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Oct 28, 2024

DEQ, Cultural and Natural Resources at odds over settlement agreement with Wake Stone • NC Newsline

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

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

The N.C. Department of Environmental Quality and Wake Stone have reached a settlement agreement regarding the controversial expansion of the Triangle Quarry next to Umstead State Park, but the agency still must pay $500,000 in attorneys’ fees.

The case stems from litigation before Chief Administrative Law Judge Donald van der Vaart. In August, van der Vaart ruled that in denying Wake Stone’s application to mine on 105 acres near the park, DEQ had acted “arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule.”

DEQ subsequently appealed to Wake County Superior Court, asking that the expansion be halted until the dispute was resolved.

According to the terms of the agreement, DEQ will issue a modified mining permit to Wake Stone and no longer pursue litigation against the company in Wake County Superior Court. In return, Wake Stone attorneys at the Raleigh firm Ward and Smith will accept a lower amount of fees than it was awarded in previous litigation. Judge van der Vaart originally awarded the firm nearly $879,000.

Sharon Martin, DEQ’s deputy secretary for public affairs, declined to elaborate on where the $500,000 will come from, adding only that the agency must complete the payments by June 30, 2024, the end of the fiscal year.

DEQ, whose budget has been gutted by state lawmakers over the past decade, would have taken a significant hit had it been required to pay the full $879,000. For example, that amount is more than the $702,000 appropriated in the state budget this year for four additional positions to tackle widespread contamination of toxic PFAS in the drinking water.

Nonetheless, Department of Natural and Cultural Resources Secretary Reid Wilson was unhappy with the settlement agreement.

“On behalf of North Carolina’s state parks, the Department of Natural and Cultural Resources strongly opposes the judge’s order to issue the permit and the settlement between the Department of Environmental Quality and Wake Stone Corporation that may allow a second quarry adjacent to William Umstead State Park,” Wilson wrote in a prepared statement. “The Department of Environmental Quality did not consult with the Department of Natural and Cultural Resources before signing the agreement.

“Unquestionably, a second quarry would damage two units of the state parks system, Umstead State Park and the East Coast Greenway State Trail, which runs through the park. For decades to come, a new quarry bordering the park would bring more blasting noise, more air pollution, more water pollution, more truck traffic, harm to wildlife, and a degraded experience for the roughly one million visitors to the park each year.”

The controversy began in 2017 when the mining company approached the Raleigh-Durham Airport Authority, which owns the 105-acre Oddfellows Tract abutting the park, about buying or leasing the land. The Authority agreed to lease the property, charging Wake Stone $8.5 million over 25 years, plus 5.5% of net sales in annual royalties.

With the land deal secured, Wake Stone then applied for a mining permit to DEQ’s Division of Energy, Mineral and Land Resources. After two years’ of back-and-forth with the company, DEMLR denied the permit in February 2022. Wake Stone then filed for a contested case hearing in the Office of Administrative Hearings, the venue for these types of administrative disputes with state agencies.

Wake Stone: a timeline

The Oddfellows Tract, where Wake Stone plans to expand its mining operations, is owned by the RDU Airport Authority.

2017 – Wake Stone approaches the RDU Airport Authority board about buying or leasing the 105-acre Odd Fellows tract.

2019 – Over vigorous public opposition, the board agrees to lease the tract to Wake Stone. According to the lease terms, Wake Stone must pay RDU $8.5 million over 25 years, plus 5.5% of net sales in annual royalties.

April 2020 – Wake Stone applies to DEQ for a mining permit. Over the next 22 months, the agency requests additional information and meets with the company.

February 2022 – Brian Wrenn, director of the Division of Energy, Mineral and Land Resources, denies the permit. Wake Stone files for a contested case hearing in Administrative Law Court.

September 2022 – The first hearings are conducted as part of the contested case.

February 2023 – A seven-day trial is held, with Administrative Law Judge Donald Van der Vaart presiding.

August 2023 – Van der Vaart rules in favor of Wake Stone, orders DEQ to issue the mining permit by Sept. 12 and awards Wake Stone’s attorneys nearly $879,000 in fees.

Sept. 6, 2023 – DEQ files an appeal in Wake Superior Court and asks for a temporary stay on the the mine expansion until the dispute is settled.

Nov. 13, 2023 — DEQ and Wake Stone reach a settlement agreement that approves the mining permit while reducing the amount of recoupable legal fees to $500,000.

Administrative Law Judges are not required to award attorneys’ fees, according to court documents. But during the contested case hearing and in his writing ruling, Van der Vaart seemed indignant, even hostile toward the agency.

Van der Vaart and DEQ have a tense history. He served as DEQ Secretary under former Gov. Pat McCrory, and earned a reputation as anti-regulatory and pro-business. When Donald Trump was elected president in 2016, Van der Vaart sent a letter to him, saying the “EPA was out of control.” Van der Vaart was also reportedly on the long list of candidates for the No. 2 EPA job in the Trump administration, but was not appointed to that post.

In 2017, to avoid losing his job under the newly elected Roy Cooper administration, Van der Vaart legally demoted himself and his chief deputy at DEQ to mid-level positions in the Division of Air Quality. Later that year, both men resigned after then-Secretary Michael Regan placed them on investigative leave after they wrote an anti-regulatory opinion piece that ran counter to the administration’s stance for a national law journal.

by Lisa Sorg, NC Newsline November 14, 2023

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Lisa Sorg is the North Carolina reporter for Inside Climate News. Sorg was an investigative reporter for NC Newsline who, for nearly eight years, covered the environment, climate change, agriculture and energy.