OSM Grants Final Approval to West Virginia Surface Coal Mining Program Amendments

What the Rule Does

The Office of Surface Mining Reclamation and Enforcement (OSM) is granting final approval to two amendments — docketed as WV-117-FOR and WV-118-FOR — to the West Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The amendments involve revisions to the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), codified at Title 22, Article 3, of the West Virginia Code, as well as to administrative regulations in the West Virginia Code of State Rules (CSR). Subject areas covered include electronic permit filing, pre-subsidence surveys, issuance of show cause orders, certain fees for surface mining permits and related authorizations, and other miscellaneous topics. Two provisions receive qualified approval. The rule is effective July 22, 2026, and affects 30 CFR Part 948.

Background: West Virginia's Primacy Under SMCRA

The document explains that under section 503(a) of SMCRA, a state may assume primacy for regulating surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its laws and regulations govern those operations in accordance with the Act and consistent with federal regulations. On that basis, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981, with the Secretary's findings and conditions of approval published in the January 21, 1981, Federal Register at 46 FR 5915.

The Two Amendments

WV-117-FOR originated with a letter from the West Virginia Department of Environmental Protection (WVDEP) dated April 21, 2011, submitting revisions drawn from House Bill 2955 (approved March 18, 2011) and Senate Bill 121 (passed March 11, 2011). HB 2955 established or revised several permit-related fees: it increased the filing fee for the state's surface mining permit to $3,500, increased the permit renewal fee to $3,000, and established various fees for other permit-related actions such as significant permit revisions and notices of intent to prospect. SB 121 also introduced an incremental bonding rate included in this docket. OSM approved the permit fee increases and the incremental bonding rate on an interim basis through a rule promulgated June 29, 2011, which became effective July 14, 2011 (a correction published July 14, 2011, at 76 FR 41411 fixed an erroneously omitted effective date in the original June 29, 2011, notice at 76 FR 37996). With this final rule, OSM's approval of the permit fee provisions becomes final. The incremental bonding revision from WV-117-FOR was rendered moot by a subsequent amendment docketed as WV-129-FOR, as OSM noted in an earlier decision published at 89 FR 19262, 19266 (March 18, 2024), and is not further addressed here.

WV-118-FOR originated with a WVDEP letter dated April 25, 2011, submitting the remaining CSR regulatory revisions authorized by SB 121 — those not included in WV-117-FOR. OSM announced receipt of the proposed amendment on November 2, 2011, at 76 FR 67637, simultaneously opening a public comment period and providing an opportunity for a public hearing. The public comment period closed on December 2, 2011, and OSM received comments from three federal agencies, which the rule addresses in detail. One provision from WV-118-FOR — West Virginia's new rule at CSR 38-2-11.3.f regarding trust funds and annuities for long-term post-mining pollutional discharges — was already approved in OSM's 2024 decision on a related amendment (WV-126-FOR) and is likewise not further addressed in this final rule.

What to Watch

The final rule takes effect July 22, 2026. Regulated entities and state officials should note that OSM's approval of the permit fee provisions — interim since July 14, 2011 — is now final as of that date. Additional background on the West Virginia program and prior amendment actions can be found at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.