacts that do not affect the public, disturb a small area or have negligible effect on the receiving stream; (2) major impacts, or impacts that have significant impacts to the public, that affect large off-site areas and have major impacts to the receiving stream; and (3) moderate impacts, or impacts that do not fit in either of the first two categories.  The categories of impacts identified for the study were blasting, land stability, hydrology, encroachment and other.

The review of the state enforcement data found that, of the 88 state enforcement actions reviewed, 59 (67%) involved off-site impacts.  As seen in Figure 1, 53 of the 59 off-site impacts (90%) were hydrology related.  These impacts to water resources occurred primarily from the discharge of improperly treated or untreated water that exceeded the numerical effluent limitations specified in the permit.  These discharges resulted in impacts to nearby streams with the addition of acidity, iron, manganese, and sedimentation; or a combination of these contaminants.

As demonstrated by the data in Figure 2, it is possible for one off-site impact to affect more than one resource.  For example, an off-site hydrology impact may affect land and water.

 
Figure 2

The degrees of off-site impacts observed during OSM’s review of state enforcement actions were 35 minor, 13 moderate, and 11 major impacts.  Of the 35 minor impacts, there were 24 discharges of water that failed to meet effluent standards, and 2 permittees failed to maintain adequate treatment facilities.  There were 8 instances where the erosion and sedimentation ponds failed and in 1 situation an operator encroached upon a stream bank causing a minor impact.   Of the 13 moderate impacts, 9 were discharges of water that did not meet effluent standards and 3 were a result of failure to collect and treat discharges.  The last impact occurred as a result of a permittee conducting surface mining within 100 feet of the outside right-of-way of a public road, causing moderate damage.  There were 11 major impacts with 10 of these involving water discharged from the permit area that did not meet effluent standards.  One of these impacts was a result of the operator failing to construct a proper erosion and sedimentation control system on a deep mine site.  The discharged water flowed off the permit to a neighboring pond causing excessive sedimentation throughout the pond.

The review of state enforcement actions found that Pennsylvania did an excellent job in limiting the amount of time that an impact persisted.  The average abatement time that operators took to resolve the off-site impacts reviewed for this study was 15 days.  When impacts are abated quickly, the potential for long-term consequences is minimized.

The chart below illustrates the changes in off-site impacts since 1997 as recorded from the review of enforcement actions during the first six months of each evaluation year.  Although 2003 reflects a slight increase in the total number of off-site impacts observed; overall, the data collected shows a trend toward the minimization of off-site impacts.  A slight increase in the number of off-site impacts observed during this evaluation year is likely the result of a wetter than usual spring in Pennsylvania.

Similar results were observed in the second phase of this review in which OSM inspector’s recorded off-site impacts observed during random inspections.  Review of the data indicates that 91% (373 of 410) of sites reviewed over the course of the evaluation period were free of off-site impacts.  Also, the data reflected that a large majority of violations observed were hydrology related.  Twenty-nine of the 37 total impacts (78%) were hydrology related impacts that resulted in the discharge of improperly treated or untreated water that exceeded the numerical effluent limitations specified in the permit.

• Conclusion:

The study findings indicate that PADEP does an excellent job in minimizing the occurrence of off-site impacts.  After adjusting the data to represent a 9-month period, 95% percent (1,928 of 2,025) of the mine sites were free of off-site impacts when relating the sample data to the total inspectable units in Pennsylvania.  This finding is supported by results from OSM’s random inspections where 91% of sites were free of off-site impacts.

In addition, the data indicates PADEP effectively limits the duration of off-site impacts thereby reducing the potential for long-term consequences.  The average duration of impacts observed during the review of state enforcement actions was 15 days.

HFO evaluated reclamation success through PADEP’s bond release program.  HFO found the mining operators are achieving reclamation of lands affected by surface coal mining operations through contemporaneous reclamation.  During this evaluation year, 45 bituminous bond release inspections and seven anthracite bond release inspections were conducted.  Of the 52 bond release inspections conducted, there were only two cases (both in the anthracite region) in which the final bond (Stage III) releases were deemed premature.  In those two cases, the sites fully met grading and revegetation standards; however, compliance with the 5-year revegetation liability period was not achieved prior to release.  A detailed report on the PADEP bond release program is available in the HFO public evaluation file.

The purpose of this evaluation was to carry out the oversight activity required under OSM=s Directive REG-8, with regard to customer service.  The study was developed as part of the HFO annual work plan agreement with Pennsylvania.

This year the customer service component of annual work plan was focused on Public Participation in Longwall Mining.  The goals for the EY03 Public Participation in Longwall Mining Study were to identify the opportunities and information provided to the public by PADEP regarding longwall mining, characterize the outreach efforts that Pennsylvania provides to citizens affected by longwall mining, and identify accomplishments of the PADEP public participation program.

This study of the Public Participation in Longwall Mining found that the PADEP adheres to the policy procedures, as described under the discussion and data presentation, and Chapter 86.31 of the Pennsylvania Code, Title 25 Environmental Protection.  A detailed report is available in the HFO public evaluation file.

VI.    OSM Assistance

This evaluation period, OSM provided technical assistance to PADEP in resolution of citizens complaints and provided assistance through participation on teams to develop program enhancements including program amendments, the inventory of acid mine drainage discharge points, AMD treatment cost estimating, compliance monitoring, Appalachian Clean Streams Program and historic properties.

As discussed earlier in this report, OSM is working with and assisting PADEP to streamline the process of maintaining the approved state program.  This cooperative effort, which began during the review of the program amendments required by the Federal Energy Policy Act, involves a melding of the state and federal rulemaking processes to create a more concurrent and well-timed progression of actions

PADEP continues to maintain its inventory of post-primacy (after July 30, 1982) sites with long-term pollutional discharges.  In conjunction with this effort, the Field Office updates the inventory of bond-forfeited post-primacy permits with discharges.  These individual AMD site inventories are part of a state and Field Office effort to compile and maintain a single, comprehensive inventory of long-term pollutional mine discharges.  The purposes of the combined inventory are to pinpoint the geographic location where coal mine drainage problems occur, to provide information for the characterization of the magnitude and abatement cost of water pollution, and to provide information to act as the basis for strategies for addressing the impacts from the discharges.  This year’s oversight review of the inventory compared findings from inspection of 30 randomly selected discharge points with the information in the inventory to verify the completeness and accuracy of the data.  A detailed report from that review is available in the HFO public evaluation file.

To further the effort of characterizing abatement costs, OSM has assisted PADEP by jointly developing a computer program, termed AMDTreat, designed to estimate the capital and annual costs to abate pollutional mine discharges.  AMDTreat uses a three-step approach to estimate treatment costs:  (1) Users enter water quality and quantity data, (2) Users “model” an active and/or passive treatment system by selecting the applicable treatment components from the software menu, and (3) Users customize each treatment system to site-specific conditions by controlling the size, quantity, and unit cost of treatment components.  Treatment types for which AMDTreat can estimate costs include vertical flow pond, anoxic limestone drain, Manganese removal bed, anaerobic and aerobic wetlands, oxic limestone channel, hydrated lime, caustic soda, anhydrous ammonia, pebble quicklime, and soda ash.  The model combines costs from these treatment methods with costs of ancillary treatment components, such as settling ponds and ditching, to calculate a site-specific capital cost.  Similarly, AMDTreat calculates annual costs by taking into account user-provided information regarding sampling, labor, maintenance, pumping, chemical consumption, and sludge removal.  Capital and annual costs can be used in conjunction with AMDTreat’s financial forecasting utility to evaluate the economics of long-term treatment.  AMDTreat provides PADEP with a tool to evaluate long-term treatment liabilities on active mine sites.  AMDTreat also provides BAMR with a tool to evaluate the economics of different treatment options.

OSM, PADEP, and the West Virginia Department of Environmental Protection started development on AMDTreat in 2001.  The development team obtained input from State and Federal Agencies, watershed groups, academia, and industry to insure the software reflected the needs of potential users.  The release of several Beta versions provided feedback from these groups and resulted in numerous software changes, including additional tools and types of treatment.  On February 20, 2003, the development team released the first version of AMDTreat. The official release was accompanied by press coverage, including the Pittsburgh Post Gazette and USA Today newspapers, presentations at numerous conferences, and a website (http://amdtreat.osmre.gov).  In the four months since the release of AMDTreat, the website has had 150,000 hits and generated over 500 written requests for the software.  Requests for the software have originated from 15 states and 12 foreign countries.  The large interest in the software suggested the need for training on AMDTreat’s capabilities.  In May 2003, OSM’s technical training branch, TIPS, accepted the software as part of its core software and started development on a training course.  The first training course will be offered to PADEP in early Fall, 2003.  In addition to the AMDTreat training course, OSM will continue to provide technical assistance to PADEP through continuing to support and update of the software to meet PADEP’s and the public’s needs.

In 1994, OSM determined that additional effort was needed to help focus Federal attention on pollution of the nation’s rivers and streams by drainage from abandoned coal mines.  There are approximately 7,500 miles of streams impacted by abandoned coal mine drainage in Appalachia. Approximately 5,100 miles of impacted streams are in West Virginia, Pennsylvania, Maryland, Virginia and Ohio.  Pennsylvania alone has 2,400 miles of impacted streams from hundreds of abandoned surface and underground coal mine discharges.

To help address this significant problem, OSM created the Appalachian Clean Streams Initiative (now Program) and sought Congressional funding authority in appropriations from the Abandoned Mine Land Fund that would be directed to participating states for mine drainage remediation projects.  Selected projects emphasize Federal/State/local partnerships to treat coal mine drainage in watersheds.  The allocation is budgeted against the Federal share of the AML Fund.  The twelve States participating in the program receive a share of the yearly clean streams allocation, based on their adjusted historical coal mined percentage.

Through the ACSP, OSM provided financial and program assistance to PADEP since 1997. Awards granted through fiscal year 2003 total $12.4 million.  Twenty-six AMD remediation projects have been identified by PADEP for funding using these ACSP funds and fifteen projects have been completed.  HFO routinely consults with PADEP regarding the ACSP projects selected to help assure they meet the guidelines of the program, and to identify the contributions of other funding and non-funding partners.

One of the goals of the ACSP is to foster partnerships in watershed restoration.  This is in recognition of the enormity of the problem and the value of partnerships, and local “grass roots” support in implementing and maintaining successful treatment projects.  PADEP provides significant financial, program and technical support, as well as public recognition to watershed groups in building local interest in watershed restoration.  PADEP also works closely with other Federal and State agencies in partnerships to leverage funds to address mine drainage problems.

PADEP seeks involvement from local watershed groups in developing projects.  Watershed groups provide an invaluable service in generating local support, helping secure land owner cooperation, collecting water samples, and generally keeping an eye on the treatment systems to discourage vandalism, perform routine maintenance and notify PADEP of any problems.

There has been an explosive growth of watershed protection and restoration groups in the Appalachian Region in the past few years, in large part responding to increasing financial and technical support provided by Federal and State agencies.  Pennsylvania now has dozens of active watershed groups dedicated to the remediation of mine drainage problems, and PADEP is providing significant staff support, often funded by grants from the Abandoned Mine Fund, and project funding through the Growing Greener Program.

By 1999, OSM was hearing a need from watershed restoration groups around the Appalachian Region for funds to implement mine drainage remediation projects under their administration.  Responding to this need, OSM established the Watershed Cooperative Assistance Program (WCAP), funded under the ACSP, and has been awarding partnership grants to non-profit watershed groups for AMD remediation projects.  HFO has recommended the award of 35 WCAP grants for a total of about $2.9 million.  PADEP is frequently involved as a primary partner in these direct assistance grants, either providing funding and or technical assistance, and HFO coordinates with PADEP to help assure the successful completion of the projects.  In many of these projects, the funds provided by OSM complete the remediation budget, and HFO has noted an increasing number of financial assistance referrals from the Growing Greener program. Because of the partnership nature of the WCAP, HFO is routinely involved in meetings and site visits with watershed groups, PADEP and other project partners, helping to coordinate the technical and programmatic aspects, and to resolve issues. HFO has dedicated a significant amount of staff resources in administering this program.

OSM evaluated a United States Court of Appeals ruling dated April 25, 2003, regarding applicability of the National Historic Preservation Act’s (NHPA) Section 106 consultation requirements.  It has determined these requirements do not applying to state coal mine permits issued under an OSM approved regulatory program.  These permits are not considered “Federal Undertakings” subject to the consultation requirements.  This decision removes OSM from having a direct responsibility in identifying historic properties, and evaluating potential impacts arising from coal mining activities.  OSM has reaffirmed its 1987 rulemaking entitled “Protecting Historic Properties From Surface Coal Mining Operations.”  With respect to State regulatory programs, OSM’s role under the NHPA will be limited to (1) ensuring that State programs are no less effective than its regulations concerning protection of historic resources, and (2) monitoring implementation of the historic resource protection provisions of State programs in accordance with 30 CFR Part 733.  Section 106 consultation requirements continue to apply to abandoned mine land reclamation projects approved and funded under Title IV of SMCRA. The PADEP and the Pennsylvania Historical and Museum Commission continue to have discussions regarding the issues of resources identification, evaluation and protection and coordination between the offices. The Field Office has provided input into these discussions and remains available as requested.

  VII.   General Oversight Topic Reviews

Each year HFO, in consultation with PADEP, develops an oversight work plan, as required by the OSM Directive Oversight of State Regulatory Programs REG-8.  This plan includes various aspects of Pennsylvania’s approved coal regulatory program that HFO will evaluate for effectiveness, innovation, and compliance.  OSM’s oversight is not process driven.  It focuses on the on-the-ground/end result success of Pennsylvania’s program in achieving the purposes to SMCRA.  A review team is established for each topic and a team leader is designated.  PADEP is invited to appoint team members, and in some cases joint HFO/PADEP team leaders are designated.  At the conclusion of the evaluation, a report is written and provided to PADEP for comment prior to finalization.  Copies of the reports are maintained in the HFO public evaluation file.

Several evaluation studies have been discussed earlier in this report and are not repeated here.  A short summary and results of each remaining study follows.

Underground Mining Probable Hydrologic Consequences/Cumulative Hydrologic Impact Assessment (PHC/CHIA) Follow-up Study

In 2000, OSM completed a study of the underground mine PHC/CHIA process by evaluating the PHC and CHIA sections of PADEP’s permit application.  The study made several recommendations, most of which were reconciled during the 2001 evaluation year.  The recommendation that remained outstanding related to improving PADEP’s documentation of the CHIA process.  During the past two years, PADEP developed an internal form that permit reviewers will use to guide them through the process of documenting a CHIA.  The CHIA form ensures documentation of the information required by federal regulations, and provides permit reviewers with the flexibility to document any additional information they deem important in performing a CHIA. PADEP implemented the CHIA document in March 2003.  While the CHIA document satisfies the documentation recommendation of 2000 work plan study, a future study is recommended to evaluate the implementation of the document.

Oversight Inspections

The oversight inspection study is conducted to fulfill responsibilities as specified in OSM’s policy REG-8, regarding review of PADEP’s permitting and inspection program for surface coal mining operations.  This study includes reviews of applicable mine permits and on-site reviews focused on identification of off-site impacts resulting from various mining activities.  These reviews are also used to gather data in support of special studies; minimizing the need for other on-site inspection activities.  Specifically, this study provides monitoring capability for the entire spectrum of state program operations and gives an up-to-date perspective of the on-the-ground successes of Pennsylvania’s mining program.  During this evaluation year, six review areas were added for specific data collection to supplement the Mine-Site Evaluation Report data normally collected for this study.  The new review areas included acres of permits mined and reclaimed in the previous 12-month period, the new “Full Cost Bonding Program”, bond releases, number and nature of land use changes, effectiveness of re-mining operations in achieving reclamation, and the potential for long-term AMD.  OSM conducted a total of 354 inspections during the evaluation year.  Of those inspections, 172 were randomly selected complete inspections of mine sites.  The other 182 inspections were in support of other oversight work plan evaluations, and responses to citizen complaints, Ten-Day Notices, and follow-up inspections.  The data was also used to determine the number of sites in full compliance.  Again, the study found the PADEP inspection program continues to do an excellent job in achieving and maintaining on-the-ground compliance and minimizing the potential for off-site impacts.  More specific data collection in regard to off-site impacts was also included as part of this study.  Of the total 172 randomly selection permit inspections conducted for this study, 151 (88%) of the sites were found in full compliance.  The study also found PADEP continues to do an excellent job in minimizing the occurrence of long-term pollutional discharges.  Only 21 of the 172 (12%) permits reviewed as part of this study found the potential for long-term discharges, and each was being appropriately addressed by PADEP.

Bond Forfeiture Study—Surety Reclamation

The purpose of this study was to evaluate surety reclamation of primacy bond forfeited permits.  OSM conducted a field evaluation of 17 bond-forfeited permits that were reclaimed by a surety.  The study found that the success of reclamation on the sites was very good with only one site having serious environmental impacts.  The study also found that the surety’s were not being required by PADEP, as per their Technical Guidance Manual, to provide an estimate of the cost of reclamation for the sites to be reclaimed.

AML Grant Projects

During the review period, HFO visited approved AML projects during various phases of completion.  Site visits when possible were coordinated with BAMR and typically included or afforded site representatives an opportunity to accompany OSM during the review.  HFO representatives completed a report for each site visit that gathered information on site status, BAMR monitoring, overall project success, and the existence of actual or potential problems.

The review concluded that the BAMR manages AML construction activities to ensure that contractors meet project goals and effectively and efficiently abate AML hazards using designated reclamation techniques with adequate site controls.  BAMR obtains all of the required permits and ensures that the contractor conducts activities in accordance with the approved contract.  Finally, BAMR monitors completed projects for site stabilization, establishment of vegetative cover and the reappearance of health and safety problems.

Vertical Flow Passive Treatment Systems

In May 2000, OSM and PADEP personnel attended a meeting aimed at identifying and prioritizing research needs in mining hydrology.  Ranking high on the list was a need for a better understanding of passive treatment systems since the treatment success of these systems is often unpredictable, and PADEP and OSM provide funding for the construction of such systems through BAMR and watershed groups.

In 2001, OSM and PADEP initiated a joint study, with each agency contributing a technical staff person and an inspector, aimed at studying passive treatment systems.  The objective is to study vertical flow wetland and Manganese-removal bed treatment systems and determine if any recommendations can be made on how to improve their designs.  The study team has been sampling a Manganese-removal bed and a vertical flow wetland located in Somerset County.  Thus far, the study has produced three technical papers that provide new sizing recommendations for designing passive treatment systems.  The Passive Treatment Study will continue during the 2003 evaluation year until a full 12 months of sampling is completed.  A report will be issued at the end of the study detailing the results.

VIII.   Conclusion

This evaluation year, HFO conducted a comprehensive review of the Pennsylvania approved coal regulatory and abandoned mine reclamation programs, including six topical areas of evaluation, technical assistance, or study.  Oversight data and studies indicate that the Pennsylvania Program has been effective in meeting the goals of SMCRA.  PADEP is conducting a program where active mining sites are, with very few exceptions, in compliance with planning, mining, and reclamation standards with little or no off-site impacts.  Reclamation of permitted mine sites is both thorough and proceeds in a successful and contemporaneous fashion.

During this evaluation period PADEP and OSM worked together to resolve several longstanding program issues relating to subsidence and bonding, which had previously evaded resolution.  It is anticipated that our experiences in problem resolution as described in this will serve as model for future interactions between agencies in achieving SMCRA approval as program changes are encountered.  The partnership and cooperative processes utilized in bringing these issues to resolution will be paramount if our efforts to continue to reduce the number of issues pending program approval are to be successful.

PADEP also assisted the Field Office in developing the 2003 Work Plan, and worked cooperatively with the Field Office in implementing the work plan throughout the evaluation period.  Evaluation teams were formed consisting of Field Office and PADEP personnel, and those teams developed and implemented the individual work plan studies.  The Field Office also conducted 354 oversight and work plan topic permit inspections during the evaluation year in support of the studies.  After thorough review of the data collected, the Field Office concludes that PADEP did an exceptional job in administering its coal regulatory and abandoned mine reclamation programs.