‘Sooner’ or ‘later’? Fate of Wake Stone quarry near Umstead State Park hinges on one word

By: - June 15, 2021 1:15 pm

Photo by Lisa Sorg

Photo by Lisa Sorg

Former N.C. Attorney General says there was no typo, and the state intended for mining to wind down in 2032, not the 22nd century

One word — “sooner” — in a 40-year-old mining permit could alter the future of a quarry and its controversial proposed expansion adjacent to Umstead State Park in Raleigh.

According to former North Carolina Attorney General Rufus Edmisten,the issuers of the original 1981 state permit intended that Wake Stone stop mining and begin reclamation of the site when the quarry was exhausted, or in 50 years, whichever was “sooner.” That language would require reclamation to begin in 2032.

But a 2018 permit change appears to allow the company to continue to operate the mine until it is exhausted, or for 50 years, whichever is “later.” The change could ease the way for Wake Stone to expand the quarry and continue mining for decades.

If the N.C. Department of Environmental Quality determines the new information from Edmisten is valid, it could not only halt mining sooner at the existing quarry, but also make the controversial proposed expansion less viable because of a shortened timeline. The state Division of Energy, Mineral, and Land Resources (DEMLR) could decide on the expansion permit before the end of the summer.

Edmisten had sent the email detailing his memory to former Wake County Commissioner Erv Portman, an opponent of the quarry, who forwarded it to state environmental regulators.

A controversy that’s spanned four decades

Edmisten, who served as attorney general from 1974 to 1984, recently reviewed the permit change on behalf of Portman and other members of the Umstead Coalition, opponents of the mine.

“The Division is aware of the questions raised by Mr. Portman,” said Sharon Martin, DEQ deputy secretary for public affairs. “The permit application is still in the review process and all public comments and information provided will be considered during that process.”

Edmisten could not be reached by phone at his law office, but through his assistant verified the email.

Wake Stone spokeswoman Melanie Jennings said Edmisten was not involved in the permit application review or the company’s subsequent appeals to the state Mining Commission. “His letter is purely a recollection on his part as to what was meant,” Jennings said.

Former North Carolina Attorney General Rufus Edmisten

While it is true that Edmisten was not directly involved in the original permitting for the site, his office was embroiled in the controversy. Assistant Attorney General Daniel Oakley represented the Department of Natural Resources and Community Development, now known as DEQ, and its divisions. Edmisten was also regularly informed about the issue and was often quoted in media reports at the time as opposing the project.

DEMLR, then known as the Division of Land Resources, originally denied Wake Stone’s permit application in August 1980. It cited concerns that the proposed quarry “would have a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area.”

“The combined effects of noise, sedimentation, dust, traffic and blasting vibration” associated with quarry would impact the park “in the form of noise intrusion and deterioration of visual resources,” the denial read.

Wake Stone appealed the decision to the state Mining Commission, which overturned the division’s ruling in the spring of 1981. The Mining Commission’s decision contains a pivotal section: It states that reclamation must begin when the quarry is exhausted or in 50 years, whichever is “later.”

In an email to DEMLR, Edmisten wrote that Wake Stone “always preferred no time limit … and the Mining Commission copied that position into their final order.”

But “later” did not appear in the final permit. Steve Conrad, then the state director of land resources, issued the permit to Wake Stone in May 1981, with the word “sooner.” 

In issuing the permit, Conrad wrote to Wake Stone, asking the company to review it “and notify this office of any objection or question concerning the terms.” Wake Stone did not; the company later contended the word “sooner” was a typo.

“To the best of my memory, what I can say is that I do not think Director [Steve] Conrad made a typographical error with the word ‘Sooner’ in the permit …” Edmisten wrote last month to DEMLR. “I also find it difficult to believe Wake Stone would have accepted the permit if it was an error. This was not a small or insignificant point.”

Conrad died in 2011.

Even though the “sooner” language appeared in Wake Stone’s mining permit, the company never appealed it in eight routine renewals — until 2011. “For whatever reason, the suggested word change was omitted” in 2011, Wake Stone wrote to DEMLR this year. “Wake Stone chose not to pursue the issue further at that time.”

However, in 2018, DEMLR removed the word “sooner” from the permit and changed it to “later,” at Wake Stone’s request, state documents show. 

Judy Wehner assistant state mining specialist, made the change to “later” during an email exchange with the company, documents show, with no opportunity for public comment. DEMLR considered the change merely administrative, and was among minor modifications in the permit that did not require public notice.

Yet the word change coincided with two important developments: Wake Stone and the RDU Airport Authority had been negotiating over leasing land next to the park for the quarry expansion. Many DEMLR employees had also moved on by 2018, leaving little institutional memory to counter Wake Stone’s narrative.

Erv Portman

Portman told Policy Watch that, “the dispute over whether a mine belongs next to the park was settled for 37 years. These shenanigans began after [DEMLR] people retired or died.”

Tracy Davis joined the Division of Land Resources in 1987. He ascended to Division Director from 2012 to 2017. He retired a few months before the division changed the permit language. 

Davis is now a private technical consultant to the mining and quarrying industry. He has worked with Wake Stone as a consultant, he said, but only on reviewing technical issues, such as erosion and sediment control, buffers and berms, “not on the part about the sunset clause.”

During his time at DEMLR, including as director, Davis said staff reviewed only technical issues related to the Wake Stone permit. 

“We stayed away from that section,” Davis said. “It was a final agency decision” — that of the mining commission.

He told Policy Watch that the Mining Commission’s decision — which used the term “later” — is the ultimate arbiter of the case, as laid out in state law. “That’s where the buck stops,” Davis said.

Picking and choosing regulations?

The Mining Commission has not met since 2015. But in 1981 the five-member board ruled on the Wake Stone quarry, which would have long-term implications for Umstead State Park.

Wake Stone operates the quarry off Harrison Avenue near the park. Under a controversial agreement, the RDU Airport Authority board has leased an additional 105 acres, known as the “Odd Fellows tract,” to the company as part of a quarry expansion. On 45 of the acres, the company intends to blast a pit 40 stories deep to extract the minerals, crush them and sell the material for road-building and other uses. While Wake Stone has agreed to invest millions of dollars in adjacent natural areas and mountain bike trails, the mining could continue for 25 years or more.

The expansion permit is what DEMLR is expected to decide on this summer.

In researching the history of the 1981 mining commission decision, Jean Spooner, a member of the Umstead Coalition, noticed several key documents were missing from DEQ files; Portman subsequently located them at the State Archives. Those 1981 documents — the amended and corrected version of the Mining Commission decision —  show that either the state or Wake Stone could have appealed the ruling to Superior Court. 

There were no appeals. Instead, historical documents show that state regulators decided to negotiate with Wake Stone to mitigate the potential harm the quarry could inflict on Umstead Park. 

“We suggest you follow a deliberate procedure to develop either the most stringent possible conditions for the quarry or to exercise further legal remedies … if satisfactory conditions cannot be developed,” wrote Neil Grigg, a top state environmental official to then-Secretary Howard Lee. 

Grigg also suggested that the department and Wake Stone “begin to discuss what conditions would be satisfactory to both the department and the company.” If the department could secure key protections for the park, they would not appeal the case.

Those protections included buffers, noise limitations and the inclusion of the “sooner” clause. And Wake Stone accepted those conditions.

“It is clear that I, Governor [Jim] Hunt and Secretary Lee publicly criticized the Mining Commission decision,” Edmisten wrote, “as we opposed the location of a quarry adjacent to the state park, and we were publicly on record considering a legal appeal of the mining commission decision. It is also clear from newspaper reports at the time, Wake Stone publicly stated they expected the life of the mine to be 50 years. These three facts are not in dispute and are confirmed by the public record.”

Portman says that Wake Stone has failed to comply with some of the permit conditions regarding buffers; instead the company is “picking and choosing” the provisions it wants to comply with, he said.

For example, the Mining Commission decision and the original permit ordered the company to keep a northern section of the property as a natural permanent buffer, “not to be developed or altered for commercial purposes.” But state records show that in 1986, Wake Stone requested an amendment to its permit to included a dam within that very buffer zone — although the company had already violated the terms of the permit. 

Wake Stone CEO Sam Bratton

“We understand that Wake Stone, without written authorization, has cleared the land necessary to allow construction of this dam,” wrote William Davis, director of the Department of Natural Resources and Community Development.

Wake Stone also received a “letter of deficiency” from the state in 1987 for failure to keep sediment runoff from leaving the site. State regulators again in 1992 notified the company it had violated the buffer requirements of its mining permit, this time by allowing rock to slide into a protected area near Crabtree Creek.

Wake Stone CEO Sam Bratton said the company addressed the issues “to the satisfaction of the department and no violations were issued.” (Bratton was appointed by Gov. Cooper to the Mining Commission last year.)

“They have violated the buffers and undone the sunset clause,” Portman said. “The two major protections have not been honored.”

Now, 40 years after the Mining Commission decision, Umstead Park is again in the crosshairs. And like the permit decision of 1981, DEMLR’s ruling this year could affect the park for decades, even into the 22nd century. 

“Steve Conrad was right,” Portman said. “The quarry should have never been put there.”

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.