HomeMy WebLinkAboutProffer Statement History - BackfilePROPOSED PROFFER STATEMENT
REZONING: RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 394.2 Acres +/-;
Portions of Tax Map Parcels 83-A-109 ("parcel 109") and 90-A-23
("parcel 23") (the "Properties")
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
O-N Minerals (Chemstone) Company
O-N Minerals (Chemstone) Company ("Applicant")
Chemstone - Middletown
June 13, 2005
January 16, 2006
March 18, 2008
May 20, 2008
February 8, 2006
April 18, 2008
May 22, 2008
August 28, 2006
May 14, 2008
The undersigned Applicant hereby proffers that the use and development of the portions
of the above -referenced parcels, which are requested to be rezoned, the portions requested to be
rezoned being shown on the attached and incorporated plat identified as "Exhibit 1," shall be in
strict conformance with the following conditions, which shall supersede all other proffers on the
Properties that may have been made prior hereto. In the event that the above -referenced EM
conditional rezoning is not granted as applied for by the Applicant, these proffers shall be
deemed withdrawn and shall be null and void. Further, these proffers are contingent upon final
rezoning of the Properties with "final rezoning" defined as that rezoning which is in effect on the
day following the last day upon which the Frederick County Board of Supervisors' (the "Board")
decision granting the rezoning may be contested in the appropriate court. If the Board's decision
is contested, and the Applicant elects not to submit development plans until such contest is
resolved, the term rezoning shall include the day following entry of a final court order affirming
the decision of the Board which has not been appealed, or, if appealed, the day following which
the decision has been affirmed on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated May, 2008 (the "GDP"). The Applicant attaches and incorporates
the GDP, which includes a plan titled "Generalized Development Plan"; a plan titled "Overall
Plan"; four plans titled "Phase I Plan", "Phase II Plan", "Phase III Plan", and "Phase IV Plan";
and eleven viewshed plats titled "Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 4B, Viewshed 5A, Viewshed 513, Viewshed 6, Viewshed 7, Viewshed
8 and Viewshed 9". The aforementioned documents are and shall be incorporated by reference
herein as "Exhibit 2." The Applicant proffers that its development of the Properties will be in
substantial conformity with the GDP.
1. Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
("DMM") of the Virginia Department of Mines, Minerals and Energy
("VDMME"), and shall therefore conform to the Mineral Mining Law and
Reclamation Regulations for Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants or facilities which sell power to
the local utility or power grid*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Earthen berms shall be installed around the active quarry pits in the location
shown on the GDP. The berms shall have a maximum height of 30 feet and a
minimum height of 10 feet. The berms (Berm A and Berm B) depicted on the
Phase I Plan of the GDP shall be installed within 10 years of the approval of the
rezoning. The berms (Berm C and Berm D) depicted on the Phase II Plan of the
GDP shall be installed no later than 10 years prior to the commencement of
mining north of Chapel Road. The beans shall be landscaped to minimize impacts
to the viewshed of the surrounding community. Such landscaping shall consist of
a mix of deciduous and coniferous plantings placed in a random manner to be
consistent with existing vegetation patterns. The description of the plants to be
installed on the berms are more specifically described in the attached and
incorporated "Exhibit 3." The landscaping shall be subject to reasonable approval
by the Zoning Administrator of Frederick County and upon consultation with the
State Forester. With respect to Berm A, located on Tax Parcel 90-A-2, not owned
by the Applicant, the berm will be constructed by the Applicant as the tenant
under a 99-year lease of Parcel with authority under the lease to construct
Berm A.
2.3 The existing overburden stock pile on the southeast corner of the current
Middletown plant site shall be reduced in height to the greater of 30 feet or the
height of the adjacent tree line (lying to the east) within 5 years of the approval of
the rezoning.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP and on
Exhibit 1, within which archaeological resources and other historic activities have
been identified. Further, the Applicant shall place restrictions on the reserve land
for how the reserve will be used by the Properties' owner and future owners. A
copy of said restrictions are attached and incorporated as "Exhibit 4." Said
reserve land shall be dedicated to the Cedar Creek Battlefield Foundation, Inc.
within 60 days of final rezoning. [NOTE: the aforementioned 8 acre historic
reserve property is not to be included in the property to be rezoned.]
3.2 The Applicant shall complete a Phase I Archaeological Survey of parcels 23 and
109. The Phase I Archaeological Survey of parcel 23 shall be completed within
12 months of the approval of the rezoning. For the remaining tracts of land, the
Applicant shall complete a Phase I Archaeological Survey of a particular tract of
land before any mining activities commence on that property. The Applicant may
commence mining activities on a particular portion of the Properties before the
completion of the Phase I survey for all of the Properties, but under any and all
circumstances, no mining operations shall commence on any portion of the
Properties until after the Phase I Archeological Survey has been completed on
said portion of the Properties. Said survey shall locate, identify, and
comprehensively record all historic sites, buildings, structures, and objects on the
parcels. Such survey shall be conducted in accordance with the guidelines for a
Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in
Virginia," 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant's historian.
The second cemetery is located in the area where berming is slated to be installed.
The Applicant proffers the berming will be located in such a way as to not
encroach on the cemetery. This cemetery is also currently undergoing a historical
restoration. After the historical restoration, the Applicant will follow the
recommendations of the Applicant's historian. In addition, the cemetery is
accessed through a right-of-way which is of record providing access to the
cemetery from Route 625. The Applicant proffers to improve said right-of-way
so that it can be used for access by the descendants of those in the cemetery
within 12 months of completion of the cemetery restoration. Once said right-of-
way has been opened, the Applicant will provide continued maintenance and have
use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority
("FCSA") rights to the water resources available on the Properties in accordance
with the existing agreements between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 109 by the GDP,
and shall be located within 500 feet of the Properties' boundaries. A minimum of
one monitoring well shall be installed within 500 feet of the parcel 109
Properties' boundary. The exact location of the monitoring wells is depicted on
the Overall Plan of the GDP.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, muck piles, material handling, screens, crushers, conveyors,
feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Environmental Quality ("VDEQ") general air permit. The
Applicant shall remediate any adverse impacts to surrounding properties caused
by dust associated with the mining operations on the Properties.
7. Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining permit approved by the DMM of the VDMME. Peak Particle
Velocities (PPV) associated with blasting on the Properties shall not exceed the
levels stipulated by said permit. In addition, the Applicant agrees to have an
approved blasting plan in place at all times. An example of the current blasting
plan is attached. Further, in addition, the Applicant agrees that there will be no
block holing or adobe blasting conducted on the Properties. Any damage to
surrounding properties caused by blasting on the Properties shall be remediated at
the Applicant's expense.
8. Traffic
8.1 The Applicant's current number of truck loads leaving the site on a daily basis is
approximately 63, and the Applicant has had higher numbers of recorded truck
loads leaving the plant to a total of 114 truck loads per day. The Applicant, in its
proffer, is agreeing to restrict truck traffic to the Properties to 86 truck loads per
day averaged over the prior 30 days, but intends to also have an ability to increase
the number of truck loads in the event of an emergency or circumstances, which
could be caused by issues driven by the Applicant's customers, suppliers, and/or
carriers. Examples of such shall include, but are not limited to, an interruption of
rail service to the site and/or any sites that are serviced by rail from the
Applicant's Properties and/or any other interruption of the ability to deliver
materials at the Applicant's site or any other sites which are owned, controlled, or
by business relationship connected with theApplicant's site. To that end, and in
any circumstance, the Applicant agrees to restrict truck traffic to the Properties to
a maximum of 200 truck loads per day averaged over the prior 30 days through
the scale house hauling mined materials on and/or off the proposed quarry site
from the existing quarry entrance. The maximum number of truck loads will be
regulated by the Applicant and its successors and/or assigns. A record of the
actual number of truck loads per day shall be kept current (and maintained for one
year) by the Applicant at its scale house office. Said record shall be made
available in a form which confirms the number of trips and the form will be
produced to Frederick County officials upon demand with reasonable notice. The
Applicant proffers there will be no truck loads from the Properties on Sundays
and the hours of truck loading on Saturdays will be no later than 7:00 p.m. The
Applicant further proffers it will instruct all truckers as to the proper route of
travel from the Properties to Route 11, which shall exclude both Belle Grove and
Chapel Roads.
9. Pre -Blast Survevs
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. The Applicant and its successors and assigns will contact all
citizens who have property within 1,500 feet of the Properties, and monitor the
tax roles for Frederick County on an annual basis in order to contact any citizens
who have recently purchased the aforementioned property. This contact will be
made by the Applicant and its successor and assigns to invite citizens who have
property within 1,500 feet of the Properties' boundaries to participate in the pre -
blast surveys. Contact will be made by registered return -receipt letters, mailed
annually from the time of the rezoning. All citizens who have property within
1,500 feet of the Properties' boundaries can and are encouraged to participate in
the survey by contacting the Applicant and scheduling a mutually agreeable time
for the independent engineering firm to visit the party's residence to document
and survey the pre -blast condition of the party's residences/outbuildings
following the procedures set forth in the attached and incorporated "Exhibit 5." If
the property owner agrees to participate, the Applicant's and/or its engineering
firm shall visit and inspect the party's residences/outbuildings to monitor the
condition of the same. A record of those pre -blast conditions will be kept by the
independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the participating property owner as a result of mining operations, the
engineering firm will then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences/outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to remediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the
VDMME.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the Properties' boundaries. The aforementioned surveys will
be conducted by an independent well drilling firm or hydrogeologist, which will
investigate and document the pre -mining conditions of the participants' wells.
The Applicant and its successors and assigns will contact all citizens who have
property within 1,500 feet of the Properties' boundaries, and monitor the tax roles
for Frederick County on an annual basis in order to contact any citizens who have
recently purchased the aforementioned property. This contact will be made by
Applicant and its successor and assigns to invite citizens who have property
within 1,500 feet of the Properties' boundaries to participate in the well
monitoring surveys. Contact will be made by sending annually registered return -
receipt letters. All citizens who have property located within 1,500 feet of the
Properties' boundaries can and are encouraged to participate in the survey by
scheduling a mutually agreeable time for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
party's well following the procedures set forth in the attached and incorporated
"Exhibit 6A and 6B." A record of these pre -mining conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and the
participating property owner. In the event a change of condition is alleged by the
property owner as a result of mining operations, the Applicant will provide an
interim replacement water supply as necessary to supply the property owner with
water. The well drilling firm will then conduct a follow-up visit and investigation
and use pre -blast information as a control and basis for subsequent analysis. If it
is determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast survey, then
the Applicant agrees to restore the well to its condition existing at the time of the
pre -blast survey and/or provide the adjoining property owner a replacement well
of the same condition (or better) of that which existed at that time of the pre -blast
survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said mining operations, and to cover the costs of
any remediation and/or repair, which is required pursuant to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Frederick
County may review from time to time the amount of the policy or surety to
evaluate whether the minimum amount of $1,000,000.00 is sufficient to protect
the cost of any remediation and/or repair, which is required pursuant to the terms
of sections 9.1 and 9.2. In the event Frederick County believes that the amount of
the policy or surety needs to be increased for the reasons set forth above, then the
Applicant and Frederick County shall reach an agreement as to the proper amount
of policy or surety. The approval of said increase shall not be unreasonably
withheld, conditioned or denied by either party. The Applicant shall annually
provide to the County a Certificate of Insurance from the insurance carrier.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the VDMME Engineering's decibel
guidelines. The Applicant will make all reasonable efforts to locate mining
machinery in the quarry pit or behind berms.
12. Lighting
12.1 There shall be no affixed lighting structures above -ground on the berms other than
as may be required for or provided by regulations that affect the plant operations,
including but not limited to, Mine Safety Health Administration ("MSHA"),
VDMME, and any other governmental or regulatory body that oversees mining
operations. Lighting used for devices or machines that convey materials or for
pit crushing facilities and other mining activities is permitted. Conveying and pit
crushing facilities shall also be interpreted as including such other devices or
activities that perform similar or related functions that may come into use and/or
existence at some time in the future while the extractive mining use is still in
effect on the Properties. In addition to the above, all lighting will be installed in
such a manner that there will be no spillover beyond any property line of the
Applicant onto adjacent properties not owned by the Applicant.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the VDEQ standards and also see that the existing general air
permit covers all activities conducted on the rezoned Properties.
14. Enviromment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant, which is outside of the rezoned Properties and identified on the GDP
as "Middletown Woods", shall be maintained using best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing and as set forth on the Phasing Plans of the GDP:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
O-N MINERALS (CHEMSTONE) COMPANY
By:
Its:L
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
d
The foregoing instrument was acknowledged before me this 0' day of ,
2008, by C. cS JOSM
A• 9e
, N TA Y PUBLIC
My commission expires\ : NOTARY •.�G'�
Registration number: _ : R€0 # 7155?56
9. MY COMMISSION. Q
p EXPIRES
��••.12131120�; ���
PROPOSED PROFFER STATEMENT
REZONING: RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 294.2 Acres +/-; Formatted: Underline
Portions of Tax Map Parcels 83-A-109 ("parcel 109") and 90-A-23
("parcel 23") (the "Properties")
RECORD OWNER: O-N Minerals (Chemstone) Company
APPLICANT: O-N Minerals (Chemstone) Company
PROJECT NAME: Chemstone - Middletown
ORIGINAL DATE
OF PROFFERS: June 13, 2005
REVISION DATE(S): January 16, 2006 February 8, 2006 August 28, 2006
March 18, 2008 April 18, 2008 May 14, 2008
May 20, 2008 May 22, 2008
The undersigned Applicant hereby proffers that the use and development of the portions
of the above -referenced parcels, which are requested to be rezoned, the portions requested to be
rezoned being shown on the attached and incorporated plat identified as "Exhibit 1", shall be in
strict conformance with the following conditions, which shall supersede all other proffers on the
Properties that may have been made prior hereto. In the event that the above -referenced EM
conditional rezoning is not granted as applied for by the applicant ("Applicant"), these proffers
shall be deemed withdrawn and shall be null and void. Further, these proffers are contingent
upon final rezoning of the Properties with "final rezoning" defined as that rezoning which is in
effect on the day following the last day upon which the Frederick County Board of Supervisors'
(the "Board") decision granting the rezoning may be contested in the appropriate court. If the
Board's decision is contested, and the Applicant elects not to submit development plans until
such contest is resolved, the term rezoning shall include the day following entry of a final court
order affirming the decision of the Board which has not been appealed, or, if appealed, the day
following which the decision has been affirmed on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated May, 2008 (the "GDP"). The Applicant attaches and incorporates
the GDP, which includes a plan titled "Generalized Development Plan"; a plan titled "Overall
Plan"; four plans titled "Phase I Plan", "Phase II Plan", "Phase III Plan", and "Phase IV Plan";
and eleven viewshed plats titled "Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 513, Viewshed 6, Viewshed 7, and
Viewshed 8". The aforementioned documents are and shall be incorporated by reference herein
as "Exhibit 2". Applicant proffers that its development of the Properties will be in substantial
conformity with the GDP.
Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
(DMM) of the Virginia Department of Mines, Minerals and Energy, and shall
therefore conform to the Mineral Mining Law and Reclamation Regulations for
Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants or facilities which sell power to
the local utility or power grid*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Earthen berms shall be installed around the active quarry pits in the location
shown on the GDP. The berms shall have a maximum height of 30 feet and a
minimum height of 10 feet. The berms (Berm A and Berm B) depicted on the
Phase I Plan of the GDP shall be installed within 10 years of the approval of the
rezoning. The berms (Berm C and Berm D) depicted on the Phase II Plan of the
GDP shall be installed no later than 10 years prior to the commencement of
mining north of Chapel Road. The berms shall be landscaped to minimize impacts
to the viewshed of the surrounding community. Such landscaping shall consist of
a mix of deciduous and coniferous plantings placed in a random manner to be
consistent with existing vegetation patterns. The description of the plans to be
installed on the berms are more specifically described in the attached and
incorporated "Exhibit 3". The landscaping shall be subject to reasonable ap rovaI
by the Zoning Administrator of Frederick County and upon consultation with the
State Forester. With respect to Berm A, located on Tax Parcel 90-A-2, not owned
by Applicant, the berm will be constructed by Applicant as the tenant under a 99-
year lease of Parcel _, with authority under the lease to construct Berm A.
2.3 The existing overburden stock pile on the southeast corner of the current
Middletown plant site shall be reduced in height to the greater of 30 feet or the
height of the adjacent tree line (lying to the east) within 5 years of the approval of
the rezoning.
Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP and on
Exhibit 1, within which archeological resources and other historic activities have
been identified. Further, the Applicant shall place restrictions on the reserve land
for how the reserve will be used by the Properties' owner and future owners. A
copy of said restrictions are attached and incorporated as "Exhibit 4". Said
reserve land shall be dedicated to the Cedar Creek Battlefield Foundation, Inc.
within 60 days of final rezoning. [NOTE: the aforementioned 8 acre historic
reserve property is not to be included in the property to be rezoned.]
3.2 The Applicant shall complete a Phase I Archaeological Survey of parcels 23 and
109. The Phase I Archaeological Survey of parcel 23 shall be completed within
12 months of the approval of the rezoning. For the remaining tracts of land. the
Applicant shall complete a Phase I Archaeological Survey of a particular tract of
land before any mining activities commence on that property. The Applicant may
commence mining activities on a particular portion of the Properties before the
completion of the Phase I survey for all of the Properties, but under any and all
circumstances, no mining operations shall commence on any portion of the
Properties until after the Phase I Archeological Survey has been completed on
said portion of the Properties. Said survey shall locate, identify, and
comprehensively record all historic sites, buildings, structures, and objects on the
parcels. Such survey shall be conducted in accordance with the guidelines for a
Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in
Virginia," 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant's historian.
The second cemetery is located in the area where berming is slated to be installed.
The Applicant proffers the berming will be located in such a way as to not
encroach on the cemetery. This cemetery is also currently undergoing a historical
restoration. After the historical restoration, the Applicant will follow the
recommendations of the Applicant's historian. In addition, the cemetery is
accessed through a right-of-way which is of record providing access to the
cemetery from Route 625. The Applicant proffers to improve said right-of-way
so that it can be used for access by the descendants of those in the cemetery
within 12 months of completion of the cemetery restoration. Once said right-of-
way has been opened, the Applicant will provide continued maintenance and have
use of same.
Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the water resources available on the Properties in accordance with the
existing agreements between the Applicant and FCSA.
Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 83-A-109 by the
GDP, and shall be located within 500 feet of the Properties' boundaries. A
minimum of one monitoring well shall be installed within 500 feet of the parcel
number 109 Properties' boundary. The exact location of the monitoring wells is
depicted on the Overall Plan of the GDP.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, muck piles, material handling, screens, crushers, conveyors,
feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Environmental Quality general air permit. The Applicant shall
remediate any adverse impacts to surrounding properties caused by dust
associated with the mining operations on the Properties.
Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities
(PPV) associated with blasting on the Properties shall not exceed the levels
stipulated by said permit. In addition, Applicant agrees to have an approved
blasting plan in place at all times. An example of the current blasting plan is
attached. Further, in addition, Applicant agrees that there will be no block holing
or adobe blasting conducted on the Properties. Any damage to surrounding
properties caused by blasting on the Properties shall be remediated at the
Applicant's expense.
8. Traffic
8.1 The Applicant's current number of truck loads leaving the site on a daily basis is
approximately 63 and the Applicant has had higher numbers of recorded truck
loads leaving the plant to a total of 114 truck loads per day. The Applicant, in its
proffer, is agreeing to restrict truck traffic to the Properties to 86 truck loads per
day averaged over the prior 30 days, but intends to also have an ability to increase
the number of truck loads in the event of an emergency or circumstances, which
could be caused by issues driven by Applicant's customers, suppliers, and/or
carriers. Examples of such shall include, but are not limited to, an interruption of
rail service to the site and/or any sites that are serviced by rail from Applicant's
Properties and/or any other interruption of the ability to deliver materials at the
Applicant's site or any other sites which are owned, controlled, or by business
relationship connected with Applicant's site. To that end, and in any
circumstance, the Applicant agrees to restrict truck traffic to the Properties to a
maximum of 200 truck loads per day averaged over the prior 30 days through the
scale house hauling mined materials on and/or off the proposed quarry site from
the existing quarry entrance. The maximum number of truck loads will be
regulated by the Applicant and its successors and/or assigns. A record of the
actual number of truck loads per day shall be kept current (and maintained for one
year) by the Applicant at its scale house office. Said record shall be made
available in a form which confirms the number of trips and the form will be
produced to Frederick County officials upon demand with reasonable notice. The
Applicant proffers there will be no truck loads from the Properties on Sundays
and the hours of truck loading on Saturdays will be no later than 7:00 p.m. The
Applicant further proffers it will instruct all truckers as to the proper route of
travel from the Properties to Route 11, which shall exclude both Belle Grove and
Chapel Roads.
Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. The Applicant and its successors and assigns will contact all
citizens who have property within 1,500 feet of the Properties, and monitor the
tax roles for Frederick County on an annual basis in order to contact any citizens
who have recently purchased the aforementioned property. This contact will be
made by Applicant and its successor and assigns to invite citizens who have
property within 1,500 feet of the Properties' boundaries to participate in the pre -
blast surveys. Contact will be made by registered return -receipt letters, mailed
annually from the time of the rezoning. All citizens who have property within
1,500 feet of the Properties' boundaries can and are encouraged to participate in
the survey by contacting the Applicant and scheduling a mutually agreeable time
for the independent engineering firm to visit the parry's residence to document
and survey the pre -blast condition of the party's residences/outbuildings
following the procedures set forth in the attached and incorporated `Exhibit 5". If
the property owner agrees to participate, the Applicant's and/or its engineering
firm shall visit and inspect the parry's residences/outbuildings to monitor the
condition of the same. A record of those pre -blast conditions will be kept by the
independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the participating property owner as a result of mining operations, the
engineering firm will then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences/outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to remediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the Virginia
Department of Mines, Minerals and Energy.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the Properties' boundaries. The aforementioned surveys will
be conducted by an independent well drilling firm or hydrogeologist, which will
investigate and document the pre -mining conditions of the participants' wells.
The Applicant and its successors and assigns will contact all citizens who have
property within 1,500 feet of the Properties' boundaries, and monitor the tax roles
for Frederick County on an annual basis in order to contact any citizens who have
recently purchased the aforementioned property. This contact will be made by
Applicant and its successor and assigns to invite citizens who have property
within 1,500 feet of the Properties' boundaries to participate in the well
monitoring surveys. Contact will be made by sending annually registered return -
receipt letters. All citizens who have property located within 1,500 feet of the
Properties' boundaries can and are encouraged to participate in the survey by
scheduling a mutually agreeable time for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
parry's well following the procedures set forth in the attached and incorporated
"Exhibit 6A and 613". A record of these pre -mining conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and the
participating property owner. In the event a change of condition is alleged by the
property owner as a result of mining operations, the Applicant will provide an
interim replacement water supply as necessary to supply the property owner with
water. The well drilling firm will then conduct a follow-up visit and investigation
and use pre -blast information as a control and basis for subsequent analysis. If it
is determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast survey, then
the Applicant agrees to restore the well to its condition existing at the time of the
pre -blast survey and/or provide the adjoining property owner a replacement well
of the same condition (or better) of that which existed at that time of the pre -blast
survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said mining operations, and to cover the costs of
any remediation and/or repair, which is required pursuant to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Frederick
County may review from time to time the amount of the policy or surety to
evaluate whether the minimum amount of $1,000,000.00 is sufficient to protect
the cost of any remediation and/or repair, which is required pursuant to the terms
of sections 9.1 and 9.2. In the event Frederick County believes that the amount of
the policy or surety needs to be increased for the reasons set forth above, then the
Applicant and Frederick County shall reach an agreement as to the proper amount
of policy or surety. The approval of said increase shall not be unreasonably
withheld, conditioned or denied by either party. The Applicant shall annually
provide to the County a Certificate of Insurance from the insurance carrier.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the Virginia Department of Mines
and Minerals Engineering's decibel guidelines. The Applicant will make all
reasonable efforts to locate mining machinery in the quarry pit or behind berms.
12. Lighting
12.1 There shall be no affixed lighting structures above -ground on the berms other than
as may be required for or provided by regulations that affect the plant operations,
including but not limited to, Mine Safety Health Administration ("MSHA"),
Virginia Department of Mines, Minerals and Energy ("DMME"), and any other
governmental or regulatory body that oversees mining operations. Lighting used
for devices or machines that convey materials or for pit crushing facilities and
other mining activities is permitted. Conveying and pit crushing facilities shall
also be interpreted as including such other devices or activities that perform
similar or related functions that may come into use and/or existence at some time
in the future while the extractive mining use is still in effect on the Properties. In
addition to the above, all lighting will be installed in such a manner that there will
be no spillover beyond any property line of the Applicant onto adjacent properties
not owned by the Applicant.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant, which is outside of the rezoned Properties and identified on the GDP
as "Middletown Woods", shall be maintained using best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing and as set forth on the Phasing Plans of the GDP:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
O-N MINERALS (CHEMSTONE) COMPANY
By:
Its:
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of
2008, by
NOTARY PUBLIC
My commission expires:
Registration number: _
•
is
LAwSON AND SILEK, P.L.C.
120 EXETER DRIVE, SUITE 200
POST OFFICE BOX 2740
WINCHESTER, VA 22604
TELEPHONE: (540) 665-0050
FACSIMILE: (540) 722-4051
April 18, 2008
Michael T. Ruddy, Deputy Director
Planning and Development
County of Frederick
107 North Kent Street, 2' Floor
Winchester, VA 22601
APR 18 2008
THOMAS MOORE LAWSON • TLAWSONna LSPLC.COM
Re: O-N Minerals (Chemstone) Company
Our File No. 462.006
REZ 403-06
VIA HAND -DELIVERY
Dear Mike:
As requested enclosed please find forty (40) clean revised proffer statements and forty
(40) red -line proffer statements which reflect all of the changes to the proffers in the current
revised state that have been made subsequent to the proffer statement which was presented to the
Planning Commission. Please note that in paragraph 2 we have attached and incorporated the
drawings which had previously been submitted and representations of the Generalized
Development Plan. I believe you have already received approximately forty (40) copies of those
in color for distribution to the Board Members. With all of this I believe you should have a
complete package of all documentation. If after you have reviewed this you believe otherwise
please contact me immediately so that we may provide you with all other information you
believe is required.
Thank you for your continued assistance and cooperation. If you have any questions,
please do not hesitate to give me a call.
TML:jk
Enclosure
cc: O-N Minerals (Chemstone) Company
FRONT ROYAL ADDRESS: POST OFFICE BOX 602, FRONT ROYAL, VIRGINIA 22630, TELEPHONE: (540) 635-9415, FACSIMILE: (540) 635-9421, E-MAIL: SILEKJ@LYNXCONNECT.COAI
FAIRFAX ADDRESS: 10805 MAIN STREET, SUITE 200, FAIRFAX, VIRGINIA 22030, TELEPHONE: (703) 352-2615, FACSIMILE: (703) 3524190, E-MAIL: THOMASO.LAWSON@IVERIZON.NET
0
REZONING:
PROPERTY:
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
PROPOSED PROFFER STATEMENT
RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
639.13 Acres +/-;
Tax Map Parcels 83-A-109 and 90-A-23 (the "Properties")
O-N Minerals (Chemstone) Company
O-N Minerals (Chemstone) Company
Chemstone - Middletown
June 13, 2005
January 16, 2006 February 8, 2006 August 28, 2006
March 18, 2008
The undersigned hereby proffers that the use and development of the subject properties
("Properties"), as described above, shall be in strict conformance with the following conditions,
which shall supersede all other proffers on the Properties that may have been made prior hereto.
In the event that the above -referenced EM conditional rezoning is not granted as applied for by
the applicant ("Applicant"), these proffers shall be deemed withdrawn and shall be null and void.
Further, these proffers are contingent upon final rezoning of the Properties with "final rezoning"
defined as that rezoning which is in effect on the day following the last day upon which the
Frederick County Board of Supervisors' (the "Board") decision granting the rezoning may be
contested in the appropriate court. If the Board's decision is contested, and the Applicant elects
not to submit development plans until such contest is resolved, the term rezoning shall include
the day following entry of a final court order affirming the decision of the Board which has not
been appealed, or, if appealed, the day following which the decision has been affnnmed on
appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated March 18, 2008 (the "GDP").
0
1. Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Miming
(DMM) of the Virginia Department of Mines, Minerals and Energy, and shall
therefore conform to the Mineral Mining Law and Reclamation Regulations for
Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said buffers
shall be determined at the time of site plan submission, and will vary based upon
the topography of the site boundary.
2.3 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding community.
Such landscaping shall consist of a mix of deciduous and coniferous plantings
placed in a random manner in order to be consistent with existing vegetation
patterns. Said berms shall be limited to a maximum height of 30 feet.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP, within
which archeological resources and other historic activities have been identified.
Further, the Applicant shall place restrictions on the reserve land for how the
reserve will be used by the Properties' owner and future owners. Said reserve
land shall be dedicated to a recognized historical association and/or group within
one year of final rezoning.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the Northern
Reserve and Middle Marsh Properties as depicted on the GDP within one year of
final rezoning or prior to any land disturbance of the portion of parcel 83-A-109
and parcel 90-A-23. Said survey shall locate, identify, and comprehensively
record all historic sites, buildings, strictures, and objects on the parcels. Such
survey shall be conducted in accordance with the guidelines for a Phase 1 Survey
as defined in the Virginia Department of Historic Resources "GUIDELINES FOR
CONDUCTING CULTURAL RESOURCE SURVEY IN VIRGINIA - Chapter
7: Guidelines for Archaeological Investigations in Virginia," 1999 (Rev. Jan.
2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the benning area. That cemetery will remain in an
undisturbed state.
The second cemetery is located in the area where berming is slated to be installed.
The Applicant proffers that cemetery will also remain undisturbed and the
berming will be located in such a way as to not encroach on the cemetery. In
addition, the cemetery is accessed through a right-of-way which is of record
providing access to the cemetery from Route 625. The Applicant proffers to open
said right-of-way so that it can be used for access by the relatives of those in the
cemetery. It is anticipated that once said right-of-way has been opened, the
Applicant will provide continued maintenance and have use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the water resources available on the Properties in accordance with the
existing agreements between the Applicant and FCSA.
Grcnrnd Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 83-A-109 by the
GDP, and shall be located within 500 feet of the Properties' boundaries. A
minimum of one monitoring well shall be installed within 500 feet of the
Northern Properties' boundary.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, shot piles, material handling, screens, crushers, conveyors,
feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Environmental Quality general air permit. The Applicant shall
remediate any adverse impacts to surrounding properties caused by dust
associated with the mining operations on the Properties.
7. Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining pen -nit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities
(PPV) associated with blasting on the Properties shall not exceed the levels
stipulated by said permit. In addition, Applicant agrees to have an approved
blasting plan in place at all times. An example of the current blasting plan is
attached. Further, in addition, Applicant agrees that there will be no block holing
or adobe blasting conducted on the Properties. Any damage to surrounding
properties caused by blasting on the Properties shall be remediated at the
Applicant's expense.
8. Traffic
8.1 The Applicant agrees to restrict truck traffic to the Properties to a maximum of
200 truck loads per day averaged over the prior 30 days through the scale house
hauling mined materials on and/or off the proposed quarry site from the existing
quarry entrance. The maximum number of trips will be regulated by the
Applicant and its successors and/or assigns. A record of the actual number of
truck trips per day shall be kept current (and maintained for one year) by the
Applicant at its scale house office. Said record shall be made available in a form
which confirms the number of trips and the form will be produced to Frederick
County officials upon demand with reasonable notice.
9. Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. All citizens who have property adjacent to the Properties can and
are encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent engineering firm to visit
the party's residence to document and survey the pre -blast condition of the party's
residences/outbuildings. The Applicant's and/or its engineering firm shall further
have the right to visit and inspect the party's residences/outbuildings to monitor
the condition of the same. A record of those pre -blast conditions will be kept by
the independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the adjoining property owner as a result of mining operations, the
engineering firm will then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences/outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to remediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the Virginia
Division of Mines, Minerals and Energy.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the Properties' boundaries. The aforementioned surveys will
be conducted by an independent well drilling firm, which will investigate and
document the pre -blast conditions of the participants' wells. All citizens who
have property located within 1,500 feet of the Properties' boundaries can and are
encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
party's well. A record of these pre -blast conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and the
participating property owner. In the event a change of condition is alleged by the
property owner as a result of mining operations, the well drilling firm will then
conduct a follow-up visit and investigation and use pre -blast information as a
control and basis for subsequent analysis. If it is determined that the status of the
neighboring property owner's well has deteriorated from the condition it was in at
the time of the pre -blast survey, then the Applicant agrees to restore the well to its
condition existing at the time of the pre -blast survey and/or provide the adjoining
property owner a replacement well of the same condition (or better) of that which
existed at that time of the pre -blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for a period of time covering the active mining
operations on the Properties and to maintain in effect for a period of one year
from the date of cessation of said mining operations, and to cover the costs of any
remediation and/or repair, which is required pursuant to the terms of sections 9.1
and 9.2 above. Said policy or surety shall be in the amount of no less than One
Million and 00/100 Dollars ($1,000,000.00) per occurrence.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of miring activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the Virginia Department of Mines
and Minerals Engineering's decibel guidelines. The Applicant will make all
reasonable efforts to locate mining machinery in the quarry pit or behind benns.
12. Lighting
12.1 There shall be no permanently affixed lighting structures above -ground on the
berms other than as may be used for conveying or pit crushing facilities or for
mining activities, with the exception as may be required for or provided by
regulations that affect the plant operations, including but not limited to, Mine
Safety Health Administration ("MSHA"), Virginia Department of Mines and
Minerals and Energy ("DMME"), and any other governmental or regulatory body
that oversees mimingoperations, there shall be no permanently affixed lighting
structures. Conveying and pit crushing facilities shall also be interpreted as
including such other devices or activities that perform similar or related functions
that may come into use and/or existence at some time in the future while the
extractive mining use is still in effect on the Properties.
13. Air Permit
13.1 The Applicant shall maintain its existing general air pen -nit controlling emissions
in accordance with the Virginia Department of Enviromnental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a' quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that the area currently in trees, which is outside of the
rezoned Properties, and which is more specifically described in the attached and
incorporated plat, intentionally is not part of this rezoning. Applicant intends to
use best management practices of the trees located thereon.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek. In other designated areas (as designated on the attached and
incorporated plat), the distance may be increased.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as the Northern Reserve. Mining in the Northern Reserve area shall
occur from the time period commencing with the approval of the rezoning for a
period of time which is estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
•
11
Respectfully submitted,
O-N MINERALS (CHEMSTONE) COMPANY
By:
Its:
COMMONWEALTH OF VIRGMA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instru rent was acknowledged before me this c>�,D 9 day of ,
2008, by u 5,e ,:QL chf
My commission expires:
/n/Si6y�
4-k7\ - 6 9
NOTARY PUBLIC
IV07ARV''!L�
PUBLIC
REG # 357188
My COMMISSION
o : EXPIRES Q
'�'10•• 473012
ALTH
111IIII11j\�`
PROPOSED PROFFER STATEMENT
REZONING: RZ—.## 03-06
Rural Areas (RA) to Extractive Manufacturing (ENI)
PROPERTY:
NX416 ' i • ./]�� a
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S)
28, 2006
639.13 acr-esAcres +/-;
Tax Map Parcels 83-A-109 &and 90-
A-23 (the "Properties")
O-N Minerals (Chemstone) Company
O-N Minerals (Chemstone) Company
Chemstone -- Middletown
June 13, 2005
January 16, 2006 February 8, 2006 F-e+i-uaf•"L I� L] gust
March 18 2008
The undersigned hereby proffers that the use and development of the subject p-apefty
( `Ppop properties
("Properties"), as described above, shall be in strict conformance with the following conditions,
which shall supersede all other proffers on the Properties that may have been made prior hereto.
In the event that the above --referenced EM conditional rezoning is not granted as applied for by
the applicant ("Applicant"), these proffers shall be deemed withdrawn and shall be null and void.
Further, these proffers are contingent upon final rezoning of the P-repe-rtyPro perties with "final
rezoning" defined as that rezoning which is in effect on the day following the last day upon
which the Frederick County Board of &rpef"s,6�iSupervisors' (the "Board") decision granting
the rezoning may be contested in the appropriate court.- If the Board's decision is contested, and
the Applicant elects not to submit development plans until such contest is resolved, the term
rezoning shall include the day following entry of a final court order affirming the decision of the
Board which has not been appealed, or, if appealed, the day following which the decision has
been affirmed on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. -The improvements proffered herein shall be provided at the time of
development of that portion of the Rip tPr«pertics adjacent to or including the improvement
or other proffered requirement, unless otherwise specified herein. Any proffered conditions that
would prevent the Applicant from conforming with State and/or Federal regulations shall be
considered null and void. The term "Applicant" as referenced herein shall include within its
meaning all future owners and successors in interest. When used in these proffers, the
"Generalized Development Plan," shall refer to the plan entitled "Generalized Development
Plan, O-N Minerals (Chemstone)" dated June 13, 20 tylarch 18. 2008 (the
i-nolude *h^ The Applicant attaches and incorporates drawings identified as
Exhibits as representations of its Generalized. Development Plan. The Applicant submits its
operations and activities will be in general conformance with the Generalized Development Plan.
1. Land Use
1.1 The P-Topert-yProperties shall be developed with extractive manufacturing
land uses pursuant to the mining permit approved by the Division of
Mineral Mining (DMM); of the Virginia Department of
Mines, Minerals and Energy, and shall therefore conform to the
Mineral Mining Law and Reclamation Regulations for Mineral Mining of
the Commonwealth of Virginia.
1.2 The Applicant hereby,_proffers not to engage in the Ibllowinig, uses on the
Properties:
Oil and natural gas extraction.
Asphalt and concrete mixing plants-:71 11-be-t)K)I}i-bi4ed-oft4be—Pft-+pe-rt3,;;
Brick, block and precast concrete products.
Cement and lirn.e kilns; and
Coal and natural gas -fired power plants or facilities which sell power to
the local utility or power grida-
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
ite2-.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757).- Access by vehicles needed for
periodic maintenance of the Pr-ope-ty-Properties shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance.- The depth of said buffers
shall be determined at the time of 4w—site plan submission, and will vary based
upon the topography of the site boundary. These buffers shall be ingeneral
confoi7nity with the Generalized Development Plan.
2.3 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding community.
Such landscaping shall consist of a mix of deciduous and coniferous plantings
placed in a random manner in order to be consistent with existing vegetation
patterns. -Said berms shall be limited to a maximum height of 30 feet and be of a
minimum height of 10 feet. The , r ,eight of any be-n ,` installed on the
p .Tert}—'rhm-l1 be dictated by fl pailieular 'shed til, e—bei''iri- is int{'n&440
sofeen—B(-,xns se ii4i -A
Said berms shall be installed in the following order. The berm depicted on the
Phase I plat shall. be installed within 10 vears of the approval of the rezoning. The
berm depicted on the Phase II plat shall be installed no later than 10 years prior to
the commencement of mining north of Chapel Road.
Historic Resources
3.1 The Applicant shall create an e-i-gN- acre historic reserve as shown on the GDP,
within which archeological resources eatedIA90, T
Iefle Greve ^ and
other historic activities have been hall b edioated-to
tire-Be�lr� Fsx�vc� PE�ui�datif>l> Further, the Applicant shall place restrictions on the
reserve land for how the reserve will be used by the Prorerties' owner and future
owners. Said reserve land shall be dedicated to a recognized historical association
and/or group within one year of final rezoning.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the
PfopertyProperties as depicted on the GDP within one year of final rezoning or
prior to any land disturbance of the portion of the Property `dentifiie �a�83-
A-109 k�=t(�e-GD and parcel 90-A-23. Said survey shall locate, identify, and
comprehensively record all historic sites, buildings, structures, and objects on the
P-repefty- arp eels• Such survey shall be conducted in accordance with the
guidelines for a Phase 1 Survey as defined in the Virginia Department of Historic
Resources "GUIDELINES FOR CONDUCTING CULTURAL RESOURCE
SURVEY IN VIRGINIA Chapter 7: Guidelines for Archaeological
Investigations in Virginia—,,_ 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adiacent to Chapel Road and is in an area that is not designiated for mining
and is also outside of the beriniu, area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant's historian.
The second cemetery is located in the area where berming is slated to be installed.
The Applicant proffers the berining will be located in such a way as to not
encroach on the cemetery. This cemetery is also cun•ently undergoing a historical
restoration. After the historical restoration, the Applicant will follow the
recommendations of the Applicant's historian. In addition, the cemetery is
accessed through a right-of-way which is of record providing access to the
cemetery from Route 625. The Applicant proffers to open said right-of-way so
that it can be used for access by the relatives of those in the Cemetery. It is
anticipated that once said right-of-way has been opened, the Applicant will
provide continued maintenance and have use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the greutidwater resources available on the Properties in accordance with
the existing agreements nego4ated-between the Applicant and FCSA.
Gt-au-ndwa4erGround Water
5.1 The Applicant shall install a minimum of three monitoring wells to
effectively establish and monitor the groundwater level in order
to avoid detrimental impacts to surrounding properties.- Said wells
shall be installed prior to any land disturbance of the
portion of the Ptepe-rtyPropertics identified as parcel 83-A-109 by the GDP, and —
shall be located within 500 feet of the I-1"ertyiF'roperties' boundaries.- A
minimum of one monitoring well shall be installed within 500
feet of the Noi-thee Propertyparcel number ] 09 Properties'
boundary.
=f4--ie-5.2 Subject to and consistent with the provisions of paragraph 9.2, the
Applicant shall remediate any adverse impacts to wells located on surrounding
properties with respeet to bet' wate.F Ejuantity ands quar` caused by mining
operations on the P-reperty-Yroperties. Costs associated with any required
remediation shall be borne by the Applicant.
The Applieant shall pay a third pallvy,��
water level ,,'El tll}biElit� E'E'r�a�1 c� 1r �iTxEli�li��3�epei it's
i itt�Clii pirrrrr7�vrrvi- ii im.?,•i` rpriipf'r't.-s. Base4ine
wit
of asse�sing atiy it
sFn3itrg ae�-�iTiTon tlre—repertyFurthermore, the �1pPlic�nit agrees to
aU rticipate in a pre -blast survey and well monitoring survey, as further described
herein The intent of the aforementioned surveys is to provide a mcchanisin to
remediate any adverse impacts to wells and/or stntctures which are caused by the
mining, operations on the Properties.
6. Dust Control
( 6.1 Dust from drills, shot piles, material handling, screens, crushers,
conveyors, feeders, hoppers, stockpiles, load -outs, and traffic areas shall be
controlled by wet suppression or equivalent—. and controlled by and consistent
with the terms of the Department of 1= nv_ironmental Quality general air permit.
The Applicant shall remediate any adverse impacts to surrounding properties
caused by dust associated with the mining operations on the "e-i--tom
7.
A11 tnateri4-b i., , `+, l,,,ile l shall be kept adequately moist to eotitrol dust dufing
storagear-�d hz tldl;.Ra or eavered at all times to minirnizeeinissionsF)roperties.
Blasting Control
7.1 All blasting associated with mining operations
on the-14opoAtyPropert:ies shall be
limited by the mining permit approved by the Division of Mineral Mining (DMM)
of the Virginia Department of Mines, Minerals and Energy. --Peak Particle
Velocities (PPV) associated with blasting on the 1'lepeAyProperties shall not
exceed the levels stipulated by said permit. In addition. Applicant agrees to have
an annroved blasting plan in glace at all times. An example of the current blasting
plan is attached. Further, in addition Applicant agrees that there will be no block
holing or adobe blasting conducted on the Properties. Any damage to
surrounding properties caused by blasting on the Weper-t-yPro)erties shall be
relnediated at the Applicant's expense.
7.2 T'he App! ieant shall. utilize a minimtuii. of three seismOgi-ap h,,; fi)r eaell blast
eondueted at thheFe I1'roperty. r tie of said seismographs shah be- k-)eatLd-adjaeetit_to
!he neafestoee u pied dwellirfig Pending 3e+t)efR+ iss-iOfl-.
available feeords
to the ,,,,hiL, blasting dating ✓
Q 1 The Applicant shall further investigate. t•i ing . rnr , steln to exellruig,
c�.-is-iz� :-rj.,N. ..a �•J,
11
re mate-rizl:rbe the Pro eiIZ i�ll{� Lfle 11ras.Lirg epeitatia-iz5ziiz a' teiF}ck�i�+`—tEi
- �fa4 tl ,ittifl ad n ofle ii- f 'l ilit,.
. �e-p�.'• b � .. eviivit,i�-'ze-[[:i-xiri-ricer
•
8. Traffic
8.1 The Applicant agrees to restrict truck traffic to the Properties to a maximum of
200 truck loads per day averaged over the prior 30 days through the scale house
hauling mined materials on and/or off the proposed quarry site from the existing
quarry entrance. 'fie maximum number of trips will be regulated by the
Applicant and its successors and/or assigns. A record of the actual number of
truck trips per day shall be kept ew-rent (and. maintained. for one year) by the
!applicant at its scale house office. Said record shall be made available in a form
ww.=hicli confirms the number of trips and the form will be produced to Frederick
County officials upon demand with reasonable notice.
9. Pre -Blast SuryM
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. All citizens who have property adjacent to the Properties can and
are encouraged to participate in the survev by contacting the Applicant and
scheduling a mutually agreeable time for the independent engineering; firm to visit
the party's residence to document and survey the pre -blast condition of th.e partys
residences/outbuildings. The Applicant's and/or its engineering firm shall fiirther
have the right to visit and inspect the patly's residences/outbuildings to monitor
the condition of the same. A record of those pre -blast conditions will be kept by
the independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the adjoining property owner as a result of mining operations, the
engineering farm wig] then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the resideiiees;`outbuildin,-Ys, which
has been caused by the Applicant's mining activities on the Properties, thell the
Applicant agrees to remediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the Virginia
Division of Mines Minerals and Energy.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within l S00 feet of the Properties' boundaries. 'T'he aforementioned surveys will
be conducted by �m independent well drilling firm, which will investiirate and
document the pre -mining conditions of the pat•ticipants' wells. All citizens who
have property located within 1,500 feet of the Properties' boundaries can and are
encouraged to participate in the survey y contacting the Applicant and
scheduling a mutually «reeable tune for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
party's well A record of these ire -mining conditions will be kept by the
independent well drillings firm with copies retained by the Applicant and the
participating property owner. In the _event ._a chanY7e ofcondition is alleged try the
property owner as a result of mining operations, the Applicant will provide an
interim replacement water supply as necessary to supply the property owner with
water. 'The well drilling firm Nvill then conduct a follow-up v.isit and investit7ation
and use pre -blast information as a control and basis for subsequent analysis. If it
is determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast survey, then
the Applicant agrees to restore the well to its condition existing at the time of the
pre -blast survey and/or provide the adjoining property owner a replacement well
of the same condition (or better) of that which existed at that time of the pre -blast
survey.
9.3 In addition to the above, the Applicant avuees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said minim operations, and to cover the costs of
any remediation and/or repair, which is required pursumt to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
Onc Million and 00/100 .Dollars ($1 000,000.00) per occurrence.
10. Reclamation
10.1 It is intended that Dursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining acti.vitics. the Properties' quarry pi.ts shall.
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA..
and which will be conducive to the general betterment of natural habitat.
11. Noise ,Abatement
11.1 Operations on the Properties will not exceed the Virginia Department of 1\•'lirles
and Minerals 1 ncineeritig's decibel guidelines. "1'he Applicant will make all
reasonable efforts to locate mining machinery in the quarry pit or behind berms.
1.2. I..,ighting
12.1 There shall be no affixed lighting str•uctUl7es above -ground on the berms other than
as my be required for or provided by regulations that affect the plant operations,
including but not limited to dine Safety Health Administration C'TvI.SIIA").
Virginia Department of Mines and Minerals and Enel•gy f"DMME"), and anv
other governmental or regulatory body that oversees mining operations.
Lighting used for devices or machines that convey materials or for pit crushing
facilities and other mining activities is permitted. Conveying and pit Crushing
facilities shall also be interpreted as including such other devices or activities that
perl:orm similar or related f:unctiops that may come into use and/or existence at
some time in the fixture while the extractive mining use is still in effect on the
Properties.
13. Air Permit
13.1. The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during; its operations to ensure that the water emissions from
water flowing from the qu,rr-ry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
cot1duclye to natural habitats No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant which is outside of the rezoned Properties shall be maintained using
best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
ed�(ge of Cedar Creels.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occurs with the
following phasing:
•
After the rezoning is approved, the Applicant will stall creating berms on the
newly rezoned Properties and the Applicant shall start quarrving in the area
identified as parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area which is north of the existing EM zoned property, and
south of Chapel Road mining, activities will commmence no earlier than tell years
from the date that the rezoning referenced herein is approved.
For the newly zoned area which lies north of Chapel Road, minim, will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
O-N MINERALS �CHEMSTONE) COMPANY
IN
'I'11\T
Its:
C;OM.M..ON W.I: A1..,"I'I-:I OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of
.2006 , 2008, by
NOTARY PUBLIC
My commission expires
N r • : �
Ruddy Comments — Proffer Comparison
1. Generalized Development Plan.
a. Designate areas of land disturbance.
b. Locate buffers, berms, screening, tree preservation, site development
improvements, and landscaping.
A generalized development plan dated (will be updated at final submittal) will be
included with the proffer submittal.
2. Clarification of uses not to be engaged in.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas f red power plants*
*This is not to be interpreted as a restriction against using power plants
on the Properties as necessary to support extractive mining activities.
3. Clarify scope of building/facility construction — mind FCSA construction needs.
4. Clarify access to property at Chapel Road.
2.1 Properties' access via public secondary roads shall be limited to the
existing quarry entrance on McCune Road (Route 757). Access by vehicles
needed for periodic maintenance of the Properties shall not be limited.
5. Proffer Viewshed Mitigation Plan. Chapel Road Viewshed mitigation.
2.1 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said
buffers shall be determined at the time of site plan submission, and will
vary based upon the topography of the site boundary.
2.2 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding
community. Such landscaping shall consist of a mix of deciduous and
coniferous plantings placed in a random manner in order to be consistent
with existing vegetation patterns. Said berms shall be limited to a
maximum height of 30 feet.
6. Distance buffers in 2.1 and 2.2 are required by DMME.
7. Riparian buffer preserving mature woodland areas adjacent to the creek— include
in GDP.
14.2 The Applicant agrees that the area currently in trees, which is outside of
the rezoned Properties, and which is more specifically described in the
attached and incorporated plat, intentionally is not part of this rezoning.
Applicant intends to use best management practices of the trees located
thereon.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from
the edge of Cedar Creek. In other designated areas (as designated on the
attached and incorporated plat), the distance may be increased.
8. Historic Reserve — identify and incorporate recipient and mechanism into the
proffer.
3.1 ... Further, the Applicant shall place restrictions on the reserve land for
how the reserve will be used by the Properties' owner and future owners.
Said reserve land shall be dedicated to a recognized historical association
and/or group within one year of final rezoning.
The Applicant has not yet determined the appropriate entity, nor has it been
approached by an entity interested in managing the historic reserve. Once an
interested party is determined, the Applicant will work with that group to
determine the best method for protection — easement, conveyance, etc.
9. Helpful to dedicate area of no disturbance and/or tree preservation around the site
to assist in preserving the integrity of the dedicated area.
The 8-acre reserve incorporates a buffer around the identified areas.
10. No commitment to archeological survey beyond a Phase I. Global should commit
to any necessary additional surveys required by Dept. of Historic Resources.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the
Northern Reserve and Middle Marsh Properties as depicted on the GDP
within one year of final rezoning or prior to any land disturbance of the
portion of parcel 83-A-109 and parcel 90 A-23. Said survey shall locate,
identify, and comprehensively record all historic sites, buildings,
structures, and objects on the parcels. Such survey shall be conducted in
accordance with the guidelines for a Phase 1 Survey as defined in the
Virginia Department of Historic Resources "GUIDELINES FOR
CONDUCTING CULTURAL RESOURCE SURVEY IN VIRGINL4 -
Chapter 7: Guidelines for Archaeological Investigations in Virginia, "
1999 (Rev. Jan. 2003).
11. Address cemetery sites.
3.3 Two cemeteries have been identified on the Properties. The first cemetery
is located adjacent to Chapel Road and is in an area that is not designated
for mining and is also outside of the berming area. That cemetery will
remain in an undisturbed state.
The second cemetery is located in the area where berming is slated to be
installed. The Applicant proffers that cemetery will also remain
undisturbed and the berming will be located in such a way as to not
encroach on the cemetery. In addition, the cemetery is accessed through a
right-of-way which is of record providing access to the cemetery from
Route 625. The Applicant proffers to open said right-of-way so that it can
be used for access by the relatives of those in the cemetery. It is
anticipated that once said right-of-way has been opened, relatives will see
to the continued maintenance of said right-of-way.
12. Proffer 4.1 unnecessary as FCSA already has an agreement in place securing
ground water resources.
This proffer has been left in the application.
13. Proffer 8.1 traffic monitoring mechanism not independent and indisputable
measure of truck traffic.
The proffer provides for the Applicant to monitor truck trips to and from the site,
and provide the County with documentation as to the number of trips. While not
independent, compliance with all proffers is dependent on the Applicant's
commitment to adhere and retain its conditional zoning.
14. Address impact of truck trips. Address impact of truck trips on Middletown.
Truck trips have been capped at a number consistent with current truck trips
through Middletown, so there will not be an additional impact on the community.
15. Address inter -site activity of heavy equipment and vehicles.
16. Proffer 5.1 — Well locations identified and independently determined as
appropriate. Will wells be located on the Property or on adjacent residential
properties within 500 feet of the property line?
5.1 The Applicant shall install a minimum of three monitoring wells to
effectively establish and monitor the groundwater level in order to avoid
detrimental impacts to surrounding properties. Said wells shall be
installed prior to any land disturbance of the portion of the Properties
identified as parcel 83-A-109 by the GDP, and shall be located within 500
feet of the Properties' boundaries. A minimum of one monitoring well
shall be installed within 500 feet of the Northern Properties' boundary.
17. Proffer 5.2 — Describe how adverse impacts would be determined and who will
determine if they are caused by mining operations.
a. Second paragraph of 5.2 should be removed as it is descriptive.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the
Applicant shall remediate any adverse impacts to wells located on
surrounding properties caused by mining operations on the Properties.
Costs associated with any required remediation shall be borne by the
Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and
well monitoring survey, as further described herein. The intent of the
aforementioned surveys is to provide a mechanism to remediate any
adverse impacts to wells and/or structures, which are caused by the
mining operations on the Properties.
9.2 The Applicant will offer voluntary well monitoring surveys of properties
that are within 1,500 feet of the Properties' boundaries. The
aforementioned surveys will be conducted by an independent well drilling
firm, which will investigate and document the pre -blast conditions of the
participants' wells. All citizens who have property located within 1,500
feet of the Properties' boundaries can and are encouraged to participate
in the survey by contacting the Applicant and scheduling a mutually
agreeable time for the independent well drilling firm to visit the part's
residence to document and survey the pre -blast condition of the parry's
well. A record of these pre -blast conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and
the participating property owner. In the event a change of condition is
alleged by the property owner as a result of mining operations, the well
drilling. firm will then conduct a follow-up visit and investigation and use
pre -blast information as a control and basis for subsequent analysis. If it
is determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast
survey, then the Applicant agrees to restore the well to its condition
existing at the time of the pre -blast survey and/or provide the adjoining
property owner a replacement well of the same condition (or better) of
that which existed at that time of the pre -blast survey.
18. Proffer 6.1 is required by the applicant's permit.
a. Better define "surrounding properties."
Inclusion of Proffer 6.1 informs residents of DEQ permit requirements and gives
the County an opportunity to address dust suppression, should citizens become
affected by same.
6.1 Dust from drills, shot piles, material handling, screens, crushers,
conveyors, feeders, hoppers, load -outs, and traffic areas shall be
controlled by wet suppression or equivalent, and controlled by and
consistent with the terms of the Department of Environmental Quality
general air permit. The Applicant shall remediate any adverse impacts. to
surrounding properties caused by dust associated with the mining
operations on the Properties.
19. Proffer 6.2 — adverse impacts (from stockpiles) should be avoided.
6.2 All materials being stockpiled on the Properties shall be kept adequately
moist to control dust during storage and handling or covered as necessary
to remediate any adverse impacts to surrounding properties and to
minimize emissions.
20. Proffer 7.1 — Define the blasting methods prohibited (Block Holding — Adobe)
and method of regulation (DMME or County)?
21. Proffer 9.1
a. Mechanism for pre -blast surveys should be established prior to the
acceptance of the proffer statement.
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are
within 1, 500 feet of the Properties' boundaries.
The mechanism of voluntarily electing to participate in pre -blast surveys met
with general approval at the public meetings.
b. Properties immediately adjacent should be clearly defined. (Adjacent to
both parcels or just 83-109)
The proffer statement defines "Properties" in the heading, as parcels 83 A-
109 and 90 A-23.
c. Who bears expense?
9.1 The Applicant will offer voluntary pre -blast surveys ofproperties that are
within 1,500 feet of the Properties' boundaries...
The Applicant is offering the pre -blast surveys to properties within 1, 500 feet.
The Applicant will bear the expenses associated therewith.
22. Proffer 9.2 — Ensure that replacement wells are fully operational.
9.2 If it is determined that the status of the neighboring property owner's well
has deteriorated from the condition it was in at the time of the pre -blast
survey, then the Applicant agrees to restore the well to its condition
existing at the time of the pre -blast survey andlor provide the adjoining
property owner a replacement well of the same condition (or better) of
that which existed at that time of the pre -blast survey.
Same or better condition indicates that the well will be able to draw at the
same or better rate that existed at the time of the survey.
23. Proffer 9.3 — Bonding only applicable for properties participating in 9.1 and 9.2
surveys.
If neighbors elect not to participate in pre -blast surveys and monitoring, there
is not a baseline from which to determine if mining operations had any impact
on the property. Bonding will be reserved for those who participate in the
survey and monitoring programs.
a. Helpful to provide information on Global'.s current bonding status with
DMME, participation in the Minerals Reclamation Fund, and potential
costs associated with remediation and repair of adjacent wells and
properties.
24. Demonstrate how the ultimate design and layout of the properties would occur
upon the cessation of mining operations and subsequent use of the property as a
water source.
a. Reclamation plan should be designed so any reclamation activities and
materials would be located in their final natural position.
10.1 It is intended that pursuant to the terms of the agreement reached with the
FCSA that at the time of cessation of mining activities, the Properties'
quarry pits shall be used by the FCSA as water reservoirs. The control of
the water levels in the quarry pits shall be handed over to the FCSA. It is
intended that the quarry pits at that time will contain quantities of water
I
monitored and directed by the FCSA, and which will be conducive to the
general betterment of natural habitat.
25. Proffer 10.2 may be unnecessary.
Removed, but it was explanatory of FCSA's future use of the Property.
26. Proffers 11.1, 12.1, and 13.1 are redundant as they are required by the Applicant's
permit.
These can be removed, but they do provide information on what is required of the
Applicant.
27. Proffer 13.2 — Clarify re Cedar Creek Discharge point.
14.1 In addition to compliance with the VPDES water discharge permit already
in place, the Applicant agrees to work with a recognized environmental
entity of the Applicant's choosing during its operations to ensure that the
water emissions from water flowing from the quarry operations on the
Properties is of a quality consistent with the water quality in Cedar Creek
so as to maintain an environment conducive to natural habitats. No
additional water discharge points will be added.
��
i , l p � I
�r
r
Mitchell Comments/Responses
1. Clarify that these proffers supersede the proffers made relating to this property.
First Sentence - The undersigned hereby proffers that the use and development of
the subject properties ("Properties'), as described above, shall be in strict
conformance with the following conditions, which shall supersede all other
proffers on the Properties that may have been made prior hereto.
2. Remove second sentence of second paragraph.
The sentence, "The improvements proffered herein shall be provided at the time
of development of that portion of the Properties adjacent to or including the
improvement or other proffered requirement, unless otherwise specified herein"
was left in so that berms and other improvements/monitoring will not be required
until the areas become active mining areas — consistent with the phasing proffer.
3. Delete "Any proffered conditions that would prevent the Applicant from
conforming with State and/or Federal regulations shall be considered null and
void" from the second paragraph.
This sentence was retained as changes to regulations or existing regulations of
which the Applicant is not aware should not negate the rezoning.
4. Remove and shall include the following.
Done.
5. 1.1 not a proffer — proposes required things. Clearly state if limiting uses.
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
(DMM) .of the Virginia Department of Mines, Minerals and Energy, and
shall therefore conform to the Mineral Mining Law and Reclamation
Regulations for Mineral Mining of the Commonwealth of Virginia.
L2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants*
*This is not to be interpreted as a restriction against using power plants
on the Properties as necessary to support extractive mining activities.
6. Distance buffers, screening and berms — Quantify. distance exceeding
requirements.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said
buffers shall be determined at the time of site plan submission, and will
vary based upon the topography of the site boundary.
2.3 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding
community.. Such landscaping shall consist of a mix of deciduous and
coniferous plantings placed in a random manner in order to be consistent
with existing vegetation patterns. Said berms shall be limited to a
maximum height of 30 feet.
7. Historic Resources —
a. Why does it take a year to convey the 8-acre reserve, access to the reserve
should also be conveyed.
b. Proffer doesn't address protection afforded to historic sites found in the
Phase 1 Survey.
8. Proffer 4.1 informing of FCSA agreement does not appear to be a proffer.
9. County should have access to the information from the ground water monitoring
wells.
10. First two sentences of proffer 7.1 do not appear to be a proffer, but a statement of
DMME regulations.
11. Need to incorporate compliance with GDP.
Add proffer 1.3, "Applicant will develop the property in general conformance
with Generalized Development Plan attached hereto. "
REZONING:
PROPERTY:
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S)
PROPOSED PROFFER STATEMENT
RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
639.13 Acres +/-;
Tax Map Parcels 83-A-109 and 90-A-23 (the "Properties")
O-N Minerals Chemstone Company
O-N Minerals Chemstone Company
Chemstone - Middletown
June 13, 2005
January 16, 2006 February 8, 2006 August 28, 2006
The undersigned hereby proffers that the use and development of the subject properties
("Properties"), as described above, shall be in strict conformance with the following conditions,
which shall supersede all other proffers on the Properties that may have been made prior hereto.
In the event that the above -referenced EM conditional rezoning is not granted as applied for by
the applicant ("Applicant"), these proffers shall be deemed withdrawn and shall be null and void.
Further, these proffers are contingent upon final rezoning of the Properties with "final rezoning"
defined as that rezoning which is in effect on the day following the last day upon which the
Frederick County Board of Supervisors' (the "Board") decision granting the rezoning may be
contested in the appropriate court. If the Board's decision is contested, and the Applicant elects
not to submit development plans until such contest is resolved, the term rezoning shall include
the day following entry of a final court order affinning the decision of the Board which has not
been appealed, or, if appealed, the day following which the decision has been affirmed on
appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated (the "GDP"), and shall include the following:
•
DEC 1 2006
1. Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
(DMM) of the Virginia Department of Mines, Minerals and Energy, and shall
therefore conform to the Mineral Mining Law and Reclamation Regulations for
Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
Went
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said buffers
shall be determined at the time of site plan submission, and will vary based upon
the topography of the site boundary.
2.3 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding community.
Such landscaping shall consist of a mix of deciduous and coniferous plantings
placed in a random manner in order to be consistent with existing vegetation
patterns. Said berms shall be limited to a maximum height of 30 feet.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP, within
which archeological resources and other historic activities have been identified.
Further, the Applicant shall place restrictions on the reserve land for how the
reserve will be used by the Properties' owner and future owners. Said reserve
land shall be dedicated to a recognized historical association and/or group within
one year of final rezoning.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the Northern
Reserve and Middle Marsh Properties as depicted on the GDP within one year of
• 0
final rezoning or prior to any land disturbance of the portion of parcel 83-A-109
and parcel 90-A-23. Said survey shall locate, identify, and comprehensively
record all historic sites, buildings, structures, and objects on the parcels. Such
survey shall be conducted in accordance with the guidelines for a Phase 1 Survey
as defined in the Virginia Department of Historic Resources "GUIDELINES FOR
CONDUCTING CULTURAL RESOURCE SURVEY IN VIRGINIA - Chapter
7: Guidelines for Archaeological Investigations in Virginia," 1999 (Rev. Jan.
2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery will remain in an
undisturbed state.
The second cemetery is located in the area where benning is slated to be installed.
The Applicant proffers that cemetery will also remain undisturbed and the
benning will be located in such a way as to not encroach on the cemetery. In
addition, the cemetery is accessed through a right-of-way which is of record
providing access to the cemetery from Route 625. The Applicant proffers to open
said right-of-way so that it can be used for access by the relatives of those in the
cemetery. It is anticipated that once said right-of-way has been opened, relatives
will see to the continued maintenance of said right-of-way.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the groundwater resources available on the Properties in accordance with
existing agreements negotiated between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 83-A-109 by the
GDP, and shall be located within 500 feet of the Properties' boundaries. A
minimum of one monitoring well shall be installed within 500 feet of the
Northern Properties' boundary.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, shot piles, material handling, screens, crushers, conveyors,
feeders, hoppers, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the tenns of the
Department of Environmental Quality general air permit. The Applicant shall
remediate any adverse impacts to surrounding properties caused by dust
associated with the mining operations on the Properties.
6.2 All materials being stockpiled on the Properties shall be kept adequately moist to
control dust during storage and handling or covered as necessary to remediate any
adverse impacts to surrounding properties and to minimize emissions.
7. Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities
(PPV) associated with blasting on the Properties shall not exceed the levels
stipulated by said permit. In addition, Applicant agrees to have an approved
blasting plan in place at all times. An example of the current blasting plan is
attached. Further, in addition, Applicant agrees that there will be no block holing
or adobe blasting conducted on the Properties. Any damage to surrounding
properties caused by blasting on the Properties shall be remediated at the
Applicant's expense.
8. Traffic
8.1 The Applicant agrees to restrict truck traffic to the Properties to a maximum of
200 truck loads per day averaged over the prior 30 days through the scale house
hauling mined materials on and/or off the proposed quarry site from the existing
quarry entrance. The maximum number of trips will be regulated by the
Applicant and its successors and/or assigns. A record of the actual number of
truck trips per day shall be kept current (and maintained for one year) by the
Applicant at its scale house office. Said record shall be made available in a form
which confirms the number of trips and the form will be produced to Frederick
County officials upon demand with reasonable notice.
9. Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. All citizens who have property adjacent to the Properties can and
are encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent engineering firm to visit
the party's residence to document and survey the pre -blast condition of the party's
residences/outbuildings. The Applicant's and/or its engineering firm shall further
have the right to visit and inspect the party's residences/outbuildings to monitor
the condition of the same. A record of those pre -blast conditions will be kept by
the independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the adjoining property owner as a result of reining operations, the
engineering firm will then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences/outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to rernediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the Virginia
Division of Mines, Minerals and Energy.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the Properties' boundaries. The aforementioned surveys will
be conducted by an independent well drilling firm, which will investigate and
document the pre -blast conditions of the participants' wells. All citizens who
have property located within 1,500 feet of the Properties' boundaries can and are
encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
party's well. A record of these pre -blast conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and the
participating property owner. In the event a change of condition is alleged by the
property owner as a result of ruining operations, the well drilling firm will then
conduct a follow-up visit and investigation and use pre -blast information as a
control and basis for subsequent analysis. If it is determined that the status of the
neighboring property owner's well has deteriorated from the condition it was in at
the time of the pre -blast survey, then the Applicant agrees to restore the well to its
condition existing at the time of the pre -blast survey and/or provide the adjoining
property owner a replacement well of the same condition (or better) of that which
existed at that time of the pre -blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for a period of time covering the active mining
operations on the Properties and to maintain in effect for a period of one year
from the date of cessation of said mining operations, and to cover the costs of any
remediation and/or repair, which is required pursuant to the terms of sections 9.1
and 9.2 above. Said policy or surety shall be in the amount of no less than One
Million and 00/100 Dollars ($1,000,000.00) per occurrence.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the Virginia Department of Mines
and Minerals Engineering's decibel guidelines. The Applicant will make all
reasonable efforts to locate mining machinery in the quarry pit or behind berms.
12. Lighting
12.1 There shall be no permanently affixed lighting structures above -ground on the
berms other than as may be used for conveying or pit crushing facilities or for
mining activities, with the exception as may be required for or provided by
regulations that affect the plant operations, including but not limited to, Mine
Safety Health Administration ("MSHA"), Virginia Department of Mines and
Minerals and Energy ("DMME"), and any other governmental or regulatory body
that oversees mining operations, there shall be no permanently affixed lighting
structures. Conveying and pit crushing facilities shall also be interpreted as
including such other devices or activities that perforrn similar or related functions
that may come into use and/or existence at some time in the future while the
extractive mining use is still in effect on the Properties.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
•
14.2 The Applicant agrees that the area currently in trees, which is outside of the
rezoned Properties, and which is more specifically described in the attached and
incorporated plat, intentionally is not part of this rezoning. Applicant intends to
use best management practices of the trees located thereon.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek. In other designated areas (as designated on the attached and
incorporated plat), the distance may be increased.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as the Northern Reserve. Mining in the Northern Reserve area shall
occur from the time period commencing with the approval of the rezoning for a
period of time which is estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
E
Respectfully submitted,
O-N MINERALS (CHEMSTONE) CORPORATION
Its:
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of ,
2006, by
NOTARY PUBLIC
My commission expires:
I NN V
7t
PR[jPOS
UdN�Nsa�_
TO:'Efi
or"
4
Department of Planning and Development
540/ 665-5651
FAX: 540/ 665-6395
September 8, 2006
Mr. Thomas Moore Lawson
Lawson and Silek, P.L.C.
120 Exeter Drive, Suite 200
Winchester, VA 22604
RE: Rezoning #03-06; O-N Minerals Chemstone Company
Preliminary Review of Revised Proffer Statement Dated August 23, 2006
Dear Ty:
The County appreciates the opportunity to review an advanced copy of the above
referenced revised Proffer Statement. It is our hope that the additional comments offered
by the County will be helpful to the Applicants as they continue to work on this rezoning
application.
General
All comments previously offered by Mr. Bob Mitchell, County Attorney, in his review
letter dated March 27, 2006 should be thoroughly addressed. As revised, the proffer
statement does not address any of those comments offered by Mr. Mitchell.
Staff would support the County Attorney's opinion that any proffer that provides a
commitment to do something that is already required by Federal, State, and Local
requirements, or the Applicant's Mining Permit, should be removed from the proffer
statement. For purposes of clarity and understanding it would be preferable to limit the
commitments in the proffer statement to those that are above and beyond the scope of any
existing requirements, whether required by Code or by Permit.
Land Use
A generalized development plan, in conjunction with the proffer statement, is an efficient
tool that the applicant could use to further clarify any commitments made as part of the
rezoning application.
107 North Kent Street, Suite 202 - Winchester, Virginia 22601-5000
RZ03-06 Revised Proffer Conunents
September 8, 2006
Page 2
The Applicant may want to better utilize the generalized development plan. For instance,
the specific areas of land disturbance could be clarified; the location of any buffers,
berms, screening, and landscaping could be identified; areas of existing mature
woodlands that are to be preserved could be identified; and, the location of any additional
site development improvements could be shown.
The Applicant's proffer (1.2) to not engage in certain uses restates the uses as identified
in the Zoning Ordinance with the exception of cement and lime kilns. It may be clearer to
specifically prohibit the uses and also to use the same language that is contained in the
Zoning Ordinance. The final part of the sentence does not appear to be necessary.
The Applicant has previously stated that the future use of the property will be consistent
with the present use of the property. Further, that no additional construction of buildings
or facilities associated with the mining operation will occur on the properties for which
the rezoning is being sought. To that end, the proffer statement provides the applicant
with the opportunity to clarify the scope of any additional building or facility
construction, beyond the mining operations, on the properties being rezoned. Due
consideration should be given to buildings that may be erected by the FCSA as part of the
future use of the property as a water source.
In general, the proffer statement and generalized development plan provide the Applicant
with the opportunity to further define the scope of the land use activity on the property.
Limiting the potential acreage of development, new facility construction, and the type of
uses on the property would limit the potential impacts of the EM development of this
property.
Site Development
The Applicant's proffer (2.1) to clarify site access does not specifically address the
prohibition of vehicles between the properties bisected by Chapel Road. It may be
helpful to provide additional assurances that vehicular access and/or commercial
entrances to and from the site will not occur in this location.
The use of a viewshed analysis, as previously suggested, that addresses the unique
viewsheds and approaches critical to the perspectives of the various identified historical
stakeholders would be helpful. The approach could also be used for the adjacent property
owners. The Applicant has the ability to proffer a specific viewshed mitigation plan. This
would be preferable to the present approach, which restates existing State requirements
and provides no commitment to a minimum standard designed to achieve an effective
buffering, berming, and landscaping plan.
RZ03-06 Revised Proffer Comments
September 8, 2006
Page 3
The distance buffers and landscaped earthen berms proffered (2.1 and 2.2) would be
required by current DMME regulations.
Consideration should be given to providing a more sensitive approach to the unique
environ nental and aesthetic qualities of the area of the property adjacent to Cedar Creek.
A significant riparian buffer, consisting of preservation of the mature woodland areas
adjacent to Cedar Creek, would appear to be a reasonable consideration for inclusion into
the generalized development plan for the property. The protection of other
enviromriental features that exist on the property would also be desirable.
Consideration should also be given to providing a more detailed approach to the
viewshed mitigation along Chapel Road. This may include a sensitive approach to buffer
and screening, along both sides of this rural road.
Historic Resources
With regards to the historic reserve proffer (3.1), the recipient of the historic reserve area
should be identified and incorporated into the proffers and the mechanism for the
dedication of the property should be more specific and timely. It may be helpful to
dedicate an area of no disturbance and/or tree preservation around the site to assist in
preserving the integrity of the dedicated historical area. It was previously noted that the
mature woodlands between the dedicated area and the ridgeline above the dedicated area
provide a good area for such a preservation buffer and is beyond the area proposed for
mining operations.
The proffer to complete a Phase 1 archeological survey of the property (3.2) appears to be
for only one of the two properties. It should be clarified that the Survey would be applicable
to parcel 90-A-23 in addition to the stated parcel 83-A-109. The applicant has proffered to
complete a Phase 1 Archeological Survey of the property in the future. However, as noted
by Mr. Mitchell, no commitments have been made beyond a Phase 1 Survey and the proffer
does not address what protection will be afforded to any historic sites, buildings, structures,
or objects identified in the archeological survey. A commitment to any necessary additional
surveys consistent with the guidelines of the Department of Historic Resources may be
appropriate. Staff would concur that the preferable chronology would be to have the Phase
1 Archeological Survey completed prior to the rezoning, so that any historical elements
could be addressed as part of the rezoning process.
Special attention should be provided to addressing the burial sites that are located on the
property. These features were not identified in the Applicant's Impact Statement. It would
be desirable to deal with the unique concerns of these features ahead of, and independent
from, the Cultural Resource Surveys.
R7-03-06 Revised Proffer Comments
September 8, 2006
Page 4
Rights to Water Supply.
Proffer 4.1 appears to be an unnecessary proffer, based upon the understanding that the
Frederick County Sanitation Authority already has an agreement in place which secures the
ground water resources of the property.
Transportation
Proffer 8.1 does not appear to provide for a valid independent and indisputable
mechanism for monitoring a proffered limitation on truck traffic. The Applicant has not
addressed the potential impacts associated with the anticipated truck trips on the existing
street system. In particular, the nature of the truck trips within the Town of Middletown.
In addition, the inter -site activity of heavy equipment and vehicles could be addressed
further within the Proffer Statement.
Ground Water / Dust Control / Blastinp, Controls
Tlne nrnffer f5.11 to install a minimum of three monitoring wells would be more effective
r. _ ,
if the locations of the wells were identified and independently determined to be
appropriate. Given the geological features of the immediate area, it is presently
questionable as to how many wells would be necessary, and which locations would be
appropriate. Further, impacts associated with the development of Parcel 90-A-23 and the
residential properties adjacent to this parcel, in particular in the Meadow Mills area,
should also be a consideration. The proffer should be clarified to identify if the wells are
to be located on the property or on adjacent property within 500' of the property line.
Proffer 5.2 does not describe how the adverse impacts would be determined and who
would determine that they were caused by mining operations on the property. Further,
the proffer does not describe how they would be remediated, and who would determine
the scope of the costs associated with any remediation.
The above comment is generally applicable to all of the proffers that attempt to address
the nuisance impacts associated with the mining of the property. Lacking more
specificity, it would appear as though a third party would be necessary in interpreting and
determining the details of the resolution of the proffers. Ultimately, this may involve the
County and the Court system, both of which would be undesirable. Lacking the needed
specificity, the enforceability of the proffers is questionable. The burden of
enforceability would be the County's.
An alternative approach for the application and proffer statement may be to seek to better
understand the potential impacts associated with the proposed mining operations and seek
to avoid them by refining the potential scope of mining operations.
RZ03-06 Revised Proffer Comments
September 8, 2006
Page 5
The second paragraph of Proffer 5.2 should be removed, as it is a descriptive narrative.
The commitment is described in Proffer 9.1.
Proffer 6.1 is required by the Applicant's permit.
When the term surrounding properties is used in the proffer statement, greater definition
as to what properties would be included as surrounding properties should be provided.
Proffer 6.2 does not appear to make sense as a sentence. Regardless, any adverse impacts
should be avoided.
Proffer 7.1 identifies two specific methods of blasting that are proposed to be prohibited.
Further definition of these methods should be provided, as should the avenue for
regulation. Would this be the responsibility of the DMME through their permitting
process, or would it be the responsibility of the County as this may exceed the
requirements of the DMME?
The mechanism for voluntary pre -blast surveys, Proffer 9.1, should be established prior
to the acceptance of the proffer statement. Further, the properties that are immediately
adjacent should be clearly defined. Would this include property owners adjacent to either
properties or only Parcel 83-A-109? Also, who would bear the expense involved in
determining that changes in condition are caused by the Applicant's mining operations?
There may be an expense in resolving these issues that would be borne by the adjacent
property owners. The monitoring of blasting activities is required by the Applicant's
permit.
Proffer 9.2 should ensure that a well provided in replacement of a well that was damaged -
due to mining operations be fully operational. This may entail a well that is not in the
same condition as that which existed at the time of any pre -blast survey. For instance, a
new well may need to be deeper to ensure a sustainable production of water for the
property owner.
Proffer 9.3, which addresses bonding, is not clearly written and does not provide
information on the mechanism of implementation. The proffer appears to only be
applicable if the property owners agree to participate in 9.1 and 9.2, and if it was
determined that it was caused by the Applicant's mining operations. It may be helpful if
the Applicant could provide information about their current bonding status with the
DMME, their participation in the Minerals Reclamation Fund (MRF), and the potential
costs associated with remediation and repair of adjacent wells and properties.
Many of the proffers noted above lack detail sufficient enough to make the Proffer
Statement enforceable.
RZ03-06 Revised Proffer Continents
September 8, 2006
Page 6
Reclamation
It may be helpful for the Applicant to demonstrate how the ultimate design and layout of
the properties would occur upon the cessation of mining operations and subsequent use of
the property as a water source. The reclamation plan should be designed so any
reclamation activities and materials would be located in their final natural position. A
phased approach to the timing and placement of reclamation materials may be desirable
to address the buffering, screening, and berming components of any viewshed mitigation
plans that are provided with this application. Again, the Generalized Development Plan
may be helpful in achieving this objective. Proffer 10.2 may be unnecessary.
Proffers 11.1, 12.1, and 13.1 are redundant, as they are required by the Applicant's
permit.
Environmental
Proffer 13.2 could be clarified with regards to the discharge point onto Cedar Creek. The
existing discharge point is located on property that is not part of this rezoning request.
Any additional discharge points from all of the properties owned by the Applicant could
be prohibited.
As stated previously, the above comments are provided to assist the Applicant in their
ongoing improvement of this rezoning application. The continents do not constitute an
all-inclusive list of all of the issues associated with this rezoning application. Rather, it is
an effort to recognize the more apparent issues. Please feel free to contact me if you have
any questions.
Sincerely,
i
Michael T. Ruddy, AICP
Deputy Director
MTR/bad
cc: Mr. John Riley, Jr., County Administrator.
Mr. Richard Shickle, Chairman, Frederick County Board of Supervisors
Mr. Spencer Stinson, O-N Minerals Global Chemstone
REZONING:
PROPERTY:
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
PROPOSED PROFFER STATEMENT
RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
639.13 Acres +/-;
Tax Map Parcels 83-A-] 09 and 90-A-23 (the "Properties")
O-N Minerals Chemstone Company
O-N Minerals Chemstone Company
Chemstone - Middletown
June 13, 2005
January 16, 2006 February 8, 2006 August 23, 2006
The undersigned hereby proffers that the use and development of the subject property
("Property" or "Properties"), as described above, shall be in strict conformance with the
following conditions, which shall supersede all other proffers that may have been made prior
hereto. In the event that the above -referenced EM conditional rezoning is not granted as applied
for by the applicant ("Applicant"), these proffers shall be deemed withdrawn and shall be null
and void. Further, these proffers are contingent upon final rezoning of the Property with "final
rezoning" defined as that rezoning which is in effect on the day following the last day upon
which the Frederick County Board of Supervisors' (the "Board") decision granting the rezoning
may be contested in the appropriate court, If the Board's decision is contested, and the Applicant
elects not to submit development plans until such contest is resolved, the term rezoning shall
include the day following entry of a final court order affirming the decision of the Board which
has not been appealed, or, if appealed, the day following which the decision has been affirmed
on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Property adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated June 13, 2005 (the "GDP"), and shall include the following:
1. Land Use
1.1 The Property shall be developed with extractive manufacturing land uses pursuant
to the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy, and shall therefore conform
to the Mineral Mining Law and Reclamation Regulations for Mineral Mining of
the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Property, which are typically allowed in the extractive mining district:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products.; and
Cement and lime kilns
2. Site Development
2.1 Site access via public secondary roads shall be limited to the existing quarry
entrance on McCune Road (Route 757). Access by vehicles needed for periodic
maintenance of the Property shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said buffers
shall be determined at the time of site plan submission, and will vary based upon
the topography of the site boundary.
2.3 Earthen berms installed around active quarry pits shall be landscaped to minimize
impacts to the viewshed of the surrounding community, Such landscaping shall
consist of a mix of deciduous and coniferous plantings placed in a random manner
in order to be consistent with existing vegetation patterns, Said berms shall be
limited to a maximum height of 30 feet.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP, within
which archeological resources and other historic activities have been identified.
Said reserve shall be dedicated to a recognized historical association and/or group
within one year of final rezoning.
3.2 The Applicant shall complete a phase I Archaeological Survey of the Property
within one year of final rezoning or prior to any land disturbance of the portion of
the Property identified as 83-A-109 by the GDP. Said survey shall locate,
identify, and comprehensively record all historic sites, buildings, structures, and
objects on the Property. Such survey shall be conducted in accordance with the
guidelines for a Phase 1 Survey as defined in the Virginia Department of Historic
Resources "GUIDELINES FOR CONDUCTING CULTURAL RESOURCE
SURVEY IN VIRGINIA - Chapter 7: Guidelines for Archaeological
Investigations in Virginia," 1999 (Rev. Jan. 2003).
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the groundwater resources available on the Properties in accordance with
existing agreements negotiated between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Property identified as 83-A-109 by the GDP, and
shall be located within 500 feet of the Property boundaries. A minimum of one
monitoring well shall be installed within 500 feet of the Northern Property
Boundary.
5.2 The Applicant shall remediate any adverse impacts to wells located on
surrounding properties caused by mining operations on the Property. Costs
associated with any required remediation shall be bome by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures, which are caused by the mining operations on the Property.
6. Dust Control
6.1 Dust from drills, shot piles, material handling, screens, crushers, conveyors,
feeders, hoppers, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Environmental Quality general air permit. The Applicant shall
remediate any adverse impacts to surrounding properties caused by dust
associated with the mining operations on the Property.
6.2 All materials being stockpiled shall be kept adequately moist to control dust
during storage and handling or covered as necessary to remediate any adverse
impacts to surrounding properties to minimize emissions.
7. Blasting- Control
7.1 All blasting associated with mining operations on the Property shall be limited by
the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities
(PPV) associated with blasting on the Property shall not exceed the levels
stipulated by said permit. In addition, Applicant agrees to have an approved
blasting plan in place at all times. An example of the current blasting plan is
attached. Further, in addition, Applicant agrees that there will be no block holing
or adobe blasting conducted onsite. Any damage to surrounding properties
caused by blasting on the Property shall be remediauZ at the Applicant's expense.
8. Traffic
8.1 The Applicant agrees to restrict truck traffic to a maximum of 200 truck loads per
day averaged over the prior 30 days through the scale house hauling mined
materials on and/or off the proposed quarry site from the existing quarry entrance.
The maximum number of trips will be regulated by the Applicant and its
successors and/or assigns. A record of the actual number of truck trips per day
shall be kept current by the Applicant at its scale house office_
9. Pre -Blast Surveys
9.1 The Applicant will establish a mechanism for voluntary pre -blast surveys of
properties that are immediately adjacent to the quarry operations. The
aforementioned surveys will be conducted by an independent engineering firm,
which will investigate and document the pre -blast conditions of the participants'
residences and/or outbuildings. All citizens who have property adjacent to the
quarry operations can and are encouraged to participate in the survey by
contacting the Applicant and scheduling a mutually agreeable time for the
independent engineering firm to visit the party's residence to document and
survey the pre -blast condition of the party's residenom/outbuildings. A record of
those pre -blast conditions will be kept by the independent engineering firm with
copies retained by the Applicant and the participating property owner. In the
event of a change in condition, which is alleged by the adjoining property owner
as a result of mining operations, the engineering firm will then conduct a follow-
up visit and investigation and use the pre -blast information as a control and basis
for subsequent analysis. Said analysis shall be used to determine the cause of any
negative change in condition. If it is determined there is a change in condition in
the residences/outbuildings, which has been caused by the Applicant's muting
activities on the Property, then the Applicant agrees to remediate and/or repair
said negative change in condition to restore it to its status prior to blasting
operations. In addition, the Applicant agrees to establish seismic monitoring on
the proposed quarry site to monitor all blasting activities'and keep records of said
seismic monitoring as required by the Virginia Division of Mines, Minerals and
Energy.
9.2 The Applicant will establish a mechanism for voluntary well monitoring surveys
of properties that are within 1,500 feet of Applicant's Property boundaries. The
aforementioned surveys will be conducted by an independent well drilling firm,
which will investigate and document the pre -blast conditions of the participants'
wells. All citizens who have property located within 1,500 feet of the Applicant's
Property boundaries can and are encouraged to participate in the survey by
contacting the Applicant and scheduling a mutually agreeable time for the
independent well drilling firm to visit the party's residence to document and
survey the pre -blast condition of the party's well. A record of these pre -blast
conditions will be kept by the independent well drilling firm, with copies retained
by the Applicant and the participating property owner. In the event a change of
condition is alleged by the property owner as a result of mining operations, the
well drilling firm will then conduct a follow-up visit and investigation and use
pre -blast information as a control and basis for subsequent analysis_ If it is
determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast survey, then
the Applicant agrees to restore the well to its condition existing at the time of the
pre -blast survey and/or provide the adjoining property owner a replacement well
of the same condition of that which existed at that time of the pre blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force a bond or a
rider on an existing bond or other sufficient security for a period of time covering
the active mining operations and to maintain in effect for a period of one year
from the date of cessation of mining operations and to cover the costs of any
remediation and/or repair, which is required pursuant to the terms of section 9.1
above.
10. Reclamation
10.1 The Applicant will bond reclamation activities in the amounts determined by the
Virginia Department of Mines, Minerals and Energy and there shall be a rider
affixed to said bond or some other sufficient security to provide for the work
and/or reclamation and/or remediation activities set forth herein.
10.2 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the quarry pits shall be used by
the FCSA as water reservoirs. The control of the water levels in the quarry pits
shall be handed over to the FCSA. It is intended that the quarry pits at that time
will contain quantities of water monitored and directed by the FCSA, and which
will be conducive to the general betterment of natural habitat,
11. Noise Abatement
11.1 Operations on the Property will not exceed the Virginia Department of Mines and
Minerals Engineering's decibel guidelines.
12. Air P ermit
12.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air pit covers all activities conducted on
the rezoned Property.
13. Enviromnent
13.1 In addition to compliance with the VPDES water discharge
ien� gee ntal entity of the
it already in
place, the Applicant agrees to work with a recognized
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Property is of a quality consistent
with the water quality in Cedar Creek so as to maintain an environment conducive
to natural habitats.
13.2 The Applicant agrees that in conjunction with its mining operations, there will be
no new water discharge points added to the existing discharge to Cedar Creek.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
O-N MINERALS (CHEMSTONE) CORPORATION
MM
Its:
STATE OF VIR.GRZA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of ,
2006) by
NOTARY PUBLIC
My commission expires:
L}Ur IG�E ve r'so
l2,119[o,
REZONING:
PROPERTY:
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
PROPOSED PROFFER STATEMENT
RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
639.13 Acres +/-;
Tax Map Parcels 83-A-109 and 90-A-23 (the "Properties")
O-N Minerals Chemstone Company
O-N Minerals Chemstone Company
Chemstone - Middletown
June 13, 2005
January 16, 2006 February 8, 2006
August 28, 2006
The undersigned hereby proffers that the use and development of the subject properties
("Properties"), as described above, shall be in strict conformance with the following conditions,
which shall supersede all other proffers on the Properties that may have been made prior hereto.
In the event that the above -referenced EM conditional rezoning is not granted as applied for by
the applicant ("Applicant"), these proffers shall be deemed withdrawn and shall be null and void.
Further, these proffers are contingent upon final rezoning of the Properties with "final rezoning"
defined as that rezoning which is in effect on the day following the last day upon which the
Frederick County Board of Supervisors' (the "Board") decision granting the rezoning may be
contested in the appropriate court. If the Board's decision is contested, and the Applicant elects
not to submit development plans until such contest is resolved, the term rezoning shall include
the day following entry of a final court order affirming the decision of the Board which has not
been appealed, or, if appealed, the day following which the decision has been affirmed on
appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O-N
Minerals (Chemstone)" dated (the "GDP"), -;,ad �����x�,l-Ill� �A� +IR
1. Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
(DMM) of the Virginia Department of Mines, Minerals and Energy, and shall
therefore conform to the Mineral Mining Law and Reclamation Regulations for
Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in
addition to those required by the Zoning Ordinance. The depth of said buffers
shall be determined at the time of site plan submission, and will vary based upon
the topography of the site boundary.
2.3 Earthen berms installed around the Properties' active quarry pits shall be
landscaped to minimize impacts to the viewshed of the surrounding community.
Such landscaping shall consist of a mix of deciduous and coniferous plantings
placed in a random manner in order to be consistent with existing vegetation
patterns. Said berms shall be limited to a maximum height of 30 feet.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP, within
which archeological resources and other historic activities have been identified.
Further, the Applicant shall place restrictions on the reserve land for how the
reserve will be used by the Properties' owner and future owners. Said reserve
land shall be dedicated to a recognized historical association and/or group within
one year of final rezoning.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the Northern
Reserve and Middle Marsh Properties as depicted on the GDP within one year of
final rezoning or prior to any land disturbance of the portion of parcel 83-A-109
and parcel 90-A-23. Said survey shall locate, identify, and comprehensively
record all historic sites, buildings, structures, and objects on the parcels. Such
survey shall be conducted in accordance with the guidelines for a Phase 1 Survey
as defined in the Virginia Department of Historic Resources "GUIDELINES FOR
CONDUCTING CULTURAL RESOURCE SURVEY IN VIRGINIA - Chapter
7: Guidelines for Archaeological Investigations in Virginia," 1999 (Rev. Jan.
2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery will remain in an
undisturbed state.
The second cemetery is located in the area where berming is slated to be installed.
The Applicant proffers that cemetery will also remain undisturbed and the
berming will be located in such a way as to not encroach on the cemetery. In
addition, the cemetery is accessed through a right-of-way which is of record
providing access to the cemetery from Route 625. The Applicant proffers to open
said right-of-way so that it can be used for access by the relatives of those in the
cemetery. It is anticipated that once said right-of-way has been opened, relatives
will see to the continued maintenance of said right-of-way.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the groundwater resources available on the Properties in accordance with
existing agreements negotiated between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 83-A-109 by the
GDP, and shall be located within 500 feet of the Properties' boundaries. A
minimum of one monitoring well shall be installed within 500 feet of the
Northern Properties' boundary.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and/or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, shot piles, material handling, screens, crushers, conveyors,
feeders, hoppers, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Enviromnental Quality general air permit. The Applicant shall
remediate any adverse impacts to surrounding properties caused by dust
associated with the mining operations on the Properties.
6.2 All materials being stockpiled on the Properties shall be kept adequately moist to
control dust during storage and handling or covered as necessary to remediate any
adverse impacts to surrounding properties and to minimize emissions.
7. Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities
(PPV) associated with blasting on the Properties shall not exceed the levels
stipulated by said permit. In addition, Applicant agrees to have an approved
blasting plan in place at all times. An example of the current blasting plan is
attached. Further, in addition, Applicant agrees that there will be no block holing
or adobe blasting conducted on the Properties. Any damage to surrounding
properties caused by blasting on the Properties shall be remediated at the
Applicant's expense.
8. Traffic
8.1 The Applicant agrees to restrict truck traffic to the Properties to a maximum of
200 truck loads per day averaged over the prior 30 days through the scale house
hauling mined materials on and/or off the proposed quarry site from the existing
quarry entrance. The maximum number of trips will be regulated by the
Applicant and its successors and/or assigns. A record of the actual number of
truck trips per day shall be kept current (and maintained for one year) by the
Applicant at its scale house office. Said record shall be made available in a form
which confirms the number of trips and the form will be produced to Frederick
County officials upon demand with reasonable notice.
9. Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Properties' boundaries. The aforementioned surveys will be
conducted by an independent engineering firm, which will investigate and
document the pre -blast conditions of the participants' residences and/or
outbuildings. All citizens who have property adjacent to the Properties can and
are encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent engineering firm to visit
the party's residence to document and survey the pre -blast condition of the party's
residences/outbuildings. The Applicant's and/or its engineering firm shall further
have the right to visit and inspect the party's residences/outbuildings to monitor
the condition of the same. A record of those pre -blast conditions will be kept by
the independent engineering firm with copies retained by the Applicant and the
participating property owner. In the event of a change in condition, which is
alleged by the adjoining property owner as a result of mining operations, the
engineering firm will then conduct a follow-up visit and investigation and use the
pre -blast information as a control and basis for subsequent analysis. Said analysis
shall be used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences/outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to remediate and/or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the Virginia
Division of Mines, Minerals and Energy.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the Properties' boundaries. The aforementioned surveys will
be conducted by an independent well drilling firm, which will investigate and
document the pre -blast conditions of the participants' wells. All citizens who
have property located within 1,500 feet of the Properties' boundaries can and are
encouraged to participate in the survey by contacting the Applicant and
scheduling a mutually agreeable time for the independent well drilling firm to
visit the party's residence to document and survey the pre -blast condition of the
party's well. A record of these pre -blast conditions will be kept by the
independent well drilling firm, with copies retained by the Applicant and the
participating property owner. In the event a change of condition is alleged by the
property owner as a result of mining operations, the well drilling firm will then
conduct a follow-up visit and investigation and use pre -blast information as a
control and basis for subsequent analysis. If it is determined that the status of the
neighboring property owner's well has deteriorated from the condition it was in at
the time of the pre -blast survey, then the Applicant agrees to restore the well to its
condition existing at the time of the pre -blast survey and/or provide the adjoining
property owner a replacement well of the same condition (or better) of that which
existed at that time of the pre -blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for a period of time covering the active mining
operations on the Properties and to maintain in effect for a period of one year
from the date of cessation of said mining operations, and to cover the costs of any
remediation and/or repair, which is required pursuant to the terms of sections 9.1
and 9.2 above. Said policy or surety shall be in the amount of no less than One
Million and 00/100 Dollars ($1,000,000.00) per occurrence.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the Virginia Department of Mines
and Minerals Engineering's decibel guidelines. The Applicant will make all
reasonable efforts to locate mining machinery in the quarry pit or behind berms.
12. Lighting
12.1 There shall be no permanently affixed lighting structures above -ground on the
berms other than as may be used for conveying or pit crushing facilities or for
mining activities, with the exception as may be required for or provided by
regulations that affect the plant operations, including but not limited to, Mine
Safety Health Administration ("MSHA"), Virginia Department of Mines and
Minerals and Energy ("DMME"), and any other governmental or regulatory body
that oversees mining operations, there shall be no penmanently affixed lighting
structures. Conveying and pit crushing facilities shall also be interpreted as
including such other devices or activities that perform similar or related functions
that may come into use and/or existence at some time in the future while the
extractive mining use is still in effect on the Properties.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that the area currently in trees, which is outside of the
rezoned Properties, and which is more specifically described in the attached and
incorporated plat, intentionally is not part of this rezoning. Applicant intends to
use best management practices of the trees located thereon.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek. In other designated areas (as designated on the attached and
incorporated plat), the distance may be increased.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as the Northern Reserve. Mining in the Northern Reserve area shall
occur from the time period commencing with the approval of the rezoning for a
period of time which is estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
O-N MINERALS (CHEMSTONE) CORPORATION
Its:
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of ,
2006, by
NOTARY PUBLIC
My commission expires:
• 0
PROPOSED PROFFER STATEMENT
REZONING: RZ. # 03— b 6
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 639.13 acres +/-;
Tax Map Parcels 83-A 109 & 90-A 23 (the "Properties")
RECORD OWNER O-N Minerals Chemstone Company
APPLICANT: O-N Minerals Chemstone Company
PROJECT NAME: Chemstone - Middletown
ORIGINAL DATE
OF PROFFERS: June 13, 2005
REVISIONDATE(S): January 16, 2006 February 8, 2006 February 17, 2006
The undersigned hereby proffers that the use and development of the subject property
("Propert/'), as described above, shall be in strict conformance with the following conditions, which
shall supersede all other proffers that may have been made prior hereto. In the event that the above
referenced EM conditional rezoning is not granted as applied for by the applicant ("Applicant"),
these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are
contingent upon final rezoning of the Property with "final rezoning" defined as that rezoning which
is in effect on the day following the last day upon which the Frederick County Board of Supervisors
(the "Board") decision granting the rezoning may be contested in the appropriate court. If the
Board's decision is contested, and the Applicant elects not to submit development plans until such
contest is resolved, the term rezoning shall include the day following entry of a final court order
affirming the decision of the Board which has not been appealed, or, if appealed, the day following
which the decision has been affirmed on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Property adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and/or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all future
owners and successors in interest. When used in these proffers, the "Generalized Development
Plan," shall refer to the plan entitled "Generalized Development Plan, O-N Minerals (Chemstone)"
dated June 13, 2005 (the "GDP"), and shall include the following:
Land Use
1.1 The Property shall be developed with extractive manufacturing land uses pursuant to
the mining permit approved by the Division of Mineral Mining (DMM) of the
Virginia Department of Mines, Minerals and Energy, and shall therefore conform to
the Mineral Mining Law and Reclamation Regulations for Mineral Mining of the
Commonwealth of Virginia.
Proffer Statement
• Cheimtone - Middletown
Site Development
2.1 Site access via public secondary roads shall be limited to the existing quarry entrance
on McCune Road (Route 757). Access by vehicles needed for periodic maintenance
of the Property shall not be limited.
2.2 Distance buffers shall be provided along the perimeter of the Properties in addition
to those required by the Zoning Ordinance. The depth of said buffers shall be
determined at the time of site plan submission, and will vary based upon the
topography of the site boundary.
2.3 Earthen berms ins alledd��around active quarry pits shall be landscaped to minimise
impacts to the viehed-of the surrounding community. Such landscaping shall
consist of a mix of deciduous and coniferous plantings placed in a random manner in
order to be consistent with existing vegetation patterns. Said berms shall be limited
to a maximum height of 30 feet.
3. Historic Resources
3.1 The Applicant shall create an eight acre historic reserve as shown on the GDP,
within which archeological resources associated with Belle Grove Plantation have
been identified. Said reserve shall be dedicated to the Belle Grove Foundation
within one year of final rezoning.
3.2 The Applicant shall complete a Phase I Archaeological Survey of the Property within
one year of final rezoning or prior to any land disturbance of the portion of the
Property identified as 83-A 109 by the GDP. Said survey shall locate, identify, and
comprehensively record all historic sites, buildings, structures, and objects on the
Property. Such survey shall be conducted in accordance with the guidelines for a
Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA — Chapter 7: Guidelines for Archaeological Investigations in Virginia",
1999 (Rev. Jan. 2003) .
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the groundwater resources available on the Properties in accordance with
existing agreements negotiated between the Applicant and FCSA.
5. Groundwater
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts to
surrounding properties. Said wells shall be installed prior to any land disturbance of
the portion of the Property identified as 83-A 109 by the GDP, and shall be located
within 500 feet of the Property boundaries. A minimum of one monitoring well
shall be installed within 500 feet of the Northern Property boundary.
February 17, 2006
Page 2 of 4
Proffer Statement •
0 Chemstone - Middletown
5.2 The Applicant shall remediate any adverse impacts to wells located on surrounding
properties caused by mining operations on the Property. Costs associated with any
required remediation shall be borne by the Applicant.
6. Dust Control
6.1 Dust from drills, shot piles, material handling, screens, crushers, conveyors, feeders,
hoppers, load -outs, and traffic areas shall be controlled by wet suppression or
equivalent. The Applicant shall remediate any adverse impacts to surrounding
properties caused by dust associated with the mining operations on the Property.
6.2 All material being stockpiled shall be kept adequately moist to control dust during
storage and handling or covered at all times to minimise emissions.
7. Blasting Control
7.1 All blasting associated with mining operations on the Property shall be limited by the
muting permit approved by the Division of Mineral Mining (DMM) of the Virginia
Department of Mines, Minerals and Energy. Peak Particle Velocities (PPV)
associated with blasting on the Property shall not exceed the levels stipulated by said
permit. Any damage to surrounding properties caused by blasting on the Property
shall be remediated at the Applicant's expense.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
February 17, 2006
Page 3 of 4
Proffer StateMent 0
0 Chemstoize - Middletown
Respectfully submitted,
STATE OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of e f-uiliaY ,
2006, by
My commission expires, . - � , 02C�C �r7
Notary Public �--nn f'1-]
February 17, 2006
Page 4 of 4