4-30-40 FUNDING CONSIDERATIONS

1. Grant application(s) shall be submitted following the procedures contained in Chapter 5-10A. Emergency program costs are included in the grantee's annual AML grant.

2. Funding for the emergency program will be awarded for a period not-to-exceed one-year, unless the RD/FOD approves an amendment extending the performance period (see Chapter 5-30A.).

3. It is appropriate to use emergency program funds for exploratory and design work for high priority projects which have the potential to deteriorate into an emergency situation or which need prompt attention but require considerable evaluation efforts and which will require more than six months to complete the project. The State will then fund the required reclamation as part of its normal AML program.

4. Grantees shall submit complete and accurate performance and financial reports in the time frames established in 5-60A.

5. Deobligated emergency program monies will be returned to OSM. Deobligated grant monies will not be included in grantee carryover AML funds.

6. Funds deobligated from state emergency grants and AML grant emergency project subaccount will be returned to the OSM emergency fund and may be used by OSM to supplement emergency grant needs in any state.

4-30-50 PROCEDURES

1. Request for Emergency Declaration

   Under grantee administered emergency programs, the grantee is responsible for initial investigations of AML citizen complaints. If the complaint is considered by the grantee to be an emergency, then the grantee contacts the RD/FOD to determine if an OSM inspection is needed. Joint inspections are encouraged if possible and expedient.

   1. Initial Investigation
      1. Grantee AML personnel will be dispatched to the problem site within 48 hours after receipt of the complaint. If the grantee determines that the problem appears to be of a serious nature, the RD/FOD should be promptly notified. The grantee may request assistance from the RD/FOD.

      2. Grantee staff responsible for field investigation should obtain all pertinent information. Suggested guides for gathering such information are given in "Complaint Information Gathering Guide," Exhibit X4-30-3, and "AML Complaint Investigation Data," Exhibit X4-30-4.

      3. Note any procedures required by NEPA, NHPA, Endangered Species Act, Clean Water Act, or any other Federal, State/Tribal, or local requirements imposed for protection of the environment.

      4. If appropriate, notify emergency assistance organizations and local authorities of conditions at the site to ensure that immediate protective steps are taken, such as fencing, street closing, etc.

      5. Determine if local or other State/Tribal institutions can and will correct problem (such as county highway department).

      6. As soon as it appears to the grantee that some of the work required to achieve complete reclamation of a problem should be funded with non-emergency funds, the grantee should discuss the situation with the RD/FOD. If it is decided that non-emergency funds should be used, the grantee should take the actions required to assure that the non-emergency funds will be available to complete the non-emergency portion of the reclamation or to include the remaining work in the State's inventory.

      7. Obtain information necessary to secure an appraisal, if required.

   2. The following materials must be submitted to the RD/FOD for each proposed emergency before an emergency can be declared, except in certain situations described in 4-30-50C.2.a. In consultation with the RD/FOD, the grantee may provide only that information required for the RD/FOD to declare an emergency and supply the remaining information after an emergency has been declared. The amount of discussion about abatement alternatives usually is a function of the size of the project. The more complex the project, the greater the analysis and discussion required.
      1. Grantee investigation report. Use an OSM-51 (Exhibit X5-10A-1 ), or any State form, to provide the information specified below. This may include either a narrative or bullet-type description of the following issues:
         1. Project objective: Describe the project objective in relation to the definition of an emergency, i.e., abate a sudden danger or impairment that presents a high probability of substantial physical harm to the health, safety, or general welfare of people before the danger can be abated under non-emergency program operation procedures and the criteria contained in Exhibit X4-30-1. Abatement alternatives, if any, should be evaluated to demonstrate that the most effective and cost efficient method is being used.

         2. Approach: Briefly describe the project schedule, scope of work and expected accomplishments.

         3. Bonds: Identify any bonds associated with the disturbed area which have been released, or forfeited and expended. If a bond has been forfeited but not expended, it must be applied to any work to be done. A commitment from the holder of the bond to that effect, in writing, is required. This commitment may initially be verbal in a documented telephone log with a written follow-up. If the amount of the unexpended bond funds are inadequate to complete emergency reclamation, the emergency fund would be used. For additional guidance on AML project eligibility relating to bonds see FAM Chapter 4-01-10, Eligibility.

         4. Non-emergency work: Estimate the amount, and cost, of any non-emergency work associated with the emergency project when reclamation is expected to take more than 6 months and/or the total cost of reclamation is over $50,000 (see Section 4-30-20B. of this Chapter). Emergency funds in excess of $50,000 may be used to complete the non-emergency portion of a project if it is demonstrated that this is the most cost effective scenario. If emergency funds are not to be used, the grantee should indicate whether funds from the grantee's non-emergency AML program will be available to complete the reclamation or whether the non-emergency portion will be included in the State's inventory.

         5. Maps: Include maps showing location of the problem. Do not delay submitting an investigation report if a map is not readily available.

      2. Recommendation for emergency action signed by the responsible grantee agency official.

2. Emergency Project Review and Emergency Declaration or Denial
   1. Field Office Review. Upon receipt of the information described in 4-30-50A., the RD/FOD may investigate the proposed project site to verify the information contained in grantee reports. The RD/FOD will review the information provided under section 4-30-50A. to ensure that the following requirements are met.
      1. The project meets the criteria for an emergency contained in Exhibit X4-30-1.

      2. The scope of work is reasonable to abate the emergency condition. When considering the reasonableness of proposed actions, the FO should follow Exhibit X4-30-1.

      3. The responsible grantee representative has signed or otherwise agreed to the emergency recommendation and scope of work.

      4. Whenever a project is in proximity to, or it may be reasonably expected that reclamation activities could have an impact on, any active mining or mined area, the FO staff will contact the appropriate Federal and/or State/Tribal Mine Safety and Health Administration/Agency to determine if site conditions or probable reclamation activities could affect the health and safety of mine workers. The RD/FOD has the discretion to apply the "proximity" and "reasonably expected" criteria based on the specific site conditions.

      5. The project will comply with NEPA, NHPA, and the State/Tribe affirms compliance with the Endangered Species Act, Clean Water Act, and any other Federal, State/Tribal, and local requirements imposed for the protection of the environment.

      6. A statement that any bond(s) associated with the disturbed area has been released, or forfeited and expended. If a bond(s) has been forfeited but not expended, it must be applied to any work to be done. A commitment from the holder of the bond(s) to that effect, in writing, is required. This commitment may initially be verbal in a documented telephone log with a written follow-up.

      7. Documentation of planned coordination with the grantee's non-emergency AML program if a portion of the problem is to be abated using emergency program funds and the remainder referred to or funded by the grantee's non-emergency AML program. Under grant simplification a project can be partially funded as an emergency and the remainder of the reclamation funded by the grantee's non-emergency AML program funds. If it is determined that a problem should be reclaimed using both emergency and non-emergency project funds, one contract can be awarded that is funded in part with emergency and in part with non-emergency funds.

   2. Emergency Declaration
      1. An emergency is declared by the RD/FOD through the signing of a Finding of Fact. This should be done within 48 hours of receipt of the information described in 4-30-50A.

         A RD/FOD may approve a limited emergency response based on verbal information prior to obtaining all the information normally required to issue a Finding of Fact when, in the RD/FOD's opinion, delaying issuing a Finding of Fact until all the required information is available could result in substantial physical harm to the health, safety, or general welfare of people. Before doing so, the RD/FOD must assure that the environmental compliance requirements applicable when emergency circumstances at the site require immediate abatement action, as set out at section 5-11-20.C.2. of the FAM, are met. The RD/FOD can approve additional scope upon receipt and review of more complete information.

      2. The Finding of Fact includes the following information:
         1. Project name and number. Include PAD number if the problem is in an existing Problem Area.

         2. Project location - Should be specifically stated and detailed as to street, township, county. Longitude and latitude should be included as OSM is now using Geographical Information Systems to display relevant data.

         3. Condition which requires emergency abatement.

         4. Declaration that the project meets the definition of an emergency. Must meet the criteria given in Exhibit X4-30-1.

         5. Scope of work.
            1. Explain why the proposed level of work is necessary to stabilize the emergency aspects of the problem by eliminating the danger to public health, safety, and general welfare.

            2. If the proposed level of work will achieve complete and permanent reclamation of the problem, and the estimated cost is greater than $50,000, explain why it would not be cost effective to conduct or fund the proposed work beyond that necessary to eliminate the danger to public health, safety, and welfare under the grantee's non-emergency AML program.

            3. Document planned coordination with the grantee's non-emergency AML program if a portion of the problem is to be reclaimed using emergency program funds and the remainder reclaimed or funded under the grantee's non-emergency AML program.

         6. Document compliance with NEPA as set out in chapter 5-11-20C and OSM "NEPA Handbook." If there is an immediate threat of substantial physical harm, and the emergency action must be completed before the required NEPA document can be completed, the grantee may submit environmental and other information to assist the RD/FOD in making the determination required under FAM chapter 5-11-20C.2.c.

         7. Documentation of compliance with NHPA as set out in Exhibit X4-30-2.

      3. If the project appears to be an emergency, the OSM inspector/program specialist prepares and signs the Finding of Fact and forwards it to the RD/FOD for approval and signature.

   3. Emergency Denial. If the RD/FOD determines that a complaint does not constitute an AML emergency, the grantee must be provided a written determination within two (2) working days. If the grantee determines it to be an eligible high priority AML problem, OSM may assist the grantee in submitting timely NEPA documentation. Special consideration should be given to those problems which do not currently meet the criteria for emergency declaration but which may deteriorate into emergencies if not reclaimed promptly. As appropriate on a case-by-case basis, this assistance could include help with the documentation to enter the problem in the Abandoned Mine Land Inventory System (AMLIS) and preparation of the Environmental document. Any requests for assistance by a grantee should be sent to the RD/FOD for action.

3. Emergency Project Progress Reporting
   1. Recipients shall submit performance and final reports in accordance with FAM Chapter 5-60A. The performance report (OSM 51) for emergency projects shall include the following pertinent information:
      • Name of project
        
      • Date work started on project
        
      • Discussion of abatement measures and their success or failure
        
      • Original contract(s) cost
        
      • Final project cost
        
      • Date work was completed on the project. Does not include final revegetation when doing so has to be delayed until proper weather conditions occur.)

   2. A completed OSM-76, "Abandoned Mine Land Problem Area Description," must be submitted at project completion to show accomplishments.

4. Scope Changes
   1. In keeping with the spirit of grant simplification, in general OSM approval is not necessary for changes in emergency grant funded project scope unless the scope changes will result in additional emergency grant funds being spent for non-emergency reclamation. However, the RD/FOD may require OSM approval of such changes if the RD/FOD determines that the grantee is using scope changes to fund non-emergency reclamation with emergency funds.

   2. In addition, in cases where the RD/FOD prepares the NEPA related documents and conducts the required consultations for the grantee, prior to making changes in the scope of work, the grantee shall notify the RD/FOD and the RD/FOD shall review the existing NEPA document and findings. As necessary, changes to existing documents and additional findings shall be made to ensure that the proposed activities are in conformance with applicable requirements. In the cases where the grantee prepares the NEPA related documents and conducts the required consultations, the grantee also may prepare revised documents as necessary to address additional environmental impacts from the proposed scope change.

1. Emergency Criteria

   As defined in 30 CFR 870.5, an emergency is a sudden danger or impairment that presents a high probability of substantial physical harm to the health, safety, or general welfare of people before the danger can be abated under normal program operation procedures. For an AML problem to be declared an emergency the answers to the following three questions must be yes.

   1. Was there a sudden event?

   2. Is there a high probability of substantial physical harm to the health, safety, or general welfare of people?

   3. Does the emergency condition need to be abated in a time frame that is not possible under normal State/Tribal program procedures in order to protect the health, safety, or general welfare of people?

   If an AML emergency project needs to be initiated within 30 days of being declared an emergency by OSM, only then may the following be used: 1) an expedited NEPA process as set out in REG-1, "Handbook on Procedures for Implementing the National Environmental Policy Act", and 2) an expedited process for complying with the National Historical Preservation Act be used (See Appendix 6). Chapter 5 of the NEPA Handbook also addresses the Clean Water Act, Endangered Species Act, and other applicable environmental statutes.

2. Proper Response to Declared Emergencies

   The proper amount of emergency reclamation is that necessary to stabilize the immediate emergency aspects of the problem by eliminating the immediate danger to public health, safety, and general welfare. Any remaining reclamation should then be accomplished as part of a regular, non-emergency AML project. The only exception to this concept is when it is clearly not cost effective to split a reclamation project into emergency and non-emergency projects. Usually it is not cost effective to split a problem with an estimated total cost of complete reclamation of less than $50,000.

   Emergency reclamation must be sufficient to stabilize conditions until the remaining non-emergency reclamation can be undertaken. The objective of emergency reclamation is not to fully reclaim the area but to eliminate the danger to public health, safety, and welfare. When non-emergency reclamation is referred to the State/Tribe after abatement of the emergency, prompt consideration should be requested from the State/Tribe if the remaining reclamation needs to be done expeditiously, either to prevent deterioration into an emergency situation, or to protect the emergency abatement already completed. Similarly, in a non-program State, the responsible OSM office should initiate a prompt review of the site conditions and expedited reclamation.

   It is appropriate to use emergency program funds for exploratory and design work for high priority projects which have the potential to deteriorate into an emergency situation or which need prompt attention but require considerable evaluation and design efforts and which will require more than six months to complete the project. The work should be done in cooperation with the State/Tribe who will then fund the required reclamation as part of its normal AML program.

3. Specific Guidance for Selected Types of AML Problems
   1. Surface Burning (SB). This type of problem poses an emergency threat to public health and safety through ignition and burning of occupied dwellings, creation of surface fires (e.g.,,grass or forest fires) which could endanger persons or occupied dwellings, or by producing poisonous combustion gases,( e.g. carbon monoxide, carbon dioxide, hydrogen sulfide, etc). The presence of poisonous gases must be confirmed. This may be accomplished through the collection and laboratory analysis of ambient air samples or the use of a hand held monitor. Most refuse pile fires are characterized by noxious fumes, smoke, and open fires. While these conditions may be annoying, they do not normally constitute an emergency and will be referred to the States/Tribes for consideration under their AML grant program, or in non-program States/Tribes, will be considered for reclamation as a Federal high priority project.

      However, emergencies may develop where such fires suddenly expand and threaten any inhabited structure(s) or poisonous gases suddenly begin to threaten people. These fires will be considered for possible emergency action, or expedited reclamation by the State.

      When refuse fires first start, quick extinguishment of the fire minimizes the cost of reclamation. Therefore, notwithstanding the criteria for emergency definition discussed above, consideration will be given to addressing, as emergencies, fires which are discovered at an early stage and extinguishment may be performed at a modest cost.

   2. Gases/Underground Burning (GUB). As with surface burnings, the emergency danger of underground mine fires is the ignition and burning of occupied dwellings, creation of surface fires (e.g., grass or forest fires), or by producing poisonous combustion gases (e.g., carbon monoxide, carbon dioxide, hydrogen sulfide, etc), which could endanger persons or occupied dwellings. The presence of poisonous gases must be confirmed. This may be accomplished through the collection and laboratory analysis of ambient air samples or the use of a hand held monitor.

      Normally, inventoried underground mine fires are not sudden occurrences and do not present an immediate danger to public health, safety, and general welfare. The States/Tribes are, generally, aware of these underground fires and will conduct abatement or control procedures through normal program operations. However, emergencies may develop where these fires suddenly break to the surface or where poisonous gases generated by the fire suddenly begin to threaten people or inhabited structures. These fires will continue to be considered for possible emergency action, or expedited reclamation by the State.

      When underground mine fires first start, quick extinguishment of the fire minimizes the cost of reclamation. Therefore, notwithstanding the criteria for emergency definition discussed above, consideration will be given to addressing, as emergencies, fires which are discovered at an early stage and extinguishment may be performed at a modest cost.

   3. Dangerous Slides (DS). The primary threat of dangerous slides is the immediate danger to the occupants of dwellings which are or could be hit by the slide. In some cases, a slide may be considered an emergency when it blocks a stream, threatening upstream or downstream flooding, especially through release of temporarily-impounded water. Blockage of roadways and driveways may be considered an emergency if access for emergency vehicles is prevented and no highway maintenance agency can act to clear the roadway.

      Where these situations occur, emergency AML work will be performed to address only the emergency portion of the landslide. Permanent stabilization of the entire slide area may be considered when a threat from the newly identified slide activity is imminent, the emergency cannot be stabilized without permanent reclamation, or it is clearly demonstrated that it is not cost effective to delay full reclamation. Where emergency reclamation abates the emergency but achieves less than permanent stabilization, the remaining or additional work will be referred to the State/Tribe for consideration under its AML grant program.

   4. Portals (P) and Vertical Openings (VO). Emergencies from mine openings are created by the risk of falling into the opening or the risk of entering the opening and being subjected to either falling material (e.g., roof rock or mine timbers) or an inhospitable mine atmosphere, usually carbon dioxide, methane, and/or low oxygen conditions. The possibility of mine explosions from methane buildup is also present.

      Historically, mine openings were often capped or sealed at the conclusion of mining with no provisions for continuous maintenance. Subsequent surface activities or vegetation growth may have covered or hidden these openings. The sudden uncovering of a previously unknown shaft or other mine opening in a populated area due to the failure of the seal/cap or by exposure following vegetation clearing operations will generally be considered an emergency. Open shafts, although previously detected, which are now considered to be in or near populated areas and represent an immediate danger to the public may be treated as emergency work.

      Any opening created by the sudden failure of either a horizontal or vertical seal may present an immediate danger if it exposes persons to poisonous gases and/or to the risk of falling into the mine opening. Even known mine openings can experience changing conditions, resulting in the discharge of hazardous gases. In both cases, the presence of poisonous gases, usually carbon dioxide and/or lack of sufficient oxygen, should be confirmed when this can be done safely and conditions permit meaningful sampling. This may be accomplished through the collection and laboratory analysis of ambient air samples or the use of a hand held monitor.

   5. Subsidence(s). Emergencies resulting from subsidence involve the danger of falling into the opening and/or the risk of damage to occupied dwellings, threatening the safety of occupants. Subsidence damage that significantly affects the structural integrity of occupied dwellings, or adversely affects gas or electric lines, is usually an emergency. Subsidence beneath a roadway may be treated as an emergency, only when a roadway maintenance agency cannot act to correct the problem.

   6. Other Problem Types While the five problem types above represent those most commonly associated with emergencies, this Directive does not preclude other problem types from being declared an emergency.
      1. The following problem types may be considered for emergency funding by the RD/CC when they suddenly present an immediate danger to public health, safety, and general welfare.
         1. Dangerous Highwalls (DH)

         2. Dangerous Piles/Embankments (DPE)

         3. Dangerous Impoundment (DI)

         4. Hazardous Equipment/Facilities (HEF)

         5. Polluted Water (PW)

      2. The problem must meet the emergency criteria as set forth in Section 1 of these guidelines and follow other guidance provided in this Directive.

EXHIBIT X4-30-2

ABANDONED MINE LAND EMERGENCIES - COMPLIANCE WITH
THE NATIONAL HISTORIC PRESERVATION ACT

This Exhibit reaffirms that the procedures set out in the Advisory Council on Historic Preservation's (ACHP) regulations at 36 CFR Part 800 to protect historic and archeological resources will be followed when conducting Abandoned Mine Land (AML) emergency abatement. These procedures implement the Section 106 process of the National Historic Preservation Act (NHPA) which requires a review to determine the effect on historic properties of Federal or federally assisted undertakings such as emergency abatement projects.

This Exhibit sets out the steps to follow when emergency construction can be initiated within 30 days of the Office of Surface Mining Reclamation and Enforcement (OSM) declaring the emergency. If construction cannot be initiated within 30 days of OSM declaring the emergency, the regular (NHPA) procedures must be followed, except in no event will an emergency action necessary to prevent substantial physical harm to the health, safety, or general welfare of people be delayed in order to meet NHPA requirements.

Under grantee managed emergency programs, the grantee is responsible for all activities except preparing the "Finding of Fact/Funding Authorization" and deciding if immediate action must be taken to prevent immediate substantial physical harm to the health, safety, or general welfare of people if the SHPO's concerns cannot be resolved or if it is not possible to contact the SHPO (see b. below).

The first step under the review process is determining whether any historic properties listed or eligible for listing on the National Register of Historic Places, including archeological resources, might be affected by the emergency abatement project. While few emergency projects potentially affect historic properties, this must be determined for each emergency abatement project.

"Historic Property" means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register [of Historic Places]. This term includes for the purpose of these regulations, artifacts, records, and remains that are related to and located within such properties. The term "eligible for inclusion in the National Register" includes both properties formally determined as such by the Secretary of the Interior and all other properties that meet National Register listing critera. (36 CFR Ch. VII, 800.2(e)).

1. If no historic properties are found that may be affected by the emergency abatement project - The grantee provides the RD/FOD with a statement that no historic properties are found that may be affected by the emergency abatement project. This is documented in "Finding of Fact/Funding Authorization." A copy of this documentation is to be provided to the State Historical Preservation Officer (SHPO). No further steps in the Section 106 process are required.

2. If a historic property is found that may be affected by the emergency abatement project - The grantee AML organization (grantee) will contact the SHPO.

   In consultation with the SHPO, the grantee will apply the Criteria of Effect, pursuant to 36 CFR Part 800.9(a) (See Attachment A), to the historic property that may be affected. If no effect is found, the grantee notifies the SHPO and the RD/FOD. The findings will be documented in the "Finding of Fact/Funding Authorization." If the SHPO has no objections, this will be noted in the "Finding of Fact/Funding Authorization." The grantee will photograph the property (See Attachment B). No further steps in the Section 106 process are required.

If the SHPO does have concerns that the emergency abatement may adversely affect a historic property, the grantee will make a reasonable attempt to resolve the concerns before initiating the emergency abatement. When the SHPO's concerns can be resolved, the "Finding of Fact/Funding Authorization" will state (1) how the abatement will impact a historical property, including a description of the property, (2) the concerns expressed by the SHPO, and (3) how the SHPO's concerns were resolved, including the agreed upon information to be sent to the SHPO. After the abatement has been accomplished, any agreed upon information will be sent to the SHPO. A copy of the information provided the SHPO will be included with the emergency project's final report.

If the SHPO's concerns cannot be resolved and OSM judges that immediate action must be taken, OSM will first document in the "Finding of Fact/Funding Authorization":