The current Wake Stone "Triangle Quarry" adjacent to Umstead State Park had their original Mining Permit 92‐10 approved in 1981 with a 50-year Sunset Clause. After 50 years, in 2031, Wake Stone was to give the State Park the right to have the quarry donated to the State and all mining operations would cease.
Wake Stone accepted permit renewals and modifications without objections on April 15, 1986; April 1, 1991; February 5, 1992; October 11, 1996; April 20, 2001; November 24, 2010; March 30 2011; and December 1, 2017. That is, nine permits accepted with 50-year Sunset Clause over almost 37 years.
NEW: Research of Public Records (State Archives, Wake County Commissioners) has revealed strong evidence that the original permit was correct; the Director Conrad of DEQ-Mining did NOT make a "mistake" in the original 1981 Mining Permit; the Sunset Clause was correct and should be re-instated.
The Honorable Rufus Edmisten, Attorney General in 1980-81 issued a statement on January 12, 2021 that confirms that the 1981 Permit with the Sunset Clause "speaks for itself" and that the Sunset Clause of "sooner" is correct.
Read NC Policy Watch's article on the Sunset Clause: ‘Sooner’ or ‘later’? Fate of Wake Stone quarry near Umstead State Park hinges on one word
Here's what some of the public record search showed:
Modifications Made to the Permit in 2018
Upon Public Records examination of the Permit files for Mining Permit 92‐10 on November 6, 2018, The Umstead Coalition discovered an unexpected and disturbing Permit Modification that was made by an internal “administrative text change.” In March 2018, under an Interim Director in charge of the mining permits, the Sunset Clause was removed per an email request by Wake Stone Corporation. The modification was made without notice to NC State Parks or the affected public, residences or businesses.
The change made by DEQ staff to the December 2017 permit was substantial, not a clerical correction, and results in detrimental effects to Umstead State Park and an effectively allows an indefinite expansion of quarry operations. Is it possible that Wake Stone Corporation did this to enable the "expansion" of their existing mining permit to mine on the other side of Crabtree Creek on the the Odd Fellows Tract? The Odd Fellows Tract is public land adjacent to Umstead State Park.
The Sunset Clause — promised to Umstead State Parks and the public and agreed to by Wake Stone Corporation in 1981 and subsequently for 37 years — needs to be reinstated. NC State Parks has asked Department of Environmental Quality (DEQ) to give them back the Sunset Clause. DEQ has the right, and we believe the duty to restore the Sunset Clause.
March, 1980. Wake Stone submits a Mining Permit Application for a new mine off Harrison Avenue. This application did not contain a "sunset clause" or end date of operations.
August 22, 1980. DEQ (then NRCD) denies permit "on the basis of having an adverse effect upon the park, G.S. 74-51(5), including "The combined effects of noise, sedimentation, dust, traffic and blasting vibration associated with the proposed quarry operation would produce primary impacts on William B. Umstead State Park in the form of 'noise intrusion and deterioration of visual resources." Note: this was even with Umstead State Park's Master Plan in 1980 actually called for the closure of the Harrison Ave entrance - inconceivable today because this is an extremely popular entrance today.
August 24, 1980. Wake Stone Corporation requests a Hearing before the Mining Commission to appeal the denial of their mining permit application.
November 6, 1980. Mining Commission (after Public Hearings held on November 6,7 and December 16,17, 1980) said that DEQ was correct in denying the permit application, but asked for an "adequate buffer zone plan for the area between the quarry and the park" and donation to the State for Park use.
November to May, 1981. Extensive reviews and input by NC State Parks and public organizations continued.
January, 1981. The Mining Commission issued "Findings and Fact" and overturned DEQ's denial and said the Mining Commission had to approve the permit. Here are the words:
"In order to protect the park from any possible adverse effects of the quarrying operation, the permit should be issued, subject to the Commission's final approval, with the terms and conditions outlined below (followed by a bunch of generic stuff to protect Umstead State Park)."
April 3, 1981. The Mining Commission issues Decision and uses "later" as requested by Wake Stone.
BUT, wait! remember that in January, 1981, the Mining Commission said they must approve the permit. Permit is issued in May, 1981 with "sooner" sunset clause. Logic would follow that the Mining Commission saw and approved the 1st PERMIT issued in May (which was after the " Mining Decision" of April). SO, the last word of the Mining Commission was the PERMIT!! with "sooner." In addition, the NC State law mandates the permitting responsibility is DEQ. The Permit "speaks for itself."
May 13, 1981. Mining Permit 92-10 was issued to Wake Stone Corporation, c/o Mr. John Bratton, Jr (owner). This first permit includes a cover letter that includes: “Please review the permit and notify this office of any objection or question concerning the terms of the permit.”
This permit and all eight (8) subsequent Mining Permit modifications/renewals contained the following 5B "Sunset Clause" under the "Reclamation Conditions":
5.B. If all quarryable stone is not removed, the right of the State to acquire the quarry site shall accrue at the end of 50 years from the date quarrying commences or 10 years after quarrying operations have ceased without having been resumed, whichever is sooner, and notices shall be exchanged at that time in the same manner and with the same time limitations as set forth in paragraph A above.There is no documentation in the file that the May 13, 1981 permit signed by DEQ and Wake Stone Corporation had “any concerns” by Wake Stone Corporation for 5.B.) Note: It is a common practice that the changes for the NEXT permit modification on the 'current' permit hard copy. So, any of the hand written notes are "penciling" in changes that might be made for the subsequent permit issued (NOT for the permit upon which the pencil notes are written). And, keep in mind, the pdf's including here are scans of the exact documents in the Mining Permit hanging folders kept at DEQ.
April 15, 1986. Mining Permit 92-10 Modification per request of Wake Stone Corporation. Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording. (no cover letter in file)
April 1, 1991. Mining Permit Renewal (with a revision dated June 17, 1991 which confirms Wake Stone is paying great attention to every detail of their permit). Cover letter to Wake Stone Corporation, c/o Mr. David Lee, ends with "Please advise Mr. Tracy Davis if you should have any additional questions or concerns." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
February 5, 1992. Mining Permit 92-10 Modification per request of Wake Stone Corporation. The file has this Permit attached to the Permit Modification made in October, 1996. Cover letter to Wake Stone Corporation, c/o Mr. John Bratton, includes "Please review the modified permit and advise this office should you have any questions concerning this matter." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
October 11, 1996. Mining Permit modification per request of Wake Stone Corporation (attaches Feb 5, 1992 permit with modifications). Cover letter to Wake Stone Corporation, c/o Mr. John A Poole, ends with "Please advise this office at (919) 733-4574 should you have any questions concerning this matter." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
April 20, 2001. Mining Permit Renewal. Cover letter to Wake Stone Corporation, c/o Mr. David Lee, ends with "Please review the renewed permit and advise this office at (919) 733-4574 should you have any questions concerning this matter." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
November 24, 2010. Mining Permit modification per request of Wake Stone Corporation. Cover letter to Wake Stone Corporation, c/o Mr. David Lee, ends with "Please review the renewed permit and contact Ms. Judy Wehner, Assistant Mining Specialist at (919) 733-4574 should you have any questions concerning this matter." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
March 30, 2011 (included with December 1, 2017 cover letter). Permit Renewal. Cover letter to Wake Stone Corporation, c/o Mr. David Lee, ends with "Please review the renewed permit and contact Ms. Judy Wehner, Assistant Mining Specialist at (919) 733-4574 should you have any questions concerning this matter." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording. Note: the hand writing on the March 30, 2011 permit was made in March 2018 by DEQ staff, per their admission.
December 1, 2017. Permit renewal to comply with change in NC law. Cover letter to Wake Stone Corporation, c/o Mr. John Bratton and signed by Interim Director William "Toby" Vinson, Jr, ends with "If you have any questions on the above, please contact Ms. Judy Wehner, Assistant State Mining Specialist, or me at (919) 707-9220." Permit includes same 5.B. Sunset Clause of 50 years with "sooner" wording.
March 28, 2018. Mining Permit modification per request of Mr. David F. Lee, Wake Stone Corporation was issued. The Sunset Clause change was done done by staff without any of the required Permit Modification Application or fees. Nor, any consultation with NC State Parks who would be severely affected by such a major permit change.
One major change to the Permit in this permit modification was to change the word "sooner" to "later" and eliminate the Sunset Clause promised to the public. Permit clause 5.B. now states:
5.B. If all quarryable stone is not removed, the right of the State to acquire the quarry site shall accrue at the end of 50 years from the date quarrying commences or 10 years after quarrying operations have ceased without having been resumed, whichever is later, and notices shall be exchanged at that time in the same manner and with the same time limitations as set forth in paragraph A above.
Disturbingly, the March 28, 2018 Permit also reduced the Crabtree Creek stream protection width by measuring from creek centerline instead of the standard top-of-bank - a substantial reduction in buffer as Crabtree Creek is 50-60 feet wide and runs for a significant distance along existing quarry property.
Wake Stone Corporation accepted the May 13, 1981 permit without objection to reclamation Condition 5.B and accepted permit renewals May 13, 1981; April 15, 1986; April 1, 1991; February 5, 1992; October 11, 1996; April 20, 2001; November 24, 2010; March 30 2011; and December 1, 2017 without objection to Reclamation Condition 5.B. That is, nine (9) permits accepted with 50-year Sunset Clause over almost 37 years.
Changing the text from “sooner” to “later” renders Section 5.B. meaningless. The plain reading of 5B requires the word “sooner” in order to have any utility/meaning in the permit. Otherwise, why would 5B have been in the permit for 37 years and a reference made to 50 years in the context of all quarryable stone not removed? And, with absolutely NO notification or manner for the NC State Parks or affected residences and business!
Wake Stone Corporation now declares after 37 years and signing and accepting NINE (9) permits that the "sooner" was incorrect. Really? WHO really believes that Wake Stone Corporation didn't agree with the Sunset Clause for the NINE (9) previous permits?
We strongly urge that Clause 5B in the Mining Permit 92-10 be corrected to the words used in the May 13, 1981 permit with the “sooner” word.
The Umstead Coalition submitted an written request to DEQ in November 2018 (within a few days of learning, in horrification) that the promised Sunset Clause had been removed with absolutely NO public notice. And, we followed up with meetings, including a meeting on March 12, 2019. Subsequently, we have searched the State and County Archives. We supplied all our findings with the NC Attorney General and they in turn shared with DEQ. We have yet to receive a resolution to this issue, so we regrettably felt we must file a lawsuit in Wake County Superior Court to request the Sunset Clause and Buffer be restored. We will continue to urge the AG and DEQ to settle by revoking the March 2018 Permit and reinstating the December 2017 Mining Permit 92-10.
July 13, 2022 - The Umstead Coalition files suit in Wake Superior Court to restore the 50-year Sunset Clause, and protective buffers by rescinding the March 26, 2018 modification that gutted the Sunset Clause which was a firm condition for approval of Wake Stone's original 1981 Triangle Quarry Permit. Read the press release>>
In February 2022, DEQ denied Wake Stone's Mining Permit Application for a new mining pit on the Odd Fellows Tract. Wake Stone has appealed and that Appeal is before the NC Office of Administrative Hearings (AOH).
Section 74-51 (d) of the 1971 Mining Act (Mine Safety and Health Act of North Carolina) states that DEQ may deny the permit upon finding:
(1) That any requirement of this Article or any rule promulgated hereunder will be violated by the proposed operation;
(2) That the operation will have unduly adverse effects on potable groundwater supplies, wildlife, or fresh water, estuarine, or marine fisheries;
(3) That the operation will violate standards of air quality, surface water quality, or groundwater quality that have been promulgated by the Department;
(4) That the operation will constitute a direct and substantial physical hazard to public health and safety or to a neighboring dwelling house, school, church, hospital, commercial or industrial building, public road or other public property, excluding matters relating to use of a public road;
(5) That the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area;
(6) That previous experience with similar operations indicates a substantial possibility that the operation will result in substantial deposits of sediment in stream beds or lakes, landslides, or acid water pollution; or
Section 74-51 (c) of the 1971 Mining Act (Mine Safety and Health Act of North Carolina) states:
(c) If the Department determines, based on public comment relevant to the provisions of this Article, that significant public interest exists, the Department shall conduct a public hearing on any application for a new mining permit or for a modification of a mining permit to add land to the permitted area, as defined in G.S. 74-50(b). The hearing shall be held before the Department reaches a final decision on the application, and in making its determination, the Department shall give full consideration to all comments submitted at the public hearing.
The "Department" is the Department of Environmental Quality (DEQ). The unit within DEQ that administers mining permits is the Division of Energy, Mineral and Land Resources (DEMLR). DEQ's determination of "public interest" will be based primarily upon individual or organizational letters received by stamped, US mail received within 30 days of the permit application.
By State Law, the NC Department of Environmental Quality (DEQ) can deny a mining permit for any of the five following reasons:
Foxcroft Lake, Odd Fellow Tract