FEDERAL REGISTER: 48 FR 9478 (March 4, 1983)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Part 785

Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program Experimental Practices

ACTION: Final rule. 

SUMMARY: The final rule adopted by the Office of Surface Mining Reclamation and Enforcement (OSM) for 

experimental practices will provide that an operator may obtain a variance from the environmental protection 

performance standards of Subchapter K of the permanent program regulations for an experimental practice after 

submitting an application which contains the information asked for by the rule, complying with the public notice 

requirements of Subchapter G of the permanent program regulations and receiving approval from the regulatory 

authority based on certain findings set out in the rule and concurrence from the Director of OSM. 

 Section 711 of the Surface Mining Control and Reclamation Act of 1977 (Act), provides authorization for variances in 

individual cases on an experimental basis from the environmental protection performance standards promulgated under 

Sections 515 and 516 of the Act. The objective of such departures, as authorized by the regulatory authority with the 

concurrence of the Director, is to encourage advances in mining and reclamation practices or to allow alternative 

postmining land uses. 

EFFECTIVE DATE: April 4, 1983. 

FOR FURTHER INFORMATION CONTACT: Raymond E. Aufmuth, Division of Engineering Analysis, Office of 

Surface Mining, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, D.C. 20240; 

202-343-5245. 

SUPPLEMENTARY INFORMATION: 

I. Background. 

II. Discussion of Comments and Rule Adopted. 

III. Procedural Matters. 

 

I. BACKGROUND 

 Section 711 of the Surface Mining Control and Reclamation Act of 1977 (Act), 30 U.S.C. 1201 et seq., provides 

authorization for variances in individual cases on an experimental basis from the environmental protection performance 

standards promulgated under Sections 515 and 516 of the Act. The objective of such departures, as authorized by the 

regulatory authority with the concurrence of the Director, is to encourage advances in mining and reclamation practices 

or to allow alternative postmining land uses. 

 OSM encourages industry and State regulatory authority participation in the experimental practices program. OSM is 

willing to work with industry and State regulatory authorities to develop innovative and beneficial experimental practice 

proposals. 

 On March 19, 1982 (47 FR 12082), OSM proposed to amend 30 CFR 785.13 of the permanent program regulations 

in order to clarify certain subsections and to eliminate unnecessary requirements for operators. The proposal also called 

for consultation with the U.S. Department of Agriculture prior to approval of an experimental practice on prime 

farmlands in accordance with Section 510(d) of the Act and for simple notification of the regulatory authority by an 

operator prior to the implementation of minor revisions to an experimental practices permit. A public hearing was held on 

April 9, 1982. However, the proceeding was adjourned because no member of the public appeared to give oral testimony. 

The comment period remained open until August 25, 1982 and later was reopened from September 7, 1982 through 

September 10, 1982. 
 During the comment period, OSM received comments from 40 sources representing industry, trade associations, 

environmental groups, and Federal and State agencies. After analyzing the recommendations made by the various 

commenters, OSM has decided to adopt the rule as proposed with certain modifications which are set out below. 

 

II. DISCUSSION OF COMMENTS AND RULE ADOPTED 

 

A. SECTION 785.13(a) GENERAL REQUIREMENTS 

 In response to comments, this paragraph has been revised by including language to clarify that an experimental

practice variance is part of an approved surface coal mining and reclamation operation permit or permit revision and that 

it may be for experimental or research purposes, or to allow an alternative postmining land use. In addition, language has 

been inserted stating that the approved permit or permit revision must meet the requirements of Subchapter G of 30 CFR 

Chapter VII. In the proposal this reference appeared in Section 785.13(b) which deals with the special information 

operators must provide in their applications for an experimental practice variance. However, the processing and 

application requirements of Subchapter G apply to the entire section and therefore reference to them has been placed in 

the more appropriate provision. 

 Several commenters expressed concern that issuance of an experimental practice permit would only be possible during 

the initial application process for a surface mining and reclamation operation permit. OSM believes that an application for 

an experimental practice may be submitted at any time during the life of a mining operation. The experimental practice 

application may be made when submitting the original permit application or, at a later time, as a permit revision 

application. 

 A commenter felt that the proposed rule was not consistent with the Congressional intent for Section 711 of the Act 

and that OSM was mistaken if it assumed that the goal of the provision was to obtain economic advantages for operators. 

Instead, the commenter saw the goal of Section 711 as improving environmental protection over the standards of 

Sections 515 and 516. 

 The language of the provision clearly states that the variances are to be approved in order to encourage advances in 

technology or to allow alternative postmining land uses. However, such approvals may not be given unless certain 

conditions are met. Therefore, while an experimental practice could lead to improvements in environmental protection, it 

could also result in a technological improvement. In both cases, in order to be approved, the experimental practice must 

be potentially more or at least as environmentally protective as the environmental protection performance standards 

which were promulgated pursuant to Sections 515 and 516 of the Act and from which a variance is being sought. 

 Several commenters objected to language in the proposal which suggested that the variances would be from 

performance standards of the Act. OSM has rejected this comment. The performance standards of Subchapter K of 30 

CFR Chapter VII are merely an extension of the standards of Sections 515 and 516 of the Act. Thus, to provide a 

variance from these standards it is also necessary to recognize that the variance could also be to the standards of the Act. 

The legislative history of this provision demonstrates that Congress contemplated that the experimental practices section 

would be used in just such a manner. The revised rule does not change the meaning of the regulations, but merely 

clarifies it. (See 44 FR 15080, March 13, 1979.) Section 711 of the Act provides for departures from any of the 

environmental protection performance standards "promulgated under" Sections 515 and 516 of the Act. The departures, 

thus, may be granted to any rules that are published pursuant to the authorities of Sections 515 and 516 and which 

include the requirements set out in those sections. 

 One commenter suggested that experimental practices should be separated from "regulatory variances" because they 

imply the use of unproven techniques which involve a degree of risk and significant returns if successful. OSM recognizes 

that frequently cost savings and other benefits can be realized by new practices without obtaining a variance from the 

performance standards as provided in the experimental practice rule. It is only when a variance from the regulatory 

standards is necessary that the special approval granted under this rule is required. 

 

B. SECTION 785.13(b) APPLICATION REQUIREMENTS 

 Section 785.13(b) sets forth information that shall be provided by an operator in a permit application for an 

experimental practice. Among other things, this information shall include a description of the variances from performance 
standards that are being requested, show how use of the practice will encourage advances in mining or reclamation 

technology or allow alternative postmining land uses on an experimental basis, provide assurances that the practice is 

potentially more or at least as environmentally protective as required under Subchapter K and set out the monitoring 

efforts which the operator shall undertake. In the case of the monitoring efforts, the data collected shall be reliable and 

sufficient to enable the regulatory authority and OSM to evaluate the effectiveness of the experimental practice and to 

identify at the earliest possible time potential risk to the environment and public health and safety which may be caused by 

the experimental practice. 

 One commenter recommended retaining Section 785.13(b) of the previous rule as being the only language seeking to 

encourage the use of experimental practices. OSM has not included this paragraph in the final rule because it is 

unnecessary. However, Section 785.13(a) has been revised to state the purposes of experimental practices. 

 Two commenters believed that any provisions in the rule which went beyond the requirements of Section 711 of the 

Act should be deleted. These comments are rejected. Section 201(c)(2) of the Act provides the Secretary with authority 

to promulgate such rules and regulations as may be necessary to carry out its purpose. 30 U.S.C. 1211(c)(2). As the 

District Court found in In re: Permanent Surface Mining Reclamation Litigation, Civ. No. 79-1144, Slip op. at 5-8 

(D.D.C. February 26, 1980), "An agency's regulations may cover items not specifically delineated in a statute so long as 

the regulations conform to an Act's purposes and policies." In promulgating this rule, OSM believes that the requirements 

of Section 785.13 are appropriate to carry out the purposes of Section 711 specifically, and the Act in general. 

 Several commenters were confused as to whether the rule would require a separate experimental practice permit 

application or whether the request would be part of the surface mining operation permit application. OSM believes that 

the information required for approval of an experimental practice is in addition to that required for a surface coal mining 

and reclamation operation permit application. This information can be submitted with the general permit application or 

separately as a revision to the permit. OSM considers that the language changes which were made to Section 785.13(a), 

and discussed above, are sufficient to clarify the relationship of an experimental practice variance to the general permit 

for the operation. 

 Several commenters stated that under the Act both the permit applicant and regulatory authority have the 

responsibility to assure that an approved practice is not larger or more numerous than necessary to determine its 

effectiveness and economic feasibility. The commenter disagreed with OSM's proposal not to require an operator to 

demonstrate in its permit application that the proposed variances are not larger or more numerous than necessary to 

determine its effectiveness and economic feasibility. The commenter believed that it was incumbent upon the operator, 

who had the data and self-interest in expanding the scope or duration of the variance, to establish the need for the 

magnitude and scope of the proposal. The commenter also believed that there must come a point when the regulatory 

authority would conclude that sufficient experimentation had taken place on a new technology or alternative postmining 

land use so that additional experimentation would not be permissible under the Act. By contrast, another commenter 

recommended deleting as redundant the proposed Section 785.13(d)(3) finding by the regulatory authority concerning 

the size and number of the experimental practices. 

 OSM rejects both of these recommendations. OSM believes the Act requires the regulatory authority to make a 

specific finding as to the size and number of the experimental practice to determine its effectiveness and economic 

feasibility. Under this final rule, the regulatory authority and the Director must evaluate the proposed experimental 

practice to make the necessary findings. Information necessary to determine that the experimental practice is not larger or 

more numerous than necessary will generally be readily available to the regulatory authority. 

 One commenter endorsed the elaboration of information to be provided by the applicant concerning the nature of the 

proposed experimental practice. The commenter recommended revising proposed Section 785.13(b)(1) to read "a 

description of the performance standards for which variances are requested." This change has been adopted. 

 One commenter was concerned that OSM's reference in Section 785.13(b)(2) and (d)(1) in the proposal to 

"postmining land use" as a possible experimental practice could be interpreted to mean that whenever an operator 

proposed an alternative postmining land use in its surface mining permit application, such would have to be couched as 

an experimental practice. The commenter's fear is unfounded. An operator need apply for an experimental practice only 

when it is necessary to obtain a variance from the environmental protection performance standards. 
 Two commenters objected to the deletion of an application requirement showing the necessity for obtaining a variance 

from the performance standards. According to one of the commenters, without such a showing experimental practices 

could become a way to circumvent the requirements of not only Sections 515(b)(2) and 515(c) of the Act, but also those 

of Section 511 relating to procedures for surface mining permit revisions. 

 For two reasons OSM has not required information as to whether the ends sought through the experimental practice 

could not be otherwise attained under the regulatory program. First, OSM believes that the intent of Section 711 is to 

encourage advances in technology and alternative postmining land uses. Thus, even if an end product could be obtained 

through the existing regulatory program, improved procedures for attaining that goal could possibly also be developed 

through the experimental practices program. Second, OSM is of the opinion that during review by the regulatory 

authorities and the Director, those experimental practices which should not be approved because they are larger or more 

numerous than necessary or do not meet the other criteria will be identified. Finally, OSM considers that the language of 

the final rule makes it clear that the permit revision requirements of Section 511 of the Act and Subchapter G of 30 CFR 

Chapter VII apply to experimental practices. 

 Two commenters recommended including "economic advantage" among the purposes for conducting experimental 

practices noted in Section 785.13(b)(2) and (d)(1). In support of their recommendation, the commenters cited language 

from the preamble of the proposed rule which said that experimental practices could lead to economic benefits. 

 OSM has not adopted this suggestion because the two advantages listed in the rule are in keeping with those provided 

for in Section 711 of the Act. However, OSM believes to the extent such information aids in showing that the proposed 

practice encourages technological advances in mining, an operator may supplement his permit application with 

information demonstrating the economic benefits of the proposal. 

 One commenter objected to the monitoring requirement which would enable the regulatory authority and the Director 

to evaluate the effectiveness of the practice. The commenter believed that this was not required by the Act, that it would 

be extremely expensive and that the same purpose could be accomplished by other monitoring requirements. The 

recommendation to delete this requirement is rejected because OSM thinks that such data will enable the regulatory 

authority and the Director to evaluate the effectiveness of an experimental practice for purposes of allowing further 

experimental practices and possibly changing existing regulatory standards and is also needed to identify potential risks to 

the environment. Furthermore, the monitoring requirements provided under other rules may not be sufficient for activities 

covered by this rule. Since an experimental practice is conducted pursuant to a variance from promulgated performance 

standards, it must be more closely observed than standard mining practices. As for any additional expenses incurred due 

to monitoring, OSM believes that these may well be offset by economic advantages obtained as a result of successful 

experimental practices. Finally, OSM considers it has sufficient authority under the Act to require the monitoring data. 

 Two commenters recommended deleting language in proposed Section 785.13(b)(4) referring to monitoring "during 

and after the operation involved." Instead, they thought that the regulatory authority should set the monitoring 

requirement in the experimental practice permit. The commenters wished to do away with open-ended monitoring 

requirements after the experimental practice was completed. 

 OSM rejects this suggestion in part because the degree of monitoring being specified follows the Act which provides 

for the experimental practice potentially to be "more or at least as environmentally protective, during and after mining 

operations" [emphasis added] as the promulgated performance standards. In order to ensure that this mandate is 

followed, a monitoring program both before and after the operation may be necessary. However, OSM agrees that the 

extent and scope of required monitoring should be determined and established in the experimental practices permit. For 

this reason the language has been revised by not adopting the proposed phrase "during and after the operation involved" 

in the first sentence of Section 785.13(b)(4). Instead, the phrase "during and after mining" has been added to Section

785.13(b)(4)(ii). This will assure that postmining monitoring need only be conducted if necessary to identify the risk to 

the environment and public health and safety during and after mining. Whether monitoring after mining may be required 

to meet this objective can be determined within the context of the individual experimental practices permit. 

 One commenter thought that the proposed language in Section 785.13(b)(4)(i) would create a major loophole to 

compliance with the performance standards by deleting the previous requirement for a monitoring program to evaluate 

and compare experimental practices. Another commenter believed the proposal was in direct conflict with the Section 

711 limitation on experimental practices to be "not larger or more numerous than necessary" to determine their 
effectiveness and economic feasibility. According to that commenter, unless the monitoring data were given in a form to 

enable comparison with other experimental practices, the regulatory authority or Director might approve practices more 

numerous than necessary or approve one already shown to be ineffective or infeasible. 

 OSM rejects these comments because the regulatory authority and the Director will have sufficient information from 

the experimental practice permit application to evaluate a given experimental practice on its own merit as well as in 

comparison with other similar experiments. Under this provision, reviewers are provided with data as to the effectiveness 

of the practice. Likewise, under Section 785.13(b)(1), all performance standards for which variances are requested are 

identified, thus providing reviewers with a basis for comparison if and when necessary. 

 Several commenters opposed the proposed rule's requirement for operators to provide information in the permit 

application concerning the mitigative measures which would be taken in the event the experimental practice failed to 

meet its objectives. This was unacceptable to the commenters because they believed that experimental practices must be 

limited to situations where the worst case situation will not fall below the Subchapter K standards in environmental and 

public health and safety protection. 

 OSM has reviewed the legislative history for Section 711 and does not agree that experimental practices need be 

evaluated based upon the worst case possible if the practices were to fail. OSM believes the commenter's position is 

internally inconsistent. On the one hand it asserts that mitigative measures are inappropriate because the Subchapter K 

performance standards are minimum criteria which the operation must meet even under the worst possible circumstances 

if the experimental practice fails. On the other hand, the commenter recognizes that, in fact, an experimental practice may 

carry with it a risk of failure in which the Subchapter K performance standards cannot be met. In such a situation, the 

commenter urges that mitigative measures are insufficient because affirmative remedial measures are required. OSM is of 

the opinion that an experimental practice is exactly that, "experimental," and carries with it a certain level of uncertainty 

of success. However, OSM agrees with the commenters that, if additional measures are required to make the findings 

under Section 785.13(d) (2) and (4) that the experimental practice is potentially more or at least as environmentally 

protective as the standards of Subchapter K and that equivalent protection is afforded the public health and safety, then 

the regulatory authority and the Director have the responsibility to require under Section 785.13(f), that such measures 

be incorporated in the experimental practice. Accordingly, the proposed requirement to specifically identify mitigative 

measures in the experimental practice application has not been adopted in the final rule. 

 

C. SECTION 785.13(c) PUBLIC NOTICE 

 Under this paragraph an operator and the regulatory authority shall comply with the public notice requirements of 

proposed 30 CFR 773.13, as set forth in Volume III of OSM's "Final Environmental Impact Statement OSM-EIS-1: 

Supplement." (The use of proposed sections is discussed under "Procedural Matters.") This means that specific reference 

to a proposed experimental practice shall appear in the newspaper advertisement and in the notification to Federal, State 

and local government agencies with jurisdiction over or an interest in the proposed operation that are required by 

proposed Section 773.13. 

 One commenter questioned requiring a newspaper advertisement in all cases when experimental practices permit 

applications are made. The commenter believed there were times when the proposed experimental practice would not 

change the surface mining permit at all. OSM rejects this comment because, at a minimum, an experimental practice will 

result in a variance from the applicable performance standards. 

 Another commenter was concerned that, as proposed, Section 785.13(c) applied only to initial permit applications, 

and, therefore, permit revisions would not be subject to the same degree of public notice and participation. The 

commenter thought that the requirements of 30 CFR 786.11 applied only to initial permit applications. 

 The commenter is referred to 30 CFR 788.12(b)(2) which stated that significant alterations to a permit had to meet 

the same notice requirements as the initial application. Under the preferred alternative in Volume III of "Final 

Environmental Impact Statement OSM EIS-1: Supplement" for permit revisions, OSM would retain this requirement. 

See proposed 30 CFR 774.13 as set forth in OSM EIS-1: Supplement. 

 
D. SECTION 785.13(d) APPROVAL REQUIREMENTS 

 Section 785.13(d) requires the regulatory authority to find in writing that the proposed experimental practice will 

encourage advances in technology or allow an alternative postmining land use; is potentially more or at least as 

environmentally protective during and after mining operations as the promulgated standards of Subchapter K; is not 

larger or its operations more numerous than necessary to determine its effectiveness and economic feasibility; and does 

not reduce the protection afforded public health and safety below that provided by standards promulgated under 

Subchapter K. Once the regulatory authority has made its findings, the Director will review them along with the permit 

application to reach a decision on concurrence. 

 Several commenters were concerned that there would be delays in the issuance of approvals for experimental practices 

due to confusion over the order of review between the regulatory authority and the Director. Others wanted it clear that 

the State regulatory authorities had the lead in initially reviewing and determining the merits of a proposal. In order to 

lessen the possibility of delay in approvals or confusion about the order of review, OSM has written the final rule so that 

it is clear that the Director will not concur in an application until after the regulatory authority has made its specific 

findings. 

 One commenter recommended that the rule should provide explicit recognition that the statutory principle of "* * * 

better than or equivalent environmental protection * * *" contemplates a balancing of various environmental effects and 

standards with emphasis on the final product. OSM believes that no revision to the rule is necessary. The level of 

environmental protection provided by each experimental practice must be compared to the minimum level of 

environmental protection provided under the regulatory standards of Subchapter K. No change is necessary to provide 

emphasis in the final product. 

 One commenter objected to the deletion in the proposed rule of the requirement conditioning approval of an 

experimental practice upon the imposition of enforceable alternative environmental protection performance standards in 

the event the specific variance is departed from or the experiment fails. The same commenter, however, objected to the 

provision requiring the operator to include potential mitigative measures in the permit application for the experimental 

practice. As indicated above, OSM has deleted both provisions from the final rule. As revised, the standard for approval 

of the experimental practice will be the statutory standard. Potential mitigative measures may be included in the 

experimental practice approval as appropriate and considered by the regulatory authority and the Director in evaluating 

whether the statutory standard is met. Regardless of whether mitigative measures are prescribed in advance, if a failure of 

the experimental practice leads to a degradation of the environment, the Director and the regulatory authority will have 

the responsibility to order measures to ensure protection of the environment and public health and safety. 

 The same commenter thought that the revised language in Section 785.13(d)(4) was vague regarding the 

"promulgated standards" below which the experimental practice could not fall with respect to health, safety and 

environmental protection. 

 The commenter believed that specific references to standards required by Subchapter K and the regulatory authority's 

program should be included. OSM has accepted the commenter's suggestion with respect to Subchapter K and has 

revised paragraph (d)(4) accordingly. OSM has not, however, included reference to the standards of the regulatory 

program, since a State, under Section 505 of the Act, may include standards more stringent than the standards of 

Subchapter K. Departures from such requirements only require an experimental practice permit when they would also 

result in a variance to the Subchapter K standards. 

 

E. SECTION 785.13(e) CONSULTATION WITH USDA 

 Section 785.13(e) requires consultation with the U.S. Department of Agriculture, Soil Conservation Service (SCS), 

prior to granting variances from the special environmental performance standards for prime farmlands in keeping with the 

provisions of Section 510(d)(1) of the Act. Under 30 CFR 785.17, the Secretary of Agriculture has assigned these 

responsibilities to the SCS. 

 One commenter endorsed this provision provided that no deviation from the prime farmlands productivity 

requirements would be allowed. OSM agrees that Section 711 of the Act allows variances only from the environmental 

protection performance standards established by Sections 515 and 516 of the Act. Thus an experimental practice can be 
approved which provides a variance from the prime farmland soil reconstruction standards of Section 515(b)(7) of the 

Act. However, variances are not allowed from the productivity standards established separately under Sections 510(d) 

and 519(c)(2) of the Act. A conforming reference to Sections 515 and 516 of the Act has been included in Section

785.13(e). 

 Another commenter recommended deleting the new requirement as duplicative of requirements found at 30 CFR 

785.17 for prime farmlands. This comment is rejected. Section 785.17 deals with permit requirements for prime 

farmlands and does not cover the variances from performance standards allowed by Section 711 of the Act. 

 

F. SECTION 785.13(f) MONITORING/ADDITIONAL REQUIREMENTS 

 Section 785.13(f) will require that anyone undertaking an approved experimental practice shall conduct the periodic 

monitoring, recording and reporting program set forth in the application as well as fulfill any additional steps the 

regulatory authority or the Director may require to ensure protection of the public health and safety and the environment. 

 One commenter recommended deleting proposed Section 785.13(f) as being redundant with the monitoring 

requirements of paragraph 785.13(b)(4). OSM has rejected this suggestion because new Section 785.13(f) serves a 

different purpose than the referenced paragraph. Section 785.13(b)(4) concerns information which an operation must 

provide in an application for an experimental practice. On the other hand, Section 785.13(f) indicates that the operator 

shall perform monitoring activities as well as any other requirements the regulatory authority or the Director may specify. 

OSM has adopted the word change recommended by another commenter in order to make it clear that the paragraph 

involves two distinct requirements. 

 

G. SECTION 785.13 (g) and (h) PERMIT REVIEW/REVISION REQUIREMENTS 

 Proposed Sections 785.13 (g)(1) and (g)(2) are adopted as new Sections 785.13 (g) and (h). Section 785.13(g) will 

require each experimental practice to be reviewed by the regulatory authority at a frequency set forth in the approved 

permit, but no less than every two and a half years. Two and a half years will generally correspond to the midterm of the 

permit. After any such review, the regulatory authority may require modifications of the practice which are necessary to 

ensure that the operation fully protects the environment and public health and safety. OSM has made clear that the 

administrative and judicial review provisions attendant to permits also apply to modifications of experimental practices. 

Under Section 785.13(h), in the event an operator wishes to revise an approved experimental practice, it will be 

necessary first to submit an application for a permit revision subject to the requirements of Subchapter G. 

 One commenter argued that there was no statutory authority justifying the proposed yearly review of experimental 

practices. While OSM has modified its review proposal as described above, it rejects the general assertion that 

establishing a review procedure is somehow outside the scope of its authority. The Act provides OSM with ample 

authority to promulgate those rules it believes are necessary to carry out the purposes of the Act. 

 Several commenters objected to the proposed annual review of each experimental practice. Some felt that the data 

accumulated from one year could be inadequate to determine the effectiveness of the practice. Also, they thought that the 

frequent review with possibilities for unlimited modification by the regulatory authority could act as a disincentive to 

participation in the program and could be unnecessarily burdensome to the regulatory authority as well. The commenters 

recommended having the review period determined by the regulatory authority on a case-by-case basis so as to take into 

account the specific nature and location of the practice and the parties involved. Some commenters thought it was better 

not to have the review set by an arbitrary schedule. They believed that State regulatory authorities wishing to have more 

frequent reviews would be able to establish this in their State programs. OSM agrees with the thrust of these comments 

and has written the final rule so that the review period shall be set by the regulatory authority in the approved permit, but 

shall be no less frequent than every two and one half years. OSM believes this provision will give the regulatory 

authorities sufficient flexibility to establish an appropriate review process without creating unnecessary burden. 

 Another commenter objected to the proposed rule because he felt the review should be of the entire permit and not 

just the experimental "practice." The commenter was also concerned that citizen participation was being deleted. OSM 

considers Section 785.13(g) to include review of the experimental practices and any directly related provisions of the 

permit. The regulatory authority need not review unrelated aspects of the permit at the same time. Review of other 

aspects of the entire permit is governed by 30 CFR 788.11. (See also proposed 30 CFR 774.11 as set forth in OSM 
EIS-1: Supplement.) OSM has also revised paragraph 785.13(g) to assure public participation when modifications occur 

in accordance with the administrative and judicial review provisions of proposed 30 CFR Part 775, as set forth in OSM 

EIS-1: Supplement. 

 One State commenter found the language of proposed Section 785.13(g) (1) and (2) to be inconsistent. The 

commenter thought it was necessary to have language in each paragraph making it clear that it is necessary to obtain the 

approval of the regulatory authority for any permit modifications. OSM agrees with the observation of the commenter 

and has rewritten both paragraphs accordingly. 

 In the proposed rule, OSM distinguished between major and minor revisions to the experimental practice approval. 

Under proposed Section 785.13(g)(2), prior to the implementation of a minor revision, an operator would have only 

needed to provide the regulatory authority with written notice. In the case of a major revision, approval by the regulatory 

authority and the Director would have been necessary before implementation. Much discussion with respect to the 

major/minor dichotomy and who should retain responsibility for approval was generated as a result of OSM's proposal. 

 Two commenters wanted the term "major" and "minor" revisions to be defined. Others thought that simple notice to 

the regulatory authority in all cases was sufficient. A third commenter believed that while the regulatory authority should 

retain control over major revisions, the full permitting process should not be necessary. One State commenter preferred 

to see the regulatory authority provide written approval. Another State commenter wanted the role of the Director to be 

limited in the approval process. A different State wished to require regulatory authority approval in all instances. Two 

commenters thought there should be a deadline within which a regulatory authority must act or be deemed to have 

approved the revision. Another commenter made the point that any revision to an experimental practice may be 

significant and, therefore, there was no basis for distinctions concerning the significance of revisions. 

 OSM has decided not to adopt the major/minor distinction. Instead the final rule, in Section 785.13(h), requires 

processing and approval by the regulatory authority consistent with the provisions of the proposed new rule for permit 

revisions, Section 774.13, as set forth in OSM EIS-1: Supplement. Revisions that propose significant alterations to the 

experimental practice must also be subject to notice, hearing and public participation requirements and concurrence by 

the Director. OSM believes this comports with Section 511(a)(2) of the Act requiring that revisions which propose 

significant alterations in the permit be subject to notice and hearing requirements. Non-significant revisions may be 

handled more expeditiously. Under Subchapter G, such applications must be processed within a reasonable time. 

However, no specific time limit has been included in the final rule. 

 

H. MISCELLANEOUS RECOMMENDATIONS 

 One commenter recommended several new provisions. One of these would require a regulatory authority to designate 

contact persons on its technical staff for monitoring experimental practices who would be immediately notified by an 

operator in the event problems developed in the course of an experiment. The proposed provision would also authorize 

the issuance of a notice of violation only if an experimental practice plan were not followed or if appropriate action as 

required by the regulatory authority were not taken. 

 OSM believes that regulatory authorities will set up appropriate contact arrangements and therefore specific directions 

to this effect are not warranted in this rulemaking. With respect to the issuance of notices of violation, the experimental 

practice variance becomes part of the surface mining permit and, if followed, would not lead to the issuance of a notice of 

violation or a cessation order with regard to those standards from which a variance was granted. 

 The same commenter proposed including provisions which would identify what constitutes a successful experimental 

practice; would require a regulatory authority to notify all operators in the State of a practice that was deemed 

successful; would permit the practice's use on a case-by-case basis; and would require the Director to circulate to the 

State regulatory authorities technical memoranda informing them of practices deemed to be successful. 

 OSM has not adopted any of these suggestions in this rulemaking, because it believes that whether an experimental 

practice is completely or partially successful will be apparent. As for how dissemination of the new information will be 

accomplished within a State, OSM believes that those decisions are within the prerogative of the regulatory authority. 

Since an experimental practice permit is issued to allow a variance from performance standards, it will be necessary to 
revise regulations before widespread use of a successful practice can occur. Merely circulating notices or technical 

memoranda would not be sufficient. 

 Several commenters raised questions about the bonding requirements that apply to experimental practices. One 

believed that small and medium sized operations had little inducement to provide an investigator with areas for 

experimental research, if those locations might not qualify for bond release as quickly as conventionally reclaimed areas. 

Moreover, the commenter felt that operators could not be required to rework failed experimental plots at added cost. To 

counter these perceived problems, the commenter suggested lessening the performance bond requirements for areas 

where experimentation was taking place and having the organization sponsoring the research assume some or all of the 

liability of any performance bond. A Federal agency suggested, as a way of promoting cooperation between research 

organizations and mine operators, providing early release from reclamation bonds for specific areas dedicated to 

reclamation research and demonstration of reclamation technology. The commenter thought that research areas would 

seldom encompass an entire permitted area, and therefore the incremental release could occur provided the area 

otherwise qualified for such status. At the recent oversight hearings of the House Subcommittee on Energy and the 

Environment, a mining industry spokesman testified that under the proposed rule there was at least one issue which 

remained an obstacle to enhancing reclamation technology. The witness said there was no statutory provision for 

establishing designated postmining land use research and demonstration areas on bonded surface mining lands. According 

to the spokesman, Section 711 was seen by the regulatory authorities as applying to alternative design work and 

engineering practices. Therefore, research groups (universities and government agencies) had to assume responsibility for 

the long term performance bonds. The witness recommended that Section 711 be expanded or a new provision enacted 

to encourage research groups and operators to participate in revegetation research. 

 Bonding amounts and length of liability are governed by Sections 509 and 519 of the Act and 30 CFR Parts 800-809. 

No provision is included in the Act for waiver of bonding requirements for experimental or research requirements. 

However, the bond amount can include consideration of the provisions of the experimental practice. As for whether 

Section 711 of the Act can be expanded to cover revegetation research not considered an experimental practice, such 

action is outside the scope of this rulemaking. 

 One commenter thought that simply preparing an environmental assessment on the experimental practice rulemaking 

did not meet the requirements of the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. 4321

et seq ., or Section 702(d) of the Act. 

 The Office has prepared an environmental impact statement which analyzes the impacts on the quality of the human 

environment resulting from changes to the permanent program regulations. 

 

III. PROCEDURAL MATTERS 

 For convenience, certain references in the final rule are to proposed section numbers that have not been finalized. If 

such sections are not adopted as proposed, conforming technical amendments will be issued. 

 

Executive Order 12291 and the Regulatory Flexibility Act 

 The Department of the Interior has determined that this document is not a major rule under E.O. 12291 and certifies 

that this document will not have a significant economic effect on a substantial number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). 

 

National Environmental Policy Act 

 OSM has analyzed the impacts of these final rules in the final Environmental Impact Statement OSM EIS-1: 

Supplement according to Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 

4332(2)(C)). The final supplement is available in OSM's Administrative Record in Room 5315, 1100 L Street, NW., 

Washington, D.C., or by mailing a request to Mark Boster, Chief, Branch of Environmental Analysis, Room 134, Interior 

South Building, U.S. Department of the Interior, Washington, DC 20240. This preamble serves as the record of 

decision under NEPA. This final rule adopts the preferred alternative published in Volume III of the EIS which is 

analyzed in the EIS, with minor editorial changes. 

 

Paperwork Reduction Act 

 The information collection requirements contained in Section 785.13 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0040. The information is being 

collected by the regulatory authority in determining whether the applicant meets the applicable performance standards for 

experimental practices mining activities. This information will be used to give the regulatory authority a sufficient 

baseline upon which to assess the impact of the proposed operation during the permanent regulatory program. The 

obligation to respond is mandatory. 

 

LIST OF SUBJECTS IN 30 CFR PART 785 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 For the reasons set forth in the preamble, Part 785 of Chapter VII, Title 30, of the Code of Federal Regulations is 

amended as set forth herein. 

Dated: February 28, 1983. 

William P. Pendley, Acting Assistant Secretary, Energy and Minerals. 

PART 785 -- REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING 

 1. Section 785.13 is revised to read as follows: 

SECTION 785.13 - EXPERIMENTAL PRACTICES MINING. 

(a) Experimental practices provide a variance from environmental protection performance standards of the Act, of 

Subchapter K of this chapter, 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 regulatory authority and the Director 

and if they are incorporated in a permit or permit revision issued in accordance with the requirements of Subchapter G of 

this chapter. 

(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 K of this chapter; and 

(ii) Will not reduce the protection afforded public health and safety below that provided by the 

requirements of Subchapter K of this chapter; 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 regulatory 

authority and the Director 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 Section 773.13 of this 

chapter. 

(d) No application for an experimental practice under this section shall be approved until the regulatory authority first 

finds in writing and the Director 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 K of this chapter; 
(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 K of this chapter. 

(e) Experimental practices granting variances from the special environmental protection performance standards of 

Sections 515 and 516 of the Act applicable to prime farmlands shall be approved only after consultation with the U.S. 

Department of Agriculture, Soil 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 regulatory authority or the 

Director may impose to ensure protection of the public health and safety and the environment. 

(g) Each experimental practice shall be reviewed by the regulatory authority at a frequency set forth in the approved 

permit, but no less frequently than every 2 1/2 years. After review, the regulatory authority 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 regulatory authority shall be sent to the permittee and shall be 

subject to the provisions for administrative and judicial review of Part 775 of this chapter. 

(h) Revisions or modifications to an experimental practice shall be processed in accordance with the requirements of 

Section 774.13 of this chapter and approved by the regulatory authority. Any revisions which propose significant 

alterations in the experimental practice shall, at a minimum, be subject to notice, hearing, and public participation 

requirements of Section 773.13 of this chapter and concurrence by the Director. 

 Revisions that do not propose significant alterations in the experimental practice shall not require concurrence by the 

Director. 

 

(30 U.S.C. 1201 et seq. ) 

[FR Doc. 83-5583 Filed 3-3-83; 8:45 am] 

BILLING CODE 4310-05-M