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5 Virginia's Regulatory Framework
Pages 115-168

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From page 115...
... 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)
From page 116...
... 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)
From page 117...
... 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]
From page 118...
... . 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)
From page 119...
... . 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.
From page 120...
... . In addition, the Clean Air Act has a "Good Neighbor" provision (42 USC § 7410 (a)
From page 121...
... ) , 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.
From page 122...
... . 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)
From page 123...
... 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.
From page 124...
... 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)
From page 125...
... . 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)
From page 126...
... § 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.
From page 127...
... USACE and EPA share authority to regulate the dredging and filling of WOTUS, including wetlands (Troutman Sanders LLP, 2008; Virginia DEQ, 2019)
From page 128...
... 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)
From page 129...
... 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)
From page 130...
... 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.)
From page 131...
... 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 minerals by drilling (4VAC25-31-70; § 45.2-1200 of the Code of Virginia)
From page 132...
... This includes hydrologic studies and plans to minimize the adverse effects on water quantity and quality, if groundwater is encountered by the operation. Restricted Mining Permits are also subject to permit evaluations and inspections from the Mineral Mining Program, although no fees are paid to support the time and effort that regulators expend reviewing permits and carrying out other functions.
From page 133...
... 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)
From page 134...
... 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.
From page 135...
... . Underground or Deep Mining Virginia Energy reports there are currently two mineral mining permits that include (non-gold)
From page 136...
... 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.
From page 137...
... 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)
From page 138...
... 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.
From page 139...
... 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.
From page 140...
... 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.
From page 141...
... 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)
From page 142...
... 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)
From page 143...
... . 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)
From page 144...
... 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)
From page 145...
... . SOURCE: The Mineral Mine Operator's Manual; 4VAC25-31-500.
From page 146...
... For these two conditions, static and post-liquefaction, the evolving best practice uses minimum recommended limit equilibrium factors of safety of 1.5 and 1.1, respectively. Furthermore, Virginia impoundment regulations provide simplified maximum slope angle requirements for various impoundment categories that are inappropriate.
From page 147...
... . 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)
From page 148...
... . 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)
From page 149...
... 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.
From page 150...
... 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)
From page 151...
... . 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)
From page 152...
... 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)
From page 153...
... . 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)
From page 154...
... 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.
From page 155...
... 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.
From page 156...
... 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)
From page 157...
... . The Mineral Mining Program's Enforcement Policy and Procedures Manual (Virginia Energy, 2015c)
From page 158...
... 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.
From page 159...
... . 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)
From page 160...
... In April 2021, an office of environmental justice was created within Virginia DEQ to seek meaningful engagement and change that would advance environmental justice. Its stated goal was to move beyond simple "check the box" exercises and establish substantive provisions that can build trust, understanding, and values alignment among interested stakeholders, governmental agencies, and proponents of potential gold mining projects (Virginia Natural and Historic Resources, 2022)
From page 161...
... 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)
From page 162...
... . 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)
From page 163...
... . Of particular importance in almost any mining operation is the requirement that each permit applicant to the Virginia Mineral Mining Program must notify certain members of the public about a new permit application via certified mail (§ 45.2-1210 of the Code of Virginia and 4VAC25-31-170; Virginia Energy, 2022f)
From page 164...
... . 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)
From page 165...
... 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.
From page 166...
... 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.
From page 167...
... 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.


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