DEQ must grant Wake Stone’s mining permit, pay attorney’s fees, judge rules in a scolding opinion

Court documents show intense pressure on agency leading to permit denial

By: - August 15, 2023 12:00 pm
a sign alongside a road reads "Stop RDU Quarry"

The Umstead Coalition, a group of park lovers, mountain bikers and environmental advocates, oppose the quarry. In the background are signs posted by the RDU Airport Authority warning people on Old Reedy Creek Road not to trespass on its property. Photo: Lisa Sorg

Just two months into his job as director of the state Division of Energy, Mineral and Land Resources, Brian Wrenn faced one of the most contentious mining applications in recent state history. Details of his decision, issued 681 days after the application was filed, would reveal the pressure, chaos and even rancor that was boiling over both publicly and within the agency.

Now a judge has found that DEMLR, which is under the NC Department of Environmental Quality, committed several key legal and procedural errors in denying Wake Stone’s modified permit for the RDU quarry next to Umstead State Park, prompting him to reverse the agency’s decision.

After a contested case hearing requested by Wake Stone last year, Administrative Law Judge Donald van der Vaart – himself a former DEQ secretary and a controversial one for his anti-regulatory stances – has ordered the state to grant the permit to Wake Stone within 30 days, by Sept. 12. 

DEQ must also pay Wake Stone’s attorney and witness fees, as well as other court-related costs.

“It would be difficult to imagine a set of facts more demonstrative of an arbitrary and capricious government action,” Van der Vaart wrote in a 53-page opinion

A roller coaster review

In April 2020 Wake Stone, which operates several quarries in North Carolina, applied for a modified mining permit to expand its Triangle operation near Umstead State Park to a nearby tract. Wake Stone had leased land from the RDU Airport Authority for a 106-acre rock quarry, 55 of them an open pit.

Soon DEMLR found itself wedged between the powerful Wake Stone – company president Sam Bratton would later be appointed by Gov. Cooper as chairman of the Mining Commission – and the Umstead Coalition, an active and influential community group opposed to the mine expansion. 

There were court challenges, some of them successful, regarding stream buffers and brought by the Umstead Coalition. 

There were noise studies and bad math. DEMLR engaged with the same acoustic expert that had been hired by the Umstead Coalition, leaving the agency vulnerable to charges of conflict of interest. State Mining Engineer David Miller, an agency veteran, miscalculated decibel levels in determining the noise impact. 

There were “visual impact” studies, although the word “studies” is generous: Miller tacked cardboard to some trees near where the land disturbance would occur and took photos with his cell phone, according to his court deposition. 

Meanwhile, behind the scenes, the evidence was mounting, no matter how distasteful to Wrenn or park supporters, that the proposed expansion, with tweaks here and there, would comply with the State Mining Act.

The state Mining Act of 1971 was written by representatives of the corporate giant Martin Marietta, a DEQ lawyer said at a previous and unrelated court hearing. The agency can deny a permit based on any of seven criteria laid out in the law but that’s happened just four times, three of them since 2020.

Over the last 50-plus years, the legislature has rarely amended the act, and only then in favor of the mining industry. Instead of requiring a mine to periodically renew its permits, for instance, the permits are now “life of site.” That means unless there is a violation or modification, the mining company can obtain its permit and never look back.

Wake Stone’s existing Triangle quarry is nearly depleted. A judge last week ordered DEQ to grant a mining permit for the adjacent RDU quarry. The “286 tract” is airport property leased by Wake County for mountain biking and hiking. (Map: NC Parks, annotated by Lisa Sorg)

Pressure intensifies in month leading to permit decision

By early 2022, nearly two years after Wake Stone had filed its application, DEMLR had exhausted all of its requests for additional information. It was time to decide.

Court documents show Wrenn, who had no mining experience and previously worked in the ecosystems branch before his promotion, was wedged between competing demands and conflicts: of Wake Stone, with his own mining engineer, the public and even other state agencies. 

The state Parks Division had written several letters to DEMLR opposing the mine, and Wrenn visited Umstead Park at its request. For his part, Miller said in his deposition that the Parks Division letters “weren’t worth the paper they were written on.”

Wrenn told DEQ leadership that a sound barrier wall would provide “adequate visual screening” and that the truck traffic “would not be expected to increase significantly as a result of the proposed expansion.”

Court documents showed that just three days before Wrenn denied Wake Stone’s permit, he had edited the Mining Review – an internal document that logs changes and discussions – to recommend granting it.

Yet, when he denied Wake Stone’s permit modification, he publicly cited traffic, noise and visual impacts to Umstead Park.

Wrenn acknowledged in court documents that there was “quite a bit of internal documentation contradicting his decision to deny the application.”

However, Wrenn claimed that shortly before he announced his decision, he had asked Miller to revise the Mining Review to make it consistent with the denial. Miller, who, according to court documents, recommended granting the permit and told Wake Stone that “it had good science on its side … did not do so.”

Even if Wrenn’s decision had been legally watertight, it would have been moot. He didn’t even have the legal authority to sign the permit, Van der Vaart ruled. (However, it’s unlikely Wake Stone would have challenged that lack of authority had the decision gone its way.)

Under state law, the DEQ secretary, currently Elizabeth Biser, can sign a permit or can delegate that duty to “any subordinate officer or employee” of the department. 

Biser recused herself from the Wake Stone case because she used to lobby for parks and open space interests. She delegated the signing authority to Assistant DEQ Secretary Sushma Masemore but did not extend that authority to Wrenn.

This is the second instance in the last year of DEQ losing a contested case at least in part because of signing authority issues. In May, Administrative Law Judge John Evans — DEQ’s former Chief Deputy Secretary under van der Vaart — tossed a historic $260,000 fine against Bottomley Properties because the wrong DEQ employee signed the paperwork assessing the penalty.

DEQ can appeal Van der Vaart’s decision to Superior Court. However, as is common after a ruling, the agency has not commented on whether it will do so.

Wrenn is no longer with the agency, according to the employee directory. He left DEMLR in December 2022. Miller is still 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.