## Facts

- DK Excavating, Inc. purchased approximately two acres in Nicholas County, West Virginia to build an equipment shop and yard.
- DK planned to remove and sell coal that would be exposed during construction and site development.
- DK asked the West Virginia Division of Environmental Protection (DEP) whether the coal removal could occur without a surface mining permit under the West Virginia Surface Mining Control and Reclamation Act (WVSMCRA).
- DK relied on a 1997 WVSMCRA amendment excluding from “surface mining” coal extraction “incidental” to the primary purpose of constructing buildings, roads, or other structures.
- DEP advised DK that a permit was required under the federally approved West Virginia program because the federal Office of Surface Mining Reclamation and Enforcement (OSM) had disapproved the 1997 amendment as inconsistent with federal law.
- DEP issued an administrative determination requiring DK to obtain a surface mining permit.

## Issues

1. Whether coal removal and sale incidental to construction was exempt from WVSMCRA permitting when the state statutory exemption had been disapproved by OSM and was not part of the federally approved state program.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court.
- The court held DK was required to obtain a surface mining permit.
- The court reinstated the Surface Mine Board’s decision upholding DEP’s permit requirement.

## Legal Principles

- Under SMCRA’s federal–state framework, a state may regulate surface coal mining through a federally approved state program, but material changes to that program are ineffective unless approved by OSM.
- Federal law preempts state provisions that conflict with SMCRA or the federally approved state program, unless the state provision is more stringent than federal requirements.
- A state exemption from permitting that OSM has disapproved as inconsistent with SMCRA is without legal effect and may not be applied to avoid permitting obligations under the preexisting approved program.

## Conclusion

Because OSM disapproved West Virginia’s 1997 incidental coal-extraction exemption, it could not be enforced within the federally approved WVSMCRA program; DK’s proposed coal removal therefore constituted regulated surface mining activity requiring a permit.


DK Excavating, Inc. v. Miano, 549 S.E.2d 280 (W. Va. 2001)