Hearing over denial of Wake Stone’s mining permit reveals fissures within DEQ

By: - September 28, 2022 6:00 am

This map shows Umstead Park and its proximity to the proposed and existing Wake Stone quarries. Old Reedy Creek Road bisects airport property — the 286 tract and the Odd Fellows tract, the site of the proposed quarry.  (Map: NC State Parks)

In early February of this year, Brian Wrenn, director of the state’s Division of Energy, Minerals and Land Resources – DEMLR – visited Umstead State Park, one of the premier natural areas in the Triangle. 

Wrenn and several other top DEMLR officials had assembled there at the behest of Reid Wilson, the secretary of the Department of Natural and Cultural Resources, which oversees the state park system.

DEMLR was weighing a controversial mining permit application filed by Wake Stone to expand its existing rock quarry onto 225 acres abutting the Umstead State Park boundary. The decision, to approve or deny, was solely Wrenn’s.

When Wrenn denied the permit, he wrote that “noise, traffic and visual impacts” were incompatible with the public’s use and enjoyment of the park. 

For DEMLR to deny a mining permit application was nearly unheard of. In the history of DEMLR, it has occurred fewer than a half dozen times.

While thousands of park supporters cheered DEMLR’s decision, the backlash from Wake Stone was equally fierce. The company had applied for the permit 22 months prior. The rock in its existing quarry had been nearly exhausted, jeopardizing the company’s profits. 

Besides, State Mining Engineer David Miller had reassured company officials that the permit would be granted. State Parks “was trying to come up with a cumulative reason to deny,” Miller told Wake Stone President Sam Bratton on Feb. 9, according to legal documents. “The denial request isn’t worth the paper it’s printed on … Don’t worry, science is on your side.”

Now Wake Stone was stymied.

In an administrative law courtroom Tuesday, attorneys for Wake Stone alleged that DEMLR “exceeded its jurisdiction, acted erroneously and arbitrarily” in denying the permit. Wrenn’s decision was subjective, argued attorney Hayley Wells, and was swayed by “political pressure, public sentiment or personal belief.”

The accounts that unfolded throughout the morning revealed not only mind-numbing technical details of the permit – decibel levels, visual impacts, the definition of “urban development” – but as important, private disagreements between Wrenn and Miller over the permit application.

The proceedings were part of a contested case hearing, which is similar to an appeal, filed by Wake Stone. Before the hearing date, the company had also upped the ante: It filed a motion for summary judgment, asking Administrative Law Judge Donald van der Vaart to rule on the issue without holding a full hearing. Similar to a civil or criminal trial, such a hearing would include calling witnesses and experts to testify under oath. 

Van der Vaart could issue his decision on summary judgment before the end of the year.

(Van der Vaart is a former Department of Environmental Quality secretary under then Gov. Pat McCrory; DEMLR is under DEQ. However, in 2017, van der Vaart demoted himself to a mid-level position in air quality after Roy Cooper was elected governor. Van der Vaart resigned from the agency later that year after being suspended for co-writing an opinion piece in a science journal advocating for relaxed air quality regulations. He had already left the agency well before Wake Stone filed its permit application.) 

Wake Stone has operated its original quarry a quarter-mile from the park since the early 1980s, attorney Hayley Wells noted, and DEMLR renewed that permit three times. However, Wells omitted that the original permit was controversial. State environmental regulators denied that permit, also based on adverse effects to the purposes of the park. The Mining Commission overruled the department, and the permit was issued in 1981. 

(To complicate matters, the Mining Commission was disbanded several years ago. It’s since been re-formed. Sam Bratton, president of Wake Stone, is a member.)

As Wake Stone began running out of rock in its original quarry, in 2019, it leased property next to Umstead State Park – known as the “Odd Fellows tract” – from the Raleigh-Durham Airport Authority. Quarry opponents unsuccessfully fought the legality of the lease in court, but relentlessly pressured state officials to reject the mining permit.

In 2020, Wake Stone filed for a modified mining permit to allow for the expansion. For almost two years, the company and the state negotiated over stream buffers, noise and light pollution, and other design specifications for the operation.

Quarry opponents have long been concerned about the effects of quarry noise on the tranquility of the park. Miller, the state mining engineer, reviewed Wake Stone’s application and a study commissioned by the company. He found “noise was not an issue,” Wells said in court, because “this is an urban environment.”

That description is misleading, Marc Bernstein, a state Department of Justice attorney representing DEMLR, said. The park is primarily surrounded by local roads, low-density development, a nature preserve and Schenk Forest, owned by NC State University. A short portion of the park is bordered by I-40 but is buffered by trees. The airport property is undeveloped. The existing quarry is a quarter mile away from the park boundary. But the expanded pit would be just 50 feet from the property line.

The increase in sound levels, even by just 5 decibels, would have a significantly adverse effect on the park, Bernstein said. And the nature of the sound is equally important. Loud birdsong would not be intrusive for parkgoers, while the scraping and gnawing of rock would be.

“An entire area is being stripped of vegetation and turned into hard rock,” Bernstein said. “Sound levels will increase throughout the park. It’s a significant change.”

As for the visual impacts of the quarry, Miller had been presented with what he believed to be “conflicting visual renderings,” including several from the Umstead Coalition that he rejected as  “erroneous and misleading.”

Miller decided to conduct his own study. That “study” entailed his tacking four pieces of cardboard on some trees, then standing several yards away and photographing the area. His conclusion: “The pit wouldn’t be visible, but you would see a void – blue sky instead of trees on no more than five acres – and only in winter,” Walls said.

“Your honor, you should conclude there would be no visual impacts on the park,” Walls told van der Vaart.

Quarry opponents were concerned about another eyesore. To buffer the sound from excavation and hauling, Wake Stone proposed building a half-mile long concrete wall ranging from 16 to 24 feet high. 

Initially, in January 2022 Wrenn told DEQ leadership the wall would have no aesthetic effect on the park, according to court documents, and would provide “adequate visual screening.” (Secretary Elizabeth Biser recused herself from the conversation; her previous job in the private sector was a lobbyist for park projects.)

“The Mining Act doesn’t require a mine to be invisible,” Walls said.

That presentation to DEQ leadership didn’t reflect Wrenn’s final decision, Carolyn McLain, an attorney representing the state, said. “The concept that DEMLR can’t change its mind is inconsistent with the agency’s process.”

A month after the presentation to his bosses, Wrenn visited the park. He climbed to the top of a ridge, near the Yellow Dot Trail, 320 feet above mean sea level, and peered down into the park and across Foxboro Lake. “I was surprised,” he said in a legal deposition. “It was a very natural setting.”

A few days later on Feb. 17, Wrenn denied the permit.

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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.