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¹ The Bureau of Land Management (BLM) and the U.S. Forest Service have regulations that govern the conduct of mining related activities on the lands they administer (43 CFR 3809 [BLM] and 36 CFR 228 [U.S. Forest Service]).

TABLE 5-1 Various Agencies and Their Role in Permitting and Regulating Gold Mines in Virginia

SOURCE: Table modified from Virginia DMME (2007).

with a gold mining project are deemed to be a major federal action, then NEPA requires either an environmental impact statement (EIS), environmental assessment (EA), or confirmation that a categorical exclusion² applies to the action. The Virginia Department of Environmental Quality (DEQ) Office of Environmental Impact Review coordinates the review of any federal EA and EIS documents developed under NEPA (§ 10.1-1183 of the Code of Virginia; 40 CFR Part 1500–1508). NEPA also facilitates input from other governmental agencies that have jurisdiction by law or special expertise, including other federal agencies, state and local agencies, and tribes, by allowing and encouraging them to formally participate throughout the NEPA process as “Cooperating Agencies.”

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² A categorical exclusion is a type of action that has been determined to not have a significant effect on the human environment. Normally, neither an environmental assessment nor an environmental impact statement is required for these actions. A categorical exclusion would likely only occur for minor disturbances to earth, air, or water, like the construction of minor access roads and streets (33 CFR § 230.9).

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³ Human environment means “the natural and physical environment and the relationship of people with that environment” (40 CFR § 1508.14).

TABLE 5-3 Typical Components of a VA EIR for Mining on State-Owned Lands

SOURCE: Modified from Virginia DMME (2007).

EPA Region 10, 2003). In addition, the Clean Air Act has a “Good Neighbor” provision (42 USC § 7410 (a)(2)(d) (i)) that requires the U.S. Environmental Protection Agency (EPA) and individual states to address interstate transport of air pollution. Since 2015, the Cross-State Air Pollution Rule has required 28 states in the eastern United States, including Virginia, to reduce SO₂ and NO_x emissions from power plants that may affect downwind states’ ability to attain and maintain the NAAQS.

National Ambient Air Quality Standards

The central feature for regulating general air pollution under the CAA is the development of criteria documents that summarize the scientific information relevant to particular pollutants. Based on these documents, EPA establishes the NAAQS for pollutants deemed “criteria pollutants,” which are minimum standards that are implemented by the states to limit emissions of these pollutants into the air from point sources. Criteria pollutants currently include NO₂, SO₂, CO,

ozone, lead, and particle pollution⁴ (EPA Region 10, 2003). Areas that are in compliance with these minimum standards are classified as “attainment areas,” whereas “nonattainment areas” are not in compliance. Virginia has seven air quality control regions (9VAC5-20-200) for purposes of classifying attainment and nonattainment areas (42 USC § 7407). Depending on the area in question, a facility evaluation could include both attainment and nonattainment, because certain places are out of attainment for one or more NAAQS, but considered “clean” for other NAAQS.

States issue New Source Review (NSR) permits for major air pollution sources⁵ according to the classification of the area. These permits include the Prevention of Significant Deterioration permit, which applies to attainment areas and prohibits activities that would make air significantly dirtier in clean areas, as well as Nonattainment NSR permits, which can be issued in areas that are not meeting NAAQS (Elliott and Esty, 2021). These permits impose different requirements, ranging from the most stringent requirements for Lowest Achievable Emission Rate in nonattainment areas to Best Available Control Technology in attainment areas.

A NSR permit for smaller sources is called a minor source permit.⁶ The regulation of minor sources is generally left entirely to the states (EPA Region 10, 2003) and minor sources may have requirements that are easier to meet than those for major sources. In South Carolina, the Haile Gold Mine’s Supplemental Environmental Impact Statement (SEIS) estimates that the current operations for Haile Gold Mine do not meet major source thresholds, but that the proposed expansion would increase NO_x emissions and possibly lead to exceedances of these thresholds and the NAAQS. Any future gold mining that occurs in Virginia would likely be on a smaller scale than activities currently occurring in South Carolina (see Chapter 2) and would likely not meet the threshold for a major source. However, as explained in the NESHAP section (40 CFR § 63.11640), operations that meet the criteria of a gold processing plant are required to apply for a Title V permit, which is a federal program designed to standardize the permitting for major sources of emissions across the country.

New Source Performance Standards

The CAA also authorizes control of air emissions from specific operations that can be directly regulated through NSPS. Virginia has adopted NSPS regulations that mirror the federal regulations (9VAC5-50; 40 CFR Part 60). If a processing plant were to be developed on a mine site in Virginia, the NSPS for metallic mineral processing plants would apply (40 CFR Subpart LL). NSPS includes standards for opacity and particulate matter, as well as source testing for determining the direct emissions.

National Emission Standards for Hazardous Air Pollutants

The CAA also authorizes control of specific hazardous air pollutants (HAPs) through the NESHAP. Virginia has also adopted EPA’s NESHAP requirements (9VAC5-60), which require gold mines to comply with emission standards for certain HAPs (40 CFR § 63.1(b)). Hazardous air pollutants that may apply to gold mining include cyanide, arsenic, cadmium, chromium, cobalt, lead, mercury, and selenium (EPA, 2022g). Certain source categories, including processing plants for gold mines,⁷ have to comply with additional standards (40 CFR Part 63 Subpart EEEEEEE), which is mostly concerned with limiting emissions of mercury.

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⁴ Particle pollution is described by the size of the particulate matter (PM). PM_2.5 are particles with diameters that are generally 2.5 micrometers and smaller; PM₁₀ are particles with diameters that are generally 10 micrometers and smaller.

⁵ Major sources are facilities that may emit higher levels of pollutants than the major source threshold levels, which vary by pollutant and source category. In attainment areas, a major source is defined as having the potential to emit more than 100 tons/year of any nonhazardous pollutant, or more than 10 tons/year of any hazardous air pollutants (EPA, 2022r).

⁶ Minor sources are any sources that are not major sources.

⁷ These regulations define gold mining and processing as “any industrial facility engaged in the processing of gold mine ore that uses any of the following processes: Roasting operations, autoclaves, carbon kilns, preg tanks, electrowinning, mercury retorts, or melt furnaces. Laboratories (see CAA section 112(c)(7)), individual prospectors, and very small pilot scale mining operations that processes or produces less than 100 pounds of concentrate per year are not a gold mine ore processing and production facility. A facility that produces primarily metals other than gold, such as copper, lead, zinc, or nickel (where these metals other than gold comprise 95 percent or more of the total metal production) that may also recover some gold as a byproduct is not a gold mine ore processing and production facility. Those facilities whereby 95 percent or more of total mass of metals produced are metals other than gold, whether final metal production is on-site or off-site, are not part of the gold mine ore processing and production source category” (40 CFR § 63.11651).

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⁸ While not mandatory, criteria provide guidance for preventing groundwater pollution.

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⁹ Process wastewater is “any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any waste material, intermediate product, finished product, byproduct, or waste product” (40 CFR § 122.22).

¹⁰ Mine drainage is “any water drained, pumped, or siphoned from a mine” (40 CFR § 400.132).

¹¹ Industrial stormwater is “the discharge from any conveyance which is used for collecting and conveying storm water and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant” (40 CFR § 122.26).

Virginia, where average annual precipitation is almost always going to exceed evaporation, treated wastewaters would likely be discharged into surface waters (40 CFR § 440.103(c); 40 CFR § 440.103(d)).

Following the determination of gold mining–specific Technology-Based Effluent Limits, the permit writer then determines discharge limits for the facility that are protective of state water quality standards (see Table 5-4). The permit writer must compare the Technology-Based Effluent Limits with effluent requirements necessary to ensure attainment of the state water quality standards and choose the more stringent of the two (EPA, 2011b).

Consistent with federal oversight and guidance (40 CFR § 131.13), many states (including Virginia) allow for the use of mixing zones where aquatic life criteria may be exceeded within a specifically defined zone of a receiving water body (see Table 5-7). The mixing zone allows for dilution and instream mixing to attenuate the pollutant discharges within this prescribed area. States have various methods to determine the allowable size of mixing zones and often limit mixing zone widths, cross-sectional areas, and flow volumes and lengths (EPA, 2014a). EPA guidance states, “The area or volume of an individual mixing zone or group of mixing zones should be as small as practicable so that it does not interfere with the designated uses or with the established community of aquatic life in the segment for which the uses are designated” (EPA, 2014a). Because low flows in the receiving water provide less dilution of effluent discharges, EPA (2014a) requires mixing zones be determined so that they ensure protection of the applicable criteria under low-flow conditions (EPA, 2014a).

Virginia DEQ allows instream mixing when setting effluent limits for any toxic impacts, including whole effluent toxicity and temperature (James Golden, personal communication, 2022). These limits must not prevent the movement or cause serious harm to passing and drifting aquatic organisms through the water body (9VAC25-260-20). Additionally, no mixing zone can be used as a substitute for treatment required by the CWA and other state and federal laws (9VAC25-260-20) and they are not allowed for wetlands, swamps, marshes, lakes, or ponds (9VAC25-260-20). The mixing zone standard does not require protection for organisms that permanently reside within a mixing zone, but additional consideration must be given if there are critical beneficial uses of the stream or sensitive resident species that require special protection. The mixing zone cannot not be utilized if there is a rare and endangered species within reasonable proximity, unless it is demonstrated that the specific parameters will not result in adverse impacts on that species (Virginia DEQ, 2000).

EPA guidance states that bioaccumulative pollutants may not be appropriate for mixing zones and recommends that state and tribal policies do not allow mixing zones for discharges of bioaccumulative pollutants (EPA, 2014a). This is because bioaccumulative pollutants may cause significant risks to human health and non-human biota and their persistence in sediments, water, or biota may adversely affect the water body. Some states like Alaska have requirements that prohibit the bioaccumulation of pollutants to significantly adverse levels (see Table 5-7), but Virginia DEQ does not have any written policies requiring special consideration for mixing zones with bioaccumulative substances during their permitting (Allan Brockenbrough, personal communication, 2022; Virginia DEQ, 2000). Some examples of bioaccumulative pollutants include arsenic, lead, mercury, cadmium, selenium, and copper, all of which are discussed in Chapter 4 as potential pollutants from future gold mines in Virginia.

TMDLs and Non-Point Sources

Section 304(l) of the CWA (33 USC § 1314) requires that Virginia create a list of water bodies for which water quality standards have not been achieved and establish TMDLs for these waters (9VAC25-720-20). In this way, the use of TMDLs represents a “watershed approach,” which differs from the NPDES approach of controlling pollution from an outflow or point source (Elliott and Esty, 2021). As of 2006, 644 stream segments had TMDLs and another 1,200 stream segments needed TMDLs (9VAC25-720). If gold mining activities impacted waters for which a TMDL applied, it is possible that additional regulatory requirements could be added to a gold mine’s VDPES permit (Virginia DEQ, 2022a,c).

In 2010, EPA established the Chesapeake Bay TMDL, which set limits on the nutrients (e.g., nitrogen and phosphorus) and sediment that can flow into the Chesapeake Bay (EPA, 2022b). Bay jurisdictions developed Watershed Implementation Plans (WIPs) in order to meet the needed pollution reductions by 2025. Virginia’s most recent WIP Plan—Phase III—established state basin planning targets shown in Table 5-8 (Virginia DEQ, 2022b; see Figure 5-1). As described in Chapters 2 and 4, mining operations can increase sediment and nitrogen loading

of waterways after the movement of soils, and these impacts may be compounded following the migration of nitrates from the use of blasting agents. As a result, if a gold mine were to be developed within a Chesapeake Bay watershed, additional regulatory requirements might be added to VPDES permits.

Wetlands Permitting (CWA 404)

USACE and EPA share authority to regulate the dredging and filling of WOTUS, including wetlands (Troutman Sanders LLP, 2008; Virginia DEQ, 2019). Dredging and filling permits include provisions for mitigating wetlands loss and compensating impacts so that there is no net loss of existing wetlands acreage or functionality (§ 62.1-44.15:20-62.1-44.15:21.1 of the Code of Virginia). The CWA also allows USACE to issue general permits for activities with minimal impact, which would not constitute a major federal action that triggers the NEPA process. General permits are applicable to any project causing less than 0.5 acre of impacts, and certain other small projects (§ 62.1-44.15:21 of the Code of Virginia). According to the Virginia Water Protection permit guide, if a gold mining “project meets the eligibility criteria and conditions within the general permit, the activity can typically be authorized by the [USACE] under one of these general permits within 45 days of application and without further sister agency or public comment” (Virginia DEQ, 2019). Virginia DEQ has issued blanket permits for some activities that qualify under USACE’s nationwide and regional permit program (Virginia DEQ, 2019).

the Code of Virginia) provides requirements that are similar to or expand upon those administered by the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). The codes and regulation that are applicable to this study’s Statement of Task are shown in Table 5-9 along with other policy and guidance documents. This includes the Mineral Mine Operator’s Manual (Virginia DMME, 2011) provided by Virginia Energy, which is a technical guidance document to assist operators in complying with the Reclamation Regulations for Mineral Mining (4VAC25-31 et seq.). Although not a directly enforceable document, the Operator’s Manual contains forms, guidelines, and support materials to assist users in implementing the enforceable standards. Additionally, the committee obtained a copy of the Division of Mineral Mining Enforcement Policy and Procedures document from Virginia Energy, some of which is publicly available on Virginia.gov (2022).

Definitions, Exemptions, and Permitting Categories

The framework in Virginia for permitted mining activities is established with general definitions that identify the activities categorized as mineral mining, which includes gold mining, and the different levels of permitting required for such activities. There are multiple exemptions for excavation projects and the Director of Virginia Energy can consider the length of time or duration of the activity and whether it is a one-time activity when considering whether an activity is exempt (4VAC25-31-70).

It is unlawful for any operator to begin mineral mining,¹² without having first obtained a mine permit and safety license from the Mineral Mining Program (§§ 45.2-1124 and 45.2-1205 of the Code of Virginia). A separate permit and license need to be secured for each operation (§§ 45.2-1124 and 45.2-1205 of the Code of Virginia). However, the Director of Virginia Energy may combine noncontiguous areas into a single permit if the areas are close to each other and part of the same operation (4VAC25-31-80).

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¹² Mining is the “breaking or disturbing of the surface soil or rock in order to facilitate or accomplish the extraction or removal of minerals or any activity constituting all or part of a process for the extraction or removal of minerals so as to make them suitable for commercial, industrial, or construction use” (§ 45.2-1200 of the Code of Virginia). Mineral is the “ore, rock, and any other solid homogeneous crystalline chemical element or compound that results from the inorganic processes of nature other than coal” (§ 45.2-1200 of the Code of Virginia).

as required by Virginia DEQ and Department of Conservation and Recreation (DCR). All other methods of surface-disturbing exploration or site preparation for surface mineral extraction activity are defined as a “surface mineral mine” (§ 45.2-1101 of the Code of Virginia) and would not be exempt. The typical permitting and bonding requirements therefore apply for all other methods of surface-disturbing exploration. As noted in Chapter 1, current gold exploration activity in Virginia is being conducted by drilling, and no permits are required for these activities.

As discussed in Chapter 3, the hydrologic and geochemical conditions encountered by exploration drilling would determine whether surface water or groundwater systems might be affected, particularly if the drill holes are not plugged and appropriately sealed before being abandoned. Closing exploration drilling sites improperly could result in impacts to soil, vegetation, and habitat, while runoff and erosion from these areas could be harmful to surface water quality. The potential impacts from exploration drilling projects are likely to be limited in scale and much less significant than what could occur from gold mining and processing facilities (see Chapter 3). However, the current legal exemption of exploration drilling results in the potential for environmental damage and precludes regulators from requiring measures that could reduce or prevent impacts. In addition, exploration drilling activities do not require bonding.

Some states, including South Carolina and Idaho, also exempt exploration drilling projects from permitting and bonding requirements (see Table 5-11). In other states, including Montana, Nevada, and Colorado, and in certain counties in California, drilling is a permitted and bonded activity that requires plans for operations and reclamation (see Table 5-11). In Montana, exploration drilling requires an evaluation of potential environmental impacts prior to issuing the license or certificate of exploration (ARM 17.24.103; 75-1-201, MCA). Many states also have specific requirements for the reclamation of associated disturbance (roads, pads, and sumps) and for the construction of drill holes as monitoring wells, or plugging and abandoning the drill holes to limit potential environmental impacts to water resources (Montana, ARM 17.24.106; Nevada, NAC 534.420; Colorado, 2CCR407-5). In fact, Virginia law currently has provisions for the abandonment and plugging of private water wells (12VAC5-630-450), but a similar provision has not been promulgated for mineral exploration drilling.

Regarding the potential need for confidentiality during exploration to limit competition between companies, Colorado requires that exploration (“prospecting”) applicants provide two forms with their Notice of Intent. One form contains both public and confidential information, which is used by the regulatory program for review. The second form contains only the information the applicant believes is public, redacting all confidential information. The public Notice of Intent is posted to the regulatory program’s website within 5 days of submission, and public comments or requests for disclosure of confidential information must be received by the program within 10 working days (2CCR407-5.1.2).

Restricted Mining Permits for Small Mines

Under Virginia law, any mining operation that disturbs less than 1 acre of land and removes less than 500 tons of marketable minerals at any particular site is exempt from application fees, permit renewal fees, and bond requirements. However, the operator is still required to obtain a mine permit and safety license (§§ 45.2-1203 and 45.2-1200 of the Code of Virginia and 4VAC25-31-200). The mining operator must submit an application for a permit, a sketch of the mining site, and plans for operations and reclamation (§§ 45.2-1205 and 45.2-1206 of the Code of Virginia). The requirements for operations, drainage, and reclamation plans for Restricted Mining Permits are consistent with larger mines. This includes hydrologic studies and plans to minimize the adverse effects on water quantity and quality, if groundwater is encountered by the operation. Restricted Mining Permits are also subject to permit evaluations and inspections from the Mineral Mining Program, although no fees are paid to support the time and effort that regulators expend reviewing permits and carrying out other functions. Because these restricted permits are exempt from financial assurance (performance bond), the Commonwealth must pay the costs to conduct any necessary reclamation, closure, and long-term stewardship if an operator abandons the site (see section on “Financial Assurance”).

Many of the known gold occurrences in Virginia are limited in size, and some may be small enough to qualify for a restricted mining permit. Under Virginia’s current laws and regulations, mining activities as well as on-site processing could be included within the Restricted Mining Permit, but any structures, processing equipment, or waste disposal areas (fills/piles or impoundments) must fit within the 1-acre mining disturbance. Under current economic

NOTE: Several of these states have higher proportions of federal lands, which may result in projects triggering a NEPA process.

considerations, it seems unlikely that a small-scale mine under a Restricted Mining Permit would include complex processing facilities on-site at current gold prices. For example, a hypothetical example of a gold mine with grades of 0.29–1.55 ounces/ton (the range of historic gold mines in Virginia) and 500 tons of ore removed (without overburden or waste rock) would generate a total value of $290,000 to $1,550,000 at a gold price of $2,000 per ounce. This value would likely be insufficient to pay for the costs of a workforce, site exploration and development construction, mine production, and a significant level of processing. Thus, on-site processing within a Restricted Mining Permit may not be economically viable. It may be more likely for small operations to conduct partial steps toward gold separation and concentration, then transport that material to off-site locations for further processing and refining.

Given the small size of the envisioned operations, it is possible that potential environmental impacts from land disturbance would be limited if best management practices are followed for handling soil and rock materials, and for controlling runoff and erosion. Small operation footprints are not likely to result in development of large waste disposal sites or large impoundments for water, process solutions, or tailings. However, depending on the reactivity of the geologic materials, the methods that might be used for small-scale gold mining and processing, and the environmental setting of the mine site (e.g., proximity to streams), potential impacts could extend beyond the area disturbed directly by mining. Although potential failures of small impoundments would result in relatively small areas of direct inundation, the chemical impacts from metals, reagents, or other solutes could extend farther in the watershed; solutes from process solutions, reagents, or blasting by-products (e.g., nitrates) would likely be less persistent than any metals that may be deposited within relocated tailings or leached from on-site waste piles (see Chapter 3). Thorough site investigations, detailed designs for operations and reclamation, and detailed regulatory evaluations and oversight are essential for small-scale as well as larger-scale mining projects. As part of the permit, additional mitigation plans could be needed for the management of water, process solutions, facility air emissions, and/or waste materials.

Virginia’s Restricted Mine Permit is similar to permits in other states that offer limited permitting requirements or full exemptions for certain operations based on the disturbance area, annual production volumes, and/or the commodity produced (see Table 5-11). These limited permitting requirements may be appropriate for certain mineral commodities and operations within nonreactive geologic settings and situations (e.g., sand and gravel, shallow rock quarries) where influence on water quantity or quality are very low, and within locations with low population density, where local-scale impacts are less likely to affect nearby residents. In Montana, because of the potential environmental

impacts from insufficient project designs, operational, and/or reclamation practices, the exempt “Small Miner” operations may not utilize cyanide or other metal leaching agents without obtaining a full mine operating permit and providing a performance bond for the leaching facility portions of the site (ARM 17.24.185). In Colorado, permits with reduced requirements are available for “Limited Impact Operations,” with different categories for activities with less than 5 or 10 acres of disturbance. However, these permits are not applicable if metallurgical processing chemicals are present on-site, toxic or acid-forming materials (i.e., sulfide minerals) may be exposed or disturbed, or there is potential for acid rock drainage to occur (CRS § 34-32-110). Those mining activities would be considered “Designated Mining Operations” and are required to obtain a full mining permit (CRS §§ 34-32-103 and 34-32-110).

Underground or Deep Mining

Virginia Energy reports there are currently two mineral mining permits that include (non-gold) underground operations. Both sites are in the process of closure, and there has not been a significant amount of underground mineral mining in the past 30 years (Michael Skiffington, personal communication, 2022). However, as discussed in Chapter 3, there may be potential for underground or “deep mining” to extract gold, whether through the development of new workings or the remining of historical mines.

Deep mining activity that has no significant effects on the surface is exempt from the definition of mineral mining and the applicability of codes and regulations. However, any surface facilities or associated surface disturbance in conjunction with underground mining would require a permit, and financial assurance for reclamation would be required if the area exceeds 1 acre. Additionally, given the climate and hydrology in Virginia, it is almost certain that underground mining would occur below the water table. This would require a hydrologic assessment and protection plan to minimize the adverse effects on water quantity and quality (4VAC25-31-130). The handling of groundwater would be addressed in the drainage plan; and the management, treatment, or discharge of water would be addressed by the protective methods established for the mining permit (4VAC25-31-130) and associated water protection permits administered by Virginia DEQ (e.g., VPDES).

Even without much surface disturbance, the operation of an underground gold mine can be highly complex. Best practices rely on a thorough site assessment that includes hydrologic, geochemical, and geotechnical characterizations; ground stability controls and safety measures; the management of water and waste materials; and quality assurance and monitoring programs. The exemption for deep mining makes it unclear what level of technical assessment and oversight is applicable for deep underground mines. The Division of Mineral Mines is allowed to evaluate operational plans and methods for underground mining to address the potential for significant surface effects (Michael Skiffington, personal communication, 2022; 4VAC25-31-130), and the operations, drainage, and reclamation plans for the permitted surface facilities must address mining methods (4VAC25-31-130).

The exemption of underground gold mining would also impact the calculation of financial assurance. The costs for the reclamation of an underground gold mine includes not only associated surface disturbance and facilities, but also the methods and costs for: implementing backfill or plugging methods to limit ground movement, groundwater flow, and/or chemical reactivity (sulfide oxidation) within the mine; plugging the access portals or ventilation shaft openings at the surface; and the management, treatment and discharge, and monitoring of water that may be required during reclamation and long-term stewardship. Under Virginia’s current laws and regulations, some of these reclamation methods and costs would not be considered in the financial assurance (bond) for a permit that includes underground mining, because of the defined exemption and the bonding requirements that are based solely on acres of disturbance (see section on “Financial Assurance”). Other states do not exempt underground mining or differentiate underground activities from surface mining within the permitting requirements (Nevada, NAC 519A, NAC 445A; Montana, 82-4-335, MCA; 82-4-336, MCA; 82-4-338, MCA; ARM 17.24.116).

Processing Facilities

On-site processing facilities are included in the definition of a surface mineral mine and would be incorporated within a mine permit issued for gold mining (§ 45.2-1101 of the Code of Virginia). Virginia’s laws and regulations do not limit the methods, reagents or process solutions, or equipment that might be utilized for gold processing in

Virginia. In contrast, processing facilities that are not located on-site with active mining or extraction (“toll mills”) are not included in the definitions for a surface mineral mine or underground mineral mine (§ 45.2-1101 of the Code of Virginia). Therefore, Virginia’s current laws and regulations do not require these facilities to obtain a permit from the Mineral Mining Program for the operation and reclamation of the site, although these facilities might need to obtain other permits. Based on previous descriptions of potential gold deposits and mining methods in Virginia (see Chapter 3), it is possible that small or Restricted Mining Permit mines would bring ore material or concentrates to a centralized facility for further processing.

The operations at toll mills may look very similar to processing facilities located at active mine sites, including multiple structures and types of equipment, storage and containment systems for process solutions (ponds, tanks, pumping systems), and disposal areas for tailings or other waste (impoundments or fills). The ore or concentrated material may come from many different sources, so the resulting waste material at toll mills may contain a wider range of contaminants than what may be found at a single mine and processing facility. Many of the waste materials generated at either toll mills or permitted on-site facilities would be exempt from regulation as hazardous waste under RCRA Subtitle C (Bevill exemption). Although a mining permit is not required, off-site processing facilities are subject to local zoning ordinances and Virginia DEQ’s permitting requirements for protecting air quality and water quality (e.g., emission limits, runoff controls, discharge permits). Permits would be in place to limit emissions and some environmental impacts. Nevertheless, toll mills may not be regulated as stringently as processing facilities at permitted mine operations that use essentially the same techniques and may not include plans and financial assurances for facility and equipment demolition, reclamation, closure, and any necessary management of water, process solutions, and/or waste materials.

This legal gap creates a situation in which toll mills could substantially impact public health and the environment. Because they are outside of the regulatory framework, toll mills are more likely to have insufficient or incomplete site characterizations and project designs, and may not always implement best practices for operations, reclamation, and long-term stewardship of the facilities. In contrast to this legal gap in Virginia’s regulatory framework, Montana regulations require that off-site mills or processing facilities obtain a full operating permit and provide a performance bond for reclamation, closure, and long-term stewardship (ARM 17.24.166). Specifications are provided about the terms of operation and reclamation of mills or processing facilities (ARM 17.24.165 through 171) and additional permits from Montana DEQ would be required to protect water quality and air quality.

Mine Permit Application

Prior to submitting a mine permit application to the Mineral Mining Program, the applicant must receive approval from local administrative officials with regard to zoning and land use requirements. The “heavy industrial” land use category is typically applied to mining operations. Most localities require some form of Conditional Use or Special Exception within areas of acceptable zoning, or a zoning change if unacceptable zoning currently exists (Michael Skiffington, personal communication, 2022). The localities often put additional conditions on the operations beyond the requirements in mineral mining codes and regulations (see Box 5-1; § 45.2-1227 of the Code of Virginia).

Following zoning and land use approvals, mining operations in Virginia must obtain a permit from the Mineral Mining Program. Application for a mineral mining permit is submitted with an initial permit fee and financial assurance (4VAC25-31-110), except for Restricted Mining Permits, which do not require a fee and financial assurance (§ 45.2-1203 of the Code of Virginia and 4VAC25-31-200).

Table 5-12 shows all of the components that are required for the application package (permit application checklist Form DMM-148; Virginia DMME, 2011). The general information requirements for the application forms are similar to those in other states, including the proposed mine location and adequate maps, name and contact information for the applicant, and their legal right to enter and mine the proposed property (Montana, 82-4-335, MCA; Nevada, NAC 445A.394; South Carolina, SC § 48-20-70). Much of this information may be addressed by the applicant with brief responses and the details are relatively easy for regulators to verify for accuracy (Form DMM-148 checklist). More complex narratives are required to address the necessary details for the operations, drainage, and reclamation plans and any associated technical studies.

documents, and familiarity with current best practices to thoroughly review the permit application, identify potential flaws with the proposed plans for all stages of the project life cycle, and assess the adequacy of baseline information to support the plans. The Mineral Mining Program provides the primary adequacy review for the mining application, but the expertise of other government agencies and organizations, or their private contractors and consultants, may be necessary. Therefore, the Mineral Mining Program would benefit from a comprehensive understanding of potential environmental concerns and ability to identify them when outside assistance or expertise is needed, along with the authority and resources to hire expert consultants when necessary. Given the current lack of permitting for gold or mineral mining at Virginia Energy, this expertise may not be readily accessible within the agency. Local governments may require additional studies (e.g., surface water and groundwater, blasting, traffic and access, archaeological and historical resources) and impose additional requirements for operations to reduce impacts for public safety and potential nuisance (e.g., lights, noise, hours of operation). However, expertise and familiarity with potential mining impacts are likely not consistent across all county or community governments, so many environmental considerations may be overlooked or applied inconsistently among different jurisdictions. These shortcomings were expressed as a source of concern among some citizens living near exploration sites during the public listening sessions for this study.

An assessment of hydrologic baseline conditions is required for mining below the water table (4VAC-31-130) and the Mineral Mine Operator’s Manual notes that a groundwater protection plan is needed to address the “potential for accidental releases of pollutants” (Virginia DMME, 2011) and to minimize the adverse effects to water quality and quantity (4VAC25-31-130). The Operator’s Manual speaks generally about sources of water pollutants, but few specific details are provided about characterizing the primary geochemical factors that might degrade water quality (e.g., ore zones, host rock, or waste materials) and the protective mitigations or controls that could be implemented. A basic discussion of acid generation is provided in the context of testing soil or reclamation cover material, but additional guidance for the methods of geochemical characterization and predicting potential water quality impacts would be useful. The Operator’s Manual notes generally that “mining operations that produce metals either as mine product, by-product, or waste, should complete a full assessment of the potential impacts of the operation on ground water quality,” which might include contaminant transport computer models (Virginia DMME, 2011). The adequacy of such geochemical and hydrologic assessments is heavily dependent on the expertise and discretion of the applicants and regulators. Predicting water quality impacts from mineral mines has been an area of weakness in many states and federal jurisdictions, particularly for EIS documents developed from the 1980s to early 2000s (Kuipers and Maest, 2006). Best practices for predicting water quality impacts have continued to improve since that time, by including more detailed site characterization, waste characterization, and modeling of hydrologic and geochemical conditions.

Virginia’s laws, codes, regulations, and Mineral Mine Operator’s Manual do not reflect the importance of collecting a wide range of baseline information prior to mining. This baseline information is essential to evaluating a potential mine site and the best methods to extract gold and mitigate environmental impacts. Other states require these data to support the mine plans that accompany permit applications and to inform evaluations of environmental impacts. Baseline data may include geologic and geotechnical characterizations of site (overburden, waste rock, and ore), soils, vegetation, wildlife, surface water and groundwater hydrology and geochemistry, air quality, meteorology, aquatic biology, land use and ownership, recreation, cultural and historic resources, noise, transportation, and aesthetics (Colorado, 2CCR407-1-1.4; Montana, ARM 17.24.165; Nevada, NAC 445A.396). In California, the existing physical environmental conditions must be described from both local and regional perspectives, with special emphasis on local rare or unique environmental resources (California Code of Regulations 14 § 15125).

In order to follow a life-cycle approach (see Figure 3-1), project proponents would need to start collecting key data at the early stages to enable them, the regulators, and other stakeholders to make informed decisions about the design, operation, and closure of the project. Some data, such as stream flows, meteorology, geochemical weathering, and aquatic life surveys, may need to be collected over multiple years and over all seasons to reliably establish the environmental baselines needed to forecast and assess project impacts (see discussion of best practices in Chapter 3). Best practices by agencies are the sharing of data acquisition guidelines that applicants and stakeholders can see in advance. As the data are acquired, reported, and analyzed, there can be an ongoing dialogue about the sufficiency of those data so as to avoid any last-minute surprises about data needs.

NOTE: Some of these standards overlap with the required objectives for permits administered by other agencies (like Virginia DEQ), for the management of stormwater, the discharge of treated water, and the protection of surface water and groundwater.

standards is required for any water to be discharged from the facility, as described earlier in this chapter. In addition, according to Virginia Energy, site-specific requirements could be incorporated into the terms of a mining permit in order to protect water quality, based on the proposed mining and processing methods (Michael Skiffington, personal communication, 2021).

Water quality standards in Virginia are applicable to free cyanide (HCN and CN^–), with criteria established for the protection of aquatic life in freshwater (acute = 0.022 mg/L, chronic 0.0052 mg/L) and in saltwater (acute and chronic = 0.001 mg/L). The standards for protecting human health address public water supplies derived from surface water (0.004 mg/L, 9VAC25-260-140), other surface waters related to fish consumption (0.4 mg/L, 9VAC25-260-140), and groundwater sources (0.005 mg/L, 9VAC25-280-40).

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¹³ Alaska notes that the aquatic life criteria for free cyanide “shall be measured as weak acid dissociable (WAD) cyanide or equivalent approved EPA methods” (Alaska DEC, 2008).

impoundment designs and plans (4VAC25-31-500). These include specific publications (FEMA, 2013a,b), as well as others produced by USACE, the Natural Resources Conservation Service, the Bureau of Reclamation, the National Weather Service, and the U.S. Federal Energy Regulation Commission. Virginia regulations also provide specific designs and construction requirements for dams or mine refuse piles that impound liquids or semi-liquids (4VAC25-31-400). As summarized in Table 5-14, Virginia regulations provide technical specifications for three subcategories of water-retaining or silt-retaining impoundments, based on their size and characteristics (4VAC25-31-500). It is conceivable that gold mining impoundments in Virginia might fall into any of these size categories. The largest facilities (category A) pose more potential environmental risks than the two other categories (B and C), and therefore have more prescriptive requirements within codes and regulations for design standards, documentation, stability criteria, storm event management, inspections, closure plans, and emergency action planning. These prescriptive requirements include minimum static stability and seismic safety factors (1.5 and 1.2, respectively) for impoundments in category A, whereas impoundments in category B and C only have maximum allowances for slope steepness of 2 horizontal:1 vertical (2H:1V) in predominantly clay soils or 3H:1V in predominantly sandy soils.

The spillway design for Category A impoundments is dependent on their hazard classification, which ranges from high¹⁴ to significant¹⁵ to low hazard¹⁶ (see Table 5-15; 4VAC50-20-40). Based on this classification, the spillways must be built to handle a design flood, which is defined as the probable maximum flood (PMF), half of the PMF (0.5PMF), or a 100-year storm, respectively (4VAC25-31-500). PMF is calculated from the probable maximum precipitation (see Figure 5-2), “the theoretically greatest depth of precipitation for a given duration that is meteorologically possible over a given size storm area at a particular geographical location at a particular time of year with no allowance made for future long-term climatic trends” (4VAC50-20-50). As noted in Table 5-15, the design flood can be reduced to the minimums identified in the table if an incremental hazard assessment is performed and shows it appropriate. An incremental hazard assessment is a comparative study of two floods of differing magnitude to identify the flood level above which there is no additional impact on downstream properties. The “no additional impact” criterion commonly is defined as no more than a 2-foot increase of water level at impacted properties, although this definition is somewhat ambiguous as occasionally a 2-foot increase of water level changes the flood severity (which is defined as flood depth times velocity). While this approach is not used in many states, it is used in the design of dam structures that are regulated by the Federal Energy Regulatory Commission.

In contrast to the hazard dependent criteria for Category A impoundments, the design for storm events is much simpler for smaller Category B impoundments. Temporary Category B impoundments must only safely pass runoff from a 50-year storm, whereas permanent Category B impoundments must safely pass runoff from a 100-year storm.

Virginia’s requirements and guidance for the construction of impoundments are less conservative than in some states and not consistent with best industry practices. For example, Nevada recommends that diversions around tailings storage facilities be designed and constructed to withstand 500-year storm events (NAC 519A.345; NDEP, 2016). Montana requires that spillways or other devices must protect against washouts during a 100-year flood (ARM 17.24.115), while a new tailings storage facility must store the PMF event, plus maximum operating water volume, plus sufficient freeboard for wave action, or a flood event design criterion less than the PMF but greater than the 500-year, 24-hour event if site-specific conditions determine that the PMF design standard is unnecessary (82-4-376(2)(cc), MCA). With regard to potential changes in the frequency and intensity of storm events, Montana requires that the design storm event for a tailings storage facility must include “evidence that the dynamic nature of climatology was considered” (82-4-376(2)(bb), MCA).

The prescriptive requirements provided for the maximum slope angles and minimum safety factors (static stability safety factor >1.5 and seismic safety factors >1.2) for the construction of impoundments in Virginia also fail to meet best industry practices. Draft International Committee on Large Dams guidelines for tailings

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¹⁴ High hazard indicates that failure would result in probable loss of life or serious economic damage (4VAC50-20-40).

¹⁵ Significant hazard is when failure may cause loss of life or appreciable economic damage (4VAC50-20-40).

¹⁶ Low hazard defined as failure that would result in no expected loss of life with minimal economic damage (4VAC50-20-40).

SOURCE: The Mineral Mine Operator’s Manual; 4VAC25-31-500A, B, and C.

TABLE 5-15 Design Criteria and Classification of Impoundments Under Subcategory A (Table 5-14)

NOTE: PMF = probable maximum flood.

^a The proposed potential hazard classification and the proposed spillway design flood for an impounding structure may be lowered according to the results of an incremental damage analysis, but not below the minimum threshold values as indicated in the table (4VAC50-20-52).

SOURCE: The Mineral Mine Operator’s Manual; 4VAC25-31-500.

dam safety suggest that two principal stability conditions must be considered: static and post-liquefaction (ICOLD, 2020). The “static” condition in these draft guidelines differs from traditional “static” conditions in that the former considers the use of undrained shear strengths in geomaterials (tailings, perimeter dikes, foundation soils) that are contractive and at least partially saturated. In contrast, the traditional “static” conditions involve the use of drained (effective stress-based) shear strength parameters which commonly yield much larger factors of safety in soft, loose tailings materials. The post-liquefaction condition considers the stability of the structure after liquefaction has been triggered, regardless of the initiation mechanism. In contrast, the traditional “seismic” condition does not consider liquefaction and the potentially large-strength loss associated with soils (or tailings) liquefying. For these two conditions, static and post-liquefaction, the evolving best practice uses minimum recommended limit equilibrium factors of safety of 1.5 and 1.1, respectively. Furthermore, Virginia impoundment regulations provide simplified maximum slope angle requirements for various impoundment categories that are inappropriate. Specifically, a maximum slope angle of 2H:1V for clay soils is inappropriate and potentially unsafe, as the drained (effective-stress) fully softened friction angle of many clays ranges from 20° to 30° (Terzaghi et al., 1996). Standard recommended slopes angles for clay soils are not steeper than 3H:1V, regardless of the degree of soil compaction.

complexities and potentially long-term necessity for managing reactive wastes or water treatment and discharge, which may be the most impactful and costly aspects for site reclamation and management. As discussed earlier, these guidance standards in the manual are not enforceable unless the details are specifically written into the permit.

Virginia’s performance standards for reclamation (as detailed in Table 5-16) are similar to those found in other states, although guidance in each state is influenced by the specific ecosystems, land use, and climatic factors for their respective locations (Alaska-AS 29.19.020, 11 AAC 97.200-240; Montana-82-4-336, MCA and ARM 17.24.115; South Carolina-R.89-140 and R.89-330). Virginia has requirements for operators to provide an assessment of potential groundwater impacts and develop a protection plan (4VAC25-31-130), and set discharges that comply with applicable standards established by Virginia DEQ (9VAC25-260-20). Few requirements in Virginia address long-term stewardship situations in which managing water quantity and quality is required after mining and reclamation have ceased, a scenario that could develop for some gold mines. Specifically, few guidance details are provided about potential dewatering and other water quantity management systems, characterizing water quality and designing systems for water treatment and discharge (likely coordinated with VPDES permit), the challenges in modeling and managing pit lakes or saturated waste disposal areas (Flite, 2006; Nevada Department of Conservation and Natural Resources, 2021), or approaches to anticipating changes to water quality and quantity as a result of large storm events and climatic changes.

Pit lakes are one example of a feature that may represent a long-term source of water contamination persisting beyond mine closure. The required minimum depth of 4 feet for permanent lakes or ponds (4VAC25-31-130) may not be adequate to manage water quality conditions, but alternative methods are unclear and left to the discretion of the Division of Mineral Mining. Methods for mitigation should be described. These could include accelerated flooding, raising the flooded water level, and nutrient addition to facilitate bioremediation and stratification, as well as selective mining of problematic material from pit walls above the final lake level. But pumping and treatment should be regarded as the final option (INAP, 2014). In Colorado, legislative changes in 2019 (HB 1113)

modified the requirements for reclamation plans, disallowing the option for perpetual water treatment. With a few exceptional circumstances, “a new or amended permit must demonstrate, by substantial evidence, a reasonably foreseeable end date for any water quality treatment necessary to ensure compliance with applicable water quality standards” (CRS § 34-32-116(7)).

Impoundments that store water and/or tailings are also examples of features that may necessitate long-term stewardship. The regulatory authority for impoundments is transferred from the Mineral Mining Program to the Dam Safety Program (within the Virginia DCR) when the mine permit is terminated (Michael Skiffington, personal communication, 2022). The conceptual phases of TSF reclamation and long-term stewardship are described by the Canadian Dam Association—these phases include active and passive care activities, which involve years of maintenance, monitoring, and evaluations to ensure that long-term stability is achieved. The principles for effective dam safety programs have been likened to a three-legged stool, with equally important legs consisting of (1) corporate responsibility by the facility owner and related stakeholders, (2) technical oversight and independent review, and (3) a strong, transparent regulatory environment (Morgenstern, 2011). The framework in Virginia for the operation and regulation of dams provides the minimum “stool legs,” but updated requirements and guidance with specific focus on best practices for tailings management are needed.

Without more guidance regarding the complexities of TSF closure and maintenance, and approaches to perpetual water treatment from waste disposal areas, underground mines, and/or pit lakes, important details that may result in environmental impacts and affect long-term costs are left to the discretion and expertise of the permitting agency. Although performance-based regulations provide site-specific flexibility for the designs contained in the applicant’s plans, Virginia’s laws and regulations provide little guidance for operators to achieve the objectives and few metrics for regulators to evaluate during the review of the application. Sufficient guidance should be provided for planning and designing facilities, construction and quality assurance, operations and process optimization, monitoring and testing programs, methods for reclamation and revegetation, and any necessary long-term management and stewardship. In addition, the Operator’s Manual, last updated in 2011, could be updated more frequently to incorporate legislative changes and administrative updates from the permitting program, data from case studies or research relevant to the environmental conditions in the Commonwealth, and current best practices and technical guidance from other states and national or international organizations.

Financial Assurance

Once the permit application is deemed complete, the applicant submits a financial assurance to Virginia Energy (“performance bond” or “bond”). The performance bond can be returned to the operator after all requirements in the approved operations plan and reclamation plan are met (§ 45.2-1208 of the Code of Virginia, 4VAC25-31-120, and 4VAC25-31-250). The bond liability is for the duration of the mining operation and for the period following reclamation until success of the final reclamation is demonstrated (4VAC25-31-230). The bond may be posted by an operator and a corporate surety, or the operator may submit cash, check, certificate of deposit, or irrevocable letter of credit in lieu of a bond (§ 45.2-1208 of the Code of Virginia and 4VAC25-31-260).

Virginia’s procedures for performance bonding are consistent with the requirements in many other states. All states with gold mining operations approve of surety bonds and irrevocable letters of credit (typically issued by a bank) as acceptable forms of financial assurance, and most states accept trust funds, deeds, and various forms of cash or savings. These forms of performance bond are universally accepted because they are considered to be highly certain and relatively liquid (Kuipers, 2000). A corporate guarantee, also called self-bonding, is accepted in a few states (e.g., Nevada, Arizona, Idaho) and this bonding mechanism is based on evaluating an operator’s ability to pay the cost of reclamation. Rather than providing a bond to the permitting agency, the permittee is required to demonstrate a specified ratio of assets to liability. The agency may require regular submittals of corporate financial statements and also require the permittee to establish a cash reserve to be used for reclamation. However, self-bonding does not insure the agencies and public against potential liability in the event of the company’s financial failure; in the case of bankruptcy, the permitting agency is considered to be a creditor. Virginia and other states like Montana, Alaska, and South Carolina do not consider corporate guarantees to be acceptable, while New Mexico’s statutes explicitly disallow them. Except where specifically allowed by some states, these

bonding mechanisms are not employed by the Bureau of Land Management or the U.S. Forest Service. In 2019, Colorado enacted legislative changes through HB 1113 that repealed all self-bonding practices while retaining the other favorable bonding methods described previously (CRS § 34-32-117(3) and rules 2 CCR407-1-4.3.7 and 4.10).

Bond Amount Determination

The bond amount for a new mineral mine in Virginia is calculated at a flat rate of $3,000 per acre, based on the estimated acres of land to be affected by mining during the first year of operations (§ 45.2-1208 of the Code of Virginia). The minimum total bond for any mineral mining permit is $3,000, except for Restricted Mining Permits that are exempt from bonding, and Minerals Reclamation Fund participants (discussed below, 4VAC25-31-240). After mining operations commence, the bond is calculated annually at the time of permit renewal and covers the entire disturbed area, plus the estimated number of acres to be disturbed in the upcoming year (4VAC25-31-220). If additional areas are to be disturbed, the permittee must provide additional bond to cover the new acreage within 10 days of the anniversary of the permit (§ 45.2-1212 of the Code of Virginia; Figure 5-3). The bond must be posted prior to disturbing an area (4VAC25-31-220).

The financial assurance requirements in Virginia are not adequate to address the potential reclamation costs for gold mining. There may be examples of other mineral mining activities in Virginia which are adequately bonded (sand/gravel, stone quarries), but these may be exceptional cases, based on the recent reclamation costs

cited by Virginia Energy. Virginia’s bonding might be appropriate for operations that have a low potential for extensive environmental impacts and thus for which land surface restoration is likely to be low cost (e.g., backfilling, grading, soil placement, revegetation) and the demolition and removal of minor facilities. However, it has been demonstrated that the required bond amount of $3,000/acre (or $500/acre for fund members) is not adequate for the reclamation costs for all current mineral mining operations. For example, Virginia Energy reports that two reclamation projects that were recently completed following bond forfeiture cost approximately $1,300/acre and $5,300/acre, and some mine operators have reported their own reclamation costs between $8,000/acre and $12,000/acre (Michael Skiffington, personal communication, 2022). Four companies, operating seven mine sites, have had their permits revoked and bonds forfeited in the past 10 years. All but one of those were the result of bankruptcies, with the other permit being revoked for failure to comply with a notice of noncompliance for required reclamation.

Given the potential environmental impacts and complexity of gold mining activities, the reclamation and long-term stewardship costs for gold mines could far exceed the currently established bonding rates due to the following factors, where applicable:

• The need for physical and chemical isolation of reactive overburden, other waste materials, or reactive mine surfaces (based on sulfide content or site-specific contaminants like mercury), likely including dumps and tailings impoundments;
• The need for water management within pits, underground mining, or impoundments, along with plans for monitoring and maintaining postclosure hydrologic balance;
• The need for water treatment for meteoric runoff, groundwater inflow, infiltration/seepage from reactive materials, or process solutions from the associated facilities, along with plans for postclosure treatment, water quality protection, and/or compliance monitoring;
• Processes for closure, demolition, and removal of mineral processing facilities and equipment and the management and disposal of reagents, process solutions, and/or other waste; and/or
• Postclosure monitoring of water quality and other reclamation requirements.

A reclamation bonding study by Kuipers (2000) documented approximately 150 metal mining operations in the western United States including gold mines and other metal mines. More than 20 years ago, the average bond level for these major mines was approximately $4,400 per acre, with costs ranging from less than $1,000/acre to greater than $50,000/acre, exceeding the amounts currently required for mining in Virginia. Federal agencies and multiple states have continued to update the requirements and guidance for determining financial insurance amounts since that time. Although an updated assessment of the current bonding costs at these 150 sites has not been conducted, the costs to perform mine reclamation have undoubtedly risen since this 2000 study. In Montana alone, the current bonding costs for gold mine permits vary from approximately $16,000 to more than $137,000,000 ($1,050 to $40,560 per disturbed acre respectively), depending on the disturbed surface area and level of activity at the site, the complexity of mining methods and reclamation plans (e.g., placer, open pit, or underground), and whether postclosure water management and site maintenance are required (Montana DEQ, 2022). There are many examples of gold mines which were not adequately bonded and developed significant postclosure water quality issues, resulting in very expensive long-term water treatment and site management being conducted by state and/or federal agencies following bond forfeiture (e.g., Zortman-Landusky Mines in Montana, Summitville Mine in Colorado, Brewer and Barite Hill Mines in South Carolina).

Rather than estimating the bond with a flat rate based on disturbed acreage, other state (see Table 5-17) and federal agencies require that financial assurances reflect the site-specific reclamation plan developed for the conditions of each proposed operation and these financial assurance amounts must be regularly reviewed and updated. In addition to initial closure and reclamation activities, these plans may include post-closure water management, water treatment, and other facility maintenance. It is not possible for this report to recommend or estimate the financial assurance amounts that might be necessary for potential gold mines in Virginia, in the absence of plans and conditions for specific projects. (Additional guidance documents for estimating costs and deriving bond calculations include BLM [2012], NDEP [2022], and USFS [2004].)

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¹⁷ Additional definitions and administrative components for the Minerals Reclamation Fund are provided in §§ 45.2-1233, 45.2-1234, 45.2-1242, and 45.2-1243 of the Code of Virginia.

provide guidance for determining the adequacy of reclamation methods and revegetation after at least 2 years of establishment. However, guidance is less clear about bond release criteria for postclosure water management and mitigations, which might include active or passive treatment systems. In the case of groundwater recovery in underground mines or pits, and the potential reliance on pit lake stratification to isolate potential contaminants, the requirements for water quality protections at closure may require a longer period of monitoring and verification. It is important that bonds are not released prematurely before the mitigation, management, or treatment methods have proven to be successful for achieving the long-term environmental requirements.

Bond Forfeiture

If a permit is revoked from a mine operator with less than 5 years of operation (not a Minerals Reclamation Fund member), then the available bond amount is forfeited to the Special Reclamation Fund (§ 45.2-1207 of the Code of Virginia). If a permit issued to a Minerals Reclamation Fund member is revoked, then the payments that the member has made to the Fund are forfeited to the Minerals Reclamation Fund (§ 45.2-1213 of the Code of Virginia). In either case, Virginia Energy must then use the forfeited payments to complete the reclamation plan for the permitted mining operation (§ 45.2-1238 of the Code of Virginia, 4VAC25-31-310). Bond liability extends to the entire permit area under conditions of forfeiture. After the completion of reclamation and payment of all fees, any remaining forfeited bond must be returned to the operator (§ 45.2-1213 of the Code of Virginia).

If the cost of reclamation exceeds the amount of the forfeited payments into the fund for a particular permit, the Director of Virginia Energy must draw on the rest of the Minerals Reclamation Fund for the cost of reclamation (§ 45.2-1238 of the Code of Virginia), and the amount by which the cost of reclamation exceeds the amount of the member’s forfeited bond payments becomes a debt to the Commonwealth on the part of the permittee. The Director of Virginia Energy is authorized to collect such debts, and the money collected through appropriate legal action, minus the costs of legal action, is deposited in the fund (§ 45.2-1239 of the Code of Virginia).

Annual Reporting and Monitoring

Mineral mining permits need to be renewed each year within 10 days of the anniversary date in order to continue operations. The annual renewal of the permit must indicate the identity of the licensed operator, any agent, and their officers; the amount of minerals mined; and any changes to the information provided in the license application (§ 45.2-1129 of the Code of Virginia, 4VAC25-31-100, and 4VAC25-31-210). The mine operator is also required to annually update and extend the required site maps, which show the progress of the operations and mine workings, property lines, sensitive features, and other information provided in the initial application maps. If the time requirements are not met, the permit expires 10 days after the anniversary date (4VAC25-31-210).

The general administrative information required for mining permit renewals in Virginia is similar to the requirements in other states, but the details about the operator and about the status of land disturbance, completed reclamation, and mineral production are somewhat limited. Virginia’s regulations also include a broad stipulation for “any other information, not of a private nature, that from time to time is required by [Virginia Energy]” (§ 45.2-1129 of the Code of Virginia). These general reporting requirements may not be adequate for the Mineral Mining Program to fully assess environmental compliance and identify any potential risks that arise during the course of mining operations. In particular, there are no prescriptive reporting requirements in Virginia for geochemical or geotechnical monitoring, water quantity or quality monitoring for surface water or groundwater, controls for dust or emissions, or invasive weed control and revegetation success. While mineral mining permits are reviewed and renewed annually, additional environmental information and monitoring data are likely submitted as permitting requirements for other regulatory agencies, like Virginia DEQ. Without a centralized structure in Virginia for the consolidation of annual reporting and monitoring data and few prescriptive requirements about what data should be reported, effective communication and coordination between different permitting agencies is critical. The comprehensive consideration of these data is necessary to ensure the Mineral Mining Program’s annual analysis of mining operations.

Other states impose additional monitoring and reporting for mining permit renewals beyond those imposed in Virginia. For example, in addition to administrative details and inventories for all disturbed and reclaimed

surface areas, Montana requires that annual reports include, if applicable, an inventory of available soil and reclamation materials; water balance analysis for all operations that use cyanide or metal-leaching agents or have the potential to generate acid; a comprehensive evaluation of water monitoring reports submitted throughout the year, including trend analyses for key site-specific parameters; updated accounting for cultural resource mitigations or management; monitoring results, material balances, and other information pertaining to geologic conditions; and an evaluation of monitoring and testing data required in the permit for sites that use cyanide or metal-leaching agents, reagent neutralization, or develop acid rock drainage or similar occurrences (ARM 17.24.118).

Inspections

The duties of the Mineral Mining Program’s inspectors and the priorities for compliance inspections reflect the dual nature of the codes and regulations that apply to mine permits and safety licenses. Many of the inspection requirements are related to conditions affecting occupational health and safety. For example, complete safety inspections are required at least every 180 days for underground mineral mines and at least once per year for surface mineral mines if they are not inspected by MSHA (i.e., abandoned or temporarily idle mines; MSHA, 2013). Additional inspections can be made when deemed appropriate based on potential risks or when requested by miners or mine operators (§ 45.2-1148 of the Code of Virginia). To examine where any danger to miners might exist in an operational mine, or to people who might work or travel near an inactive mine (§ 45.2-1155 of the Code of Virginia), such inspections may include examining blasting practices; air flows, oxygen deficiency, and gas levels; entrances to abandoned areas; and roof and rib conditions (all from § 45.2-1155 of the Code of Virginia). Additional duties for mine inspectors involve reporting accidents involving serious personal injury or death, and responding to mine fires or mine explosions and taking charge of mine rescue and recovery operations (§ 45.2-1147 of the Code of Virginia). Some of this regulatory language appears to be adopted from the safety requirements for coal mining, where geologic conditions are more conducive to mine fires and explosions than in mineral (including gold) mines.

Although the mine safety aspects are very important, the purpose and frequency of compliance inspections for gold mining should also focus on areas of potential environmental risk and the associated protection or mitigation practices within the permit. Prescriptive elements are not provided in the codes or regulation for other key aspects of inspecting mineral mines during operations, reclamation, and long-term stewardship for the permit. The requirements merely state that the Director of Virginia Energy will “make investigations and inspections to ensure compliance” with the mineral mining codes and regulations (§ 45.2-1202 of the Code of Virginia). The internal policies in the Mineral Mining Program’s Enforcement Policy and Procedures Manual (Virginia Energy, 2015a) establish that “reclamation inspection” frequency is based on the level of activity at the individual mine site. The manual stipulates that active sites, defined as sites where development, mining, reclamation, or other related activities occur, will receive a minimum of two inspections per calendar year (divided into each half of the year); for intermittent sites with cyclic production activities or temporarily idle sites, one inspection is required per year. In comparison, he frequency of mine inspections in Montana is also based on the characteristics and potential risks of the operations in accordance with the stipulation that “The department shall conduct an inspection at least once per calendar year for each permitted operation, and at least three times per year for each active operation that uses cyanide or other metal leaching solvents or reagents, has a permit requirement to monitor for potential acid rock drainage, or exceeds 1000 acres in permit area” (ARM 17.24.128).

For gold mining, the frequent and coordinated inspections of construction, operation, and reclamation activities by regulatory agencies are necessary to provide compliance oversight and guidance to ensure that operators implement best practices and function within the terms of the mining permit. Site inspections may be more effective when coordinated and performed jointly with regulatory agencies that administer the other required permits, such as those required to ensure water or air quality protections. This approach provides a mutual understanding of agency objectives and a more complete review of the operator’s compliance, with the primary goal of assisting the operator in protecting the environment and attaining the intended postmining land use. Inspection reports and key findings should be shared among regulatory agencies and be made available for public review.

Regulatory oversight is recommended during facility construction to confirm that methods and materials are prepared and constructed in accordance with the approved designs and plans. Failure to maintain high-quality

work during construction and installation may lead to future problems, like leaks or malfunctions in liner systems, or the failure of fill slopes or impoundments (Porter, 1997). Colorado has enacted requirements for phased construction, where inspections must verify acceptable progress before the operator proceeds with subsequent construction phases (2CCR407-1-7.3). Montana has enacted requirements for quality assurance during construction of tailings storage facilities, with certified monitoring and engineering reports to be submitted to the regulatory agency (§ 82-4-378, MCA).

Impoundment Inspections

The Mineral Mining Program inspects impoundments during the reclamation compliance inspections, which are conducted twice per year for each permit (Virginia Energy, 2015a). In addition to these inspections, Virginia regulations require that impoundment monitoring and daily inspections are performed by the mine operator’s “qualified person,” defined as a person “who is suited by training or experience for a given purpose or task” (4VAC25-31-10). The registered professional engineer who designed or oversaw the designs for an impoundment (the “Engineer of Record”) may be available for consultation about the facility, as a resource for the operator and regulatory program (Michael Skiffington, personal communication, 2022). However, there are no specific requirements in codes or regulations for the Engineer of Record to conduct inspections of the impoundment during construction, operations, reclamation, or long-term stewardship. This lack of required involvement by the Engineer of Record is a shortcoming of the current regulations in Virginia, as it would be beneficial for the engineer to be involved with inspections during construction, operations, reclamation, and long-term stewardship.

In contrast to Virginia, Montana laws require that the Engineer of Record conduct annual impoundment inspections in addition to the more frequent inspections conducted by the operator, as specified in the state’s Tailings Operation, Maintenance, and Surveillance Manual (§§ 82-4-379 and 82-4-381(1), MCA). The regulatory agency is also required to “conduct inspections, review records, and take other actions necessary to determine if the tailings storage facility is being operated in a manner consistent with the approved design document and the tailings operation, maintenance, and surveillance manual” (§ 82-4-381(4), MCA). Additionally, the designated independent review panel of engineers must conduct an impoundment inspection and comprehensive periodic review of associated designs, reports, models, and pertinent records at least every 5 years during active operations (§ 82-4-380, MCA).

Noncompliance, Suspension, and Revocation

The permittee and its employees and contractors must comply fully with the requirements of applicable codes and regulations (4VAC25-31-30). Any violation of the provisions in Chapter 12 of Title 45.2 of the Code of Virginia (Permits for Certain Mining Operations; Reclamation of Land) or of any order from the Director of Virginia Energy is a misdemeanor punishable by a maximum fine of $1,000, a maximum of 1 year in jail, or both (§ 45.2-1223 of the Code of Virginia). However, this penalty structure is not easily implemented by the Mineral Mining Program. In conjunction with the Virginia Office of the Attorney General, the Director of Virginia Energy may pursue charges for the violation of Chapter 12 provisions or any order from the Director of Virginia Energy. This statute defines the type of charge and sets the parameters for fines and punishment upon conviction. However, no fines can be assessed without adjudication from the appropriate court; therefore, the Director of Virginia Energy cannot directly issue fines for noncompliance (Michael Skiffington, personal communication, June 2022). Other states allow the calculation and direct issuance of fines or penalties based on the nature, extent, and impacts resulting from the violation, along with consideration for repeated offenses and the duration of the violation (South Carolina-S.C. Code 89-250, R.48-20-220; Montana-82-4-361, MCA).

The Mineral Mining Program’s Enforcement Policy and Procedures Manual (Virginia Energy, 2015c) states that mine inspectors will initially notify operators of their noncompliance through a Special Order document, which must include the location, a description of the violation, and the remedial action required to resolve the violation. If the operator does not comply with the terms of the Special Order within the specified timeframe, then a Notice of Noncompliance is issued. The notice must specify how the operator has failed to obey the order and

establishes a reasonable time frame within which the operator is required to comply with the order (§ 45.2-1213 of the Code of Virginia). The consequence for not complying with the terms of the Notice of Noncompliance is permit revocation and bond forfeiture.

Unlike the regulations for surface coal mines (4VAC25-130-842.12), there is not a specific provision in Virginia’s codes or regulations for citizens to request an inspection to occur at a mineral mine when they have reason to believe that a violation or unlawful condition or practice has occurred. However, the Enforcement Policy and Procedures Manual (Virginia Energy, 2015b) establishes a policy to document and investigate citizen complaints regarding safety, health, or reclamation at mineral mines. Complaints that are specific to blasting at mineral mines are included within regulations (4VAC25-40-931) and the Enforcement Policy and Procedures Manual provides further details about how the mine inspector should review blasting records and seismic monitoring of air overpressure and ground vibration. The inspector may require the operator to perform additional seismic monitoring to conduct the complaint investigation. The mine inspector determines if the mine is being operated in accordance with codes and regulations and issues a Special Order if the inspector has reasonable cause to believe that a violation has occurred. If the complainant’s contact information is available, the mine inspector also must contact the complainant after the investigation has been completed to notify them of the outcome, and share a copy of the complaint investigation report.

Virginia’s procedures for issuing orders and Notices of Noncompliance are similar to those in other states, including South Carolina and Montana (South Carolina, R.48-20-160; Montana, 82-4-361, MCA). For example, Montana has a series of regulations that pertain to citizen complaints about blasting and the subsequent investigation that must be conducted by the permitting agency (82-4-356, MCA; ARM 17.24.157 through 159). To ensure compliance with requirements from the Office of Surface Mining Reclamation and Enforcement regarding the allowable frequency and decibel level of air blasts and the peak particle velocity for ground vibrations (30 CFR § 816.67(d)(4)), Montana also has a statutory provision that addresses citizen complaints about the loss of water quantity or quality, which requires an investigation from the permitting agency. If the inspection finds a preponderance of evidence in support of the complaint, this provision stipulates that the mine operator may be required to provide a replacement water supply to the complainant or risk having their permit suspended.

Conditions for Permit Suspension or Revocation

If the operator does not comply with the requirements set forth in the Notice of Noncompliance within the established time limits, the mine permit can be revoked and the bond forfeited (§ 45.2-1213; procedures found in 4VAC25-31-310) (see the section “Bond Forfeiture”). If the operator fails to comply with the terms of the permit, fails to renew a permit within the annual deadline, or defaults on the bond conditions, the permit must be revoked and the bond forfeited (4VAC25-31-310; Michael Skiffington, personal communication, 2022). The permit may also be revoked if the conditions are not met for stabilizing and maintaining mine permit areas that are temporarily inactive, as described in the next section (4VAC25-31-430).

If adverse environmental disruptions “seriously threaten or endanger the health, safety, welfare, or property rights of citizens of the Commonwealth,” an injunction to prohibit further operations may be granted by the appropriate circuit court. An injunction does not relieve the operator of the duty to reclaim lands previously affected (all from § 45.2-1225 of the Code of Virginia). An appeal of an order from Virginia Energy must be submitted through certified mail and will suspend the permit revocation and bond forfeiture until the appeal is complete (§ 45.2-1226; § 2.2-4018 et seq.; 4VAC25-31-310).

Virginia’s criteria for permit revocation and bond forfeiture are similar to those in other states, particularly when the corrective actions from a Notice of Noncompliance are not implemented or there is a site condition “which poses an immediate threat to public health, safety, or the environment” (South Carolina, R.48-20-160; Montana, 82-4-338 and 82-4-362, MCA). For example, in South Carolina and Montana, an overdue annual permit renewal, failure to provide additional bond at the appropriate milestones, or failure to comply with conditions of the permit could result in the suspension of the permit, which does not allow mining activity to occur until the noncompliance is resolved (South Carolina, R.48-20-160; Montana, 82-4-362, MCA). If corrective actions for these Montana and South Carolina examples are not resolved within the timeframe established through the suspension notice, then the suspension would be elevated to permit revocation and bond forfeiture.

a recurring theme expressed by many community members was frustration and anger over the lack of communication and information provided by local and state officials regarding exploration activities in Buckingham County. Community members highlighted a variety of obstacles that hindered their ability to participate meaningfully and provide input into decisions regarding possible gold mining near their community. This concern highlights the importance of initiating community participation at the earliest stages of gold exploration and throughout the life cycle of a mine (see Chapter 3). Community members emphasized the challenges they faced in understanding the potential impacts of gold mining, especially because Buckingham County has no local radio station, television station, or newspaper, and an estimated one-third of community residents have no access to the internet. As a result of the lack of communication and available information, community members expressed a lack of trust in institutions that will be making decisions about the future of gold mining.

Another recurring theme in the listening sessions was concern regarding the disproportionate impact that mining could have on those experiencing existing environmental injustice and health disparities. In Virginia, racism has been recognized as a public health crisis (House Joint Resolution 537). Additionally, several actions by the Virginia legislature and executive branch have sought to address environmental justice. In 2019, the Commonwealth of Virginia commissioned a study about how to incorporate environmental justice into regulatory decision making. Among other outcomes, this study led to the passage of the Virginia Environmental Justice Act in 2020. In April 2021, an office of environmental justice was created within Virginia DEQ to seek meaningful engagement and change that would advance environmental justice. Its stated goal was to move beyond simple “check the box” exercises and establish substantive provisions that can build trust, understanding, and values alignment among interested stakeholders, governmental agencies, and proponents of potential gold mining projects (Virginia Natural and Historic Resources, 2022). Environmental justice issues will likely recur throughout Virginia in the absence of a regulatory framework that requires rigorous community engagement and protects the rights of local communities, especially those predominantly composed of underserved and marginalized groups.

The below sections discuss public participation opportunities and requirements related to various aspects of mining activities in Virginia and other states.

Tribal Consultation

There are 7 federally recognized tribes in Virginia (87 FR 4636) and 11 that are recognized by the Commonwealth (Secretary of the Commonwealth, 2022). These include the Mattaponi, Pamunkey, Chickahominy, Eastern Chickahominy, Rappahannock, Upper Mattaponi Tribe, Nansemond, Monacan, Cheroenhaka Nottoway, Nottoway, and Patawomeck Nations. There are no federal tribal reservations in Virginia and although some tribes have reacquired lands to support communal activities, there are only two state-recognized reservations (Pamunkey and Mattaponi), which are in King William County (Mattaponi Indian Reservation, 2022; Pamunkey Indian Reservation, 2021; Virginia Places, 2022). There are currently no tribal reservations in the areas of Virginia that are most favorable for gold mineralization, but traditional territories cover the state (see Figure 5-4). It is noteworthy that Rassawek, the historical capital of the Monacan Indian Nation, and other culturally important regions are located in the gold-producing areas of Virginia.

Under section 106 of the National Historic Preservation Act (NHPA; 54 USC 306108 and 36 CFR Part 800), tribal consultation is required when a federal agency action occurs on tribal lands, or a site that has religious or cultural significance to a tribe (54 USC 302706). The Regulations for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508) encourage integration of the NEPA process with other planning and environmental reviews, such as section 106 of NHPA. Under NEPA, federal agencies are encouraged to consult with tribes and to invite tribes to be cooperating agencies in preparation of an EIS when potential impacts may affect tribal interests. EPA must consult with federally recognized tribal governments when issuing major air, waste, and water discharge permits pursuant to the Clean Air Act and the Clean Water Act (Executive Order 82). Finally, Executive Order 13175 encourages federal agencies to implement “meaningful and timely” consultation with tribes. As noted elsewhere, there are limited federal lands in Virginia, so there may be few federal actions that require consultation with tribes when permitting a gold mine in Virginia.

At the state level, Executive Order 82 (signed in November 2021) mandated that tribes must have input before the state approves certain development projects or permits. It mandated that the Department of Environmental

Quality, the Department of Conservation and Recreation, the Department of Historic Resources, and the Virginia Marine Resources set up a process to formally consult with the tribes when considering permit applications that could affect environmental, cultural, and historic resources. Relevant actions for this consultation included environmental impact reports (VA EIRs) for major state projects, burial permits for relocation of human remains, groundwater withdrawal permits for withdrawals greater than one million gallons per day, local government notifications for new and existing impoundment structures or dams, and construction or alteration of Virginia Regulated Impounding Structures Permits. However, VA EIR documents are not required for mining permits on private land, and the other conditions that would require tribal consultation may not directly apply to all potential gold mining permits. Furthermore, Senate Bill (SB) 482, which would have codified the Executive Order, was deferred to 2023 after passing the House. In 2022, a commission was established through HB 1136 to “[perform] a comprehensive review of Virginia law to assess ways in which it must be revised to reflect the government-to-government relationship the Commonwealth should maintain, by treaty and applicable federal law, with the sovereign, self-governing, federally recognized Tribal Nations located within the present-day external boundaries of the Commonwealth.”

For comparison, other gold-producing states have passed legislation mandating tribal consultation. For example, New Mexico passed SB 196 in 2009, which enhanced government-to-government communication and collaboration between the state and tribal governments; Nevada passed AB 264 in 2019, which promotes collaboration between a state agency and tribes; California passed AB 52, which added provisions for a consultation process during evaluation and consideration of projects that are evaluated under the California Environmental Policy Act; and Montana requires consultation with tribes during the early development of EIS documents prepared under the Montana Environmental Policy Act (ARM 17.4.615).

Free, prior, and informed consent (FPIC) is the practice of ensuring the rights of indigenous people to consent or withhold consent to actions such as mining on their lands or territories. The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United States as a “call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken” (U.S. Department of State, 2011). The World Bank requires clients to secure FPIC (The World Bank, 2015), and the International Council for Metals and Mining (ICMM, 2022) and the Initiative for Responsible Mining Assurance have accepted the concept as best practice (IRMA, 2018). Recently, an interagency work group was established to reform federal mining laws, regulations, and permitting policies in the United States. This work group will “make recommendations for improvements necessary to ensure that new production meets strong environmental and community and Tribal engagement standards during all stages of mine development, from initial exploration through reclamation” (DOI, 2022).

a website that describes and explains the proposed project and houses project-related information and documents that the public can view and download. There are also prescribed public notice and comment opportunities at multiple times during the NEPA process. For example, NEPA requires a 45-day public comment period after the issuance of a draft EIS and the required review of the draft EIS by EPA is made publicly available. However, a full NEPA process is unlikely to occur at a potential gold mining site in Virginia, except where a CWA 404 permit is needed. Outside of the context of a major federal action, the only other review of environmental impacts applying to proposed gold mining operations would be a Virginia EIR for mining occurring on state lands, which is likely to be uncommon. Even when a Virginia EIR is developed, public notification and comment requirements for the environmental review of gold mining projects are minimal in comparison to an EIS under NEPA (see Table 5-2).

Permitting

Depending on the particulars of the project, there may be several opportunities for public engagement during the process for issuing a permit for a gold mine in Virginia. For example, the Water Board is required to issue notice of a draft VPDES permit in a local newspaper (Troutman Sanders LLP, 2008); a public comment period may be offered for NSR permits (9VAC5-80-1170); and the issuance of a Virginia Water Protection Permit for water withdrawal requires notification and an opportunity for a public hearing (§ 62.1-44.15:20 of the Code of Virginia). Of particular importance in almost any mining operation is the requirement that each permit applicant to the Virginia Mineral Mining Program must notify certain members of the public about a new permit application via certified mail (§ 45.2-1210 of the Code of Virginia and 4VAC25-31-170; Virginia Energy, 2022f). These members of the public include “property owners within 1,000 feet of the permit boundary, the Chief Administrative Official of the local political subdivision [county or city] where the prospective mining operation would take place, and all public utilities on or within 500 feet of permit boundary.” Notably, this proximity criterion could omit nearby communities or other stakeholders that do not reside in the immediate area. In addition, no new notices are required for a permit renewal or for the expansion of a permit (§ 45.2-1210 of the Code of Virginia), yet these permitting and renewal of permitting actions are critical milestones for mining operations and warrant meaningful engagement with landowners, communities, and other stakeholders.

The details that are contained in the notifications (see Box 5-5) demonstrate that current Virginia laws do not provide enough information to support meaningful dialogue about the proposed mining operations and inform substantive comments and questions from the public. Property owners only have 10 days from receipt of the permit notification to submit written objections or request a hearing. This public hearing serves as an informal “information-gathering” forum that provides additional information to the public and where objections or concerns

about the operation can be publicly addressed. A hearing may be the first opportunity for the public and other stakeholders to learn about details of the project and formulate their questions and concerns, but this may not occur if the hearing is not requested within the 10-day timeframe. The inadequate review timeline puts the onus on neighboring property owners to have a prior understanding of the proposed operation and familiarity with potential environmental impacts from mining in order to submit substantive and meaningful objections to the permit application. This limitation makes the current process insufficient to provide for a meaningful exchange of comments between project proponents, regulators, and the public.

In some states, including South Carolina and Montana, the state permitting program is required to provide public notice at a local and regional scale. Notifications are issued when new mining permit applications are received, as well as when an operator submits an application for major modifications to an existing permit (S.C. Code Regs. § 89-100; 82-4-353, MCA; and ARM 17.24.119). In Colorado, applicants for new permits or modifications to an existing permit must publish a public notice in a local newspaper (up to 4 consecutive weeks), issue notices to nearby owners of surface and mineral rights, and provide a copy of the application materials for public review at the county clerk or recorder’s office (2CCR407-1-1.6).

In other states, including Alaska and Montana, the state agency with the primary permitting responsibilities hosts a proposed project website that contains a wide variety of project-related documents. These documents include baseline data; project plans and plan revisions; permitting timelines; a schedule of public meeting, notice, and comment opportunities; preliminary lists of permits and explanations of agency roles and responsibilities; public comments and agency responses to comments; and official correspondence. The website functions as a portal for the public to learn about the proposed project and helps to make the permitting process more intelligible to the public. It can also facilitate a dialogue between the public, project proponents, and regulators that promotes mutually acceptable resolutions of issues of concern. The chronology of the webpage becomes part of the administrative record and can be of particular importance if there are legal challenges to permitting decisions.

Closure and Bond Release

Because Virginia has a flat bonding rate, there is no public notice or opportunity for public input during the calculation of initial bonds or bond adjustments that may occur over the life of a mineral mining operation in Virginia. For comparison, in Montana, a comprehensive bond review is conducted at least every 5 years (§ 82-4-338(3), MCA), which includes a public notice issued by the permitting agency and a 30-day period for public comment. The permitting agency may not release or decrease the bond amount without providing local and statewide notice of the opportunity to request a hearing (§ 82-4-338(5), MCA). Similarly, Alaska has robust public notice and meeting requirements tied to the reissuance of permits and the associated recalculation of financial assurances (see the example of the Fort Knox Mine; Alaska DNR [2022b]). As with public engagement for other aspects of permitting actions, it has been recognized that “full and unrestricted public participation should be provided in the process of establishing reclamation and closure plans and bond amounts, and as a part of bond release” (Kuipers, 2000).

CONCLUSIONS AND RECOMMENDATION

Gold mining has a long history in Virginia dating from the 1800s (see Chapter 1). At present, however, there are few metal mining activities in the state and no active commercial gold mines (Virginia Energy, 2022d). Instead, most mineral mining in Virginia is focused on the extraction of sand, clay, limestone, granite, slate, mineral sands, and kyanite (Virginia Energy, 2022a). Given these current mineral extraction activities, it is not surprising that the present regulatory framework is geared toward projects such as sand and gravel mining, which currently make up approximately half of the active mineral mining permits issued by the state (Virginia Energy, 2022d). Although most of Virginia’s mineral mining laws and regulations seem suitable for the types of mines now operating in the State, gold mining raises a host of environmental and public health issues that merit additional attention and suggest a need for changes in law and regulation. Virginia’s present regulatory structure is not adequate to protect against potential land and water quality degradations that could accompany gold mining activities. Specific conclusions and a recommendation to improve the existing regulatory framework are summarized below.

regulatory entities is critical for protecting air quality and water quality, particularly when evaluating, permitting, and monitoring compliance for stormwater and process water management, treatment technologies, and methods for discharge. Given the lack of experience of Virginia regulatory entities in regulating metal and gold mining, regulators’ current expertise and familiarity with best practices may be limited. There are also key gaps in Virginia’s capacity to implement and enforce some of its laws and regulations, such as the inability to directly issue penalties or fines for noncompliance without lengthy adjudication, and the lack of requirements for impoundment inspections by the associated Engineer of Record. Higher-level technical reviews, third-party reviews, or audits would enhance the evaluations of Mineral Mining Plans and inspections of individual permits.

Public Engagement and Environmental Justice

The current requirements for public engagement in Virginia are inadequate and compare unfavorably with other states, the federal government, and modern best practices because they require the provision of limited information, place the burden of public notification on the mine permit applicant, and apply only to a limited scope of recipients. Industry best practices are adopting a greater emphasis on public engagement, consultation, and partnership with communities before and after mining activities are initiated, as well as free, prior, informed consent to govern interactions with tribes. In Virginia, there is a scarcity of project details in the new permit notifications, a short deadline provided for filing objections or a request for hearing, and a limited number of area residents that are required to be notified, with no specific inclusion of tribal communities. In addition, Virginia Energy does not make technical reports, designs, and other components of the permit application package readily available for public review. Finally, there are no requirements in Virginia for public notice or opportunity for public input for exploratory drilling or when an application is renewed, a permitted project is expanded, or a bond is released. These permitting actions are critical milestones for the mining operation, and they warrant meaningful engagement with nearby landowners, communities, and other stakeholders. Without changes in Virginia’s regulatory requirements to provide for expanded public outreach, additional informational meetings, and longer review timelines, Virginia fails to meet the current best practices of public engagement and lags behind other states.

Current Virginia regulations that are applicable to mineral mining will need to be amended to reach the goals set out in the Environmental Justice Act. In 2020, the Virginia legislature passed the Virginia Environmental Justice Act to better incorporate environmental justice into regulatory decision making in the Commonwealth. In the context of potential gold mining projects, an emphasis on environmental justice requires a regulatory structure that recognizes existing environmental injustice, population vulnerabilities, and economic and health disparities, and aims to reduce existing disparities and prevent future disparate impacts. This regulatory structure should ensure that those experiencing existing environmental injustice and health disparities are notified in a timely fashion about potential gold mining projects, are able to consult meaningfully with potential gold mining project proponents, and can contribute to decision making.

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As detailed above, Virginia’s present regulatory structure is not adequate to protect against the potential environmental degradations that could accompany gold mining activities. Stronger requirements for bonding, public engagement, and the review of environmental impacts are necessary; as well as updated regulatory capabilities, exemptions, performance standards, and guidance documents in order to protect human health and the environment.

RECOMMENDATION: To protect against the potential impacts of gold mining, the General Assembly and state agencies should update Virginia’s laws and its regulatory framework.

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