This letter from PEC and the Southern Environmental Law Center (SELC) to the Orange County Planning Commission was submitted in advance of its third work session on REZ 22-03, Wilderness Crossing.
While the applicant’s current proffer language agreeing to ‘enter’ DEQ’s Voluntary Remediation Program represents some positive movement (as recently as September, the applicant was stating publicly that they have “no knowledge” of contaminants on site), PEC and our partners at SELC believe this language does not go far enough to ensure that the contaminated site will be cleaned up.
February 8, 2023
Orange County Planning Commission
Donald Brooks, Chair, [email protected]
J. Jason Capelle, Vice Chair, [email protected]
George Yancey, [email protected]
Adam Bryington, [email protected]
J. Bryan Nicol, [email protected]
Re: REZ 22-03 Wilderness Crossing and contamination from gold mines
Dear Members of the Planning Commission:
As you continue to hold work sessions on the rezoning proposal for the WildernessCrossing development, we write to highlight concerns about contamination associated with the abandoned gold mining sites on the property and to recommend important clarifications of related provisions in the proposed voluntary proffer agreement. The Southern EnvironmentalLaw Center is a non-partisan, non-profit organization that works throughout the Commonwealth to promote land use and transportation decisions that strengthen our communities, protect our environment, and improve our quality of life. The Piedmont Environmental Council is a non-profit organization operating in a nine-county region, inclusive of Orange County, with a 50-year history of promoting and protecting the rural economy, history, and beauty of Virginia’s Piedmont.
We appreciate the significant time you and County staff have put into this proposal, as well as the revised proffer language the applicant has offered that appears to be intended to address some of the concerns you have raised during previous work sessions. We believe the intent of all parties involved is to ensure that any mine-related contamination on this property is appropriately remediated in order to protect the health of Orange County’s residents, the future residents of Wilderness Crossing, and the environment. The currently proposed proffer language, however, does not adequately reflect that intent or promote those outcomes, and we write to provide targeted recommendations to clarify responsibilities and help ensure successful remediation of the property (see Attachment A).
As you are aware, the Wilderness Crossing property is home to a number of abandoned gold mining sites. Recent assessment of these sites has been limited, but we do know that the Vaucluse mine is the largest and most well-documented abandoned mine on the property. A 1988 inspection by the Department of Mines, Minerals, and Energy (DMME, now called Virginia Energy) found that the Vaucluse mine presented an “extreme” environmental hazard due to mercury contamination in the stream sediments and likely groundwater contamination,1 and recommended that the site be investigated for inclusion in the federal Superfund program.2
In 1990, the State Water Control Board noted its concern about elevated mercury levels in stream sediment and fish tissue samples from the site, and that any site disturbance “would render more mercury more available to the aquatic ecosystem.”3 Other mines on the property include the Wilderness mine,4 the Greenwood mine,5 the Woodville mine,6 and the Melville mine,7 and potential groundwater contamination and/or mercury contamination are also of concern at these sites. Furthermore, a 9.81-mile portion of the Rapidan River, including the stretch of the river adjacent to the Wilderness Crossing property, has been listed as “impaired” since 2010 under Section 303(d) of the Clean Water Act due to mercury found in fish tissue.8
These records indicate that there may well be ongoing mine-related contamination on and/or flowing from the Wilderness Crossing property today. Orange County officials are understandably concerned about the impacts of this contamination on County residents and the environment, especially since development activities on the property have the potential to disturb contaminated areas and bring more residents in closer contact with mine sites and any underground workings. It is therefore imperative that any contamination be appropriately remediated to protect the health of Orange County’s current and future residents, and the environment.
At the outset, one of the most important changes that should be made is to the ensure the entire Wilderness Crossing property—not just the undefined “Project site” referred to in the current proffer language—is assessed for mine contamination, since mining activities in this area were so widespread and mine-related contamination, such as acid mine drainage or groundwater contamination, may have spread. Additionally, portions of the property that may not be part of the “Project site” might still be accessed inadvertently by future Wilderness Crossing residents, even if they are not directly part of the developed areas of the property. A holistic survey of mine-related contamination on the entire property will allow for a comprehensive site characterization and risk assessment to better inform and prioritize remediation efforts and development design.
It will also be extremely important that all remediation actions be seen through to completion. The current proffer language reflects only a statement of the applicant’s intent to begin to participate in the Voluntary Remediation Program and/or other equivalent regulatory oversight and grant programs (the applicant “agrees to enter into”), not a commitment to remain in those programs through final remediation. Various language changes would help make clear that the applicant agrees to complete all appropriate remediation activities on the property—for example, either by agreeing to “utilize” the Voluntary Remediation Program (VRP) and/or other equivalent regulatory oversight and grant programs approved by the County, or by tying assessment and remediation activities to participation in the VRP or other equivalent programs.
There are also drafting ambiguities or inconsistencies in the proposed proffer language that could create confusion. For example, the current proffer language refers to an “aforesaid evaluation” at one point, but that term is not used elsewhere in the provision. Using more specific terms like “site characterization,” “risk assessment,” and “remedial action plan” in the proffer language, and defining those terms, would better clarify responsibilities under the agreement. As currently drafted, the proffer requires an “assessment” of the property. Because that term is vague, the requirement would be much clearer if “assessment” was changed to“comprehensive site characterization and risk assessment.” Similarly, the current proffer language mentions a “management and mitigation plan.” This term should be replaced with the more specific “remedial action plan,” and the proffer language should make clear that any such remedial action plan should seek to achieve all remediation level objectives and recommended remediation actions identified in the risk assessment to ensure appropriate remediation of the property.
Finally, we believe the proffer would better ensure that remediation will be completed in a timely manner if it includes a timeframe for the completion of remediation activities on the property. As currently drafted, the proffer language only requires the applicant to “commence” the VRP process. Completion of site characterization and risk assessment activities prior to the filing of the site plan, however, will give the applicant and County important information about the status of the site and may help to inform project design and other development decisions. Additionally, the proffer would be strengthened by including language that captures the applicant’s commitment to make all reasonable and diligent attempts to obtain certification of satisfactory completion of remediation of the property within a certain number of years of beginning the VRP or other equivalent process.
Thank you for your consideration of these comments, as well as for all your work throughout this review process. Any proffer language related to the abandoned mines on the Wilderness Crossing property should adequately address the substantial and well-founded concerns related to mine contamination, especially since these concerns are likely to be aggravated by activities associated with the proposed rezoning. We hope the County and the applicant will consider ways to provide clarity and specificity in the proffer language to ensure full and appropriate remediation of the property as this proposal moves forward.
Sincerely,
Carroll Courtenay
Southern Environmental Law Center
Don McCowan
Piedmont Environmental Council
1 Va. Dep’t of Mines, Mins. & Energy (DMME), Div. of Min. Mining, Orphaned Mined Land Site Investigation Report: Vaucluse Mine – Grimes Mine, Grymes Mine (Aug. 1. 1988) (Attachment B).
2 Va. Energy, Abandoned Mineral Mine Lands: Vaucluse Mine (last updated June 6, 2019) (Attachment C).
3 Letter from Ronald A. Gregory, State Water Control Bd., to William Roller, DMME (Mar. 20, 1990) (Attachment D).
4 A 1988 DMME report noted the potential for groundwater contamination at this site due to open shafts, but the overall environmental risk was determined to be minimal. Va. Energy, Abandoned Mineral Mine Lands: Wilderness Mine (last updated July 26, 2021) (Attachment E).
5 A 2011 DMME report found a high potential for mercury contamination at the Greenwood mine. Va. Energy, Abandoned Mineral Mine Lands: Greenwood Mine (last updated July 26, 2021) (Attachment F).
6 A 2010 DMME report found the potential for groundwater contamination at this site to be moderate. Va. Energy, Abandoned Mineral Mine Lands: Woodville Mine (last updated July 26, 2021) (Attachment G).
7 Although the Melville Mine is relatively well-documented in older official documents and one of the more important mines in the area, see e.g., Palmer C. Sweet, Gold Mines and Prospects in Virginia, 17 Virginia Minerals 25, 29-30 (1971), https://energy.virginia.gov/commercedocs/VAMIN_VOL17_NO03.PDF, it is not included in Virginia Energy’s current Mineral Mining map, nor does it have an Abandoned Mineral Mine Lands report.
8 Va. Dep’t of Envt’l Quality, Water Quality Integrated Assessment Integrated Report: Appendix 1a – 2022 Impaired Waters – 303(d) List Category 5 – Waters Needing Total Maximum Daily Load Study (Fall 2022), https://www.deq.virginia.gov/home/showpublisheddocument/15440/638104332989370000.