This post was updated on August 23, 2023
We would like to thank everyone for their continued efforts to prevent the proposed rock mine adjacent to William B. Umstead State Park and the East Coast Greenway (aka Old Reedy Creek Road). The Umstead Coalition has been hard at work to protect our Park. There are a lot of moving parts and changing dates, but we wanted to share some highlights of the current status.
We have learned that 9,500 Public Comments were submitted opposing the proposed quarry on the Odd Fellows Tract! DEQ characterized as "orders of magnitude" more than for other Mining Permit Applications. Great job all!
For simplicity we’ve split this summary into three parts: the RDU Quarry Mining Permit, Crabtree Creek bridge, and the Sunset Clause. We organized each section into a timeline so you can easily get caught up.
Be prepared, take a deep breath — it’s a mind boggling read — and this is just the highlights.
RDU Quarry Mining Permit
DEQ denies Wake Stone’s mining permit application (February 2022)
NC Department of Environmental Quality-Division of Energy, Minerals and Land Resources (DEQ-DEMLR) denied the Mining Permit Application from Wake Stone Corporation on February 17, 2022, partly due to the adverse effects on William B. Umstead State Park and the thousands of public comments. Wake Stone proposed to dramatically change their current quarry operations south of Crabtree Creek by substantially decreasing the protective buffers along the Park and Crabtree Creek and dramatically increasing the number of noisy quarry trucks near our Park boundary.
Wake Stone also proposed a new 400-foot deep pit on the Odd Fellows Tract on the north side of Crabtree Creek with only a 25 feet buffer along the Park, East Coast Greenway, and residential adjacent properties. Check out our renderings to see what it will look like. The Odd Fellows Tract is public property owned by the Counties of Wake and Durham and the Cities of Raleigh and Durham, managed by the Raleigh-Durham Airport Authority (RDUAA).
Wake Stone files an appeal of the mining permit denial (March 2022)
On March 14, 2022, Wake Stone filed an Appeal of the Mining Permit Denial with the NC Office of Administrative Hearings (OAH). This is where Appeals of State Agency decisions are filed and it runs like a court. The Chief Administrative Law Judge Donald R. van der Vaart at OAH assigned himself to this case. Van der Vaart previously served as Secretary of DEQ from 2015 to 2017 appointed by Governor McCrory. Read more about van der Vaart here and here. The NC Attorney General (AG) has assigned attorneys to defend DEQ’s Mining Permit Denial at OAH. The AG’s office duties include defending the Decisions issued by State Agencies. On August 11, 2023 Judge van der Vaart overturned DEQ's denial. There is a 30-day window to appeal to the Wake County Superior Court.
The Umstead Coalition and private resident file motions to “Intervene.” Judge denies the motions (March 2022)
The Umstead Coalition (March 21, 2022) and an adjacent private resident filed separate motions to “Intervene” to join the AG in defending the Mining Permit Denial. If we had been allowed to be an intervening party, The Umstead Coalition and residents would have participated in the Discovery, experts and Trial proceedings. The AG did not object, Wake Stone objected and Judge van der Vaart denied our motions to Intervene. Oddly, the judge said The Umstead Coalition could submit an Amicus Brief and the residents could Appeal the Mining Permit when issued. This case held its first hearing on September 27, 2022 to argue the other sides case should be dismissed. The judge ruled against the Motions to Dismiss the Case and ordered a Contested Trial be held. The Contested Trial was held the weeks of February 13 and 20. The Umstead State Coalition filed an Amicus Brief in support of the State's Denial.
The Umstead Coalition files motions to overturn Judge’s denial and to “Stay” or delay the Mining Permit trial (June 2022)
The Umstead Coalition and the private residents filed motions in Wake County Superior Court to overturn Judge van der Vaart’s denial of our motions to Intervene. See below - we had a Court Hearing on October 14, 2022 in Wake County Superior Court on this request. The Wake County Superior Court judge ruled that we need to wait until the OAH has it's final ruling to ask again to Intervene.
We also filed motions at OAH to “Stay” or delay the Permit trial until our case to Intervene could be heard at Wake County Superior Court. Administrative Law Judge van der Vaart denied our “Motion to Stay” on June 17, 2022. That means unless the Wake County Superior Court overturns the OAH’s denial, we can not fully participate in the quarry permit denial case at OAH.
Wake Stone failed to provide documents requested by the AG (August 2022)
In a “Motion to Compel” filed August 24, 2022 by the AG, we learned that Wake Stone has refused to fully provide Discovery documents requested by the AG. The AG requested “documents pertaining to estimates of production and reserves of stone from Wake Stone’s existing Triangle Quarry.”
These documents are related to the noise model inputs and other statements made by Wake Stone to justify their expanded operations on their existing site and the new pit on the other side of Crabtree Creek. Wake Stone apparently told the AG that these documents are “irrelevant or sensitive”.
For instance, Wake Stone unilaterally redacted a memo titled, “Triangle Quarry Expansion Meeting Update and Questions from January 6th Meeting.” In another example, the AG’s office asked to view hard copies of Wake Stone’s files. Wake Stone sent the AG a photo of the full filing cabinet, when the AG’s representative went to view the files, they noted approximately 75% of the files had been removed and papers had been removed from the remaining files.
The Attorney General’s office concluded “As of this date, the Division does not know how many documents Wake Stone has improperly withheld.” The filing is an interesting read, spelled out in clear legal detail. It’s available via this link.
On September 6, Administrative Law Judge van der Vaart denied the Motion to Compel (Wake Stone to produce the requested Discovery documents).
Hearing for Wake Stone’s Request to Overturn Denial of RDU Quarry Mining Permit (September 2022)
On September 6, 2022, Administrative Law Judge van der Vaart issued a new ruling. His new ruling replaced a previously scheduled contested case hearing (e.g., trial where both sides can present their case) with a Hearing to hear Wake Stone’s request to just overturn DEQ’s Denial (Motion for Summary Judgment). The Hearing on Wake Stone’s motion was heard at OAH on September 27. The Judge asked for each side to submit what they think the noise levels would be within Umstead State Park and draft orders for him to consider issuing.
November 28, 2022: OAH Judge van der Vaart issued an order to proceed with a "hearing on the merits." The Trial has held the weeks of February 14-16 and Feb 20-23, 2023 (2 weeks). This contested Hearing included witnesses each side could more fully present their case with witnesses. The Umstead Coalition has not been allowed to intervene, but did submit an Amicus Brief.
March 2023: The Main Quarry Permit Trial ended on February 23, 2023. The trial transcripts were sent to the AG and Wake Stone's attorneys. The attorneys wrote Briefs summarizing their case within 20 days of the receipt of the transcripts. Within 30 days of the transcripts receipt, each side prepared a draft Order (aka Ruling) they propose the OAH Administrative Law Judge van der Vaart to consider. These attorney-prepared documents are not public.
On August 11, 2023 the OAH issues a Final Ruling on Wake Stone’s request to overturn DEQ’s Denial of their Mining Permit Application. This Ruling overturned the Denial DEQ has the option to appeal that ruling in Wake County Superior Court.
Hearing for Intervention case (October 2022)
The Hearing before Judge Rozier at the Wake County Superior Court for our request to Intervene to support the denial of the quarry permit was held on October 14. Southern Environmental Law Center (SELC) filed an Amicus Brief in our support. Big thanks to our supporters who attended!
We were optimistic because a similar case was before the Wake County Superior Court filed by the NC Farm Bureau Federation, Inc and on June 20, 2022 Superior Court Judge Mark A. Sternlicht overturned Administrative Law Judge van der Vaart’s Denial to Intervene, allowing the parties to Intervene (but this was after a final ruling out of AOH).
Judge Rozier ruled that we need to wait until a final ruling from OAH to ask to Intervene. We firmly believe we should have the right to Intervene at OAH and assist the AG with upholding the Mining Permit Denial.
To truck overburden (the soil above the rock) and rock from the proposed new pit on the Odd Fellows Tract (north side of Crabtree Creek) to the existing Triangle Quarry (south side of Crabtree Creek), Wake Stone has proposed a massive, 60-foot wide bridge over Crabtree Creek just upstream of Foxcroft Lake and William B. Umstead State Park. Associated with this bridge is widening haul roads decreasing the protective buffers along Crabtree Creek on the existing quarry side and the routing of all those noisy trucks along the current boundary area with William B. Umstead State Park.
DEQ granted Neuse Buffer Authorization. The Umstead Coalition Appealed this decision (June 2020)
The proposed bridge requires a “Neuse Buffer Authorization” (to destroy riparian buffers along Crabtree Creek) from DEQ-Division of Water Resources (DEQ-DWR). You may recall DEQ issued such an Authorization on June 4, 2020 and The Umstead Coalition Appealed due to lack of alternatives that would avoid and minimize impacts, as required by the Neuse Buffer Rules. In this case, the AG office was defending DEQ’s Decision of approval.
Neuse Buffer Authorization overturned by Judge (September 2021)
Administrative Law Judge Byrne ruled (September 27, 2021) in our favor and overturned the Authorization for the bridge; no Neuse Buffer Authorization, no bridge.
Wake Stone submitted a new application for Neuse Buffer Authorization (October 2021)
Wake Stone reapplied on October 13, 2021 with a new Application to DEQ, but submitted the SAME bridge location and design — you read that correctly, Wake Stone submitted the same bridge location and design for the Authorization that had been overturned by the judge.
DEQ granted Neuse Buffer Authorization again (February 2022)
DEQ again issued the Neuse Buffer Authorization on February 10, 2022, in our opinion, failing again to follow the Neuse Buffer Rules.
The Umstead Coalition filed Appeal about the Authorization (April 2022)
The Umstead Coalition filed an Appeal at OAH on April 11, 2022 and, for this round, Administrative Law Judge van der Vaart has assigned himself to the case. Shortly afterwards, the Judge filed a motion to limit the scope of our Appeal to only the width of the bridge. Wake Stone declined to file a motion to Intervene and therefore is not a party to this Appeal. The Umstead Coalition has retained engineer experts in support of our Appeal.
Hearing (October 2022)
On October 11, our first Office of Administration Hearings (OAH) Hearing was held on our Appeal of the Neuse Buffer Authorization (to destroy riparian buffers) for Wake Stone's proposed bridge over Crabtree Creek. This Hearing was set in response of the State's motion to dismiss our Appeal. Thanks to those who attended in support!
We are happy to report that the OAH Judge van der Vaart issued a ruling on October 18, 2022 related to our ability to continue our Appeal. He has overturned his previous Order that narrowed the scope to only the width of the proposed bridge and he ordered a contested trial. We have experts who can present evidence regarding alternatives to avoid and minimize the impacts to the Riparian Buffers.
Contested Trial (January & February 2023)
The Contested Trial, with witnesses, for the Bridge Authorization was held January 24-26 and February 7-7, 2023. Attorneys for the Umstead Coalition and DEQ have received the trial transcripts and drafted proposed Orders (aka Ruling) they proposed the Judge issue.
(May, 2023 update) A WIN! On May 11, 2023, Administrative Law Judge van der Vaart ruled that the Authorization was "vacated" (aka revoked). The Court Ruling to Vacate the Authorization to destroy Crabtree Creek riparian buffers was based upon DEQ’s inappropriate approval process. The merits of The Umstead Coalition’s case were not the key aspect of this ruling to vacate. However, we believe the merits of our case would also support the reversal of the DEQ’s Authorization. DEQ appealed the judge’s decision on May 25, 2023 to Superior Court. Wake Stone was not a party to this proceeding and can not appeal. So, to Wake County Superior Court we go - and, as of May 11, 2023, Wake Stone does NOT have a permit to build a bridge across Crabtree Creek!
Umstead Coalition's June 1, 2023 Press Release on bridge authorization vacated here==>
(update August 20223): The State Appealed to Wake County Superior Court and said that the DEQ Supervisor who approved the Neuse buffer Authorization did have the authority. Wake Stone asked for a limited intervention at Superior Court wrt the authority of the DEQ person who issued the Authorization. After various filings, a court date is scheduled in Wake County Superior Court the week of October 23, 2023.
Note: To justify the wide bridge, Wake Stone claims in their Neuse Buffer Application that 440 quarry trucks per day would cross this bridge (and travel along our Park boundaries). Just think of the noise!
The current Wake Stone Triangle Quarry adjacent to William B. 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. If the Sunset Clause is restored, RDU Quarry cannot happen.
Mining Permit language changed and 50-year Sunset Clause removed without public input (March 2018)
Although we did not learn until some time after, in March 2018, DEQ-DEMLR issued a Modified Mining Permit for Wake Stone’s current Triangle Quarry. The major changes involved the removal of the 50-year Sunset Clause and severe reductions in the protective buffer width and characteristics along Crabtree Creek and William B. Umstead State Park.
The Umstead Coalition files lawsuit requesting the 2018 Mining Permit Modifications be revoked (July 2022)
The Umstead Coalition found public records (e.g., State Archives of DEQ’s mining files) and submitted numerous public documents supporting our contention that these changes were made in error and were told by the State that this issue was under review. However, with the mining permit expansions in various appeals and lack of action by the AG on this issue, we felt we had no choice but to file a lawsuit on July 13, 2022 at the Wake County Superior Court to request the 2018 Mining Permit Modifications be revoked.
Named parties in the lawsuit request delay (September 2022)
The named parties, Wake Stone Corporation and DEQ, requested a delay until September 19 to respond to our court filing. Both filed motions to dismiss our case.
Hearing held (March 2023)
A Hearing date to hear these motions to dismiss (and determine if we can proceed to a contested case trial) was heard on March 1, 2023 in Wake County Superior Court.
(May, 2023 update) A WIN! Case moves forward! On May 11, the Superior Court Judge Paul A. Holcombe, III did not grant the Motions to Dismiss! (Ruling here)
To address the matter regarding which court (Wake County Superior Court or the Office of Administrative Hearings, OAH) should hear The Umstead Coalition’s case, Judge Holman ordered that The Umstead Coalition file a contested case in the Office of Administrative Hearings, and stayed the Superior Court case. The Umstead Coalition filed this Petition for a contested trial at OAH on May 11, 2023 (link here).
The Umstead Coalition’s case continues to move forward. On May 12, 2023, the OAH Chief Administrative Law Judge ordered the parties go to mediation, a typical process step in such cases. However, this never happened, nor did we get a Trial at OAH on the merits. Instead, OAH judge van der Vaart dismissed our case out of OAH basically saying OAH didn't have juristic ion to hear the case. We disagree and appealed this dismissal to Wake County Appeals Court.
As of August, 2023, we have 2 cases: the one we filed on July 22, 2022 in Superior Court and the Appeal of not being heard at OHA. We have a "status" hearing at Wake County Superior Court on Wednesday, September 6, 2023.
As you can see, preserving this precious public asset for the area’s current and future citizens requires a multi-pronged effort. The challenges we face are many and diverse. Park protection and expansion is necessary to maintain a healthy wilderness destination. We’re fortunate to have so many devoted volunteers, contributing thousands of hours of their time toward this ongoing effort.
Please help us continue this fight. You can help us by donating now.
Keep up the public pressure:
We believe DEQ must restore the Sunset Clause, which means that RDU Quarry cannot happen. Ask DEQ to restore the Sunset Clause and shut down Triangle Quarry as promised by 2031. We've created talking points and an easy way for you to submit your comments directly to Governor Cooper and local elected officials at one time.
Keep your Stop RDU Quarry yard signs up
Attend to show your support at any of the court hearings
Thank you for your continued support!
The Umstead Coalition is a 501(c)(3) nonprofit organization.
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