The Potential Impacts of Gold Mining in Virginia (2023)

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5 Virginia’s Regulatory Framework Mining projects in the United States, including gold projects, require numerous permits and approvals issued by a combination of federal, state, and local government agencies that are designed to help protect public health and the environment, among other goals (see Table 5-1). The numbers and types of required permits vary according to the size, type, location, and other specifics of a project, but it is common for mining projects to require dozens of permits and authorizations. In contrast to coal mining, there is no overarching federal regulatory program for gold mining that applies to all lands, regardless of ownership.1 Gold mine projects typically need permits under federal environmental regulatory programs like the Clean Water Act and the Clean Air Act; state permits that address mine design, operation, reclamation, closure, and financial assurances; and, potentially, local permits that may cover a variety of local concerns including transportation, noise, timing of certain activities, as well as many other issues of concern (§ 45.2-1227 of the Code of Virginia; see Box 5-1). The interplay of the different authorities and permitting requirements can be confusing to the public, especially when different permits each have separate public notice and comment requirements. In addition to the different roles of federal, state, and local governments in regulating gold mines, different laws can be triggered if mining were to be proposed on private, state, or federal land. For example, certain fed- eral and state requirements, like the requirements for an environmental review process, may not be triggered by a proposed mining activity on land that is privately owned, which includes the majority of land in Virginia, as noted in Chapter 1. FEDERAL ENVIRONMENTAL REVIEWS In Virginia, a formal review of environmental impacts would not be required to issue permits for a project on private lands unless a major federal action (e.g., certain federally issued permits or authorizations) were involved and triggered the National Environmental Policy Act (NEPA). Examples of major federal actions that might occur during gold mining operations include permitting from the U.S. Army Corps of Engineers (USACE) for discharges of dredged or fill material into waters of the United States (33 CFR § 322.3), or the permitting of mining operations that would occur on federal lands (see Box 5-2). If federal permits or approvals associated 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]). 115 

116 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-1  Various Agencies and Their Role in Permitting and Regulating Gold Mines in Virginia State/Federal Agency Role in Regulation Federal U.S. Army Corps of Engineers Discharge of dredged or fill material into waters of the United States, including jurisdictional wetlands. National Environmental Policy Act compliance and consultations under the Endangered Species Act and National Historic Preservation Act U.S. Fish & Wildlife Service Endangered Species Act consultation U.S. Environmental Protection Agency Clean Water Act Section 404 application, review of draft Environmental Impact Statement, and Underground Injection Control well permitting Bureau of Alcohol, Tobacco, Firearms Transportation, use, and storage of explosives and Explosives Mine Safety and Health Administration Mine safety and health (occupational) Virginia Virginia Energy, Mineral Mining Program Mineral mining (nonfuel) operations and reclamation Department of Environmental Quality, Air pollution emissions and permitting Air Programs Department of Environmental Quality, Point-source discharges to waters, underground or surface petroleum Water Programs and State Water storage tanks, groundwater withdrawal, water rights authorization, Control Board groundwater management areas Department of Environmental Quality, Treatment, storage, disposal, or transportation of solid and hazardous Waste Programs waste; reclamation of nonhazardous wastes Chesapeake Bay Local Assistance Impacts on the Chesapeake Bay Department Department of Conservation and Impact on recreation resources and unique habitats, non-point source Recreation water pollution, stormwater management Department of Historic Resources Protection of historic structures and archaeological resources Department of Agriculture and Consumer Endangered plants and insects Services Department of Health Protection of public or private water supply, drinking water quality, disposal of biosolids Department of Game and Inland Fisheries Effect on fish and endangered animals Department of Forestry Impact on state forests Virginia Marine Resources Commission Construction and disturbances in waterways and wetlands, activities affecting state-owned subaqueous lands Virginia Department of Transportation Entrance and access to public highways from mineral extraction sites, use of public highways by trucks, highway right-of-ways 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.” 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). 

VIRGINIA’S REGULATORY FRAMEWORK 117 BOX 5-1 Federal, State, and Local Oversight in Regulation of Gold Mines In U.S. environmental law, there is a long-standing commitment to “cooperative federalism,” meaning that regulatory authority is shared by the state and the federal government. While the federal government sets mandatory minimum standards, it can delegate to the state implementation of these standards. Many U.S. environmental laws, such as the Clean Water Act (CWA), the Clean Air Act (CAA), the Safe Drinking Water Act (SDWA), and the Resource Conservation and Recovery Act (RCRA), adopt this system, and states are given the authority to create their own programs to implement these laws. States must enforce the federal standards as minimums, but they also have the discretion to be more (but not less) protective of the environment if they so choose (Elliott and Esty, 2021). Virginia is delegated to run most programs under the CAA, CWA, SDWA, and RCRA (Troutman Sanders LLP, 2008, pp. 1–2). It does not have delegation under Section 404 of the CWA. As a result, a project that requires the discharge of dredged or fill material into waters of the United States, including jurisdictional wetlands, would require a CWA 404 permit from the U.S. Army Corps of Engineers. In addition to those federal programs delegated to the state, in certain instances local governments can adopt their own ordinances. The Code of Virginia states that “Any locality may establish standards and adopt regulations for mineral mining, so long as such standards and regulations are no less stringent than those adopted by the Director [of Virginia Energy]” (§ 45.2-1227 of the Code of Virginia). NEPA was one of the first laws that established a broad national framework for protecting the environment (42 USC § 4321 et seq.) and established a “look before you leap” approach for permitting actions. The efforts to develop EA and EIS documents involve a thorough examination of the existing conditions or baseline informa- tion for a wide range of resources and an assessment of potential effects under the proposed action, as well as alternative hypothetical scenarios. NEPA requires federal agencies to consider the potential environmental effects on natural resources, as well as social, cultural, and economic resources. It also requires that the federal agencies inform the public about their decision making process (40 CFR § 1502.3; Council on Environmental Quality, 2021; EPA, 2021b). The gathering of this type of information can be very useful for state permitting processes as illustrated in an example from the Haile Mine in South Carolina (see Box 5-3). The NEPA analysis may “serve as a framework” to meet other requirements, such as those associated with the National Historic Preservation Act, the Endangered Species Act, the Environmental Justice Executive Order, and other federal, state, tribal, and local laws and regulations (VDOT, 2022). NEPA, however, does not require that an environmentally preferable alternative is selected or that adverse environmental effects are prohibited. BOX 5-2 Waters of the United States The Clean Water Act (CWA) applies to “navigable waters,” which are defined as “waters of the United States” (see CWA section 502(7)). The term “waters of the United States” (or WOTUS) is therefore an important concept because it dictates whether certain activities are covered by this law. The CWA gives the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army discretion to define “waters of the United States” (CRS, 2022; EPA, 2021b). However, defining what is—and is not—WOTUS is complicated and controversial. For example, it is unclear whether wetlands that are not navigable but are next to navigable water or wetlands that are on private property a mile from the closest navigable stream would be defined as WOTUS. If these are defined as WOTUS, then CWA permits must be obtained to fill, dredge, or emit pollutants to them. In recent years, the U.S. courts have stepped in to examine the meaning of this term. At present, there is a case before the U.S. Supreme Court (SCOTUS Blog, 2022) that will review whether certain wetlands are covered under the WOTUS definition. The decision in this case will impact the applicability of the CWA to wetlands. Any potential gold mining project that impacts wetlands could, therefore, be affected by this decision. 

118 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA BOX 5-3 NEPA EIS Aids Permitting Process for a South Carolina Gold Mine An environmental impact statement (EIS) for the Haile Gold Mine in South Carolina was completed in 2014 and a supplemental EIS for a permit modification was completed 2022. South Carolina does not have state-level requirements to conduct an environmental assessment (EA) or EIS for gold mining permits, but the U.S. Army Corps of Engineers initiated an EIS in this case because the proposed operations would require a Clean Water Act (CWA) 404 permit to impact wetlands, constituting a major federal action. In the absence of this federal action, it seems unlikely that an EIS would have been conducted prior to issuing the gold mining permit. Jeremy Eddy, with the South Carolina Department of Health and Environmental Control, indicated that the EIS was helpful for the South Carolina permitting processes because it provided the regulatory agency more resources and information than would otherwise be available (Jeremy Eddy, personal communication, 2022). The benefits of an environmental impacts analysis can include: • Providing baseline information for environmental resources and evaluating project details for potential impacts (“look before you leap” approach to permitting); • Evaluating technical considerations (e.g., Failure Modes Effects Analysis), identifying mitigation for adverse impacts, and comparing potential impacts for project alternatives; and • Engaging with citizens and stakeholders during scoping and document development. NEPA has many procedural requirements. These include publication of a “Notice of Intent,” a scoping pro- cess, multiple public notice and comment opportunities, a description of the affected environment, evaluations of environmental impacts including cumulative impacts, and an analysis of alternatives that must include the “No Action Alternative” (Council on Environmental Quality, 2021). The distinctions between an EA and an EIS are described below. Environmental Assessment If a categorical exclusion does not apply to a proposed action, an EA may be completed. This assessment determines whether the action may cause significant environmental effects and generally includes a brief discus- sion of the need for the action and alternatives to the proposed action, the environmental impacts of the proposed action and alternatives, and documentation of the agencies and people consulted. Based on the conclusions of the EA, the applicable federal agency may issue a Finding of No Significant Impact, which discusses why the agency has concluded that there would be no significant environmental impact. If it is determined that the impact will be significant, then an EIS must be prepared. Project applicants may choose to skip over an EA and proceed directly to an EIS when significant environmental impacts are expected from a project’s development. Environmental Impact Statement An EIS must be prepared if the proposed major federal action will significantly affect the human environment.3 The EIS is much more detailed and rigorous than the EA. The agency must first publish a Notice of Intent in the Federal Register, which describes how the public can be involved. This begins the scoping process, where the agency and the public define the issues and potential alternatives. The agency drafts the EIS and makes it avail- able for public review and comment for a minimum of 45 days. After the comment period closes, the agency must consider all substantive comments and conduct further analyses if necessary. The agency then publishes the final EIS, which begins a 30-day “wait period” or “no action period,” before making a final decision. This decision is documented through the issuance of the Record of Decision, which explains the agency’s decision. 3  Human environment means “the natural and physical environment and the relationship of people with that environment” (40 CFR § 1508.14). 

VIRGINIA’S REGULATORY FRAMEWORK 119 STATE ENVIRONMENTAL REVIEWS A federal review of environmental impacts would not be required to issue permits for a project on private lands in Virginia unless a federally issued permit or authorization were deemed to be a major federal action. If, however, mining is proposed to occur on state-owned land, the project proponent is responsible for preparing an EIS and sub- mitting it to Virginia DEQ in a 1-year timeframe (Virginia DMME, 2007). This state process is known as a Virginia Environmental Impact Report (VA EIR; § 2.2-1157 of the Code of Virginia) and can be loosely compared with envi- ronmental review documents prepared under NEPA, although there are several important distinctions (see Table 5-2). Given that only a small percentage of mining projects are carried out on state-owned land, VA EIRs are rare for mining proposals. They are more commonly completed for the construction of state facilities (§ 10.1-1188 of the Code of Virginia). The State Minerals Management Plan outlines the requirements for leasing and extraction of minerals on state-owned lands (Virginia DMME, 2007). The application of the VA EIR to proposed mineral leases and mining projects requires additional baseline information compared to other non-mining projects. It also includes more public engagement opportunities than the VA EIR procedures described for other major state projects unrelated to mining. The VA EIR is used to assist the state in making a determination whether or not to issue a lease for the use of state-owned lands for the proposed activity. The document will include the items shown in Table 5-3, as applicable (Virginia DMME, 2007). Project proponents may request that all or part of the VA EIR be waived after a public hearing if the project (1) does not affect the surface land owned by the state, (2) does not adversely affect surface or groundwater beneath state-owned land, and (3) complies with all other requirements for environmental protection. In summary, a proposed gold mining activity would only trigger the VA EIR process if mining would occur on state-owned lands. In comparison, other states have their own requirements to complete an evaluation of envi- ronmental impacts for major permitting actions or state decisions. These evaluations of environmental impacts are conducted whether or not federal land partners or permitting agencies are involved, and are not limited to projects on state-owned land (Montana, MEPA; Washington, SEPA; California, CEQA). There are 15 other states that have NEPA-like planning requirements (Council on Environmental Quality, 2021). IMPLICATIONS OF FEDERAL REGULATIONS FOR GOLD MINING As noted above, the implementation of most programs under federal environmental laws including the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act are delegated to Virginia. Below is an overview of those regulations and their implications for gold mining in Virginia. The Clean Air Act The Clean Air Act (CAA) is the major federal environmental law that regulates “general” or ubiquitous air pol- lution and air emissions at specific sources, like gold mining sites. The State Air Pollution Control Board (the “Air Board”) and the director of the Virginia DEQ have shared authority under the CAA (§ 10.1 of the Code of Virginia). For the purposes of regulating the potential impacts of gold mining and processing on air quality, CAA regula- tory tools include implementation of (1) the National Ambient Air Quality Standards (NAAQS), (2) New Source Performance Standards (NSPS), and (3) National Emission Standards for Hazardous Air Pollutants (NESHAP; TABLE 5-2  Major Differences Between EIS and EA Produced Under NEPA and the VA EIR Process NEPA EA/EIS VA EIR Notice of intent Yes No Scoping period Yes No Public draft document prepared for public review? Yes No Final document part of the public record? Yes Yes (if conducted under the State Mineral Management Plan) SOURCES: Council on Environmental Quality (2020); Virginia DMME (2007). 

120 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-3  Typical Components of a VA EIR for Mining on State-Owned Lands Components of EIR Details 1.  Purpose and need for proposed activities 2. Description of the baseline settings for Physical conditions: topography, timber and other vegetation, geology, soils, environmental factors hydrology, flood potential, climate, and air quality Biological conditions: terrestrial and aquatic ecosystems, wetlands, and threatened or endangered species Socioeconomic conditions: location, size, and distribution of existing population and labor force; existing land uses, community facilities, and transportation infrastructure; and historical, archaeological, recreational, or scenic sites 3. Description of the proposed actions and Site access and preparation; conduct of exploration, extraction, and related alternatives activities; and deactivation of activities and land reclamation 4. Description of potential impacts to Polluting substances which may be employed or may result from the operation environmental factors (above), from the and the plan for use, reuse, recycling, or disposal of all substances proposed activities, methods, or plans The nature, size, and expected duration of operations that will produce adverse noise levels or be visible from any public roadways, use areas, or viewpoint The location, length, and width of all roadways that would be constructed, or the anticipated use, upgrades, or repairs required for existing roadways Areas requiring the clearing of timber, brush, or undergrowth and the value of the timber, total forest cover, and disposition of proceeds Ground-disturbing activities that may occur (like excavation, drilling, and mining facilities), especially in areas where the disturbance may adversely affect teams, other waterways, or roadways Nature, size, and location of all areas in which the contour of the land may be altered, and the plans for restoring the affected land according to reclamation Utility, petroleum, or gas transmission lines, including associated construction and maintenance of right-of-way, and monitoring plans for leaks or breaks 5. Description of the mitigations to minimize the adverse impact of proposed activities 6. Description of any irreversible environmental changes that would occur as a result 7. List of local, state, and federal permits which are applicable to the proposed operations 8. An executive summary of the EIS report 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 NOx 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, 

VIRGINIA’S REGULATORY FRAMEWORK 121 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 qual- ity 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 gener- ally 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 NOx 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 cat- egories, 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. 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 microm- eters 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. Labo- ratories (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). 

122 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA A major source of HAPs is defined as one that has the potential to emit 10 tons or more of one HAP, or 25 tons or more of a combination of HAPs, per year. The SEIS for the Haile Gold Mine in South Carolina estimates that emissions of HAP are less than the federal major source thresholds (USACE, 2022). Any gold mining that occurs in Virginia will likely be on a smaller scale than that currently occurring at Haile and there is no evidence that gold ores in Virginia have elevated mercury content (see Chapter 2). This suggests that future gold mines in Virginia are unlikely to reach the criteria for a major source. Nevertheless, the NESHAP for gold processing plants has a requirement that the permittee obtain a Title V permit (40 CFR Part 70; 40 CFR Part 71), even if the activity does not meet the threshold for a major source (40 CFR § 63.11640). Thus, even though the Haile Gold Mine currently does not meet the threshold for major source emissions, it is permitted under Title V major source (Mareesa Singleton, personal communication, 2022). As a result, any future gold mines in Virginia that have on- site processing plants would be permitted under a Title V major source permit, which has extensive requirements for monitoring and reporting (EPA, 2021e). The Clean Water Act The Clean Water Act (CWA) regulates pollution flow into “navigable waters” including rivers, streams, and other bodies of water primarily through effluent limitations on point sources, such as outflows from industrial facilities. These effluent limitations are placed as conditions in permits. They are determined based on the water quality criteria applicable to the receiving water as well as industry-specific and technology-based criteria. The regulatory tool through which these effluent limitations are imposed is a permit under the National Pollution Discharge Elimination System (NPDES) for discharges into surface waters. The Virginia DEQ and the Virginia State Water Control Board (the “Water Board”) have shared authority in implementing and administering these regulations (Troutman Sanders LLP, 2008). The CWA also contains provisions that attempt to address non-point sources that do not come from a defined outfall, such as runoff of sediment. EPA requires states to identify water bodies where effluent standards have not been sufficient to clean up surface waters, and establish total maximum daily loads (TMDLs) for these waters. NPDES permits are then tightened up to meet TMDLs for these water bodies. Finally, EPA and USACE share authority under CWA Section 404 to control discharges of dredged and fill material into waters of the United States, including jurisdictional wetlands. Under this program, people who seek to discharge fill or dredged material to waters of the United States, including wetlands, must obtain a CWA 404 permit from USACE. Most permits under this section of the CWA require that adverse impacts to the wetlands be minimized, that compensatory mitigation be undertaken, or that fees be paid to support wetlands protection (Elliott and Esty, 2021). Water Quality Standards and Criteria The Virginia Water Board has adopted surface water quality standards that have been approved by EPA (see Table 5-4) and reviews these standards at least once every 3 years. Virginia has also adopted the federal antideg- radation provisions, which require that waters whose quality is better than established standards must be protected and maintained. Certain water bodies, designated as Tier 3 waters (with exceptional water quality), are singled out for added protection (9VAC25-260-30(a)(3)). However, the Water Board can allow a change that would lower water quality when that change is needed for economic or social development (9VAC25-260-30(a)(2)). The Water Board has also established enforceable standards and nonmandatory criteria for groundwater. These include an antidegradation policy for groundwater (9VAC25-280-30), enforceable groundwater standards that are specific to the full state, and nonenforceable criteria applicable to individual physiographic provinces8 (see Table 5-5). 8  While not mandatory, criteria provide guidance for preventing groundwater pollution. 

VIRGINIA’S REGULATORY FRAMEWORK 123 TABLE 5-4  Virginia’s Surface Water Quality Criteria for Protection of Freshwater Aquatic Life and Human Health for Chemicals of Concern to This Study Freshwater Aquatic Life Human Health Contaminant Acute Chronic Public Water Supply All Other Surface Waters Ammonia (μg/L) Dependent on pH, Dependent on pH, temperature, and biota temperature, and biota Antimony (μg/L) 5.6 640 Arsenic (μg/L) 340a 150a 10b Cadmium (μg/L) Freshwater values are a Freshwater values are a 5b function of total hardness function of total hardness Copper (μg/L) Freshwater values are a Freshwater values are a 1,300b function of total hardness function of total hardness Free cyanide (μg/L) 22a 5.2a 4 400 Lead (μg/L) Freshwater values are a Freshwater values are a 15b function of total hardness function of total hardness Mercury (μg/L) 1.4a 0.77a Nitrate as N (μg/L) 10,000 pH in nontidal waters 6.0–9.0 6.0–9.0 6.0–9.0 6.0–9.0 Selenium (μg/L)α 20 5.0 170 4,200 Sulfate (μg/L)β 250,000 Thallium (μg/L) 0.24 0.47 Total Dissolved 500,000 Solids (μg/L)β Zinc (μg/L) Freshwater values are a Freshwater values are a 7,400 26,000 function of total hardness function of total hardness NOTES: Regulations require that surface water conditions must not be acutely or chronically toxic for freshwater aquatic life except as allowed in mixing zones. The definition of a mixing zone is a “limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded but designated uses in the waterbody on the whole are maintained and lethality is prevented” (9VAC25-260-5). “Acute” toxicity is an adverse effect that occurs shortly after exposure, and “chronic” toxicity is that which is irreversible or progressive. α Freshwater criteria expressed as total recoverable. β Criterion to maintain acceptable taste, odor, or aesthetic quality of drinking water. a Equivalent to the National Recommended Water Quality Criteria (EPA, 2022j). b Equivalent to National Primary Drinking Water Regulations (40 CFR § 141.62). SOURCES: 9VAC25-260-140; 9VAC25-260-155; EPA (2022f). NPDES/VPDES Permits Virginia DEQ administers the federal NPDES program as the Virginia Pollutant Discharge Elimination System (VPDES). A VPDES permit is required for every discharge into “state waters,” defined as all surface or groundwater that is wholly or partially within or bordering the Commonwealth, or within its jurisdiction (§ 62.1-44.3 of the Code of Virginia, 2022). This definition would include “waters of the United States,” plus additional Virginia surface or groundwaters that do not meet that definition (see Box 5-2). The categories of discharges that are likely from mineral mines such as gold mines are process wastewater,9 mine drainage,10 and industrial stormwater11 (EPA Region 10, 2003). 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). 

124 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-5  Statewide and Province-Specific Groundwater Standards and Nonenforceable Criteria Constituent Concentration Arsenic 50 μg/L Cadmium 0.4 μg/L Copper 1000 μg/L Cyanide 5 μg/L Lead 50 μg/L Mercury 0.05 μg/L Selenium 10 μg/L Zinc 50 μg/L pHa 5.5–8.5 Ammoniaa 25 μg/L Nitritea 25 μg/L Nitratea 5,000 μg/L Alkalinityb 10,000–200,000 μg/L TDSb 250,000 μg/L Sulfateb 25,000 μg/L Ironb 300 μg/L Manganeseb 50 μg/L NOTE: TDS = total dissolved solid. a Groundwater standards only applicable to the Piedmont and Blue Ridge regions. b Nonenforceable groundwater criteria. SOURCES: 9VAC25-280-40; 9VAC25-280-50; 9VAC25-280-70. When an operator applies for an individual NPDES permit, they must first determine the applicable gold mining–specific Technology-Based Effluent Limits (40 CFR Part 440 Subpart J; 40 CFR Part 440 Subpart M; see Table 5-6). This establishes standards for metal contaminants, pH, and total suspended solids standards according to best practicable control technology or best available technology (40 CFR § 440.104). These limitations apply to process wastewater and mine drainage, including potential discharges from tailings piles, but not stormwater (EPA, 2011b). The discharge of process wastewater to WOTUS is generally prohibited, but an exception is pro- vided in areas where the precipitation is greater than annual evaporation. In practice, this provision means that in TABLE 5-6  New Source Performance Standards for the Mining and Processing of Gold According to Best Available Demonstrated Technology Effluent Limitations Maximum for 1 Day Average for 30 Consecutive Days Total Suspended Solids 30,000 μg/L 2,000 μg/L Copper 300 μg/L 150 μg/L Zinc 1,500 μg/L 7,500 μg/L Lead 600 μg/L 300 μg/L Mercury 2 μg/L 1 μg/L Cadmium 100 μg/L 50 μg/L pH within 6.0 to 9.0 within 6.0 to 9.0 SOURCE: 40 CFR § 440.102. 

VIRGINIA’S REGULATORY FRAMEWORK 125 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 pre- vent 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 bioac- cumulative 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 

126 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-7  Comparison of Mixing Zone Requirements in Selected States State Definitions Size Parameters Virginia Mixing zone: The area Mixing zones: Effluent limits for any toxic where chronic criteria can be • Width must be less than one-half of the impact, including whole effluent exceeded, but acute criteria width of the receiving watercourse. toxicity (WET) and temperature must not be exceeded. • May not constitute more than one-third (James Golden, personal of the area of any cross-section of the communication, 2022). Current Allocated impact zone: The receiving watercourse. guidance does not have any area within a mixing zone • Length must be less than five times the special consideration for mixing where acute criteria can be width of the receiving watercourse. zones and bioaccumulative exceeded (9VAC25-260-20). substances (Virginia DEQ, 2000). Allocated impact zones: • Shall be sized to prevent lethality to passing and drifting aquatic organisms. • No required size, but internal policy and EPA guidance recommends a size that is smaller than 10% of the distance to the boundary of the mixing zone, 50 times the discharge length scale, and 5 times the local water depth (James Golden, personal communication, 2022; 9VAC25-260-20). South Carolina Mixing zone: The area The size of the mixing zone shall Mixing zones are only applied where chronic toxicity limit be minimized, as determined by the to toxicity (WET) and thermal can be exceeded, but acute Department, and shall be based on limitations, not to individual toxicity limit must not be applicable critical flow conditions. parameters such as metals exceeded. (Byron Amick, personal Recommended chronic mixing zones: communication, 2022). Zone of initial dilution: • Width of one-half of the river width The area within a mixing • Length of twice the river width zone where acute toxicity Recommended acute mixing zones: limit can be exceeded • Width of one-tenth of the river width (S.C. Code Regs. § 61-68.E). • Length of one-third of the river width (S.C. Code Regs. § 61-68.E) Alaska Mixing zones: The area Mixing zones: The pollutants discharged will not where chronic aquatic life • Size will be as small as practicable. • bioaccumulate, bioconcentrate, criteria can be exceeded. or persist above natural levels Initial mixing/acute zone: The pollutants discharged in sediments, water, or biota to One of the following must be used: will not exceed acute significantly adverse levels; • The initial discharge velocity is 3 m/s aquatic life criteria at and • present an unacceptable risk to or greater; and the mixing zone is no beyond the boundaries of a human health from carcinogenic, larger in any direction than 50 times the smaller initial mixing zone mutagenic, teratogenic, or other discharge length scale. surrounding. effects; • Size is smaller than 10% of the distance • settle to form objectionable Initial mixing/acute zone: to the boundary of the mixing zone, deposits; The area where acute 50 times the discharge length scale, and • produce floating debris, oil, aquatic life criteria may be 5 times the local water depth. scum, and other material exceeded. • A drifting organism reaches the acute in concentrations that form mixing zone boundary (i.e., the zone in nuisances; which aquatic life criteria are exceeded) • result in undesirable or nuisance in 15 minutes or less. aquatic life; or • A drifting organism does not receive • produce objectionable color, harmful exposure when evaluated by a taste, or odor in aquatic valid toxicological analysis approved by resources harvested from the the department (18 AAC § 70.240). area for human consumption (18 AAC § 70.240). 

VIRGINIA’S REGULATORY FRAMEWORK 127 TABLE 5-7  Continued State Definitions Size Parameters Montana Mixing zones: The area Mixing zones are required to have the Specific parameters not excluded where chronic aquatic life smallest practicable size, a minimum (ARM 17.30.505). The department standards can be exceeded. practicable effect on water uses, and shall assess biological, chemical, Acute aquatic life standards definable boundaries (75-5-301(4), MCA). and physical characteristics for any parameter may of the receiving water and the Mixing zone: not be exceeded in any nature of the pollutant (toxic, • Length downstream must be less portion of the mixing zone carcinogen, bioconcentration; than one-half mixing width distance unless DEQ specifically ARM 17.30.700). or extend downstream more than ten finds that allowing minimal times the stream width, whichever is initial dilution will not more restrictive (The stream width and threaten or impair existing discharge limitations are considered at beneficial uses. the 7Q10 low flow, or seasonal 14Q5 Minimal initial dilution: in conjunction with base numeric Area where acute criteria nutrient standards in DEQ-12A, may be exceeded if DEQ ARM 17.30.516). finds that it will not threaten Minimal initial dilution: or impair existing beneficial No size restrictions given. uses (ARM 17.30.507). 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 mitigat- ing wetlands loss and compensating impacts so that there is no net loss of existing wetlands acreage or function- ality (§ 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). TABLE 5-8  State Basin Planning Targets with Basin-to-Basin and Nitrogen: Phosphorus Exchanges Nitrogen Phosphorus Sediment State Basin (million pounds/year) (million pounds/year) (million pounds/year) Eastern Shore 1.83 0.152 473.3 Potomac River Basin 16.51 1.823 1,929.7 Rappahannock River Basin 7.09 0.819 1,505.1 York River Basin 5.71 0.548 949.1 James River Basin 21.81 2.241 2,015.2 SOURCE: Table modified from Linker et al. (2019). 

128 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA FIGURE 5-1  Major state watersheds in Virginia. Overlain on the map are historic gold mines (red dots) and the gold-pyrite belt and Virginia District outlined in black. The large yellow circle denotes the location of Aston Bay’s exploration property in Buckingham County. SOURCE: Modified from Virginia Department of Conservation and Recreation, Soil and Water Conservation Programs. The Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA) primarily regulates waste handling. Generally, the regulations fall on both the generators of the waste and the facilities that treat, store, and dispose of the waste (40 CFR Part 264/265, Subpart A–E). It applies broadly to many types of discarded materials, which are defined in the statute as “solid wastes.” This term, as used in the RCRA law, is counterintuitive; it includes both gaseous and liquid wastes as well as solid materials (Elliott and Esty, 2021). Under RCRA, a “solid waste” will be clas- sified as a hazardous waste (and subject to much more stringent regulation) under two situations. First, EPA can specifically list a category of waste from an industrial or production process. These types of waste are known as “listed wastes.” Second, a waste can exhibit one or more of four characteristics: corrosivity, ignitability, reactivity, and toxicity. These types of waste are known as “characteristic wastes.” Solid waste from the mining and processing of ores and minerals is generally exempt from regulation as listed wastes under RCRA Subtitle C. This exemption, called the “Mining Waste Exclusion” or the “Bevill Amendment,” was added to RCRA by law in 1980 (EPA Region 10, 2003). Mining wastes, and several other categories of excluded wastes, are known as “special wastes.” This provision precluded EPA from regulating these special wastes until the agency performed a study. These steps have been taken (EPA, 2022h), and as of this report’s time of writing, most extraction (e.g., waste rock) and processing wastes (e.g., tailings, spent ore) from mineral mining have been excluded from federal hazardous waste regulations under Subtitle C of the RCRA (EPA, 2022m), except for spent furnace dust and slag (EPA, 1998b), which are both produced during smelting—the final stage for the processing of gold. Additional wastes from gold mining and processing could be subject to RCRA if they are determined to be characteristic wastes under the statute. For example, some precipitated wastes from water treatment facilities, for example those at Brewer Gold Mine in South Carolina, do not pass toxicity limits and would be treated as hazardous waste under RCRA (Jim McLain, personal com- munication, 2022). 

VIRGINIA’S REGULATORY FRAMEWORK 129 Safe Drinking Water Act The Safe Drinking Water Act (SDWA) protects the quality of drinking water. This law focuses on all waters actu- ally or potentially designated for drinking use, whether from above ground or underground sources (EPA, 2022o). The SDWA covers six categories of contaminants: micro-organisms, radionuclides, inorganic chemicals, organic chemi- cals, disinfectants and disinfection by-products. At present, EPA regulates 91 contaminants (Elliott and Esty, 2021). Drinking Water Standards The SDWA authorizes the EPA to set enforceable national primary drinking water standards. Public water systems are responsible for ensuring that contaminants in tap water do not exceed these standards. These regulatory levels are based on Maximum Contaminant Level Goals (MCLGs), which are human exposure limits that protect against the hazards of these contaminants with an adequate margin of safety. Using these MCLGs, EPA sets its regulatory levels based on Maximum Contaminant Levels (MCLs; see Tables 2-3 and 2-4 and Chapter 4), which are set as close to the MCLGs as possible after considering technology limits and costs (Elliott and Esty, 2021). Underground Injection Wells The Underground Injection Control (UIC) well program is authorized by the SDWA (40 CFR Parts 144–148). The regulations outline 6 classes of wells, two of which might be associated with mining—Class III and Class V. Class III wells utilize fluids to extract minerals in situ, which has not be commercially deployed for gold mining (Guthrie, 2020). In contrast, Class V wells are potentially pertinent to gold mining in that they involve the disposal of mining waste fluids and materials in deep wells above drinking water sources (40 CFR section 146.5). According to the EPA, most Class V wells are associated with storm water drainage and large capacity septic systems (EPA, 2022i), but the regulations are also relevant to the injection of tailings or other mining waste products underground (EPA, 1999). Specifically, the regulations pertain to both conventional drilled wells that place slurries/solids in underground mines, but also piping systems within mine shafts that are utilized for the same purpose (EPA, 1999). Mine shafts can also be considered mine backfill wells under UIC regulations (EPA, 1999), if the depth of the shaft is greater than the largest surface dimension (40 CFR 144.3). Examples and potential methods for underground mine backfill are described in more detail in Chapter 3. Virginia does not have primacy for its UIC program. Instead, EPA administers UIC permitting, monitoring, and enforcement in Virginia (40 CFR Part VV sections 147.2350-2352; EPA, 2022q). Class V wells are authorized by rule, which means that Virginia operations may not require a permit if an operator complies with certain require- ments (EPA, 2022f), including if they: • Submit inventory information to EPA and verify that they are authorized to inject. EPA will review the information to be sure that the well will not endanger a drinking water source. • Operate the wells in a way that does not endanger drinking water sources as defined by EPA. • Properly close their Class V well when it is no longer being used so that the movement of any contaminated fluids into drinking water sources is prevented. After reviewing this information, EPA could determine that an individual permit is necessary to prevent contamination of a drinking water source. VIRGINIA’S MINERAL MINING LAWS, REGULATIONS, AND GUIDANCE The Mineral Mining Program within the Virginia Department of Energy (Virginia Energy) is introduced in Chapter 1 and is expanded upon here. The codes and regulations that are administered by the Mineral Mining Program reflect the history of the program and address two broad areas: (1) occupational safety and health and (2) mine operations and reclamation (see Chapter 1). Virginia’s Mineral Mine Safety Act (§ 45.2-1100 et seq. of 

130 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-9  Codes, Regulations, Guidance Documents, and Policies Relevant to This Study Document Title Part/Agency Chapter Code of Virginia Title 45.2: Mines, Part A. Mineral Mines Chapter 12. Permits for Certain Mining Operations; Minerals and Energy Generally Reclamation of Land (§§ 45.2-1200 to 45.2-1243 of the Code of Virginia) Chapter 13. Mineral Mining Retaining Dams; Adjacent Owners (§§ 45.2-1300 to 45.2-1304 of the Code of Virginia) Part B. Underground Chapter 14. Requirements Applicable to Underground Mineral Mines Mineral Mines (§§ 45.2-1400 to 45.2-1405 of the Code of Virginia) Part C. Surface Chapter 15. Requirements Applicable to Surface Mineral Mines Mineral Mines (§§ 45.2-1500 to 45.2-1505 of the Code of Virginia) Virginia Title 4: Conservation Agency 25. Department Chapter 31. Reclamation Regulations for Mineral Administrative Code and Natural Resources of Energy Mining (4VAC25-31-10 to 4VAC25-31-570 of the code of Virginia; 4VAC25-31-10 to 4VAC25-31-570) Division of Mineral The Mineral Mine n.a. n.a. Mining Manual Operator’s Manual Enforcement Policy n.a. n.a. and Procedures Manual SOURCE: The Code of Virginia, Virginia Administrative Code, Division of Mineral Mining. 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 appli- cable 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 con- sidering 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). 12  Mining is the “breaking or disturbing of the surface soil or rock in order to facilitate or accomplish the extraction or removal of miner- als 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). 

VIRGINIA’S REGULATORY FRAMEWORK 131 TABLE 5-10  Permitting Categories for Mineral Mining Activities in Virginia Required Components for Permitting Mining Activity Mining Financial Category Definition of Activity Permit? Assurance? Public Notification? Public Hearing or Meeting? Exploration Searching, prospecting, exploring, or No No No No (drilling) investigating for minerals by drilling (4VAC25-31-70; § 45.2-1200 of the Code of Virginia). Exploration Searching, prospecting, exploring, Yes Yes Initial notice only. If requested within 10 days (other surface or investigating for minerals Not required for of initial noticea disturbance) through other surface disturbance future permit (§ 45.2-1101 of the Code of modificationsa Virginia). Restricted Less than one acre of land Yes No Initial notice only. If requested within 10 days Mining Permit disturbance and removal of less Not required for of initial noticea than 500 tons of minerals at any future permit site (4VAC25-31-200; § 45.2-1203 modificationsa of the Code of Virginia). Mining Permit All other activities for the Yes Yes Initial notice only. If requested within 10 days extraction or removal of minerals, Not required for of initial noticea or any activity constituting the future permit process of extraction or removal modificationsa of minerals, to make them suitable for commercial, industrial, or construction use. Does not include deep mining that does not affect the surface (§ 45.2-1101 of the Code of Virginia; § 45.2-1200 of the Code of Virginia). a Prior to submitting an application to the Mineral Mining Program, permit applicants must provide a notice of intent to “property owners within 1,000 feet of the permit boundary, the chief administrative official of the local political subdivision” (county or city), and “all public utilities on or within 500 feet of permit boundary” (4VAC25-31-170; § 45.2-1210 of the Code of Virginia). Additional details about notifications are provided later in this chapter. There are subcategories for mineral mining permits, based on the scale of disturbance and nature of the activ- ity, as summarized in Table 5-10. Depending on the phase of project development and the size of disturbance, gold mining activity could potentially fit into different subcategories. A “General Mining Permit” governs sand or sand and gravel operations that disturb a total area of less than 10 acres (Virginia DMME, 2011). Operations specific to gold development would not be permitted under this subcategory, even if free or placer gold were to be discovered in a sand and gravel mine, which later modified its operations to collect gold. This modification would require additional steps, including the application for a regular mining permit, because the operation would exceed the terms of the General Mining Permit. Because it is not applicable to gold mining, the General Mining Permit is not discussed in detail here. The exempt activities and restricted mining permits that are applicable to gold mining in Virginia are described below. Exploration The definition of mineral mining does not include searching, prospecting, exploring, or investigating for min- erals by drilling (4VAC25-31-70; § 45.2-1200 of the Code of Virginia) and as a result such drilling activities are exempt from regulation. The surface disturbances associated with such drilling operations (e.g., roads, drill pads, sumps for water or cuttings) are also exempt from mine permitting, although these activities may be subject to local requirements and could require permits for controlling erosion, sediment, and postconstruction stormwater 

132 THE POTENTIAL IMPACTS OF GOLD MINING IN 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 require- ments 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 harm- ful 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 reclama- tion (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 construc- tion 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 informa- tion. 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 require- ments. 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 regula- tors 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 reclama- tion, 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 

VIRGINIA’S REGULATORY FRAMEWORK 133 TABLE 5-11  Exemptions for Small Mines and Exploration on State or Private Lands in Selected States State Public Notice for Exploration Permit for Exploration Exemptions for Small Mines Virginia No public notification or hearing A mineral mining permit and A Restricted Mining Permit applies for exploration drilling (exempt financial assurance are required for if less than 1 acre of land is activity). The notification searching, prospecting, exploring, disturbed and less than 500 tons of and hearing requirements for or investigating for minerals minerals are removed at any site. mining permits would apply to through surface disturbance, but Exempt from financial assurance other methods of exploration exploration drilling is exempt from (§ 45.2-1203 of the Code of Virginia (landowners within 1,000 feet, these requirements (§§ 45.2-1101 and 4VAC25-31-200). local government, utility services and 45.2-1200 of the Code of with 500 feet; hearing held if Virginia, 4VAC25-31-70). requested within 10 days of notice) (§ 45.2-1210 of the Code of Virginia, 4VAC25-31-170). South Carolina Public notice and public hearing A certificate of exploration is Disturbance of less than 5 acres to requirements do not apply to required for exploration activities a depth of less than 20 feet with exploration (S.C. Mining Act on 2 acres or less that involve no processing facilities can be Section 48-20-50). the development of open pits, permitted under a General Mine trenches, open cuts, or tunneling. Operating Permit (S.C. Mining Act A certificate of exploration is not Section 48-20-55). required for drilling core holes, drilling bore holes, or conducting geophysical and geochemical sampling and analysis (S.C. Mining Act Section 48-20-50). Alaska There is a 14-day agency notice Exploration operations on Mined area less than 5 acres at one with a notice to the public via the state lands that require permits location in any year with cumulative State Online Public Notice website. include a facility that remains unreclaimed mine area of less than overnight; prospecting using 5 acres at one location, or where hydraulic equipment methods; less than 5 acres and less than exploratory drilling over 300 feet 50,000 cubic yards of gravel or other deep; geophysical exploration materials are disturbed or removed for minerals subject to lease; or at one location in any year are seismic surveys involving the exempt (AS 27.19.050). use of explosives (Alaska DNR, 2022a). Colorado The Notice of Intent is provided A Notice of Intent and financial “Limited Impact Operations” include in two forms by the applicant: assurance is required for any operation that affects less than one includes all information, while “prospecting,” which includes 5 acres or affects less than 10 acres the other redacts confidential sinking shafts, tunneling, drilling and extracts less than 70,000 tons of information. The redacted version core and bore holes, digging minerals and overburden per year. is posted to the regulatory pits or cuts, and other associated A full mining permit is required program’s website, with a period disturbance works for the purpose for operations with metallurgical of 10 working days for public of extracting samples prior to processing chemicals, or the comment after it is posted commencement of development exposure of toxic or acid-forming (2CCR407-1-5.1.2). or extraction operations materials (CRS §§ 34-32-103 and (2CCR407-1.1(56)). 34-32-110). Montana No public notice at the time of An exploration license and Exempt from permitting and limited application, but an EA or EIS reclamation bond are required bonding may apply if less than document is developed. An for all activities that result in 5 acres are disturbed at one or two EA may result in public notice disturbance of the surface. A bulk locations (82-4-303 and 305, MCA). and a comment period. An EIS sample for metallurgical testing is requires notification, public limited to 10,000 tons (82-4-331 meeting, and comment periods and 332, MCA; 82-4-303, MCA). (MEPA, 75-1-102, MCA). continued 

134 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-11  Continued State Public Notice for Exploration Permit for Exploration Exemptions for Small Mines Idaho No public notice required for Exploration operations may None. All surface mines operated exploration activities. require permitting if over 5 acres after 1972 and all underground are disturbed for 12 consecutive mines started after 2019 must have months (§ 47-1503(7), Idaho a reclamation plan and financial Code). No application fee or assurance (Eric Wilson, personal financial assurance is required for communication, 2022). exploration that is not a mining operation (IDAPA 20.03.02 060). Nevada No public notice unless exploration A reclamation permit is required for A reclamation permit is required will disturb more than 5 acres exploration that will disturb more for mining that will disturb more (NAC 519A.410; NRS 519A.160). than 5 acres (NAC 519A.410; NRS than 5 acres (NAC 519A.410; NRS 519A.160). 519A.160). California Exploratory activities could trigger Local planning and environmental SMARA applies to mining activities California’s Surface Mining health departments often require that disturb more than one acre and Reclamation Act (SMARA) permits for drilling and exploratory or 1,000 cubic yards of material depending on the nature and scope work. Exploratory activities that (Public Resource Code section 2714; of the proposed exploratory project. disturb more than one acre are California Code of Regulations subject to SMARA, which requires Title 14 section 3505(a)). a permit, reclamation plan, and financial assurance. 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 environ- mental 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; sol- utes 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 com- modity 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 

VIRGINIA’S REGULATORY FRAMEWORK 135 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 devel- opment 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 dis- turbance 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 char- acterizations; 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 techni- cal 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 facili- ties, 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 

136 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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 emis- sions 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 envi- ronment. 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 opera- tions, 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). Specifica- tions 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 assur- ance (§ 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. 

VIRGINIA’S REGULATORY FRAMEWORK 137 TABLE 5-12  Required Components of Mineral Mining Plan in Virginia Administrative Information Permit/license application Public notification Relinquishment/succession Permit fees and bond fees Operations Plan Methods for mining and processing Topsoil handling and storage plan Spoil, overburden, and waste rock handling and disposal plan Plan for stockpiles, equipment storage, and maintenance areas Cut and fill slopes plan A copy of the Virginia Department of Transportation land use permit for roadways Plan for storage and disposal of scrap materials, service products, and solid/hazardous wastes Impoundments plan Drainage Plan Narrative of drainage system to be constructed before, during, and after mining A map or overlay showing the natural drainage system Design, maintenance, and abandonment plan for all sediment and drainage control structures Reclamation Plan Postmining land use plan Backfilling and regrading plan Revegetation plan Plans for closing or securing all entrances and reclaiming the surface areas of underground mines Maps and Figures Maps, cross-sections, and construction specifications of mine Map of all properties, and their owners, within 1,000 feet of the permit boundary Map of sensitive features within 500 feet of permit boundary Map of wetlands and riparian buffers that have been previously delineated Technical Studies Hydrologic studies and a plan to minimize adverse effects on water quality of quantity Preblast survey Wetland investigations SOURCE: Permit Application Checklist, Form DMM-148. Each application for a permit must be accompanied by a Mineral Mining Plan, which consists of separate documents for operations, drainage, and reclamation plans, along with supporting studies, maps, and figures. The primary components of these plans are summarized in Table 5-12. The Mineral Mining Plan is developed to “minimize adverse effects on the environment and facilitate integration of reclamation with mining operations” (4VAC25-31-360). It must describe the specifications for surface grading and restoration for postmining land use (§ 45.2-1206 of the Code of Virginia) and include a provision for the simultaneous reclamation of all affected land where practical (§ 45.2-1206 of the Code of Virginia; 4VAC25-31-130). A permit cannot be issued until at least 15 days after the application is submitted, except if everyone required to receive notice has issued a statement of no objection (4VAC25-31-170). Typically, the review process takes around 6 months for simple operations, or 1 year or two for larger and more complex operations (Michael Skiffington, personal communication, 2021). If the permit is not approved, the applicant would receive written objections and required modifications. The Director of Virginia Energy may reject the permit application if the operations would “constitute a hazard to the public safety or welfare,” or if “a reasonable degree of reclamation or proper drainage control is not feasible.” Modifications to the original plan must be submitted for review in the same manner as an original plan (§ 45.2-1205 of the Code of Virginia). During the application review, the Mineral Mining Program reviews the adequacy of project plans and the sup- porting technical information. This means that program staff must have sufficient expertise, appropriate reference 

138 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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 rec- lamation 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 col- lecting 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, meteo- rology, 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 reli- ably 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. 

VIRGINIA’S REGULATORY FRAMEWORK 139 Operations and Drainage Plans In addition to the administrative information, maps, and technical studies described above, an application for a permit requires plans for both operations and drainage. Table 5-13 indicates the performance standards that would apply to all gold mining operations and drainage plans. Many of the performance standards adequately consider environmental pro- tections and are similar to the general requirements in other states for aspects of mining operations, like site boundaries, barriers, and signage; soil salvage and stockpiles; road maintenance and dust control; avoidance of protected or sensitive features; and controls for runoff and erosion. In some cases, the standards in Virginia are prescriptive and quantify specific aspects of designs, like the runoff capacity for diversion structures and storage basins or the allowable slope angles for rock or fill structures, often based on material strength properties. In other cases, the codes and regulations are based on outcomes and do not provide specific guidance to achieve the standard, as in the stipulation that “Mining activities shall be conducted so that the impact on water quality and quantity are minimized” (4VAC25-31-360). In Virginia, the Mineral Mine Operator’s Manual (Virginia DMME, 2011) provides guidance for many aspects of the operation, drainage, and reclamation plans, but these best practices are provided as recommendations and are not enforceable unless incor- porated into a permit. This performance-based approach provides flexibility for the designs contained in the applicant’s plans, but the codes and regulations provide little guidance for operators to achieve the objectives and few metrics for regulators to evaluate during the review of the application. The Mineral Mine Operator’s Manual helps fill this gap for some aspects of the operation and drainage plans, but the manual does not address all factors that should be considered for gold mining activity. For example, the manual includes details about using geotextiles for temporary erosion con- trol, drainage systems, and stabilizing roadways. However, there is no discussion of using durable geomembrane liner systems to contain water and waste materials during operations, or using such liners within capping systems to limit the potential for infiltration into reactive materials. Additionally, unless an operator incorporates the guidance details as specific conditions of their permit application, then these designs and methods are not enforceable. Some states, including Arizona and New Mexico, have developed prescriptive descriptions of engineering designs and best practices covering topics such as designs for heaps or dumps, process solution ponds, geomem- brane liner systems, leak detection and recovery systems, pipelines and tanks, and the construction and implemen- tation of monitoring wells (New Mexico, 20.6.7.1 NMAC; ADEQ, 2004). Colorado has enacted requirements for phased construction, where inspections must verify acceptable progress before subsequent construction phases may continue, and prohibits the installation of liner systems where climatic conditions are not within design recom- mendations (2CCR407-1-7.3). The sections below expand on some of the more important performance standards in Virginia and compare them with those in other gold-producing states. Water Withdrawal Groundwater withdrawals in Virginia are not regulated west of I-95, outside of the Eastern Virginia Groundwater Management Area (9VAC25-600-20). Given the location of gold deposits described in Chapter 2, this means that groundwater withdrawal would not be directly regulated in the gold-producing region of Virginia. However, mineral mining permits that intercept groundwater are required to develop plans to minimize adverse effects on water quality or quantity (4VAC25-31-360), which might involve stipulations and mitigations to offset the effects of water withdrawal. Because almost all gold mining operations are expected to result in water withdrawal, inadequate implementation and oversight of water withdrawal plans could have significant repercussions for users of local groundwater. Surface water withdrawals are regulated by the Water Board and the Virginia DEQ in places where the demand for surface water exceeds threshold limits (§ 62.1-242 et seq. of the Code of Virginia). Additionally, any permit for a major surface water withdrawal (more than 90 million gallons/month) and other impactful projects must provide a narrative description of the project as well as demonstrate that the project has avoided and minimized impacts to the aquatic environment (9VAC25-210-80, -90, and -110). Process Solutions and Chemical Reagents In Virginia, there are no specific regulations or restrictions on the nature of process solutions or chemical reagents that can be used within a gold mining operation. Nevertheless, compliance with applicable water quality 

140 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-13  Performance Standards for Operations Plan and Drainage Plan in Virginia Air Quality “Sources of dust shall be wetted down unless controlled by dry collection measures” (4VAC25-40-740). Control measures may be required for airborne contaminants, with regard to occupational health and safety (4VAC25-40-720). Barriers and Screening “Screening shall be provided for sound absorption and to improve the appearance of the mining site from public roads, public buildings, recreation areas, and occupied dwellings.” Methods and specifications are determined by topography, berm or structure construction, vegetation types, and distance from permit boundary (4VAC25-31-420). Boundaries and Signs “A permanent sign shall be installed on the mining site adjacent to the principal access road and shall be visible and legible to access road traffic. The name of the permittee and the permit number shall be on the marker.” (4VAC25-31-340). “The permit boundary of the mine shall be clearly marked with identifiable markings” or coincide with readily identifiable permanent features (e.g., streams, roads), when mine-related disturbance is within 100 feet of the permit boundary (4VAC25-31-140). Drainage and Diversions If necessary to cross or fill a drainageway, “properly engineered structures shall be provided to allow (Runoff) free-flowing drainage and minimize erosion. Where necessary, water-retarding structures shall be placed in drainageways” (4VAC25-31-470). “Surface water diversions shall be installed . . . where run-off has the potential for damaging property, causing erosion, contributing to water pollution, flooding or interfering with the establishment of vegetation.” Temporary diversions (18 months or less) “shall convey the peak runoff of a 1-year, 24-hour storm,” while diversions that “function more than 18 months shall be able to convey the peak run-off of a 10-year, 24-hour storm” (4VAC25-31-480). Drainage and Diversions “All intermittent or perennial streams shall be protected from spoil by natural or constructed barriers. (Streams) Stream channel diversions shall safely pass the peak run-off from a 10-year, 24-hour storm . . . the capacity shall be at least equal to the unmodified stream channel immediately upstream and downstream of the diversion” (4VAC25-31-460). Impoundments (for Water, There are three subcategories of impoundments defined in codes and regulations. Specific Liquids, or Tailings) requirements are provided for the design, construction, inspection, and closure of impoundments, based on the size and configuration of the feature (§ 45.2-1300 et seq. of the Code of Virginia; 4VAC-25-31-180, and 4VAC25-31-500). Inactive Sites A mining operation is complete and total reclamation shall begin when “no substantial mine-related activity has been conducted for a period of 12 consecutive months. . . . An operation may remain under permit for an indefinite period during which no mineral or overburden is removed if the following conditions are met: 1. All disturbed areas are reclaimed or adequately stabilized, or all erosion and sediment control systems are maintained in accordance with mining plans and proper engineering practices. 2. All drainage structures are constructed and maintained in accordance with mining plans and proper engineering practices. 3.  All vegetation is maintained, including reseeding if necessary. 4. All improvements on site, including machinery and equipment, are maintained in a state of good repair and condition” (4VAC25-31-430). Overburden, Refuse, The plans and specifications “shall use current, prudent engineering practices.” An engineering Spoil and Waste Fills design report must include “calculations, drawings, and specifications” that account for the size and (NOT for Water, Liquids, hazard potential of the fill, including: location and configuration, associated access, surface and or Tailings) subsurface drainage systems, and sediment control structures; cross-sections and profiles showing the original ground, fill profile, terraces, and constructed slopes; evaluation and preparation of the site and foundation, materials handling and placement, and sequencing of construction; slopes no steeper than 2H:1V for predominantly clay soils and no steeper than 3H:1V for predominantly sandy soils, or must exhibit a static safety factor of 1.5 for other steeper slopes. A closure and final reclamation plan for the fill and associated structures is required. “Fills shall be constructed, maintained and inspected to ensure protection of adjacent properties, preservation of public safety, and to provide prompt notice of any potentially hazardous or emergency situation.” “On-site generated mine waste shall not be disposed of within the permitted mine area without prior approval.” On-site generated mine waste may be approved as fill on the site, if adequately covered and vegetated (per reclamation plan). Inert waste generated from off-site “shall not be brought or disposed of in the mine permit area without prior approval” (4VAC25-31-400; 4VAC25-31-405). 

VIRGINIA’S REGULATORY FRAMEWORK 141 TABLE 15-13  Continued Processing Methods, Codes and regulations do not limit the processing methods, process solutions, or chemical reagents Solutions, and Reagents that may be used in gold mining operations. Protected Structures and “Mining activities shall be conducted in a manner that protects state waters, cemeteries, oil and gas Sensitive Features wells, underground mines, public utilities and utility lines, buildings, roads, schools, churches, and occupied dwellings” (4VAC25-31-330). Revegetation “Disturbed land shall be stabilized as quickly as possible after it has been disturbed with a permanent protective vegetative cover. . . . Exposed areas subject to erosion on an active mining site shall be protected by a vegetative cover or by other approved methods. Simultaneous revegetation shall be incorporated into the mineral mining plan. Reclamation shall be completed on areas where mining has ceased” (4VAC25-31-520). Roads “Internal service roads and principal access roads shall be planned to minimize the impact of traffic, dust, and vehicle noise on developed areas outside the mining site.” Methods must be employed to maintain the integrity of drainageways and limit damage to adjoining landowners and stream channels. Designs and specifications for ditches and culverts are provided in 4VAC25-31-350. Roads shall be surfaced with non-acid producing material and maintained to prevent the depositing of mud or debris on public loads, or introduce suspended solids into surface drainage. “Maintenance is required to ensure the proper functioning of the road and drainage system,” and “dust from roads shall be adequately controlled” (4VAC25-31-350). Sediment Control Drainage from disturbed areas shall be directed into a sediment control structure before it is discharged from the permitted area. “Structures shall be located as close to the disturbed area as possible,” but not located in perennial streams. Sediment control shall be installed prior to land disturbing activities within the drainage area, each primary sediment basin “shall provide at least 0.125 acre-feet of storage capacity for each acre of disturbed land draining to it. Storage basins shall be cleaned as necessary to ensure proper functioning before . . . reaching 60% capacity. Alternate sediment control measures that are as effective as sediment basins may be approved” (e.g., reduced basin storage capacity for small short-term disturbances, sediment channels, check dams, or mining methods that incorporate sediment control) (4VAC25-31-450). Soil Stockpiles A minimum quantity of soil shall be retained to cover and reclaim all disturbed areas “with six inches of soil or as specified in an approved operations plan.” Soil shall be stored in a manner that remains available for reclamation use, with a maximum slope of 2H:1V, and it shall not be removed from the permitted area unless authorized. The stockpiled soil “shall be seeded with quick growing grasses or legumes for stabilization until used in final reclamation” (4VAC25-31-410). Water Quality All water discharge resulting from the mining of minerals “shall be between pH 6.0 and pH 9.0 unless otherwise approved by the director [of Virginia Energy]” (4VAC25-31-490). Discharges shall also be in compliance with standards established by the DEQ (9VAC25-260-20). Mining activities “shall be conducted so that the impact on water quality and quantity are minimized” (4VAC25-31-360). Mining below the water table “shall be done in accordance with the mining plan” (4VAC25-31-130). 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). 

142 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA The aquatic life criteria in Virginia are consistent with the levels established by EPA for free cyanide (EPA, 2022j) and have been adopted by many states (e.g., Alaska,13 Idaho, Montana, Nevada, and South Carolina). EPA guidance states that the analytical methods for total cyanide are allowed for screening, which would determine free cyanide, weak acid dissociable (WAD) metal cyanide complexes, and strong metal cyanide complexes (EPA, 2020b). Screening for free cyanide using an analytical method for total cyanide is not required, and laboratories or public water systems may choose to determine free cyanide without prior determination of total cyanide. However, if the total cyanide concentration exceeds 0.2 mg/L, then a measurement of free cyanide must be made using an approved free cyanide method to determine compliance (EPA, 2020b). The federal level for public water supplies (0.2 mg/L free cyanide, 40 CFR 141.62(b)) is higher than the concentration allowed in Virginia. Other states have adopted the drinking water standard of 0.2 mg/L, although in some cases this may apply to groundwater and not surface water, and the form of cyanide listed in the respec- tive regulations is variable. For example, Alaska and Colorado list free cyanide, Idaho lists WAD cyanide, and Montana, Nevada, and South Carolina list total cyanide. The standards adopted by other states to protect human health through fish consumption are also variable, although these specific criteria have not been established in every state. For example, Alaska has adopted standards for water and organisms (0.7 mg/L) and organisms only (220 mg/L), Idaho has adopted standards for water and organisms, or organisms only (0.140 mg/L), and South Carolina and Idaho have adopted standards for water and organisms, or organisms only (0.140 mg/L). Some other states have specific regulation or restrictions applicable to cyanidation plants. Montana banned the use of cyanide for heap leaching or vat leaching for open pit ores, following a citizen’s initiative in 1998. A common misconception is that the use of cyanide was banned entirely, but the language enacted in § 82-4-390, MCA, is specific to ores from open pits. This means that heap or vat leaching may still be permitted for ore obtained by underground mining or for legacy material produced from open pits prior to the conditional ban taking effect. In Montana, “Small Miner” sites (less than 5 acres) are exempt from most requirements for permit- ting and bonding (§ 82-4-305, MCA); however, these 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 (Administrative Rules of Montana, ARM 17.24.185). Additional regulations apply to the use of cyanide or other metal-leaching agents regarding baseline information, operating plans, reclamation plans, performance standards, and bonding requirements (ARM 17.24.185 through 189). Arizona has included specific guidance about designing and operating leaching systems that includes monitoring for cyanide and related spe- cies (ADEQ, 2004). In Nevada, no facility may degrade state waters to the extent that the concentration of WAD cyanide exceeds 0.2 mg/L (NAC 445A.424). Idaho recently updated the rules for cyanidation (IDAPA 58.01.13) which provide some prescriptive details for the construction, operation, and closure of facilities that utilize cyanide as a primary leaching agent in order to ensure that pollutants associated with cyanidation are safely controlled and do not affect human or ecological health. Idaho requires that tailings impoundments contain no more than 50 mg/L WAD cyanide in the liquid fraction of the facility, and measures are required to prevent wildlife contact with any process water exceeding 50 mg/L WAD cyanide (IDAPA 58.01.13). Such examples, in combination with international guidance about current best practices and independent audits (see Chapter 3; International Cyanide Management Code, 2022), reinforce the concept that cyanidation may be a viable method for modern gold pro- cessing, but it requires specific regulatory considerations, due diligence and careful attention, and robust plans to address safety and management. Impoundments The Mineral Mining Program conducts permitting actions and regulatory oversight for impoundments at mine sites. The regulatory authority for impoundments is transferred from the Mineral Mining Program to the Dam Safety Program when the mine permit is terminated (Michael Skiffington, personal communication, 2022). Virginia regulations provide a list of technical documents that may be used as acceptable references for 13  Alaska notes that the aquatic life criteria for free cyanide “shall be measured as weak acid dissociable (WAD) cyanide or equivalent ap- proved EPA methods” (Alaska DEC, 2008). 

VIRGINIA’S REGULATORY FRAMEWORK 143 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 proper- ties. 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 14  Highhazard 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). 

144 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-14  Summary of Impoundment Requirements, Where Categories A, B, and C Are Determined Based on the Height Above Ground Level or the Volume of Material Impounded Impoundment Subcategory A Impoundment Subcategory B Impoundment Subcategory C Description “Structures that impound water Impoundments above the natural Impoundments with impounding or sediment to a height of 5 ground surface that do not meet capability created solely by feet or more above the lowest or exceed the size criteria of excavation (all contained below natural ground area within the Subcategory A. natural ground surface). impoundment and have a storage volume of 50 acre-feet or more, or impound water or sediment to a height of 20 feet or more, regardless of storage volume.” Design Standards “Impounding structures shall Impoundment “shall be designed Impoundment “shall be designed be constructed, operated, and and constructed using current, and constructed using prudent maintained such that they perform prudent engineering practice engineering practice to safely in accordance with their design to safely perform the intended perform the intended function.” and purpose throughout their function.” life”. They “shall be designed and constructed by, or under the direction of, a qualified professional engineer licensed in Virginia and experienced in the design and construction of impoundments. The designs shall meet the requirements of [4VAC25-31-500] and use current prudent engineering practices.” Document “Plans and specifications shall NA NA Requirements consist of a detailed engineering design report that includes drawings and specifications,” meeting the requirements found in 4VAC25-31-500. Embankment “Impoundments meeting the size Slopes shall be no steeper than Slopes shall be no steeper than Stability requirements and hazard potential 2H:1V in predominantly clay soils 2H:1V in predominantly clay of high, significant, or low shall or 3H:1V in predominantly sandy soils or 3H:1V in predominantly have a minimum static safety soils. sandy soils. factor of 1.5 for a normal pool with steady seepage saturation conditions and a seismic safety factor of 1.2.” Storm Events and The design shall utilize a Spillway “Safely pass the runoff from a “Be designed and constructed Outlets Design Flood event and Threshold 50-year storm event for temporary with outlet facilities capable for Incremental Damage Analysis, (life of mine) structures and of: protecting public safety, based on the classification of a 100-year storm event for maintaining water levels to meet hazard potential (events ranging permanent structures (to remain the intended use, being compatible from 50-year storm to probable after mining is completed).” with regional hydrologic practices.” maximum flood). All structures shall allow draining within a reasonable period, a minimum of lowering the pool level by 6 inches per day, as determined by the engineer. 

VIRGINIA’S REGULATORY FRAMEWORK 145 TABLE 5-14  Continued Impoundment Subcategory A Impoundment Subcategory B Impoundment Subcategory C Closure “Closed and abandoned in a “Closed and abandoned to “Closed and abandoned to manner that ensures continued ensure continued stability ensure continued stability stability and compatibility with the and compatibility with the and compatibility with the postmining land use.” postmining use.” postmining use.” Inspections Inspected and maintained “Inspected and maintained to “Inspected and maintained to to ensure that all structures ensure proper functioning.” ensure proper functioning.” function to design specifications. “Impoundments shall be inspected at least daily by a qualified person . . . who can provide prompt notice of any potentially hazardous or emergency situation as required under § 45.2-1302 of the Code of Virginia.” Protections “Ensure protection of adjacent “Provide adequate protection for “Provide adequate protection for properties and preservation adjacent property owners and adjacent property owners and of public safety and . . . meet ensure public safety.” ensure public safety.” proper design and engineering standards” under § 45.2-1300 et seq. of the Code of Virginia and 4VAC25-31-500. Emergency Action An Emergency Action Plan NA NA Plan (EAP) is required to include: assigning responsibilities for decision making, implementing the EAP, and notifying all persons or organizations; procedures for timely and reliable detection, evacuation, and classification of emergency situations; actions and procedures to be followed before and during the development of emergency conditions; dam break inundation maps and appendix reports to support the development, training, and exercising the EAP; establishing time periods to review or revise the EAP. 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) Minimum Threshold for Incremental Class of Impoundment Spillway Design Flood Damage Analysisa High Hazard PMF 0.50 PMF Significant Hazard 0.5 PMF 100-year storm Low Hazard 100-year storm 50-year storm NOTE: PMF = probable maximum flood. a The proposed potential hazard classification and the proposed spillway design flood for an impounding structure may be lowered accord- ing 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. 

146 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA FIGURE 5-2  Statewide map of the 48-hour, 1,000-square mile probable maximum precipitation from tropical storms. SOURCE: Virginia DCR (2022a). 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, foun- dation 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 cat- egories 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. 

VIRGINIA’S REGULATORY FRAMEWORK 147 Finally, Virginia requirements for seismic design also are ambiguous and incompatible with best practices. Similar to flood and rainfall design levels, where design is based on probabilistic evaluations (e.g., rainfall from a 50-year storm), seismic design in other civil engineering applications is commonly based on a probabilistic framework. This framework provides a probability of exceedance of a particular ground motion parameter (e.g., 2 percent probability of exceedance of a particular ground motion parameter in 50 years, or a 2,475-year return period). Montana has recently updated its requirements to provide a more robust inspections and monitoring pro- gram, which could provide useful guidance to Virginia. In 2015, Senate Bill 409 was enacted to update tailings storage facility (TSF) requirements (Section 82-4-301, MCA), based in part on the findings of the Mount Polley Independent Expert Investigation and Review Report (Morgenstern et al., 2015). The updates to the Metal Mine Reclamation Act (§ 82-4-300 et seq., MCA) are not prescriptive in detail, but ensure that TSFs allow for “adaptive management using evolving best engineering practices based on the recommendations of qualified, experienced engineers”. The Montana statutes were strengthened with requirements for the qualifications and responsibilities of the Engineer of Record (§§ 82-4-303 and 82-4-375, MCA); multidisciplinary guidance and criteria for baselines studies, design documents, and plans for operations, maintenance, and surveillance throughout the facility life cycle (§§ 82-4-376 and 82-4-379, MCA); quality assurance monitoring and reporting during facility construc- tion (§ 82-4-378, MCA); and additional technical oversight from an independent technical review board (three members) designated for each TSF (§ 82-4-377, MCA). Reclamation Plan Reclamation is defined as the “restoration or conversion of disturbed land to a stable condition that minimizes or prevents adverse disruption . . . and presents an opportunity for further productive use if such use is reasonable” (§ 45.2-1200 of the Code of Virginia). Postmining land use must be compatible with surrounding land use and Virginia Energy encourages productive uses of land (e.g., pasture, agricultural purposes, recreational areas). All permits and approvals for postmining land use must be obtained prior to implementation (4VAC25-31-360), and the reclamation plan submitted with the permit application must include • A statement of the planned land use following reclamation, the proposed methods to assure concurrent reclamation, and a time schedule (§ 45.2-1206 of the Code of Virginia and 4VAC25-31-130); • A description of the methods for grading, plans for removal of material (e.g., processing equipment, buildings, and other equipment), and revegetation of the disturbed area (4VAC25-31-130); and • A description of the plans for closing or securing all surface entrances to underground workings (4VAC25-31-360) (this does not address the closure or reclamation of deeper mine tunnels, stopes, or related underground features). Like the details within operations and drainage plans, site-specific conditions must be considered in the devel- opment and implementation of plans for reclamation, closure, and long-term stewardship. According to Kuipers (2000), the general principles for these plans should include “topsoil salvage and replacement; recontouring; revegetation; slope stability; stream protection; air and water resources protection; geochemical and acid rock drainage considerations; public health and safety; wildlife habitat restoration; and aesthetic impacts, including visual impacts.” In addition to the general requirements provided above, Table 5-16 presents the performance standards for reclamation of mineral mines in Virginia. In many cases, these standards are brief and written with the intent of a particular outcome—for example: “Disturbed land shall be stabilized as quickly as possible after it has been disturbed with a permanent protective vegetative cover” (4VAC25-31-520). The Operator’s Manual (Virginia DMME, 2011) provides considerable information and guidance about many aspects of reclamation (e.g., slope stability, revegetation and seed mixes, soil testing, designs for runoff control). Guidance is provided for seed purity and germination requirements (§ 3.2-4000 et seq. of the Code of Virginia) and the methods which might be used for native vegetation species. The exclusive use of native species during reclamation is not required, although using native species is an encouraged practice. Additionally, relatively few guidance details are provided about the 

148 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA TABLE 5-16  Performance Standards for Reclamation Plan, Vegetation, and Bond Release Criteria for Concluded Mining Activities in Virginia Acidic Material “All acid material encountered during the mining operation shall be properly controlled to prevent adverse impacts on surface or groundwater quality. Upon completion of mining, acid materials shall be covered with a material capable of shielding them and supporting plant cover in accordance with the approved reclamation plan. Unless otherwise specified by the Director [of Virginia Energy], the minimum cover shall be four feet in depth” (4VAC25-31-380). Erosion Control “Riprap shall be used for the control of erosion on those areas where it is impractical to establish vegetation or other means of erosion control or in any areas where rock riprap is an appropriate means of reclamation. Placing of rock riprap shall be in accordance with drainage standards and the approved mineral mining plan. Other methods of stabilization may include gabions, concrete, shotcrete, geotextiles, and other means acceptable for the mineral mining plan” (4VAC25-31-510). “When a road is abandoned, steps shall be taken to minimize erosion and establish the post-mining use in accordance with the reclamation plan” (4VAC25-31-350). Impoundments (for Water, For the largest category of impoundments, the designs, construction specifications, and other Liquids, or Tailings) related data, including final closure and abandonment plans, shall be approved and certified by a qualified engineer and the licensed operator. For all size categories, the impoundments shall be closed and abandoned in a manner that ensures continued stability and compatibility with the post-mining land use. Every impoundment “shall be examined daily for visible structural weakness, volume overload, and other hazards by a qualified person designated by the licensed operator.” “Inspections shall be performed more frequently when water and silt reaches 80 percent of the design capacity and during periods of rainfall that could create flooding conditions” (§§ 45.2-1301 and 45.2-1302 of the Code of Virginia, 4VAC-25-31-180, and 4VAC25-31-500). Mineral Stockpiles “Stockpiles of minerals shall be removed to ground level and the area shall be scarified and planted in accordance with the approved mineral mining plan. The Director [of Virginia Energy] shall allow a reasonable time for sale of stockpiles” (4VAC25-31-520 and 4VAC25-31-390). Slopes and Stabilization Spoil piles will be graded to minimize sediment run-off. “Slopes shall be graded in keeping with good conservation practices.” “Long uninterrupted slopes shall be provided with drainage control structures, such as terraces, berms, and waterways,” to accommodate surface water where necessary and to minimize erosion from runoff. “Slopes shall be stabilized, protected with a permanent vegetative or riprap covering” and not be in an eroded state at the time reclamation is complete. “Constructed cut or fill slopes shall not extend closer than 25 feet to any property boundary without the written permission of the adjoining property owner and the approval of the Director [of Virginia Energy]” (4VAC25-31-370, 4VAC25-31-390, and 4VAC25-31-530). Underground Reclamation “At the completion of mining, all entrances to underground mines shall be closed or secured and the surface area reclaimed in accordance with the mineral mining plan” (4VAC25-31-360). Vegetation (Establishment) “Critical areas” are defined as “problem areas such as those with steep slopes, easily erodible material, hostile growing conditions, concentration of drainage or other situations where revegetation or stabilization will be potentially difficult.” “Crusted and hard soil surfaces shall be scarified prior to revegetation. Steep graded slopes shall be tracked [by] running a cleated crawler tractor or similar equipment up and down the slope. Application of lime and fertilizer shall be performed based on soil tests and the revegetation requirements in the approved reclamation plan. Vegetation shall be planted or seeded and mulched according to the mixtures and practices included in the approved reclamation plan. The seed used must meet the purity and germination requirements of the Virginia Department of Agriculture and Consumer Services. . . . Trees and shrubs shall be planted according to the specific post-mining land use, regional adaptability, and planting requirements included in the approved reclamation plan. . . . The use of grass, water bars, or diversion strips and natural vegetative drainage control may be required in the initial planting year” (4VAC25-31-10, 4VAC25-31-290, 4VAC25-31-530, and 4VAC25-31-540). 

VIRGINIA’S REGULATORY FRAMEWORK 149 TABLE 15-16  Continued Vegetation (Monitoring and Bond “The division’s final inspection for bond release shall assess the adequacy of vegetation and Release Criteria) shall be made no sooner than two growing seasons after the last seeding. . . . No noncritical areas larger than one-half acre shall be allowed to exist with less than 75% ground cover. Vegetation shall exhibit growth characteristics for long-term survival. Seeded portions of critical areas shall have adequate vegetative cover so the area is completely stabilized.” Final inspection for bond release shall require the following vegetative cover, based on post-mining land use: • For intensive agriculture use, “planting and harvesting of a normal crop yield is required to meet the regulatory requirements for full or partial bond release. A normal yield for a particular crop is equal to the five-year average for the county.” • “For forest and wildlife [use], at least 400 healthy plants per acre shall be established after two growing seasons.” • For industrial, residential, or commercial use: “All areas not redisturbed by implementation of the post-mining use must be reclaimed and satisfactorily stabilized. All areas associated with construction of buildings or dwellings . . . [must be] covered by plans approved by the local governing body.” “Areas not covered by such local government plans shall be reclaimed and stabilized” in accordance with the vegetation cover requirements above. • For other post-mining uses, all areas not directly used by the post-mining use should be stabilized in accordance with the vegetation cover requirements (4VAC25-31-290, 4VAC25-31-300, and 4VAC25-31-540). Water Quality All water discharge resulting from the mining of minerals “shall be between pH 6.0 and pH 9.0 unless otherwise approved by the Director [of Virginia Energy].” Discharges also need to be in compliance with applicable standards established by the DEQ. “Mining activities shall be conducted so that the impact on water quality and quantity are minimized. Mining below the water table shall be done in accordance with the mining plan under 4VAC25-31-130. Permanent lakes or ponds created by mining shall be equal to or greater than four feet deep, or otherwise constructed in a manner acceptable to the Director [of Virginia Energy]” (4VAC25-31-130, 4VAC25-31-360, 4VAC25-31-490, and 9VAC25-260-20). 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 guid- ance 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 Depart- ment 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 treat- ment should be regarded as the final option (INAP, 2014). In Colorado, legislative changes in 2019 (HB 1113) 

150 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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 effec- tive 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 per- petual 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 optimi- zation, 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 cor- porate 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 com- pany’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 

VIRGINIA’S REGULATORY FRAMEWORK 151 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 FIGURE 5-3  Current performance bond process for mining operations in Virginia, reflecting the general steps that would be involved in a performance bond during the lifespan of a hypothetical gold mining operation. 

152 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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., back- filling, 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, operat- ing 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 activ- ity 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 condi- tions 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 cal- culations include BLM [2012], NDEP [2022], and USFS [2004].) 

VIRGINIA’S REGULATORY FRAMEWORK 153 TABLE 5-17  Bond Calculations in Selected States Alaska The permitting commissioner “shall require an individual financial assurance in an amount not to exceed an amount reasonably necessary to ensure the faithful performance of the requirements of the approved reclamation plan.” The maximum amount of $750/acre is applied for some mineral mines, but that bond limitation does not apply to a lode mine (i.e., lode mines are bonded at full, real cost estimates) (AK Stat § 27.19.040). Colorado Prior to enacting HB 1113 in 2019, only land reclamation costs were factored into the bond. Now the amount of the bond must be sufficient to ensure the completion of reclamation of affected lands if the agency has to complete the reclamation due to forfeiture, including all measures commenced or reasonably foreseen to ensure the protection of water resources including costs necessary to cover water quality protection, treatment, and monitoring as may be required by permit. An additional amount (5 percent of total bond) is required to address the agency’s administrative costs while conducting reclamation (CRS § 34-32-117(4)). Montana All bonds must be based on “reasonably foreseeable activities that the applicant may conduct in order to comply with conditions of an operating permit or license” (§ 82-4-338(6), MCA). The bond “may not be less than the estimated cost to the state to ensure compliance with statutes, rules, and the permit, including the potential cost of department management, operation, and maintenance of the site upon temporary or permanent operator insolvency or abandonment” (§ 82-4-338(1), MCA). South Carolina The bond that is posted with the state agency covers the reclamation and closure of the site, but not necessarily the long-term stewardship related to protecting water quantity and quality. In the example of the Haile Gold Mine, a separate trust fund has been established through negotiations with conservation groups, which provides additional financial assurance beyond the money posted with the state agency. Minerals Reclamation Fund (Bond Pool) Each permittee with 5 years of satisfactory operation in the Commonwealth under the mineral mining codes and regulations is required to become a member of the Minerals Reclamation Fund (4VAC25-31-230 and 4VAC25-31-320). This fund is used solely for the Mineral Mining Program to conduct the reclamation of mining operations under the conditions of permit revocation and bond forfeiture (§ 45.2-1238 of the Code of Virginia).17 All previously held performance bonds are released upon acceptance in the Minerals Reclamation Fund (§ 45.2-1236 of the Code of Virginia and 4VAC25-31-230). Eligible permittees enter the fund by making an initial payment of $50 for each disturbed acre and each acre to be affected during the next year. This is a significant decrease from the bond amount required prior to entering the fund ($3,000/acre). Thereafter, the member pays an annual fee of $12.50 per disturbed acre, plus each acre to be affected during the next year. These payments continue until the member has paid a total of $500 per disturbed acre, a cycle equivalent to 36 years of fund membership (§ 45.2-1235 of the Code of Virginia and 4VAC25-31-320) that no current operator has yet reached (Michael Skiffington, per- sonal communication, 2022). Figure 5-3 depicts how the performance bond is modified through the lifespan of a hypothetical mining operation. If the Minerals Reclamation Fund incurs expenditures from site reclamation following bond forfeiture, the money available in the Fund may be less than the total of all operator deposits (§ 45.2-1227 of the Code of Virginia). If the size of the Fund decreases to less than $2 million, the Director of Virginia Energy may suspend the return of payments and charge all members an equal amount for each affected acre, for a total amount sufficient to raise the fund to $2 million (§ 45.2-1237 of the Code of Virginia). When this happens, all members must post the required bond or other securities within 6 months or risk having their permit revoked (§ 45.2-1240 of the Code of Virginia). This situation has never occurred (Michael Skiffington, personal communication, 2022), likely due to the small scale and simplicity of current mining operations, which do not require detailed and lengthy strategies for the management of reactive waste materials or the management, treatment, and discharge of treated water. It is possible that complex reclamation activities could greatly decrease or potentially deplete the Minerals Reclamation Fund. It is likely that a mine operator with a revoked permit and forfeited bond has entered bankruptcy or similar financial hardship, which would further complicate or forestall repayment of the debt to the Commonwealth in such a case. 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. 

154 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA Some states, including Arizona, California, Idaho, South Carolina, and Montana, do not accept or administer a bond pool as financial assurance for reclamation costs. Other states, including Nevada and Alaska, accept pool bonding as one type of bonding mechanism, but apply more prescriptive stipulations to pool members. For example, in Nevada, the state permitting agency determines the total bond amount, but the maximum bond coverage from the bond pool for the permittee is set at $3 million (NAC 519A.585). In Alaska, the permitting commissioner uses the projected cost of reclamation in relation to the size of the bonding pool to determine which mining operations are eligible to participate in the bonding pool. Alaska also excludes operations employing certain processes from the bonding pool, stating, for example, that “a mining operation may not be allowed to participate in the bonding pool if the mining operation will chemically process ore or has the potential to generate acid” (AK Stat § 27.19.040). Bond Review and Audit Virginia regulations stipulate that the bond amount be updated annually, based on the anniversary date for the permit and the extent of disturbance anticipated in the coming year. Other states require bond amounts to be updated regularly to account for any increase in disturbance area or any modifications to the operations and/or reclamation plans. In some states, including South Carolina and Montana, the amount of financial assurance is revaluated as part of modifying the permit, independent of the annual reporting or permit renewal cycle. Montana also requires annual site inspections and bond reviews, which might result in a bond recalculation, while a comprehensive recal- culation must be performed at least every 5 years and following any major permit modifications (§ 82-4-338(3), MCA). The adjustments are not based solely on the increasing disturbance footprint, but they account for the actual costs to complete reclamation based on economic conditions and the complexity of the modified operation and reclamation plans. In California and Idaho, bond amounts are reviewed annually and adjusted if needed. Alaska requires financial assurances to be updated in tandem with the review of major permits, generally every 5 years, and the adequacy of the bonding is reviewed by an independent environmental consulting firm that audits the per- formance of both the operator and regulatory agencies (Kyle Moselle, personal communication, 2022). Adequate bond reviews also necessitate that regulatory agencies conduct site inspections regularly and information is utilized from site inspections and operator reports summarizing the progress of operations, reclamation, and monitoring. Bond Release At the time of annual permit renewal, a previously posted bond (or other security) may be released for each area disturbed in the past 12 months if reclamation work has been completed, or it may be transferred to additional acres to be disturbed in the upcoming year (§ 45.2-1212 of the Code of Virginia). Release is contingent on whether recla- mation has been accomplished in accordance with the codes, regulations, and approved permit, including completion of the reclamation plan that supports the approved postmining land use (4VAC25-31-280). Virginia Energy’s final inspection for bond release may be made no sooner than “two growing seasons after the last seeding” and the criteria for bond release are summarized in Figure 5-3 (all from 4VAC25-31-300). Bonds may be released incrementally, providing a financial incentive for operators to perform concurrent reclamation during mine operations. Payments made to the Minerals Reclamation Fund may be repaid after reclamation is complete (§ 45.2-1212 of the Code of Virginia). Minerals Reclamation Fund deposits are held or retained according to the following formulas: • “If the permit’s fund balance divided by the number of acres remaining under bond is equal to or greater than $500, fund deposits for the permit will be released so that the remaining deposits equal $500 per acre for the acres remaining under bond” (4VAC25-31-320). • “If the permit’s fund balance divided by the number of acres remaining under bond is less than $500, the bond release amount will be determined by dividing the deposit amount by the number of bonded acres including the acres to be released, then multiplying by the number of acres to be released” (4VAC25-31-320). Virginia’s processes for the operator to request bond release and for the Director of Virginia Energy to confirm site conditions are comparable to the processes used in other states. The bond release criteria within the regulations 

VIRGINIA’S REGULATORY FRAMEWORK 155 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 reclama- tion (§ 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 con- tinue 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 require- ments in other states, but the details about the operator and about the status of land disturbance, completed reclama- tion, 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 com- munication 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 

156 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA surface areas, Montana requires that annual reports include, if applicable, an inventory of available soil and recla- mation 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 inspec- tion 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 sur- face 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 miti- gation 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 activi- ties 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 activi- ties 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 effec- tive 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 

VIRGINIA’S REGULATORY FRAMEWORK 157 work during construction and installation may lead to future problems, like leaks or malfunctions in liner sys- tems, 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. How- ever, 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 

158 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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 investiga- tion. 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 investiga- tion 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 prepon- derance 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 appro- priate 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. 

VIRGINIA’S REGULATORY FRAMEWORK 159 Inactive or Abandoned Operations Virginia regulations require the permittee to send notice of intent to stop the working of an underground mine for a period of 30 days, or a surface mine for a period of 60 days. This notice must occur at least 10 days prior to the intended discontinuation, or whenever the mine becomes inactive (§ 45.2-1130 of the Code of Virginia). A similar 10-day prior notification is required upon resumption of the work. Except for a surface mineral mine that is inspected by MSHA, the mining cannot resume until an inspector has inspected the mine and approved its use (§ 45.2-1130 of the Code of Virginia). A mine is determined to be complete and the permit can be revoked when no mine-related activity has been conducted for 12 consecutive months (4VAC25-31-430). However, a mine may remain inactive under a permit for an indefinite period if all disturbed areas are adequately stabilized, or all erosion and sediment control systems are main- tained, and if drainage structures, vegetation, and machinery and equipment are well maintained (4VAC25-31-430). According to Virginia Energy, some permit revocations and bond forfeitures have occurred involving sites that had become inactive, perhaps due to bankruptcy or other financial stress, and were not adequately reclaimed (Michael Skiffington, personal communication, 2022). Some mines may cease operations over a gradual timeframe, with a period of temporary inactivity. Virginia requires that reclamation commence after 12 months of inactivity, but there are also conditions under which a site may be allowed to remain inactive indefinitely. This could poten- tially lead to a scenario where the costs for the permittee to complete the final reclamation activities far exceed the costs to remain under this “care and maintenance” status, and this difference would increase over time due to deteriorating site conditions in the absence of adequate maintenance, and economic factors like inflation and market fluctuations for fuel, equipment, and personnel. If such a permit were eventually revoked and the bond forfeited before final reclamation occurred, the Commonwealth would be liable for the increased costs of completing final reclamation, which are unlikely to be sufficiently covered by the available bond amount. It is common for state regulations to consider the potential closure and abandonment of a mine site, and allow a period of temporary cessation for a number of reasons. However, by establishing limits for the allowable length of temporary cessation and periodically revising the financial assurance calculation, states can reduce the risk of forfeited bonds being insufficient to cover final reclamation costs. Other states have variability in the timeframes that are allowed for temporary cessation and the stipulations or conditions that apply to the permittee while the site remains inactive. Examples include Arizona (allowing inactivity for up to 15 years; Code 27-926 and R11-2-207), Colorado (up to 10 years; 2CCR407-1-1.13), Montana (2 years; ARM 17.24.150 and 170), and South Carolina (2 years; S.C. Code Regs. § 89-270). Banned Parties (“Bad Actors”) As part of the permit application in Virginia, applicants must specify whether the applicant or affiliates have ever had a mining permit revoked (in any state) or had a bond or security forfeited (§ 45.2-1205 of the Code of Virginia). If so, Virginia Energy must not issue a mineral mining permit, except when an operator who forfeited a bond pays the cost of reclamation in excess of the amount of the forfeited bond within 30 days of notice, or if their forfeited bond is equal to or greater than the cost of reclamation, in which cases the operator is then eligible for another permit (§ 45.2-1209 of the Code of Virginia). The approach to deny a permit to certain parties, based on the applicant’s record of having a revoked permit and forfeited bond, is common in other states to prevent “repeat offenders.” Examples include South Carolina (S.C. Code 48-20-70 and 48-20-160) and Montana (§ 82-4-360, MCA). One aspect of Virginia’s requirements that is less common is the consideration of revoked permits and forfeited bonds from other states. Although this may be beneficial by providing another layer of review and protection against potential bad actors, it may be difficult for Virginia regulators to adequately track, investigate, and enforce this aspect of the law, which relies on sufficient record keeping within other states and coordination between Virginia and other states. Public Engagement Public participation in the regulatory process for gold mining can occur during exploration, environmental review, permitting, operations, reclamation, and after closure. In the public listening sessions hosted by the committee, 

160 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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. Com- munity 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 commu- nication 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 Common- wealth 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 engage- ment 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 Common- wealth (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 Reserva- tion, 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 sig- nificance 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 

VIRGINIA’S REGULATORY FRAMEWORK 161 FIGURE 5-4  Traditional tribal territories and languages in Virginia. SOURCE: Image from UVA (2022). 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 notifi- cations 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 relation- ship 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 collabora- tion 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 consulta- tion 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). 

162 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA In summary, federal, state, and industry entities have all indicated support for ongoing and meaningful tribal consultation. In practice, this includes an opportunity for review and comment on mining projects at the earliest possible stage, invitations for tribes to be cooperating agencies in preparation of environmental reviews, read receipts for emails sent to notify indigenous leaders, groups, and nongovernmental organizations of exploration and mining activity, as well as a variety of other forms of communication. It should not be assumed that only one tribe has historic ties to an area, as a legal precedent may affect them all (Luke Tyree, personal communication, 2022). Exploration As described above, exploration drilling does not require a permit in Virginia and therefore does not require public notice. Other types of surface-disturbing exploration would require a permit, but the public notification requirements are very limited (see the section “Mine Permit Application”). This is similar to practices in South Carolina, but different from the practices in Montana and California, where public notification and comment periods may be required depending on the assessment of impacts (see Table 5-11). The current permitting exemption for exploration drilling creates a barrier for public communication that is unlike other mineral mining activities in Virginia (see Table 5-11), and results in a lack of shared information, transparency, and engagement among regulators, nearby residents, communities, and other stakeholders. As noted above, a lack of robust public notice for exploration activities has created distrust among potentially impacted communities. The lack of permitting requirements for exploration drilling is not commensurate with the level of public interest, concerns, and uncertainty related to such activities, as shown in the example in Buckingham County (see Box 5-4). There may be other opportunities for public information and engagement for exploration drilling projects, if required by local governance or associated permits from other regulatory programs, but a consistent statewide approach is lacking in the codes and regulations for mineral mining. Environmental Assessment One of the most common types of public participation occurs during environmental review. The federal NEPA process has formal requirements for sharing of data and information and includes provisions to make data, propos- als, and a wide range of project-related documents widely available to the public. The lead federal agency hosts BOX 5-4 Case Study of Exploration Drilling in Buckingham County In the example of exploration drilling conducted by Aston Bay in Buckingham County, the permitting exemption meant there were no requirements for notification, or allowing objections or requests for a hearing, for the neighboring landowners, local government, or utility companies. Based on public feedback provided to the committee (open meet- ings on December 15, 2021, and January 24, May 25, and May 26, 2022), some of the concerns raised about this exploration drilling activity include • Impacts to water quantity or quality with the potential to affect nearby water users. • A general lack of notification, involvement, and consideration for the local government, communities, and other stakeholders. Transparency and effective communication are critical in all stages of a project’s life cycle. Given the absence of required public notification and open exchange of information in this example, uncertainty and concerns about explora- tion drilling and feelings of mistrust against exploration or mining companies and governmental bodies are not surpris- ing. Stakeholders are left to reach their own conclusions about project details, potential risks, and future outcomes, but they may lack technical expertise encompassing the complexity and variability of gold deposits and feasibility studies related to exploration data. 

VIRGINIA’S REGULATORY FRAMEWORK 163 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 applica- tion 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 Administra- tive 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 BOX 5-5 Requirements for Public Notification The following information must be included in the public notifications (§ 45.2-1210 of the Code of Virginia and 4VAC25-31-170): • Date of notification and the name and address of the permit applicant issuing the notice; • Name and address of the notification recipient; • Location of the proposed mine (city or county), the distance of the proposed mine site to the nearest town or easily identified landmark, and the tax map identification number of the parcels of the prosed mine site; • Statement of the applicant’s intent to seek a mining and reclamation permit from Virginia Energy, noting that the mining permit must address requirements for regrading, revegetation, and erosion controls of mineral mine sites; and • Notification that property owners have 10 days from receipt of the permit notification to submit written objections or request a hearing. 

164 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA 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 intel- ligible 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 cal- culation 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 meet- ing 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. 

VIRGINIA’S REGULATORY FRAMEWORK 165 Review of Impacts Virginia’s current regulatory system lacks an effective and consistent process for review of environmen- tal impacts from potential gold mining projects. As a result, it is unlikely that a robust collection, evaluation, and review of site-specific data regarding potential impacts of gold mining activities and their impact on the public health and welfare of surrounding communities will take place. NEPA requires federal agencies to consider the potential environmental effects on natural resources, as well as social, cultural, and economic resources, before permitting. Virginia law does not require a NEPA-like review of environmental impacts for private lands, where gold mining is most likely to occur. Additionally, while baseline studies in Virginia appear to be recommended, they are not required. This means that in the absence of a major federal action that triggers the federal NEPA process, there may be limited collection of baseline information and no formal documentation of the regulatory program’s analysis, disclosure of impacts, or decision making for a range of environmental resources or factors. Some states have a state-specific NEPA-like process that allows for a consistent approach to collect- ing and considering baseline information and other material relevant to environmental impacts (e.g., Montana and California). Other states have regulation, code, and guidance documents that emphasize the importance of baseline studies (e.g., Colorado, Nevada, Montana, California). The protection of air and water quality would be strengthened if Virginia adopted laws and promulgated regulations that required up-front, robust data collection and a NEPA-like analysis that discusses and evaluates reasonable alternatives. Exemptions Virginia provides exemptions from regulatory oversight for off-site processing and exploratory drilling which are not commensurate with the potential impacts from those operations. • Off-site processing: Gold processing facilities in Virginia that are not located on site with active mining or extraction (“toll mills”) would not require a permit from the Mineral Mining Program for the operation and reclamation of the site. Toll mills may look very similar to permitted on-site processing facilities and similar environmental impacts may result from toll mills. In fact, the waste materials at toll mills may contain a broader range of potential contaminants if the source materials come from different locations. While toll mills may be required to obtain permits from other agencies to protect air quality and water quality, the lack of regulatory oversight by the Mineral Mining Program means that site characterization, project plans and designs, and the implementation of best practices for operations, reclamation, and long- term stewardship may not be adequately addressed. • Exploratory drilling: Virginia’s current laws and regulations exempt exploratory drilling for mineral resources. Impacts on the environment during initial exploration are generally minor, localized, and easily reclaimed. However, advanced exploration methods may be associated with greater impacts (see Chapter 3). While surface impacts including erosion and runoff may be regulated by Virginia DEQ and DCR, there are currently no mineral mining regulations for exploration in Virginia that mandate the plugging of drill holes or the covering of drill cuttings from the hole. If best practices are not utilized for these closure activities, pollution of the local groundwater and surface water could occur. This exemption for exploratory drilling also means that public notice to citizens and local communities is not required. Greater oversight of exploration drilling would ensure community participation starting at the earliest appropriate stage and continuing throughout the life cycle of a potential gold mine, and would lessen the likelihood of these localized impacts, especially in regard to more advanced and intensive drilling programs. This oversight could include requirements to file plans for drilling, closure, and reclamation, and a requirement to provide notice to those around the exploration site. Underground gold mining without significant surface effects is also currently exempt from regulations under Virginia’s mineral mining codes and regulations. While significant surface effects related to disturbances and facilities would require a permit, the exemption for underground gold mining could cause important aspects of underground mines to be excluded from operations and closure plans of the surface permit. Additionally, the level of technical assessment and oversight for underground gold mines by Virginia Energy is not clear. 

166 THE POTENTIAL IMPACTS OF GOLD MINING IN VIRGINIA Financial Assurance Virginia’s bonding requirements are insufficient to cover the costs of reclamation and long-term stewardship of gold mining and processing operations, which poses a fiscal and environmental risk to the Commonwealth in the case of the bankruptcy of mining enterprises or abandonment of their mining sites. • Bonding rates: Virginia’s bonding rates are based solely on disturbed acreage. This type of bond calculation often leads to undercollection of bonds for gold mining and processing operations because it focuses only on aspects of land reclamation and does not account for additional costs like postclosure water management. Additionally, Virginia offers a bond pool, called the Minerals Reclamation Fund, with even lower per-acre rates and pooled risk. The complex reclamation and long-term stewardship activities that might be necessary for some gold mining projects could greatly deplete or potentially exhaust the Minerals Reclamation Fund used by the Commonwealth to guarantee reclamation. The regular recalculation of potential costs using verifiable engineering estimates would constitute an improved model for determining bonding rates. This model would estimate the costs for reclamation and long-term stewardship for all aspects of the operation over the project’s life, including any postclosure water management, treatment, and monitoring that may be required to achieve long-term hydrologic, physical, and chemical stability. The integrity of the Minerals Reclamation Fund could be maintained using a similar bond calculation model, or by establishing membership criteria that are based on the operation’s characteristics and its potential impacts. • Exemptions from bonding: Virginia’s exemptions from bonding for underground gold mining, small-scale gold mining, and toll mills do not reflect the costs necessary to conduct reclamation and long-term stewardship at those operations. No financial assurance is provided to the Commonwealth for these exempt operations, which poses a fiscal and environmental risk to the Commonwealth and its citizens. • Bond release: Virginia does not have clear guidance regarding the criteria for bond release for projects that require complex closure and reclamation. To ensure successful mine reclamation, bonds should only be released following the demonstration that performance standards for reclamation have been achieved over a sufficient period of time. These performance standards may include requirements for slope stability, vegetation establishment, water quality, and hydrologic balance. Incremental bond release for areas at which successful reclamation has been demonstrated can encourage the timely completion of reclamation. Performance Standards and Their Enforcement To incorporate best practices, build a mutual understanding among permittees and regulators, and better support protection of human health and the environment, Virginia agencies will need to review the regulatory performance standards pertinent to gold mining and update guidance documents. Virginia’s performance-based laws and regulations provide flexibility for the site-specific designs of each project, but do not provide sufficient guidance for operators to achieve objectives and do not offer sufficient metrics for regulators to evaluate during the review of applications and inspection of activities. Fiscal and environmental risks to the Commonwealth would be reduced with improved guidance and performance standards on best practices for the collection of baseline information, geochemical characterization, water management, waste rock management, tailings management, and impoundment design. Specifically, performance standards for impoundment designs could recommend a probabilistic framework for designing for seismic events and a consideration of the predicted increased frequency and magnitude of major storm events due to climate change. Performance standards would also be improved with conservative recommendations for slope angles and safety factors that reflect best geotechnical practices and incorporate the potential for undrained loading and liquefaction in saturated tailings. Additionally, decision makers may want to reconsider the current practice of using incremental damage assessments to calculate design floods requirements for impoundments. The capacity to regulate is as important as a strong regulatory framework and is a concern for Virginia given the limited experience with the regulation of metal and gold mining. The capacity to regulate requires robust funding of the regulatory entities, as well as diverse and appropriate technical expertise of the regulators, supplemented by periodic reviews of evolving best practices. In addition, effective coordination between multiple 

VIRGINIA’S REGULATORY FRAMEWORK 167 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 inspec- tions 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 mean- ingful 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 Environmen- tal 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. *** As detailed above, Virginia’s present regulatory structure is not adequate to protect against the potential envi- ronmental 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.