HomeMy WebLinkAbout03-06 Proffer Stmt History (2)PROPOSED PROFFER STATEME
REZONING: RZ# 03 -06
Rural Areas (RA) to Extractive Mar
PROPERTY: 394.2 Acres
Portions of Tax Map Parcels 83 -A-
( "parcel 23 ") (the "Properties ")
RECORD OWNER: 0 -N Minerals (Chemstone) Compa
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APPLICANT: O -N Minerals (Chemstone) Compy
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S)
Chemstone - Middletown
June 13, 2005
January 16, 2006
March 18, 2008
May 20, 2008
r-,
u
S
February 8, 2006
April 18, 2008
May 22, 2008
August 28, 2006
May 14, 2008
May 27, 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deemed withdrawn and shall be null and void.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 twelve viewshed plats titled "Viewshed IA, Viewshed 1B, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 4B, Viewshed 5A, Viewshed 5B, 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 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 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 100 -year lease of Parcel 90 -A -2, 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.
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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 improved, 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.
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7. Blasting Control
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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 trick 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 the 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.
9. Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the boundaries of parcel 23 and parcel 109. 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 boundaries of parcel 23 and
parcel 109, 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 boundaries of
parcel 23 and parcel 109 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 boundaries of
parcel 23 and parcel 109 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 boundaries of parcel 23 and parcel 109. 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 boundaries of parcel 23
and parcel 109, 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 boundaries of parcel 23
and parcel 109 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 boundaries of parcel 23 and parcel 109
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. 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
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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
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Respectfully submitted,
O -N MINERALS (CHEMSTONE) COMPANY
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Its:
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
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The foregoing instrument was acknowledged before me this 0 day of
2008, by _Swce.K P Shy?Soh
M commission expires � NOTARY
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Registration number: : REG # 7155:
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PROPOSED 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
0 -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
May 27. 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
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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 twelve viewshed plats titled "Viewshed IA, Viewshed 1B, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 4B, Viewshed 5A, Viewshed 5B, 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.
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 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 plants to be
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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 93100 -year lease of Parcel 90 -A -2 — , 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 l 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.
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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 improved, 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
i i
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 the 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.
9. Pre -Blast Survey
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the Rfep ffdk-s boundaries of parcel 23 and parcel 109 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 Eropert
boundaries of )arecl 23 and parcel 109 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 P+op errties'- boundaries of parcel 23 and parcel 109 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 of parcel 23 and
parcel 109 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 I- rope boundaries of parcel 23 and parcel 109 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 Prop erties' boundaries of
parcel 23 and parcel 109 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
0 0
P'rope boundaries of parcel 23 and parcel 1.09 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
Prop erties' boundaries of parcel 23 and parcel 109 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.
0 0
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. Li htin
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. 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,
M.
Its:
O -N MINERALS (CHEMSTONE) COMPANY
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this day of
NOTARY PUBLIC
My commission expires:
Registration number: —
PROPOSED 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 Maw (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 5B, 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.
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 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 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 comer 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 norm 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 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 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 retum- 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
properly 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. Li htin
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. 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,
COM
i
VvE4 -t, C. 9 n�LSO
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The fo regoing instrument was acknowledged before me this day of
G ,
2008, by ... knf& �• Sfir�SOI�
N TA Y PUBLIC
My commission expires:: NOTARY
Registration number: 0' �r PC � 1B 5s
MY COMMIS
p EXPIRE
�?i� 12/31/20_
tALT"
PROPOSED PROFFER STATEMENT
REZONING: RZ# 03 -06
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 94.2 Acres + / -; f 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 H Plan", "Phase III Plan", and "Phase IV Plan';
and eleven viewshed plats titled "Viewshed IA, Viewshed IB, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 5B, 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.
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 11 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 subiect to reasonable approval
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 comer 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 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.
4. Rights to Water Sunnly
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 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 home 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.
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. 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 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 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
party'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. Li htin
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
am
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: —