Meads Law Letter of Concern - 1/23/2017

PO Box 292 [phone]
MEADE LAW 184 N. Water St., Suite 6, iiiiie.ide@inea(le-la,.v.coni
PLLC Boone, NC 28607 wx%qv.nieade- hawcom
ALLISON M. MEADE, Attorney and Cowiselor at Law d- NCDRC Certified Superior CourtNtediator
January 23, 2017
William G. Ross, Jr.
Acting Secretary
Department of Environmental Quality
1601 Mail Service Center
Raleigh, N.C. 27699-1612
Tracy Davis
Div. of Energy, Mineral & Land Resources
1612 Mail Service Center
Raleigh, N.C. 27699-1612
tracy.davisQncdenr.gov
Dear Sir or Madam:
N.C. DEQ Enforcement -General
Raleigh, N.C. 27699-1717
1717 Mail Service Center
Raleigh, N.C. 27699-171
I write as the town attorney of the Town of Boone to inform you of concerns related to
Radford Quarries, a mining operation located just outside the Boone town limits in what used to
be the Town's extraterritorial jurisdiction ("ETF). As you may be aware, effective as of January
10, 2017, the Town of Boone no longer has jurisdiction in the ETJ area in light of the NC
Supreme Court's decision in Town of Boone v. State of North Carolina, 93A- 15 -2. Prior to the
issuance of that decision, however, the Town had received and begun to investigate complaints
relating to the operation of the Radford Quarries. The Town feels obliged to inform you of
concerns raised as a result of that initial investigation.
Permit no. 95-03 was issued to Radford Quarries on July 7, 2004. The permit authorized
an "affected acreage" of 16.5 acres and was good for 10 years, expiring July 7, 2014.
On November 4, 2015, a purported "renewed and modified" permit was issued. Per this
permit, the affected acreage was increased to 20.3 acres "to reflect actual field conditions." In
addition, it appears that a 100 foot buffer area between the affected area and nearby residence
was deleted from the permit requirements. No notice of the proposed "renewed and modified"
permit or the changes contained in it was provided to the county, the town, or nearby property
owners.
On initial analysis, it appears that these events may constitute the following violations of
The Mining Act of 1971, G.S. §§ 74-46 et seq. ("the Mining Act"):
I . Because the permit issued in 2004 expired before it was supposedly "renewed", it appears
to us that the 2004 permit terminated and that Radford Quarries therefore was required to
obtain a new permit. Accordingly, the quarry and the Division of Energy, Mineral and
Land Resources ("DEMLR!') were required to follow the procedures for issuing new
permits, including providing proper notice to local governments and neighboring
property owners, accepting public comment, and potentially holding a public hearing.
G.S. § § 74-5 0 & 74-5 1. This was not done.

2. As the 2004 permit expired on July 7, 2014, Radford Quarries appears to have operated
without any valid mining permit in violation of G.S. § 74-50(a) for over a year.
Even if a "renewed" permit could have been lawfully issued after expiration of the prior
permit, which we believe it could not, renewal of the permit required that the agency
follow the same procedures as it would in issuing a new permit, including ensuring that
advance notice was given to neighboring property owners and local governments. See
G.S. § 74-52(b) ("The procedure to be followed and standards to be applied in renewing a
permit shall be the same as those for issuing a permit. . . "). These procedures were not
followed, and notice was not given. In addition, it is not clear that the "renewal"
application was submitted pji�or to the expiration of the 2004 permit as required under the
law. See G.S. 74-52(a)("A permittee may apply for renewal of a permit at any time
during the two years prior to the expiration of the permit"). It appears from language
included in the 2015 permit that the application may not have been submitted until after
expiration of the 2004 permit. (I also note that a permit "modification" is expressly not
allowed to extend the term of a permit. G.S. § 74-52(c). ("No modification shall extend
the expiration date of any permit issued under this Article."))
4. The 2015 permit states that the permitted affected area was increased from 16.5 to 20.3
acres in order to "reflect actual field conditions." This seems to suggest that prior to
2015 the permittee had expanded the affected area in violation of the 2004 permit.
Unfortunately, because the "renewed and modified" permit was issued without notice,
neither the quarries' neighboring property owners and residents, nor local governments, nor other
affected persons were given the opportunity to bring their concerns to the attention of your
agency. And because they had no notice, these affected persons also had no opportunity to
contest the decision to issue the permit despite the manifest intent of the Mining Act that they
have that right. See G.S. §74-61 ("An . . . affected person may contest a decision of the
Department to deny, suspend, modify, or revoke a permit ... by filing a petition for a contested
case under G.S. 150B-23 within 30 days after the Department makes the decision.")
We ask that NCDEQ investigate these issues to ensure proper compliance with and
enforcement of the Mining Act so as to safeguard both the public interest and the particular
interests of nearby property owners and residents.
Attorney General's Office
9001 Mail Service Center
Raleigh, NC 27699-9001
Sincerely,
Allison M. Meade, Esq.
Town Attorney
Town ofBoone, North Carolina
2

Matt Gant, DEMLR Regional
Environmental Engineer
matt. ganttgnedenr. gov
The Hon. Jonathan C. Jordan
NC House of Representatives
District 93
PO Box 744
Jefferson, NC 28640
The Hon. Deanna Ballard
NC Senate, District 45
300 N. Salisbury St.
Room 521
Raleigh, NC 27603-5925
Anthony S. di Santi, Esquire
Watauga County Attorney
P.O. Box 193
Boone, NC 28607-3420