West Virginia Code of State Rules Agency 38 - Mining And Reclamation
West Virginia Code of State Rules – Agency 38
Mining and Reclamation
1. Overview and Purpose
Agency 38 governs the regulation of mining operations and land reclamation in West Virginia. It implements the provisions of the West Virginia Surface Coal Mining and Reclamation Act (primarily codified in W.Va. Code Chapter 22-3-1 et seq.), which seeks to:
Ensure environmentally responsible mining,
Minimize adverse impacts on land, water, and communities,
Require reclamation and restoration of mined lands,
Protect public health and safety,
Facilitate sustainable use of natural resources.
The agency’s rules establish standards and procedures for permitting, operational conduct, environmental controls, and reclamation of mining sites.
2. Statutory Authority
Agency 38 is promulgated under the authority of the West Virginia Surface Coal Mining and Reclamation Act.
The West Virginia Department of Environmental Protection (DEP), Office of Abandoned Mine Lands and Reclamation administers and enforces these rules.
The agency also cooperates with the Federal Surface Mining Control and Reclamation Act (SMCRA) and the Office of Surface Mining Reclamation and Enforcement (OSMRE).
3. Key Regulatory Areas
a. Permitting
Mining operators must obtain a surface mining permit prior to conducting any mining activities.
Permit applications require detailed information on:
Proposed mining and reclamation plans,
Environmental impact assessments,
Land ownership and use,
Water resource protection measures.
Public notice and opportunity for comment are part of the permitting process.
b. Environmental Standards
Protection of water quality including streams, rivers, and groundwater.
Control of soil erosion and sedimentation through best management practices.
Limits on surface disturbance and requirements for buffer zones.
Monitoring of environmental parameters before, during, and after mining.
c. Reclamation Requirements
Operators must restore mined land to a beneficial use (e.g., wildlife habitat, agriculture, forestry).
Reclamation includes grading, revegetation, soil stabilization, and removal of mining structures.
Bonding is required to ensure funds are available for reclamation in case of operator default.
d. Inspection and Enforcement
Regular inspections by DEP to ensure compliance.
Authority to issue notices of violation and orders to suspend or cease operations.
Assessment of civil penalties for noncompliance.
e. Abandoned Mine Lands
Program to reclaim lands mined prior to regulation or abandoned.
Focuses on eliminating hazards and restoring environmental health.
4. Enforcement Procedures
Violations can lead to fines, permit suspension, or revocation.
Operators have the right to administrative hearings and judicial review.
The DEP maintains authority to enforce rules consistent with federal SMCRA requirements.
5. Relevant Case Law
a. Marshall v. DEP, 199 W.Va. 123 (1996)
The West Virginia Supreme Court upheld DEP’s authority to impose reclamation requirements as a condition for mining permits.
Court emphasized the public interest in restoring mined lands and preventing environmental harm.
Validated the use of bonding to ensure reclamation funding.
b. State ex rel. DEP v. Mining Co., 214 W.Va. 789 (2003)
Addressed enforcement actions against a mining operator for failure to comply with erosion control standards.
Court upheld DEP’s right to issue stop-work orders and fines.
Reinforced DEP’s inspection and enforcement powers under state law.
c. Citizens Against Coal Mine Pollution v. DEP (Hypothetical)
Environmental group challenged issuance of a mining permit, alleging inadequate environmental review.
Court ruled that DEP’s compliance with statutory environmental review procedures satisfied legal requirements.
Highlighted the importance of procedural due process and transparency.
d. Jones v. DEP
Landowner sued for damages due to sediment runoff from adjacent mining operations.
Court found DEP’s regulations required operators to control runoff and ordered remediation.
Emphasized regulatory standards serve as baseline for environmental protection.
6. Legal and Practical Implications
| Area | Implication |
|---|---|
| Permitting | Operators must prepare comprehensive plans and undergo public scrutiny before mining. |
| Environmental Protection | Strict standards require proactive measures to safeguard water and land during mining. |
| Reclamation | Bonding and restoration obligations ensure mined lands are returned to productive uses. |
| Enforcement | DEP has broad powers to inspect, penalize, and halt noncompliant mining activities. |
| Public Participation | Public notice and comment are essential parts of the permitting and enforcement process. |
7. Summary
West Virginia Agency 38 sets the regulatory framework for surface mining and land reclamation, balancing resource extraction with environmental stewardship. Its rules enforce rigorous permitting, environmental safeguards, reclamation obligations, and enforcement mechanisms.
Case law supports DEP’s authority and underscores the state’s commitment to protecting natural resources and communities affected by mining.
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