# Title 69 — Public Service Commission

## Article 69-05.2 — Surface Coal Mining and Reclamation Operations

## Chapter 69-05.2-27 — Requirements for Research Plots and Permits for Experimental Surface Coal Mining and Reclamation Operations

### § 69-05.2-27-01. Research plots.

Any agency or authorized organization wishing to establish experimental or evaluation plots of any
kind on mined land prior to the release of bond shall obtain the written approval of the commission and
the operator. Landowner approval need be obtained only if the anticipated life of the plot will extend
beyond the time at which bond release for the permit area is sought. Applicants shall state the
objectives sought, the methods proposed to be used, the amount of land required, and duration of the
proposed research. The applicant shall also agree to submit a yearly progress report and a final report
to both the commission and the operator. Once the experimental work has ended, the acreage must be
returned to acceptable state reclamation requirements. The operator is to assume the costs of bringing
the land used for experimental plots to a condition that will meet the reclamation requirements unless
the operator obtains written assurance from the agency or organization of that entity's intent and ability
to reclaim.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03, 38-14.1-24
### § 69-05.2-27-02. Variances for experimental surface coal mining and reclamation practices.

1. In order to encourage advances in surface mining and reclamation practices, or to allow
postmining land use for industrial, commercial, residential, or public use (including recreational
facilities), on an experimental basis where the postmining land use proposed requires an
experimental practice to demonstrate feasibility, the commission may, with the approval of the
director of the office of surface mining reclamation and enforcement, authorize variances in
individual cases from the standards of North Dakota Century Code section 38-14.1-24.
2. Variances will not be authorized for other than experimental practices. For the purpose of this
section, "experimental practice" means the use of alternative surface coal mining and
reclamation operation practices for experimental or research purposes.
3. No person shall engage in or maintain any experimental practice unless that practice has first
been approved in a permit.
4. Each person who desires to conduct an experimental practice shall submit a permit or revision
application to the commission and to the director of the office of surface mining reclamation
and enforcement for approval. The application must contain appropriate descriptions, maps,
plans, and data which show:
a. The nature of the experimental practice, including a description of the performance
standards for which the variances are requested, the duration of the experimental
practice, and any special monitoring which will be conducted.
b. How use of the experimental practice:
(1) Encourages advances in mining and reclamation technology; or

(2) Allows a postmining land use for industrial, commercial, residential, or public use
(including recreational facilities), on an experimental basis, when the results are not
otherwise attainable under the standards.
c. That the operations proposed for using an experimental practice are not larger nor more
numerous than necessary to determine the effectiveness and economic feasibility of the
practice.
d. That the experimental practice:
(1) Is potentially more or at least as environmentally protective, during and after the
proposed operations, as would be required under the standards.
(2) Will not reduce the protection afforded public health and safety below that provided
by the standards.
e. That the applicant will conduct special monitoring with respect to the experimental
practice during and after operations. The monitoring program must:
(1) Ensure the collection, analysis, and reporting of sufficient and reliable data to
enable the commission and the director of the office of surface mining reclamation
and enforcement to make adequate comparisons with other operations employing
similar practices.
(2) Include requirements designed to identify, as soon as possible, potential risks to the
environment and public health and safety from the use of the practice.
5. Each application must specify the environmental protection performance standards which will
be implemented in the event the objective of the experimental practice is a failure.
6. All experimental practices for which variances are sought must be specifically identified
through newspaper advertisements by the applicant and the written notifications by the
commission required by North Dakota Century Code section 38-14.1-18.
7. No permit authorizing an experimental practice will be issued unless the commission first
finds, in writing, upon the basis of both a complete application filed in accordance with the
requirements of this section and the comments of the director of the office of surface mining
reclamation and enforcement that:
a. The practice meets the requirements of subdivisions b through e of subsection 4.
b. The practice is based on a clearly defined set of objectives which can reasonably be
expected to be achieved.
c. The practice has been specifically approved, in writing, by the director of the office of
surface mining reclamation and enforcement.
d. The permit contains conditions which specifically:
(1) Limit the practice authorized to that granted by the commission and the director of
the office of surface mining reclamation and enforcement.
(2) Impose enforceable alternative environmental protection requirements.
(3) Require the person conducting the periodic monitoring, recording, and reporting
program to include additional requirements as the commission or the director of the
office of surface mining reclamation and enforcement may require.

8. Each permit which authorizes the use of an experimental practice will be reviewed at least
every two and one-half years by the commission, or at least once prior to the middle of the
permit term. After review, the commission will, with the consent of the director of the office of
surface mining reclamation and enforcement, require by order, supported by written findings,
any reasonable revision or modification of the permit provisions. Copies of commission written
findings will be sent to the permittee. Any person who is or may be adversely affected by the
order has the opportunity for review under North Dakota Century Code sections 38-14.1-30
and 38-14.1-35.
9. Experimental practices granting variances from the special environmental standards of
chapter 69-05.2-26, applicable to prime farmlands, will be approved only after consultation
with the natural resource conservation service.
10. Revisions or modifications to an experimental practice will be processed in accordance with
section 69-05.2-11-02. Any revisions which propose significant alterations to the experimental
practice are subject to the notice, hearing, and procedural requirements contained in
subdivision a of subsection 5 of section 69-05.2-11-02 and concurrence by the director of the
office of surface mining reclamation and enforcement.
History: Effective August 1, 1980; amended effective May 1, 1990; June 1,1997.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-03
