4VAC25-31 Reclamation Regulations for Mineral Mining

REGULATIONS

Vol. 29 Iss. 4 - October 22, 2012

TITLE 4. CONSERVATION AND NATURAL RESOURCES

DEPARTMENT OF MINES, MINERALS AND ENERGY

Chapter 31

Proposed Regulation

Title of Regulation: 4VAC25-31. Reclamation Regulations for Mineral Mining (amending 4VAC25-31-10, 4VAC25-31-100, 4VAC25-31-110, 4VAC25-31-130, 4VAC25-31-140, 4VAC25-31-150, 4VAC25-31-170, 4VAC25-31-190, 4VAC25-31-260, 4VAC25-31-290, 4VAC25-31-330, 4VAC25-31-360, 4VAC25-31-380, 4VAC25-31-420, 4VAC25-31-460, 4VAC25-31-490, 4VAC25-31-500, 4VAC25-31-510, 4VAC25-31-530, 4VAC25-31-540, 4VAC25-31-550; adding 4VAC25-31-405, 4VAC25-31-505).

Statutory Authority: §§ 45.1-161.3 and 45.1-180.3 of the Code of Virginia.

Public Hearing Information:

December 4, 2012 - 10 a.m. - Department of Mines, Minerals and Energy, Division of Mineral Mining, Fontaine Research Park, 900 Natural Resources Drive, Charlottesville, VA

Public Comment Deadline: December 21, 2012.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone [phone], FAX [phone], TTY [phone], or email [e-mail].

Basis: The Department of Mines, Minerals and Energy (DMME) has authority to promulgate this regulation under the authority found in § 45.1-161.3 of the Code of Virginia. Section 45.1-180.3 of the Code of Virginia gives the Director of DMME specific authority over the reclamation of mineral mines.

Purpose: The purpose of the amended regulation is to ensure that public health and safety is maintained by ensuring mineral mining reclamation standards are updated to reflect current industry best practices.

Substance: The agency's commitment to offering electronic services to customers requires certain sections to be amended to facilitate the use of electronic forms. Other sections will be reorganized or reworded to make them clearer. Obsolete information, such as agency addresses that have changed, will be corrected. Sections dealing with reclamation standards and post-mining land use will be clarified and strengthened to assure adequate protection of the environment. The agency is also allowing an additional type of financial instrument to be used as bond.

Issues: The proposed changes will improve the water quality for the state waters of Virginia. The proposed changes will also provide additional flexibility to the regulated businesses by increasing their ability to conduct business electronically and by allowing an additional acceptable form of bonding.

DMME will benefit by improvements in its ability to conduct business electronically. The proposed changes coordinate definitions and requirements of other state agencies (Department of Conservation and Recreation and Department of Environmental Quality) to make compliance easier during mining and after mining.

There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the result of a periodic review, the Department of Mines, Minerals and Energy (Department) proposes numerous changes to these regulations. Many of the proposed changes involve clarifications, additions and modifications to definitions, updating of citations, elimination of obsolete language, etc. Additionally the Department proposes to: 1) specify that areas that are disturbed (by mining activities) shall be provided with an undisturbed riparian buffer, 50 feet in width, along both sides of a perennial stream, 2) add irrevocable letters of credit as an acceptable form of performance bond, 3) add and modify language to enable mineral mining permits and permit applications to be submitted electronically, and 4) require operators to notify the Division of Mineral Mining (Division) immediately if an impoundment suffers a partial or complete failure.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. The current regulations specify that all intermittent or perennial streams shall be protected from spoil by natural or constructed barriers. The Department proposes to additionally state that

Areas disturbed after the effective date of this regulation shall provide an undisturbed riparian buffer, 50 feet in width, along both sides of a perennial stream unless otherwise approved by the director. Areas disturbed prior to the effective date shall provide the aforementioned riparian buffer upon reclamation, in accordance with the approved post-mining land use.

A riparian buffer is defined as an area of trees, shrubs or other vegetation that is managed to maintain the integrity of the stream channel and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.

The Department estimates the cost of riparian buffer compliance at less than $1,000 per affected site. There are currently about 430 active permitted sites. Approximately 230 of the sites are within the Chesapeake Bay watershed, and would already fall under existing riparian buffer standards for that watershed.¹ These sites would not be affected by the proposed new language. The Department estimates that approximately 10% of the 200 sites outside the Chesapeake Bay watershed, or an estimated 20 sites, would be affected. Thus the total aggregated cost for all of the permitted site owners would likely be less than $20,000.² The riparian buffers are likely to have a positive impact on the quality of waters passing through or adjacent to these mine sites. This may have a positive impact on public health and the surrounding ecosystem. The dollar value of potential improvement to public health and the local ecosystem cannot be easily measured, but likely exceeds the aggregated compliance cost of less than $20,000.

The current regulations require that once a mineral permit application is deemed complete, the applicant shall submit a bond or bonds that cover the entire area presently disturbed by mining plus the estimated number of acres to be disturbed in the upcoming year. As additional areas outside the bonded acreage are to be disturbed to facilitate the mining operation, the permittee must file a bond or bonds to cover the acreage with the division. Permitted operators must certify annually with the permit renewal the type, current insurer or bank, and the amount of all reclamation bonds. Pursuant to a request from operators, the Department proposes to add irrevocable letters of credit as an acceptable form of bond. This will likely lower costs for mine owner/operators while still assuring that funds are available for site reclamation. This proposal will thus create a net benefit.

The Department proposes to add and modify language to enable mineral mining permits and permit applications to be submitted electronically. The current regulations specify that submissions be made in writing. This proposed change will enable improved efficiency and reduced time costs.

The Department proposes to require that if upon examination an operator determines that a water impounding structure has failed partially or completely, the incident must be reported to the Division immediately. In practice operators have not always immediately notified the Division upon the discovery of impounding structure failures.³ By putting this into regulation it will become perfectly clear that operators should do so; and it gives operators added incentive to do so in that the Department can take punitive action for noncompliance. Immediate knowledge will enable the Division to act sooner and to reduce potential risk to public safety. The cost of immediate notification is negligible while the benefits may be substantial in that it may reduce significant risk to public safety and potential property damage.

Businesses and Entities Affected. The proposed amendments potentially affect any permitted mine site that has a perennial stream passing through or bordering on the permit. The Department currently has about 430 active permitted sites. Approximately 10% of the 200 sites in the western portion of the state would be affected, or an estimated 20 sites. Approximately 230 sites are within the Chesapeake Bay watershed, and would already fall under existing riparian buffer standards for that watershed. Outside firms that are contracted in order to implement riparian buffers are potentially affected as well.

Localities Particularly Affected. Localities outside of the Chesapeake Bay watershed with current or potential mining activity will be particularly affected.

Projected Impact on Employment. Some outside firms may be contracted in order to build riparian buffers. The additional business may modestly increase employment at a few of these firms.

Effects on the Use and Value of Private Property. Some outside firms may be contracted in order to build riparian buffers. The additional business may moderately increase the value of these firms.

Small Businesses: Costs and Other Effects. Owners of approximately 20 mining sites outside of the Chesapeake Bay watershed will face higher costs due to the proposed riparian buffer requirement. Small firms which may be contracted to help build the riparian buffers would likely benefit. The proposal to add irrevocable letters of credit as an acceptable form of performance bond will likely reduce costs for some small site owners.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Owners of approximately 20 mining sites outside of the Chesapeake Bay watershed will face higher costs due to the proposed riparian buffer requirement. The proposed riparian buffer requirement is intended for improved water quality. There is no obvious alternative that would commensurately improve water quality at a lower cost.

Real Estate Development Costs. Adding irrevocable letters of credit as an acceptable form of performance bond may moderately reduce the cost of developing land for mining for some owners. On the other hand, requiring riparian buffers will add costs for developing certain affected sites for mining.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

________________________

¹ Source: Department of Mines, Minerals and Energy

² $1,000 x 20 = $20,000

³ Source: Department of Mines, Minerals and Energy

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 proposed amendments facilitate the use of electronic permitting and forms and clarify reclamation and post-mining land use requirements. Obsolete items, such as addresses that have changed, are updated. The proposal also expands the types of financial instruments that can be used for performance bonds.

Part I
General Provisions

4VAC25-31-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acre-foot" means a unit of volume equal to 43,560 cubic feet or 325,853 gallons. One acre-foot of water is equivalent to one acre covered by water one foot deep.

"Berm" means a stable ridge of material used in reclamation for the control of sound and surface water, safety, aesthetics, or such other purpose as may be applicable.

"Critical areas" mean 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.

"Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his designee.

"Division" means the Division of Mineral Mining.

"Fifty-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as a probability that there is a 2.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 50-year, 24-hour storm occurs when the total 50-year storm rainfall occurs in a 24-hour period.

"Inert waste" means brick, concrete block, broken concrete, asphalt paving, and uncontaminated minerals or soil.

"Intermittent stream" means a stream or part of a stream that flows for at least one month of the calendar year as a result of ground water discharge or surface run-off that contains flowing water for extended periods during a year, but does not carry flows at all times.

"Internal service roads" mean roads that are to be used for internal movement of raw materials, soil, overburden, finished, or in-process materials within the permitted area, some of which may be temporary.

"Natural drainageway" means any natural or existing channel, stream bed, or watercourse that carries surface or ground water.

"One hundred-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as a probability that there is a 1.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 100-year, 24-hour storm occurs when the total 100-year storm rainfall occurs in a 24-hour period.

"On-site generated mine waste" means the following items generated by mineral mining or processing activities taking place on the permitted mine site:

Drill steel	Tree stumps/land clearing debris
Crusher liners	Large off-road tires
Conveyor belting	Scrap wood or metal
Steel cable	Steel reinforced air hoses
Screen cloth	Broken concrete or block
Punch plate	V-belts

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface run-off well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permitted area" means the area within the defined boundary shown on the application map including all disturbed land area, and areas used for access roads and other mining-related activities.

"Principal access roads" mean roads that are well-defined roads leading from scales, sales offices, or loading points to a public road.

"Probable maximum flood (PMF)" means the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF is derived from the current probable maximum precipitation (PMP) available from the National Weather Service, National Oceanic and Atmospheric Association Administration. In some cases local topography or meteorological conditions will cause changes from the generalized PMP values; therefore, it is advisable to contact local, state, or federal agencies to obtain the prevailing practice in specific cases.

"Qualified person" means a person who is suited by training or experience for a given purpose or task.

"Regrade" or "grade" means to change the contour of any surface.

"Riparian buffer" means an area of trees, shrubs, or other vegetation that is managed to maintain the integrity of the stream channel and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.

"Sediment" means undissolved organic or inorganic material transported or deposited by water.

"Sediment basin" means a basin created by the construction of a barrier, embankment, or dam across a drainageway or by excavation for the purpose of removing sediment from the water.

"Spillway design flood (SDF)" means the largest flood that needs be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Where a range of SDF is indicated, the magnitude that most closely relates to the involved risk should be selected.

"Stabilize" means any method used to prevent movement of soil, spoil piles, or areas of disturbed earth. This includes increasing bearing capacity, increasing shear strength, draining, compacting, rip-rapping, vegetating or other approved method.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Ten-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as a probability that there is a 10% chance that the storm magnitude may be equaled or exceeded in any given year. A 10-year 24-hour storm occurs when the total 10-year storm rainfall amount occurs in a 24-hour period.

"Top soil" means the surface layer and its underlying materials that have properties capable of producing and sustaining vegetation.

4VAC25-31-100. Mineral mining permits.

Permits shall be renewed annually, in a manner acceptable to the director, to continue to remain in effect.

4VAC25-31-110. Permit application.

Application for a mineral mining permit shall be made in writing on a form prescribed by the director and shall be signed and sworn to certified by the applicant or his duly sworn authorized representative. Two copies Copies of the application shall be submitted to the division in a manner acceptable to the director.

4VAC25-31-130. Mineral mining plans.

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

1. 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.

2. 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 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.

3. 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.

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.

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

c. In no case shall Permanent lakes or ponds be created if they are less by mining shall be equal to or greater than four feet deep, except when creation of wetlands is approved as part of the post-mining land use or otherwise constructed in a manner acceptable to the director.

4VAC25-31-140. Marking of permit boundaries.

A. The permit boundary of the mine shall be clearly marked with identifiable markings when mine related land disturbing activities are within 100 feet of the permit boundary.

B. This section is not applicable to lands disturbed prior to the effective date of this regulation September 11, 2003.

C. Maintenance of permit boundary markers is not required after completion of construction, completion of final disturbances, or completion of final reclamation unless the area is being redisturbed by mining.

D. Separate boundary markings are not required if clear, readily identifiable features, such as streams, permanent roads, or permanent power lines coincide with the permit boundary.

4VAC25-31-150. Maps.

A. Maps shall be supplied as described in §§ 45.1-181 and 45.1-182.1 of the Code of Virginia and in this chapter that show the total area to be permitted and the area to be affected in the next ensuing year (with acreage calculated).

B. Preparation of maps.

1. All application, renewal, and completion maps shall be prepared and certified under the direction of a professional engineer, licensed land surveyor, licensed geologist, issued by a standard mapping service, or prepared in such a manner as to be acceptable to the director.

2. If maps are not prepared by the applicant, the certification of the maps shall read as follows: "I, the undersigned, hereby certify that this map is correct and shows to the best of my knowledge and belief, all the information required by the mineral mining laws and regulations of the DMME."

3. The applicant shall submit a general location map showing the location of the mine, such as a county highway map or equivalent, in the initial application.

4. Sensitive features within 1,000 500 feet of the permit boundary such as including state waters, cemeteries, oil and gas wells, underground mine workings, streams, creeks and other bodies of public water, public utilities and utility lines, public buildings, public roads, schools, churches, and occupied dwellings shall be shown. Delineated wetlands within the permit boundary shall be shown. All properties, and their owners, within 1,000 feet of the permit boundary shall be identified.

C. Map code and legend.

1. A color code as prescribed by the director shall be used in preparing the map.

2. Graphic symbols may be used to represent the different areas instead of a color-coded map.

3. The map shall include a legend that shows the graphic symbol or color code and the acreage for each of the different areas.

4VAC25-31-170. Permit application notifications.

A. The following shall be made with a new permit application:

1. Notification to 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, P.O. Box 3727, Charlottesville, Virginia 22903, [phone].

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

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

C. D. Notification shall be made to any public utilities on or within 500 1,000 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.

D. E. 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.

E. F. Copies of all permit notifications and statements required in subsections A through C D of this section shall be supplied to the department division with the application.

4VAC25-31-190. Availability of permits.

Mineral mining permits and, a copy of the permit application, and a copy of the approved mineral mining plan shall be kept on-site while mining is underway.

4VAC25-31-260. Form of performance bond.

The bond shall be submitted in the form of cash, check, certificate of deposit, or insurance surety bond, or irrevocable letter of credit.

A. Certificates of deposit.

1. Certificates of deposit must be made payable to the Treasurer of Virginia, Division of Mineral Mining.

2. The amount of the certificate of deposit must include the maximum early withdrawal penalty rounded up to the next higher hundred dollars.

3. The original certificate of deposit shall be submitted to the division and held by the division throughout the bond liability period.

4. Certificates of deposit must be automatically renewable.

5. The certificate of deposit must be from a bank located in the Commonwealth of Virginia or approved as an allowable bank depository by the Virginia Department of Treasury.

6. Interest accrued on certificates of deposit may be deposited to the permittee's individual account and is free of encumbrance by bond liability.

7. In the event of forfeiture of a certificate of deposit, the face value of the deposit plus any accrued interest that has been rolled back into the certificate principal will be subject to bond liability and expenditure in the performance of the reclamation obligation.

B. Surety bonds.

1. All bonds shall be in a form acceptable by to the director. Bonds shall be executed by the permittee, and a corporate surety and agent licensed to do business in the Commonwealth.

2. Surety bonds shall not be canceled during their term except that surety bond coverage for lands not disturbed may be canceled with the prior consent of the division. The division shall advise the surety, within 30 days after receipt of a notice to cancel bond, whether the bond may be canceled on an undisturbed area.

C. Irrevocable letter of credit.

1. The director may accept a letter of credit on certain designated funds issued by a financial institution authorized to do business in the Commonwealth. The letter of credit shall be irrevocable and unconditional, shall be payable to the division on demand, and shall afford to the division protection equivalent to a corporate surety bond. The issuer of the letter of credit shall give prompt notice to the permittee and the division of any notice received or action filed alleging the insolvency or bankruptcy of the issuer, or alleging any violations of regulatory requirements that could result in the suspension or revocation of the issuer's charter or license to do business. In the event the issuer becomes unable to fulfill its obligations under the letter of credit for any reason, the issuer shall immediately notify the permittee and the division. Upon the incapacity of an issuer by reason of bankruptcy, insolvency, or suspension or revocation of its charter or license, the permittee shall be deemed to be without proper performance bond coverage and shall promptly notify the division, and the division shall then issue a notice to the permittee specifying a reasonable period, which shall not exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease mineral extraction and mineral processing operations and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mineral extraction and mineral processing operations shall not resume until the division has determined that an acceptable bond has been posted. If an acceptable bond has not been posted by the end of the period allowed, the division may suspend the permit until acceptable bond is posted.

2. The letter of credit shall be provided on the form and in the format established by the director.

3. Nothing contained in this section shall relieve the permittee of responsibility under the permit or the issuer of liability on the letter of credit.

4VAC25-31-290. Intensive agricultural use.

If the post-mining use is to be intensive agriculture, then 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. If crop yield data is unavailable, then other methods to determine suitability for bond release may be utilized as acceptable to the director. The use of grass, water bars, or diversion strips and natural vegetative drainage control may be required in the initial planting year as specified by the director.

Part IV
Performance Standards

4VAC25-31-330. Protected structures and sensitive features.

Mining activities shall be conducted in a manner that protects state waters, cemeteries, oil and gas wells, underground mine workings, public utilities, and utility lines, public buildings, public roads, schools, churches, and occupied dwellings.

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. 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. In no case shall lakes or ponds of water be created that are less than four feet deep, unless wetlands are formed as part of the approved post-mining land use 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 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.

4VAC25-31-380. Treatment of acid material.

All acid material, which is part of or directly associated with the mineral deposit or deposits being mined, encountered during the mining operation shall be properly controlled during mining and upon to prevent adverse impacts on surface or groundwater quality. Upon completion of mining, acid materials shall be covered with a material capable of shielding the acid material them and supporting plant cover in accordance with the approved reclamation plan. Unless otherwise specified by the director, the minimum cover shall be four feet in depth.

4VAC25-31-405. Disposal of waste.

On-site generated waste shall not be disposed of within the permitted mine area without prior approval. 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.

4VAC25-31-420. 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, not less than four 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 need top dressing. The top soil shall be seeded or planted in accordance with the approved reclamation plan.

4VAC25-31-460. Intermittent or perennial streams.

All intermittent or perennial streams shall be protected from spoil by natural or constructed barriers. Areas disturbed after (the effective date of this regulation) shall provide an undisturbed riparian buffer, 50 feet in width, along both sides of a perennial stream unless otherwise approved by the director. Areas disturbed prior to (the effective date) shall provide the aforementioned riparian buffer upon reclamation, in accordance with the approved post-mining land use. Stream channel diversions shall safely pass the peak run-off from a 10-year, 24-hour storm. Stream channel diversions shall be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.

4VAC25-31-490. Water quality.

The pH of 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. In addition, discharges shall be in compliance with applicable standards established by the Department of Environmental Quality (4VAC25-260-20).

4VAC25-31-500. Water impoundments.

A. Structures that impound water or sediment to a height of five feet or more above the lowest natural ground area within the 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, shall meet the following criteria (noted in Chapter 18.1 (§ 45.1-225.1 et seq.) of Title 45.1 of the Code of Virginia):

1. Impoundments meeting or exceeding the size criteria set forth in this section shall be designed utilizing a spillway flood and hazard potential classification as specified in the following table:

Class of Impoundment*	Hazard Potential if Failure Occurred	Size Classification** Spillway Design Flood (SDF)**		Spillway Design Flood (SDF)*** Minimum Threshold for Incremental Damage Analysis ***
		Capacity (ac-ft)	Height
I High Hazard	Probable loss of life Extensive off-site effect	A) >1000 PMF B) > 500 C) > 50 D) < 50	> 40 ft < 40 ft > 5 ft > 20 ft	.50 PMF 0.5 PMF-PMF 0.5 PMF-PMF 100 yr - 0.5 PMF
II Significant Hazard	Probable loss of life Appreciable off-site effects	A) >1000 .50 PMF B) > 500 C) > 50 D) < 50	> 40 ft < 40 ft > 5 ft > 20 ft	0.5 PMF-PMF 100 year storm 100 yr - 0.5 PMF 100 yr - 0.5 PMF 100 yr
III Low Hazard	No loss of life Minimal off-site effect	A) >1000 100 year storm B) > 500 C) > 50 D) < 50	> 40 ft < 40 ft > 5 ft < 20 ft	100 yr - 0.5 PMF 50 year storm 100 yr 100 yr 50 yr - 100 yr
*Size and hazard potential classifications shall be proposed and justified by the operator and shall be subject to approval by the director. Present and projected development in the inundation zone downstream from the structure shall be used in determining the classification. **The factor determining the largest size classification shall govern **The complete definitions of hazard potential are those contained in 4VAC50-20-40. ***The establishment of rigid design flood criteria or standards is not intended. Safety must be evaluated in the light of peculiarities and local conditions for each impounding structure and in recognition of the many factors involved, some of which may not be precisely known. Such can only be done by competent, experienced engineering judgment, which the values in the table are intended to add to, not replace.

Reductions in the SDF may be evaluated by use of incremental damage analysis described in 4VAC50-20-52. Note that future development downstream may increase the required SDF.

2. Impounding structures shall be constructed, operated, and maintained such that they perform in accordance with their design and purpose throughout their life.

a. Impoundments shall be designed and constructed by or under the direction of a qualified registered professional engineer licensed in Virginia and experienced in the design and construction of impoundments.

b. The designs shall meet the requirements of this section and use current prudent engineering practices.

c. The plans and specifications for an impoundment shall consist of a detailed engineering design report that includes engineering drawings and specifications, with the following as a minimum:

(1) The name of the mine; the name of the owner; classification of the impounding structure as set forth in this regulation; designated access to the impoundment and the location with respect to highways, roads, streams and existing impounding structures and impoundments that would affect or be affected by the proposed impounding structure.

(2) Cross sections, profiles, logs of test borings, laboratory and in situ test data, drawings of principal and emergency spillways and other additional drawings in sufficient detail to indicate clearly the extent and complexity of the work to be performed.

(3) The technical provisions as may be required to describe the methods of the construction and construction quality control for the project.

(4) Special provisions as may be required to describe technical provisions needed to ensure that the impounding structure is constructed according to the approved plans and specifications.

d. Components of the impounding structure, the impoundment, the outlet works, drain system and appurtenances shall be durable in keeping with the design and planned life of the impounding structure.

e. All new impounding structures regardless of their hazard potential classification, shall include a device to permit draining of the impoundment within a reasonable period of time, and at a minimum shall be able to lower the pool level six vertical inches per day, as determined by the owner's professional engineer, subject to approval by the director.

f. Impoundments meeting the size requirements and hazard potential of Class I, Class II and Class III high, significant, or low shall have a minimum static safety factor of 1.5 for a normal pool with steady seepage saturation conditions and a seismic safety factor of 1.2.

g. Impoundments shall be inspected and maintained to ensure that all structures function to design specifications.

h. Impoundments shall be constructed, maintained and inspected to ensure protection of adjacent properties and preservation of public safety and shall meet proper design and engineering standards under Chapter 18.1 (§ 45.1-225.1 et seq.) of Title 45.1 of the Code of Virginia. Impoundments shall be inspected at least daily by a qualified person, designated by the licensed operator, who can provide prompt notice of any potentially hazardous or emergency situation as required under § 45.1-225.2 of the Code of Virginia. Records of the inspections shall be kept and certified by the operator or his agent.

i. The operator will prepare an Emergency Action Plan (EAP) that includes the following information:

(1) A notification chart of persons or organizations to be notified, the person or persons responsible for notification, and the priority in which notifications are issued. Notifications shall include at a minimum the division, the local government authority responsible for emergency response, and the Virginia Department of Emergency Management.

(2) A discussion of the procedures used for timely and reliable detection, evacuation, and classification of emergency situations considered to be relevant to the structure and its setting.

(3) Designation of responsibilities for EAP related tasks. Also, the EAP shall designate the responsible party for making a decision that an emergency situation no longer exists at the impounding structure. Finally, the EAP shall include the responsible party and the procedures for notifying to the extent possible any known local occupants, owners, or lessees of downstream properties potentially impacted by a failure of the impounding structure.

(4) A section describing actions to be taken in preparation for impoundment emergencies, both before and during the development of emergency conditions.

(5) Dam break inundation maps. Each sheet of such maps for high and significant potential hazard classification structures shall be prepared and sealed by a professional engineer. Where possible, inundation mapping in the EAP should be provided on sheets no larger than 11 inches by 17 inches to facilitate copying for emergency response.

(6) Appendices containing information that supports and supplements the material used in the development of the EAP, including plans for training, exercising, and updating the EAP.

(7) A section that identifies all parties with assigned responsibilities in the EAP and signed certification by all of those parties that a copy of the EAP has been received.

(8) Times periods for review or revision acceptable to the director.

3. Impoundments shall be closed and abandoned in a manner that ensures continued stability and compatibility with the post-mining land use.

4. The following are acceptable as design procedures and references:

a. The design procedures, manuals and criteria used by the United States Army Corps of Engineers:;

b. The design procedures, manuals and criteria used by the United States Department of Agriculture, Natural Resources Conservation Service:;

c. The design procedures, manuals and criteria used by the United States Department of Interior, Bureau of Reclamation:;

d. The design procedures, manuals and criteria used by the United States Department of Commerce, National Weather Service: or;

e. The design procedures, manuals and criteria used by the United States Federal Energy Regulatory Commission;

f. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or as revised;

g. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods for Dams, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted April 2004; FEMA 94 or as revised; or

e. h. Other design procedures, manuals and criteria that are accepted as current, sound engineering practices, as approved by the director prior to the design of the impounding structure.

B. Impoundments that do not meet or exceed the size criteria of subsection A of this section shall meet the following criteria:

1. Be designed and constructed using current, prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Safely pass the runoff from a 50-year storm event for temporary (life of mine) structures and a 100-year storm event for permanent (to remain after mining is completed) structures.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

C. Impoundments with impounding capability created solely by excavation shall comply with the following criteria:

1. Be designed and constructed using prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Be designed and constructed with outlet facilities capable of:

a. Protecting public safety;

b. Maintaining water levels to meet the intended use; and

c. Being compatible with regional hydrologic practices.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

4VAC25-31-505. Reporting impoundment failures.

If upon examination an operator determines that a water impounding structure has failed partially or completely, the incident must be reported to the division immediately.

4VAC25-31-510. Alternative methods of stabilization.

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 shall may include gabions, concrete, and shotcrete, geotextiles, and other means acceptable to the director.

4VAC25-31-530. Process in revegetation.

A. Slopes shall be graded in keeping with good conservation practices acceptable to the division. Slopes shall be provided with proper structures such as terraces, berms, and waterways, to accommodate surface water where necessary and to minimize erosion due to surface run-off. 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.

B. Crusted and hard soil surfaces shall be scarified prior to revegetation. Steep graded slopes shall be tracked (running a cleated crawler tractor or similar equipment up and down the slope).

C. Application of lime and fertilizer shall be performed based on soil tests and the revegetation requirements in the approved reclamation plan.

D. Vegetation shall be planted or seeded and mulched according to the mixtures and practices included in the approved reclamation plan. Mulch shall be applied at the rate of 2,000 pounds per acre for straw or hay, and 1,500 pounds per acre for wood cellulose mulch.

E. The seed used must meet the purity and germination requirements of the Virginia Department of Agriculture and Consumer Services. The division may, at its discretion, take samples for laboratory testing. Noncritical vegetated areas shall achieve adequate cover so that no areas larger than one-half acre shall exist with less than 75% cover after two growing seasons. Seeded portions of critical areas shall have adequate vegetative cover so the area is completely stabilized.

4VAC25-31-540. Trees and shrubs.

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. Tree and shrub planting for ground cover shall be combined with well established grass species. For forest and wildlife post-mining land uses, at least 400 healthy plants per acre shall be established after two growing seasons.

4VAC25-31-550. Intensive agricultural use.

If the post-mining use is to be intensive agriculture, the planting and harvesting of a normal crop yield is required. A normal yield for a particular crop is equal to the five-year average for the county. If crop yield data is unavailable, then other methods to determine suitability for bond release may be utilized as acceptable to the director. The use of grass, water bars, or diversion strips and natural vegetative drainage control may be required in the initial planting year as specified by the director.

VA.R. Doc. No. R09-1913; Filed October 2, 2012, 8:24 a.m.