Section 785.13. Experimental practices mining

(a) Experimental practices provide a variance from environmental protection performance standards of the Act, of Subchapter VK, and the regulatory program for experimental or research purposes, or to allow an alternative postmining land use, and may be undertaken if they are approved by the division and the Director of the OSM and if they are incorporated in a permit or permit revision issued in accordance with the requirements of Subchapter VG.

(b) An application for an experimental practice shall contain descriptions, maps, plans, and data which show--

(1) The nature of the experimental practice, including a description of the performance standards for which variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted;

(2) How use of the experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public use (including recreation facilities) on an experimental basis;

(3) That the experimental practice--

(i) Is potentially more, or at least as, environmentally protective, during and after mining operations, as would otherwise be required by standards promulgated under Subchapter VK; and

(ii) Will not reduce the protection afforded public health and safety below that provided by the requirements of Subchapter VK; and

(4) That the applicant will conduct monitoring of the effects of the experimental practice. The monitoring program shall ensure the collection, analysis, and reporting of reliable data that are sufficient to enable the division and the Director of the OSM to--

(i) Evaluate the effectiveness of the experimental practice; and

(ii) Identify, at the earliest possible time, potential risk to the environment and public health and safety which may be caused by the experimental practice during and after mining.

(c) Applications for experimental practices shall comply with the public notice requirements of 4VAC25-130-773.13.

(d) No application for an experimental practice under this section shall be approved until the division first finds in writing and the Director of the OSM then concurs that--

(1) The experimental practice encourages advances in mining and reclamation technology or allows a postmining land use for industrial, commercial, residential, or public use (including recreational facilities) on an experimental basis;

(2) The experimental practice is potentially more, or at least as, environmentally protective, during and after mining operations, as would otherwise be required by standards promulgated under Subchapter VK;

(3) The mining operations approved for a particular land-use or other purpose are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice; and

(4) The experimental practice does not reduce the protection afforded public health and safety below that provided by standards promulgated under Subchapter VK.

(e) Experimental practices granting variances from the special environmental protection performance standards of Sections 515 and 516 of the Federal Act applicable to prime farmlands shall be approved only after consultation with the U.S. Department of Agriculture, Natural Resources Conservation Service.

(f) Each person undertaking an experimental practice shall conduct the periodic monitoring, recording and reporting program set forth in the application, and shall satisfy such additional requirements as the division or the Director of the OSM may impose to ensure protection of the public health and safety and the environment.

(g) Each experimental practice shall be reviewed by the division at a frequency set forth in the approved permit, but no less frequently than every 2 ½ years. After review, the division may require such reasonable modifications of the experimental practice as are necessary to ensure that the activities fully protect the environment and the public health and safety. Copies of the decision of the division shall be sent to the permittee and shall be subject to the provisions for administrative and judicial review of Part 775.

(h) Revisions or modifications to an experimental practice shall be processed in accordance with the requirements of 4VAC25-130-774.13 and approved by the division. Any revisions which propose significant alterations in the experimental practice shall, at a minimum, be subject to notice, hearing, and public participation requirements of 4VAC25-130-773.13 and concurrence by the Director of the OSM. Revisions that do not propose significant alterations in the experimental practice shall not require concurrence by the Director of the OSM.

Historical Notes

Derived from VR480-03-19 § 785.13, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.