Titles of Regulations: 4VAC25-31. Reclamation Regulations for Mineral Mining (amending 4VAC25-31-120, 4VAC25-31-130, 4VAC25-31-170, 4VAC25-31-240, 4VAC25-31-360, 4VAC25-31-405 through 4VAC25-31-450).

4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-670).

Statutory Authority: §§ 45.1-161.3 and 45.1-180.3 of the Code of Virginia (4VAC25-31-120, 4VAC25-31-130, 4VAC25-31-170, 4VAC25-31-240, 4VAC25-31-360, 4VAC25-31-405, 4VAC25-31-410, 4VAC25-31-420, 4VAC25-31-430, 4VAC25-31-440, 4VAC25-31-450).

§§ 45.1-161.3, 45.1-161.294, and 45.1-161.305 of the Code of Virginia (4VAC25-40-670).

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 10, 2019.

Effective Date: July 25, 2019.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email [email protected].

Basis: The regulatory authority for the Department of Mines, Minerals and Energy (DMME) for this action is located in §§ 45.1-161.3, 45.1-161.292:19, and 45.1-180.3 of the Code of Virginia.

Purpose: This regulatory change is necessary to clarify and codify longstanding agency policy. This change will result in clearer, more precise requirements that will enhance worker and public safety, as well as environmental protection.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is noncontroversial because it merely makes minor changes and clarifies and codifies longstanding agency policy.

Substance: Substantive changes to existing sections in this regulatory action include specifying requirements for operation and reclamation plans, clarification of permit application notification requirements, clarification of top soil requirements for reclamation, clarification of temporary cessation conditions, and the addition of a standard for fire extinguishers on mineral mine sites. Other changes clarify existing agency policy.

Issues: The public, DMME, and the regulated community will all benefit from regulatory requirements that codify and clarify longstanding agency policy. These changes will result in enhanced environmental protection and public and worker health and safety. There are no known disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to a periodic review,¹ the Department of Mines, Minerals and Energy (DMME) proposes to 1) require mine operators to cover on-site generated mine waste used as a fill by an "adequate" cover instead of requiring coverage by four inches of top soil, 2) require operators to send a copy of the permit notification to DMME at the time they are mailed to those who must be noticed, and 3) make changes to clarify numerous other requirements or delete redundant language.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. One of the proposed substantive changes is requiring mine operators to cover mine waste used as a fill by "adequate" cover as opposed to requiring four inches of top soil cover in every case for reclamation purposes. According to DMME, using mine waste as fill is a site-specific exercise that should not be regulated in a one-size-fits-all fashion. This change would provide greater flexibility to the mine operators in terms of choosing the type and the amount of cover. The proposed change is essentially replacing a prescriptive criterion by a performance criterion. Generally, performance criteria lead to better allocation of scarce resources with proper enforcement. While some operators may incur greater cost to provide "adequate" cover than the cost of four inches of top soil cover and in other cases may incur less, this change should help prevent unnecessary use of cover material overall. Under the proposed change, only the just right type and amount of cover would be required while maintaining "adequate" cover. DMME notes however, any savings or costs from this change would be minor, but is unable to quantify the likely magnitude as it depends on the site, the materials, frequency of the work, etc.

Another proposed change would require operators to send a copy of a permit notification to DMME at the time they are mailed to those who must be noticed. According to DMME, this will serve as a heads up to the agency that it will soon receive a permit application and may increase efficiency. The cost of this change would be sending an additional copy of an already existing notice to DMME, which should be very small.

The remaining changes include numerous clarifications of long-standing agency practices and removal of fees set by statute from this regulation. These changes are not expected to create any significant economic impact beyond improving the clarity of the requirements and language.

Businesses and Entities Affected. According to DMME, there are approximately 440 permitted mineral mine sites operated by 278 entities across the Commonwealth. Approximately 90% of these operators would qualify as small business.

Localities Particularly Affected. The proposed amendments would affect all localities in the Commonwealth that have mineral mines. According to DMME, 91% of Virginia's counties have mineral mines governed by these regulations.

Projected Impact on Employment. The proposed amendments may increase or decrease demand for labor at different sites by a small margin depending on whether adequate coverage can be achieved by more or less coverage than the currently required four inches of top soil.

Effects on the Use and Value of Private Property. The proposed amendments could have a positive or negative impact on the asset values of the affected operators by a small margin depending on whether their site-specific compliance costs increase or decrease.

Real Estate Development Costs. The proposed amendments should not significantly affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The costs and other impact on mine operators that are small businesses are the same as discussed above.

Alternative Method that Minimizes Adverse Impact. There is no known alternative that would minimize the likely small adverse impact in some cases while accomplishing the same goals.

Adverse Impacts:

Businesses. The likely small adverse impact for some mine operators will depend on the specific site conditions as discussed above.

Localities. The proposed amendments would not adversely affect localities.

Other Entities. The proposed amendments would not adversely affect other entities.

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¹http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1678

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments update reclamation requirements for mineral mining to clarify and codify longstanding agency policy. Additionally, one minor technical amendment is being made to the mineral mining safety and health regulations to correct an omission.

4VAC25-31-120. Permit fee and bond.

A. The following permit fees shall be submitted upon receipt of a billing notice from the director and before the permit is issued:

1. A fee of $31 per acre for the total permitted acres shall be submitted for the initial permit application.

2. A fee of $16 per acre for the land permitted by the total operation shall be paid to transfer the permit when one operator succeeds another on an uncompleted operation. Permit fees for the initial permit application and permit renewal shall be submitted upon receipt of a billing notice from the director and before the permit is issued or renewed. Fees shall be paid in accordance with § 45.1-181 of the Code of Virginia.

B. Permit fees for the transfer of a mine permit shall be submitted upon receipt of a billing notice from the director and before the transferred permit is issued. Fees shall be paid in accordance with § 45.1-184.2 of the Code of Virginia.

C. All fees shall be in the form of cash, check, money order, or other form of payment acceptable to the director.

C. D. A bond is required as set forth in Part III of this regulation. Bonding shall be provided once the permit application is deemed complete.

4VAC25-31-130. Mineral mining plans.

Mineral mining plans shall be attached to the application and consist of the following:

1. The operation plan shall include a description of the proposed method of mining and processing; the location of top soil storage areas; overburden, refuse, and waste disposal areas; stockpiles, equipment storage, and maintenance areas; cut and fill slopes; and roadways. The operation plan shall address plans for the storage and disposal of scrap metal, scrap tires, used lubricants, coolants, and other equipment service products, batteries, process chemicals, trash, debris, and other hazardous materials. The operation plan shall also include all related design and construction data. The method of operation shall provide for the conducting of reclamation simultaneously where practicable with the mining operation. For the impoundments that meet the criteria of § 45.1-225.1 A of the Code of Virginia, plans shall be provided as required under 4VAC-25-31-180 and 4VAC25-31-500.

2. The drainage plan shall consist of a description of the drainage system to be constructed before, during, and after mining,; a map or overlay showing the natural drainage system,; and all sediment and drainage control structures to be installed along with all related design and construction data.

3. The reclamation plan shall include a statement of the planned land use to which the disturbed land will be returned through reclamation, the proposed actions to assure suitable reclamation, and a time schedule for reclamation. The method of grading,; removal of metal, lumber, and debris, including processing equipment,; buildings,; and other equipment relative to the mining operation and revegetation of the disturbed area shall be specified. Reclamation plans for underground mines shall include plans for closing or securing all entrances to underground workings.

4. Adequate maps, plans and cross sections, and construction specifications shall be submitted to demonstrate compliance with the performance standards of Part IV (4VAC25-31-330 et seq.) of this chapter and Chapter 16 (§ 45.1-180 et seq.) of Title 45.1 of the Code of Virginia. Designs, unless otherwise specified, shall be prepared by a qualified person, using accepted engineering design standards and specifications.

5. A copy of the Virginia Department of Transportation land use permit for roads that connect to public roads.

6. If mining below the water table is to take place, the following conditions apply:

a. The application shall contain an assessment of the potential for impact on the overall hydrologic balance from the proposed operations to be conducted within the permitted area for review and approval.

b. A plan for the minimization of adverse effects on water quality or quantity shall be prepared based on the assessment in subdivision 6 a of this section and included in the application.

c. 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.

4VAC25-31-170. Permit application notifications.

A. The applicant shall notify the following shall be made with parties of a new permit application via certified mail:

1. Notification to property Property owners within 1,000 feet of the permit boundary by certified mail. A record shall be kept of:

a. The names and addresses of those notified, and

b. The certified mail return receipts used for the notification.

2. A statement as required by § 45.1-184.1 of the Code of Virginia to property owners that requires land owners within 1,000 feet of the permit boundary to be notified that the operator is seeking a surface mining and reclamation permit from the Department of Mines, Minerals and Energy. The statement shall also include:

a. Company name;

b. Date;

c. Location;

d. Distance and direction of nearest town or other easily identified landmark;

e. City or county;

f. Tax map identification number; and

g. Requirements for (i) regrading; (ii) revegetation; and (iii) erosion controls of mineral mine sites.

h. A notice that informs property owners that they have 10 days from receipt of the permit notification to specify written objections or request a hearing. This request shall be in writing and shall be sent to the Department of Mines, Minerals and Energy, Division of Mineral Mining. The Chief Administrative Official of the local political subdivision where the prospective mining operation would take place.

3. All public utilities on or within 500 feet of permit boundary.

B. Applicants will provide a copy of the permit notification to the division at the time they are mailed to the neighboring landowners. All notifications shall contain:

1. The name of the permit applicant issuing notice and the date of notification;

2. The permit applicant's address, phone number, and other contact information as available;

3. The name and address of the property owner, chief administrative official, or utility receiving the notification;

4. A statement as required by § 45.1-184.1 of the Code of Virginia to property owners that requires land owners within 1,000 feet of the permit boundary to be notified that the operator is seeking a mining and reclamation permit from the Department of Mines, Minerals and Energy. The statement shall also note that the mining permit must address department requirements for regrading, revegetation, and erosion controls of mineral mine sites;

5. The location of the proposed mine, the city or county in which it is located, the distance of the nearest town or other easily identified landmark, and the tax map identification number of the parcels to be permitted; and

6. A notice that informs property owners within 1,000 feet of the permit boundary that they have 10 days from receipt of the permit notification to specify written objections or request a hearing. This request shall be in writing and shall be sent to the division. The current address for the division shall be provided on the notification.

C. A statement, with certified mail receipt, certifying that the chief administrative official of the local political subdivision has been notified.

D. Notification shall be made to any public utilities on or within 500 feet of the permitted area. The notification shall consist of the following:

1. The name of the party issuing the notice;

2. The applicant name, address, and phone number; and

3. The name and address of the party receiving the notice and the information noted in subdivision A 2 of this section.

E. C. No permit will be issued until at least 15 days after receipt of the application by the division. If all persons required to receive notice have issued a statement of no objection, the permit may be issued in less than 15 days.

F. D. Copies of all permit notifications and statements required in subsections A through D of this section shall be supplied submitted to the division with the application at the time they are mailed to the parties identified in subsection A of this section.

E. Documentation of certified mail receipts of the notifications described in this section shall be included with the permit application.

4VAC25-31-240. Bond amount.

A. The amount of bond shall be $1,000 per acre of disturbed land Bond shall be set in accordance with § 45.1-183 of the Code of Virginia.

B. The minimum bond for a mineral mining permit shall be $1,000 $3,000, except for restricted permits and Minerals Reclamation Fund participants.

4VAC25-31-360. Operation and reclamation.

A. Mining operations shall be conducted to minimize adverse effects on the environment and facilitate integration of reclamation with mining operations according to the special requirements of individual mineral types and the approved operation, drainage, and reclamation plans. Mining shall be conducted to minimize the acreage that is disturbed, and reclamation shall be conducted simultaneously with mining to the extent feasible.

B. Open pit mining of unconsolidated material shall be performed in such a way that extraction and reclamation are conducted simultaneously.

C. 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.

D. 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.

E. Excavation shall be done in such a manner as to keep storm drainage flowing toward sediment control structures. Diversions shall be used to minimize storm run-off runoff over disturbed areas.

F. The mining operation shall be planned to enhance the appearance to the public during mining and to achieve simultaneous and final reclamation.

G. 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.

H. Reclamation shall be completed to allow the post-mining land use to be implemented. After reclamation, the post mining land use shall be achievable and compatible with surrounding land use. All necessary permits and approvals for the post-mining land use shall be obtained prior to implementation.

4VAC25-31-405. Disposal of waste.

On-site generated mine waste shall not be disposed of within the permitted mine area without prior approval. On-site generated inert materials are mine waste is approved for use as fill on the mining site provided they are capped with a minimum of four feet of soil an adequate cover and seeding is established per the approved reclamation plan. Off-site generated inert waste shall not be brought onto the mine permitted area or disposed of on the mine permitted area without prior approval.

4VAC25-31-410. Storage of top soil.

A. Top soil required for reclamation shall be stored with a maximum slope of 2:1 and in such a manner as to remain available for reclamation. The operator shall retain a minimum quantity sufficient to cover all disturbed areas to be reclaimed with six inches of top soil or as specified in an approved operations plan. Top soil will be needed for future reclamation and shall not be removed from the permitted area unless authorized by the division.

B. The stockpiled top soil shall be seeded with quick growing grasses or legumes for stabilization until used in final reclamation.

C. The provisions of this section shall not apply to sand and gravel operations in the Coastal Plain physiographic province.

4VAC25-31-420. Screening.

A. 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.

B. If screening is to be undisturbed forest, a distance of 100 feet must be left undisturbed within the permit boundary. Less than 100 feet may be approved if the natural vegetation provides the needed screening benefits between the mining operation and the adjacent property. Planted earth berms, tree plantings, natural topography, or appropriately designed fences or walls may be used if approved in the mineral mining plan.

C. On permanent berms for screening, the spoils (waste materials) shall be initially placed on the proposed berm area, and top soil (where available) shall be spread over the spoil areas berm, not less than six inches in thickness, and if possible, 12 inches in thickness. The remaining top soil shall be placed in a designated area for future spreading on other areas which that need top dressing. The top soil screening berm shall be seeded or planted in accordance with the approved reclamation plan.

4VAC25-31-430. Completion of active mining.

A. Except as provided in subsection B of this section and with the director's approval, a mining operation, where no mineral has been removed or overburden removed or regraded, or where no substantial mine-related activity has been conducted for a period of 12 consecutive months, shall be declared complete, and total reclamation shall begin.

B. At the option of the operator and with the director's concurrence approval, an operation may remain under permit for an indefinite period during which no mineral or overburden is removed if the following conditions are met to the director's satisfaction:

1. All disturbed areas are reclaimed to prevent erosion and sedimentation 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 such as culverts and ditches 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.

If the above conditions listed in this subsection are not met, the permit may be revoked by the director in accordance with § 45.1-186.1 of the Code of Virginia.

4VAC25-31-440. Drainage and sediment control.

All mining operations shall have adequate drainage, erosion, and sediment control measures installed and maintained in accordance with the approved drainage plan or as acceptable to the division. Drainage from disturbed areas shall be directed into a sediment control structure before it is discharged from the permitted area. If adequate drainage, erosion, and sediment control measures cannot be provided, the permit for the affected portion or the entire mine may be denied.

4VAC25-31-450. Sediment basins.

Drainage from disturbed areas shall be directed into a sediment basin before it is discharged from the permit area. Sediment basins shall be located as close to the disturbed area as possible. Sediment basins shall not be located in perennial streams. Sediment control measures shall be installed prior to land disturbing activities within the drainage area controlled by the sediment basin. 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 they reach 60% capacity. Alternate sediment control measures that are as effective as sediment basins may be approved. The measures may include reduced basin storage capacity for small short-term disturbances, sediment channels, check dams, or mining methods that incorporate sediment control.

4VAC25-40-670. Fire extinguishers.

A. Whenever a fire or its effects could impede escape from self-propelled equipment, a fire extinguisher shall be on the equipment.

B. Whenever a fire or its effects would not impede escape from the equipment but could affect the escape of other persons in the area, a fire extinguisher shall be on the equipment or within 100 feet of the equipment.

C. All fire extinguishers required by this chapter shall meet the current standards established by the National Fire Prevention Association.

DOCUMENTS INCORPORATED BY REFERENCE (4VAC25-40)

1996 Threshold Limit Values and Biological Exposure Indices published by the American Conference of Governmental Industrial Hygienists

American Table of Distances, 1991 edition, published by the Institute of Makers of Explosives

National Electrical Code, 2008 edition, published by the National Fire Protection Association

National Fire Protection Association 10: Standard for Portable Fire Extinguishers, 2013 edition

Bureau of Mines Instruction Guide 19, Mine Emergency Training, U.S. Department of Labor, 1972 edition

Blasting Guidance Manual, U.S. Department of Interior, Office of Surface Mining Reclamation and Enforcement, 1987 edition

The American National Standard for Wire Rope for Miners, M11.11980, published by the American National Standards Institute