Public Comment Request - 1/26/1994

MICHAEL F. EASLEY
ATTORNEY GENERAL
John Salmons
-Development Facilitator
Town of Boone
P.O. Drawer 192
Boone NC 28607
Ir
State of Nvrt4 Carolina
Pepartumut af lustice
SUITE 203
11 NORTH MARKET STREET
ASHEVILLE, N. C. 28801
January 24, 1994
RE: Letter of November 16, 1993
Dear Mr. Salmons:
JAN 2 6 199,1,
WESTERN OFFICE
PHONE [phone]
LAND QUALITY SEC6�644si-63w
My.plient has requested that this office res I pond to your letter of November 16, 1993, a copy of
which is attached for convenient reference. In that correspondence, you have requested that the Division
of Land Resources clarify its position with regard to whether Radford Quarries, Inc. was authorized to
operate the Bamboo Road Quarry between November 2, 1992 and August 16, 1993.
Mining Permit No. 95-03, authorizing operation of the Bamboo Road Quarry, was first issued
in 1973 to New River Crushed Stone, Inc. The permit was subsequently issued to K and C Crushed
Stone Corporation in 1980 and was transferred from that operator to Radford Quarries, Inc. in 1985. The
permit was again issued to Radford Quarries, Inc. in 1992. In July of that year, the Division determined
that the operations at the quarry were not being conducted in accordance with the requirements of the
Mining Act, implementing rules, or the terms and conditions of the pern-ift. It accordingly requested the
Attorney General to institute a civil action for injunctive relief, and assessed civil penalties against
Radford Qiiarries, Inc. In the course of these enforcement proceedings, the Division discovered that
"Radford Quarries, Inc." was not a North Carolina corporation, as had been previously represented, but
was instead a corporation formerly organized and existing under the laws of the Commonwealth of
Virginia. The corporation had been automatically dissolved on June 1, 1984 for failure to file its annual
reports and to pay its annual registration fees.
On November 2, 1992, the Division sent to Messrs. Bill Cecile, Danny Cecile, Raymond Cecile,
and Ms. Martha Hartman a Notice of Violation for Mining Without a Permit. The Notice of Violation
indicated that the permit issued to Radford Quarries, Inc. was null and void, since the dissolved
corporation was not an existing, legal entity capable of holding a permit and instructed the four (4) named
individuals to cease all mining activities until they obtained a pem-iit.
The-Divis'ion did not Institute revocat i , on proceedings. Instead, on No vemb6i 16, .1992,, the
e s and Environmental Management jointly instituted a civil action against the
Divisions of Land R source
,Ceciles, individually, in the Superior Court for Watauga County, seeking both injunctive relief and a
An Equal Opportunity / Affirmative Action Employer

John Salmons
January 24, 1994
Page 2
declaratory judgment finding the mining permit and an NPDES permit also issued to the dissolved
corporation to be null and void. The file number for this action was 92 CVS 650. A hearing was held
on the agencies' motion for issuance of a preliminary injunction on February 4, 1993, but no ruling was
made by the Court. Radford Quarries of Boone, Inc., a North Carolina -corporation, subsequently applied
for a mining permit to operate the Bamboo Road Quarry, and that perrmit was issued on August 16, 1993.
Upon the issuance of this, as well as the necessary Air and Water Quality permits, the agencies and the
Ceciles agreed that the issues presented in the civil action had become moot. All pending claims in the
action have now been voluntarily dismissed. The Superior Court, therefore, did not determine the
Divisions' request for a declaratory judgment adjudicating the status of the former permits.
I hope that the foregoing answers your questions regarding this matter.
Sincerely,
Sueanna P. Sumpter
Assistant Attorney General
SPSAgg
xc: Charles H. Gardner
Tracy Davis
David R. Paletta, Esq.

Town ofBoone
R E C E - � 140' E D
i.4ND QU.ALITY
130ONE-
North CarollnaA
November 16, 1993
Tracy Davis
Department of'Environment, Health,,& Natural Resources
Division of Land Resources
tarid Quality.Section
P. 0. Box 27687
Raleigh, North Carolina 27611
Dear Mr. Davis:
I am presently in the beginnings of a resolution of a legal matter
viith-Radford Quarry. Radford Quarry is located on land which is
not zoned to allow it to exist, except as a nonconforming use.
Based upon information we have to date, I have determined that
Radford Quarry, ha,s.- lost its nonconforming status.. -It is my
contenti6n-that there'Was�'a time­fro'm November -2,-1992, when you
revoked.their mining permit, and August 16, 1993, when a new mining
permit was issued,that they'were not in. operation of the- mining
portion of their business.
Mr. marsh, their attorney, has indicated that the State of North
Carolina . did not, 'in fact, revoke their mining permit - He
indicated that the State had gone to court to do so, but the issue
was still �ending in front of the judge who was to hear it.
Although I'm relatively new to North Carolina, my knowledge of land
use issues and * the court system in general makes me somewhat
skeptical of Mr.'Marsh's assessment. It makes more sense ' to me if
you revoked their permit, and then went to court in an attempt to
actually stop their operation because they refused. I am guessing
that this is the issue that went before the judge, who, in essence,
said "Get t.ogether and work out a solution." I'm guessing that you
did this, which resulted in the granting of the permit in August.
Would you clarify for me the State's. position 'On' whether Radford
Quarry was in a,position to legally operate between November 2,
1992, and August 16,, 1993. . W.e will be going to the Board of
Adjustment -on" January . 61 . '1993r and I would like to have the
information.* pr'16.:�''i6 'that 'tim�:.-
�Tha k-' u"in 'nc`e­*fo"r` y6ur cooperation in matter.
�o
J�ohn'Saimons
Development Facilitator
P.O. DRAWER 192 9 BOONE, NORTH CAROLINA 28607 ft"d 0 "0% P-,Ikd PV�