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Home My WebLink About20210527_E_Portman_1981_WSFrom: Ervin Portman To: rufusraJrufusedmisten.com; Wrenn. Brian L Subject: [External] RE: Wake Stone Quarry Date: Thursday, May 27, 2021 5:19:52 PM Attachments: imaae001.ono Director Conrad Letter to Citizen explaining he will use all leaal options to protect the park March 25 1981 from state Archives.Ddf Secretary Lee letter to Governor Hunt outlining options to consider on Mining Commission Quarry Issue Feb 2 1981 from state archives.Ddf Assistant Attomev General Daniel Oaklev letter of options for Wake Stone Ouarry 30 January 1981 from state archives.pdf Departmenal Strateav for Wake Stone Permit issue in Umstead Park from Griggs to Secretat Lee Feb 4 1981 from state archives.ndf Mining Commission from State Archives showing what Wake Stone has violated.Ddf CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to Report Spam. Thanks Rufus I appreciate the good work you, Governor Hunt Secretary Lee and Director Conrad did on this controversial subject 40 years ago. It is frustrating than now 40 years later the applicant is implying Director Conrad was sloppy and just made a typo. I have attached new documents that further support the good work of the Mining folks at the time, these documents come directly from the state archives, and are attached as complete verified copies from the archives. They fully corroborate the fact that the department did not have to accept the Mining commission decision and was working to improve protections on the park, and maintained the right to appeal the Mining commission decision if they could not achieve such more stringent protections. The documents provided by Wake Stone are incomplete in both the January 27, 1981 Finding of fact, Conclusion and Decision, and the final decision dated April 3, 1981. The exclusions are revealing. The final decision dated April 3, states in the first paragraph it is based on the January 271h, 1981 document as amended and corrected. Wake Stone did not provide the regulators with that as amended and corrected copy. The paragraph missing in the Wake Stone Supplied document is critical. The missing paragraph reads as follows; This decision is not final. In no more than 45 days, unless the Commission grants an extension, the Division and Wake Stone shall, at a public hearing, present to the Commission the plans outlined above. At the hearing the Commis- sion will not hear new evidence. At least 5 days before this hearing the parties shall deposit the plans with B. R. French for distribution to the Commission. Following the hearing the Commission shall render a final decision, from which the parties may appeal pursuant to NCGS 150A--1 et seq, Date of original decision: January 27, 1981. As amended and corrected, this the y�� In Wake Stones reply to DEQ April 30 they say they have attached this document, they did not. Instead they attached the April 3 final decision twice. I offer this to you both as it is key to the question, and was discovered after you provided me your statement. I think Wake Stone is trying to get the best of both worlds, the permit that allowed them to mine, without the protections offered to protect the park. That is not was approved and not what they accepted for 37 years. Ery From: Rufus Edmisten [mailto:rufus@rufusedmisten.com] Sent: Thursday, May 27, 2021 3:42 PM To: Ervin Portman<eportman@weststarprecision.com>; brian.wrenn@ncdenr.gov Subject: RE: Wake Stone Quarry Mr. Wrenn, In reference to this email, I understand you might have some questions regarding the legitimacy of my statements. I would be happy to talk with you. I am going to give you my cell .... 919.818.9228, being that no one will be in the office until Tuesday. Thank you, Rufus Edmisten From: Ervin Portman [mailto:eportman(�)weststarprecision.com] Sent: Thursday, May 27, 2021 10:43 AM To: brian.wrenn(@ncdenr.eov; rufus(alrufusedmisten.com Subject: FW: Wake Stone Quarry Mr. Wrenn and Mr. Edmisten I am reaching out to connect you both as Mr. Wrenn expressed some concern about the legitimacy of the statement you provided to me in the email below. If you two can talk that should eliminate any concerns Mr. Wrenn has regarding the authenticity of this email. Mr.Wrenn is with DEQconsidering the Quarry expansion permit request and also has responsibility to review the 2018 removal of the "Sunset clause' Thanks for all you both do for our state. Ery Portman From: Rufus Edmisten [mailto:rufus(@rufusedmisten.com] Sent: Tuesday, January 12, 20214:19 PM To: Ervin Portman <eoortmanna weststarprecision.com> Subject: Wake Stone Quarry To Whom it May Concern, I have reviewed the email and the attached newspaper articles on this controversy from 1981 to help refresh my thoughts. To the best of my memory as the former N.C. Attorney General, what I can say is that I do not think Director Conrad made a typographical error with the word Sooner in the permit issued on May 13, 1981. 1 also find it difficult to believe Wake Stone would have accepted the permit if it was an error. This was not a small or insignificant point. The word Sooner put in place a 50 year sunset clause. The term later had no time certain for the mine to end. • While it's clear that Wake stone always preferred no time limit to the donation, and the Mining commission copied that position into their final order. • It is also clear that I , Governor Hunt and Secretary Lee publicly criticized the mining commission decision, as we opposed the location of a quarry adjacent to the state park, and we were publicly on record considering a legal appeal of the mining commission decision • It is also clear from newspaper reports at the time, Wake Stone publicly stated they expected the life of the mine to be 50 years. • These three facts are not in dispute and are confirmed by the public record. • The controversy of these points was resolved with the May 13, 1981 Issuance of the permit which o Allowed the mine to operate adjacent to the park ( contrary to the states goals) o Set a time certain for the mine to close at 50 years ( contrary to Wake Stones request) When disputes exist, which they often do they are often resolved with a compromise. It would be wrong to change the permit in 2018 after it was issued and renewed 8 times over 37 years with this condition. Each time the permit was issued Wake stone had the opportunity to express a concern if there was an error, they never did until 2011. Equally important is to note that this claim that Director Conrad made a "typographical error" suggested in 2018 was not new information. The same claim had been made by Wake Stone in 2011. It was considered at that time by Director James Simons, who had firsthand knowledge of the original permit application in 1981. He saw no merit to the claim, and renewed the permit with the word sooner intact, maintaining a 50 year time limit on the mine. For these reasons I think the permit issued speaks for itself and should be respected. It would be inapproprate at this late stage to change the permit in 2018 eliminating the very condition that may have been the basis for the approval. With the passing of time it is difficult to recall every detail, but for that reason the issued permit should speak for itself. Thank you, Rufus Edmisten • uV`yv gas � ,T I4 ,$tuft of NM4 (garozirta RECEIVED Prpartmcut of Juofics , RUFUS L. EDMI5TEN A _� U EC1g ATTORNEY GENERAL P. O. BOX 629 RALEIGK NR OFFICE OF 27602 CD_A4mIiV?STI7H iI, otv 30 January 1981 - • .«,� MEMORANDUM TO: Maria F. Spaulding, Assistant Secretary for Administration yDc O LOAR FROM: Daniel C. Oakley, Assi ant Attorney General RE: Wake Stone Corporation - Permit Hearing Several questions have surfaced with regard to the recent decision of the Mining Comnission which this memo attempts to address. 1. Does the Department have the right to appeal the decision? This question arises due to the fact that the Commission is administratively located within the Department. G.S. 143B-279 and 143B-290. There has been varying debate over this question, but the consensus of this office is that the Department is a "party" and a "person aggrieved" under the Administrative Procedures Act such that it can petition the Wake County Superior Court to review the decision. G.S. 15OA--2 and 15CA--43. This opinion would be based upon a reading of the Mining Act that give definite duties and responsibi-lities over permit -issuance to the Department. It is supported in case law by IN RE 11ALIFAX PAPER COMPANY, 259 NC 589 (1963) in which the Commission of Revenue appealed an adverse decision of the State Tax Review Board. 2. Is there a legal basis for an ap eal? This question should not be really answered without a complete review of the record, but I can give some initial thoughts at this time. The legal bases for an appeal would appear to be (1) that the Commission's decision is "unsupported by substantial evidence" under what is known as the "hole record test," and (2) that the decision is affected by some other error of law. In briefest terms, we would have to show the Commission failed to adequately take into account our evidence and the inferences to be made therefrom, ignored a portion of our case, or based the decision on irrelevant factors. The reviewing court cannot substitute its judgment for the commission's in case of two reasonable but conflicting views. Page Two The Department would have the burden of showing that the Commission's finding and decision were not supported by substantial evidence. I believe a review of the record will indicate several areas in which our evidence was not adequately considered. We could argue that the Mining Commission made prejudicial errors of law by taking into account irrelevent factors such as existing influences on park usage which are not directly applicable under G.S. 74-51 (5) . 3. One other matter of concern is to determine exactly what the Commission is expecting from the Department and Wake Stone. There is some possibility the decision is not intended to be "final" until both sides have discussed possible permit conditions. I see no legal basis for such a position, however, I feel this should be addressed, perhaps by a motion for clarification, as soon as possible. I hope this memorandum is helpful. I will be glad to discuss it further with you at your convenience. The decision on whether to appeal needs to be made expeditiously so that we can prepare and file the necessary documents within thirty days of the date the decision was served. /ck d� February 4, 1981 MEMORANDUM RECEIVED TO: Secretary Howard N. Lee FROM: Neil S. Grigg NRCD� OFFICE of. . b)W11Y)STRg7-tOP f SUBJECT: Departmental Strategy for Wake Stone Permit Issue in Umstead Park I met with some key staff members February 3 to develop a recommended strategy for you on the Wake Stone permit issue. We discussed the matter at great length and offer you the recommendations contained in this memorandum. The Department has a long-range objective and two short-range objectives. The long-range objective is to do everything possible to protect the park. This is consistent with your memorandum of February 2 to Governor Hunt and with our responsibilities to protect the park. The two short-range objectives are to follow the most orderly procedure possible since the Mining Commission has apparently reversed a Departmental decision. That is, if at all possible, we would like to avoid the appearance of being in disarray by disagreeing inter- nally in the Department and using the appeal process. Our other short-range objective is to signal to the public at large and to the specific park sup- porters that the Department intends to do everything possible to protect Umstead Park. The strategy we have developed is designed to achieve our long --range objective and both short-range objectives. In this strategy, we retain the right to appeal the Mining Commission's decision, but we recommend that you reject the option of an immediate direct appeal. The immediate appeal would have some public relations value in the near -term, but it would signal that the Depart- ment and the Commission were not working together in an orderly fashion. The two-part process we recommend is as follows. First, we suggest you follow a de- liberate procedure to develop either the most stringent possible conditions for the quarry or to exercise further legal remedies, whatever they may be, if satisfactory conditions cannot be developed. Second, we recommend that NRCD develop a strong public information strategy considering all of the con- stitutencies of the Department to be implemented immediately. The specifics of process we suggest are as follows: 1. At the present, we seek clarification from the Mining Commission as to whether their decision is a final or interim decision, contingent on whether satisfactory conditions can be worked out. I have already directed that this clarification be sought and the Attorney General's Office will pursue it right away. 2. The Davison of Land Resources begin to discuss with Wake Stone what conditions would be satisfactory to both the Department and the company. If satisfactory conditions can be developed which would obviously pro- tect the park and which could be supported by the public, we feel the Page 2 Secretary Howard N. Lee February 4, 1981 permit could be issued and the matter would be terminated. If no satisfactory agreement on conditions can be reached, we would refer the matter hack to the Mining Commission with the recommendation that the permit be denied. At that time, if there was still not agreement between the Department and the Commission, the Department would evaluate and might choose to pursue other legal remedies such as an appeal. I have asked Mrs. Anne Taylor to take the lead on the public involvement program and work with the Divisions and Offices of the Department that either have an interest in this matter or resources which can be devoted to it. Mrs. Taylor will also work with you directly to involve the environmental leaders that you have been meeting with to advise on this matter. we recommend this stratgy to you and stand ready to advise you at any time on this matter. The persons who were in attendance at the meeting and who con- curred with the strategy are myself, Bill. Ross, Anne Taylor, Jim Stevens, Steve Conrad, Sandy Babb and Dan Oakley. if you approve, you might direct Jim Sheppard to prepare the appropriate press release. NSG/ch North Carolina Department of Natural Resources &Community Development James B. Hunt, Jr„ Governor Howard N. Lee, Secretary March 25, 1981 Mrs. GayneZZ Watson 4315 Leesville Road Z 8 -- A Raleigh, North Carolina 276Z2 Dear Mrs. Watson: DIVISION OF LANI' RESOURCES Slephen G. Conrad, Director Box 27687, Raleigh 27611 Telephone 919 733-3833 Your letter of March 6, to Governor Hunt has been referred to ny office through Secretary Howard N. Lee. Although, I know Governor Hunt is personally concerned about the location of a rock quarry adjacent to William B. Umstead State Park, and has so publicly stated, T hope you understand and appre- ciate the fact that the Governor does not have the authority to intervene and deny Wake Stone Corporation a mining permit as request- ed in your letter, The North Carolina General Statutes designate this Department as the agency responsible for the issuing and denial of mining permits. The North Carolina Mining Commission is given the authority to re- view decisions of the Department, and on an appeal of a Department decision, the Mining Commission can uphold, reverse or modify any Department decision. Under the General Statutes there is no provision for the Governor, nor any other party, to intervene in this process. As you know, the Mining Commission has completed the hearing process on Wake Stone's appeal of the Department's decision to deny the permit. We expect the Mining Commission to render its final decision in this matter within the next fete days. At that time, the Department will consider the alternatives available to it and base its decision on what is the best course of action to provide maximum, long term protection to William B. Umstead State Park, I appreciate your interest and support and please let me knot) ifI can be of any further assistance. Vera truly yours, Stephen G. Conrad, Director SGC/ps cc: Golernor James B. Hunt, Jr. B`eeretary Howard N. Lee Geological Survey Section-733 2423; Geodetic Survey Section--733-3836; Land Quality Section—?33-4574; Planning and Inventory Section-733-3833; Land Resourcos Intormation Sarvtce—/33-2090 An Equal opportunity Affirmative Action Employer This decision is not final. In no more than 45 days, unless the Commission grants an extension, the Division and Wake Stone shall, at a public hearing, present to the Commission the plans outlined above. At the hearing the Commis- sion will not hear new evidence. At least 5 days before this hearing the parties shall deposit the plans with B. R. French for distribution to the Commission. Following the hearing the Commission shall render a final decision, from which the parties may appeal pursuant to NCGS 15OA-1 et seq. Date of original decision: January 27, 1981. As amended and corrected, this the ^'ddy o;'q®t Y In the Matter of Denial of) Permit Application of the ) Wake Stone Corporation ) BEFORE THE MINING COMMISSION Findings of Fact, Con- clusions, and Decision This cause was heard before the Mining Commission on November 6 and 7 and December 16 and 17, 1980, pursuant to NCGS 74-61 and NCGS 15OA-23 et seq., to consider the denial by the Division of Land Resources, Department of Natural Resources and Community Development (hereinafter the Department), of Wake Stone Corporation's application for a permit. Preliminary Statement Wake Stone Corporation (hereinafter the Petitioner) has options to purchase various parcels of land, some of which adjoin Umstead State Park (hereinafter the park). ,It seeks a permit to quarry stone there.. The Department denied Petitioner's request for a permit. The Petitioner then appealed this decision to the Mining Commission. Issue The issue in this case is whether the proposed quarry would have a signifi- cant adverse effect on the purposes of the park. The Department is empowered to issue a permit to quarry stone "conditioned upon compliance with all requirements of the approved reclamation plan for the operation and with such further reasonable and appropriate requirements and safeguards as may be deemed necessary by the Department to assure that the operation will comply fully with the requirements and objective of this Article." NCGS 74-61. The Department may deny a permit if "the operation would -2- v have a significantly adverse effect on the purposes of a publicly owned park, forest, or recreation area." NCGS 74-61(5). An applicant may appeal the De- partment's action to the Mining Commission, which may "affirm, affirm with modi- fications, or overrule the decision of the Department and may direct the Depart- ment to take such action as may be required to effectuate its decision." NCGS 74-61. Background Information The park consists of 5,217 acres in Wake County, along the eastern edge of the Piedmont Plateau, between Raleigh and Durham. The Master Plan developed for the park in 1974, State Exhibit T"20, sets forth its history: Until 1934, the land now occupied by Umstead Park was a farm community --houses, mills, and fields in various stages of use and abandonment. Poor agricultural techniques, such as one crop farming, primarily cotton, led to the loss of topsoil ,and subsequently, a submarginal existence. Second -growth timber was then removed from some upland areas, which expedited the erosion process. During the great depression, the United States Resettlement Division began a program of purchasing sub -marginal farm land, and in 1935 a proposal to acquire and develop a recreational demonstration project was instigated generally within the area now known as Umstead Park. The development of this area was jointly supervised by the National Park Service and the Depart- ment of Conservation and Development and until 1943, all develop- ment and land acquisition was financed by Federal money. -.In addition to the development of four group camps, a lake, tem- porary roads and utility systems, the CCC Work Force was re- sponsible for important conservation measures such as tree planting and the construction of check dams, which aided the stabilization of the soil. World War II forced the abandonment of Federal activities and on April 6, 1943, the United States deeded to the State of North Carolina, for the sum of one dollar, 5,088 acres to serve "public park, recreation, and conservation purposes". This land was officially designated as Crabtree Creek State Park. In 1947 and 1949, public use facilities including picnic areas, tent and trailer campgrounds, and utilities were financed by the General Assembly's first State Parks Division appropriation. -3- The master plan also describes the present and projected use of the sur- rounding land: Umstead Park lies in a highly urbanized area of the State and, as in the past, is currently under pressure from ad- jacent development. Suburban Raleigh is rapidly moving westward and recent development, in fact, abuts the eastern edge of the Park. With the development of Crabtree Valley Shopping Center and Interstate 40, land values have risen enormously so that a setting for residential and industrial growth in very close proximity to the Park has developed. City and county land use zoning has set the stage for both of these types of uses so that the only inhibiting factor at present is the lack of sanitary sewer and water lines. While it is only a matter of time before these utilities are provided, the exact location of the utility easements has not yet been pinpointed as it relates to the Park. Specifically, the land adjacent to the northeast between the Park and Highway 70 and that land between I-40 and the park boundary is currently under considerable pressure for building . . . . In addition, the Raleigh thoroughfare plan indicates the construction of a new road linking I-40 and the Duraleigh Road as an extension of the Southern Belt - line which, without control measures, will most certainly create similar development pressure. Raleigh -Durham Airport lies adjacent to Umstead Park's western boundary and presently has two runways; one for commercial airlines runs parallel to the Park in a northeast/ southwest direction and the other, for small craft use, lies perpendicular to the Park in an east -west direction. The Airport Authority is currently in advanced stages of planning a new runway and enlarged facilities. The proposed runway would lie perpendicular to the Park south of the Airport's existing facilities and service commercial flights.* Thus, Highway 70, Interstate 40, and Raleigh -Durham Airport bound the park on three sides. Of these three neighboring land uses, the airport has the most pro- nounced effect on the day-to-day uses of the park. The map on page 9 of the master plain depicts two broad swaths, covering about one-half of the park, as "airport impact zones." The plan states: Noise emanating from the airport as well as the major roads, I-40, Highway 70, and proposed roads, is important not only to the location of overnight facilities in the Park but also those areas of daytime sue where a greater degree of tranqui- lity is required. Flight zones over the Park from the existing ,The Mining Commission is aware of the more recent action of the Raleigh - Durham Airport authority regarding Plan 523L and the alignment of the pro- posed runway parallel to the western border of the park. -4- small craft runway and proposed runway impact the park not only due to noise but also visually so that, in these zones, the location of uses requires considerable scrutiny. Stipulations In the Prehearing Order, Wake Stone Exhibit #3, the parties stipulate as fol- lows: 1. The only contested matters are blasting, dust, traffic, noise, and visi- bility. 2. Blasting will occur eight to twelve times per month and at vibration and air blast levels within the Department's guidelines. 3. The Petitioner's dust control plan meets all Department standards, and the Petitioner has a permit to operate proposed air pollution abatement facilities for controlling dust. 4. The Divsion of Highways has determined that a coincidence of projected peak traffic for the park and the quarry will not create unsafe conditions. Findings of Fact A. Chronology of Events 1. On March 21, 1980, Wake Stone Corporation, operator of several stone quarries in North Carolina, applies for a permit to quarry stone on 195 acres situated north of Interstate 40, south of the airport, at the southwest corner of the park. Wake Stone Exhibit #1. 2. By letter dated August 22, 1980, Mr. Stephen G. Conrad, Director, Divi- sion of Land Resources, Department of Natural Resources and Community Develop- ment, denies the permit. State Exhibit #18. 3. By letter dated September 16, 1980, the Petitioner requests a hearing before the Mining Commission to appeal the denial. State Exhibit #19. -5- 4. On October 31, 1980, Mr. Daniel C. Oakley, Assistant Attorney General, appearing on behalf of the Department, and Mr. James M. Kimzey, Esquire, ap- pearing on behalf of the Petitioner, hold a prehearing conference and file a Prehearing Order. Wake Stone Exhibit #3. S. On November 6 and 7 and December 16 and 17, 1980, the Mining Commission hears the appeal. B. Evidence 1. A summary of the.important objective evidence on the matters of blasting, noise, and visibility is as follows: a. On blasting, the Department puts into evidence documents showing that the southern area of the park is an "airport impact zone." Department Exhibit #20, pp. 8-9. For the Petitioner, Phillip Berger testifies that the sound of an airplane taking off over the southwestern corner of the park would muffle the sound of a blast, Tr. pp. 140, 151, and that projected blasts would he well within the Department's guidelines, Tr. pp. 131-2. b. The testimony of the noise experts for each party is in substantial accord. Bruce G. Leonard testifies for the Petitioner that the ambient noise level in the pertinent section of the park is about 45 decibels on an A weighted scale (dB(A)), Tr. p. 227, and the projected noise level of equipment and trucks, - measured at various points in the park, ranges from 46 to 55 dB(A), Tr. pp. 228- 39. He also testifies that the Federal Highway Administration standard for traf- fic noise in parks is 57 dB Lan or Leq, Tr. p. 224, and that the Division of Parks and Recreation has proposed a guideline for noise levels in parks of 55 dB Ldn or Leq. For the Department James D. Simons testifies that the ambient noise level in the southwestern part of the park is about 45 dB(A), Tr. p. 414, and the projected noise level of equipment and trucks ranges from 51 to 55 dB(A), Tr. p. 496 (see also pp. 497-516). Documentary evidence introduced by the Department indicates that most of the southern half of the park is a flight zone for aircraft taking off and landing. Department Exhibit r20, pp. 8-9. C. The testimony on visibility reveals little agreement among the experts. For the Petitioner, Earl Harbison testifies that, due to topography and vegetation, the crushing equipment at the proposed site would generally not be visible from the park. Tr. pp. 158-98. Richard Hazard testifies for the Department that, during the sum- mer, the equipment could be visible from a few areas in the park, and, during the winter, it would be visible "from a good area within the southern half" of the park. Tr. pp. 776-8. 2. The purposes of the park are to preserve natural resources and to make them available to the public for recreation and wildlife interpretation. Tr. p. 912 (testimony of Stephen G. Conrad for the Department). Conclusions The Mining Commission makes the following conclusions: 1. Based on: a. the stipulation by the parties that vibration and air blast levels generated by proposed blasting are within the Department's guidelines, Wake Stone Exhibit #3, p. 2; b. documentary evidence that the southern area of the park is an "air- port impact zone" (i.e. a flight zone for incoming and outgoing airplanes), Department Exhibit P20, pp. 8-9; c. Phillip Berger's testimony that -7- i. the sound of an airplane taking off over the southwestern cor- ner of the park would muffle the sound of a blast, Tr. pp. 140, 151; and ii. that projected blasts would be well within the Department's guidelines, Tr. pp. 131-2, the Commission concludes that blasting will not have a significant adverse ef- feet on the purposes of the park. 2. Based on: a. the stipulation by the parties that the Petitioner's dust control plan is designed to meet Department standards, Wake Stone Exhibit #3, p. 2; and on b. James D. Simons's testimony that the dust from blasting is not a concern of the Department in this case, Tr. p. 490, the Commission concludes that dust from the quarry and roads will not have a significant adverse effect on the purposes of the park. 3. Based on the stipulation by the parties that the Division of Highways has determined that, even with a coincidence of projected peak traffic for the park and the quarry, there would be no unsafe traffic conditions, the Commission determines that traffic generated by the quarry would not have a significant ad- verse effect on the purposes of the park. 4. Based on: a. testimony of Bruce G. Leonard, Phillip Berger, and James D. Simons about an existing noise level of about 45 dB(A), Tr. pp. 227 and 414, and pro- jected noise levels ranging from 46 to 55 dB(A); b. the absence of a noise level standard for equipment near parks such as this one; and c. the analogous, though not dispositive, Federal Highway Administration standard for traffic noise in parks of 57 dB Ldn or Leq, Tr. pp. 224-5; and WIN d. testimony by Bruce G. Leonard that the Division of Parks and Recrea- tion has proposed a guideline of 55 dB Ldn or Leq, Tr. p. 224, the Commission concludes that the noise from the quarry machinery and traffic will not have a significant adverse effect on the purposes of the park. 5. The Commission concludes from the conflicting testimony of Earl Harbison and Richard Hazard that, while the crusher may be visible from certain places in the park, such visibility will not have a significant adverse effect on the purposes of the park. Decision The Commission feels strongly that the Department has acted in a conscientious and responsible manner, and had a reasonable basis to believe that the denial of the permit was correct. The Department had to reach a conclusion on a major issue -- noise --without standards or guidelines applicable to parks. To make matters more complex, the area around the park reflects a checkerboard of land use plans by various state and local government units. Thus, although the Commission reverses the Department's action in this case, it wishes to commend the Department for its diligence and dedication. In order to protect the park from any possible adverse effects of the quarry- ing operation, the permit should be issued, subject to the Commission's final approval, with the terms and conditions outlined below. i. The Division and Wake Stone shall develop a plan to be incorporated in the permit to require utilization of state-of-the-art techniques to minimize noise, dust, and other possible adverse effects on the park. 2. The Division and Wake Stone shall develop a plan for the optimum location of processing and stockpiling facilities and roads to minimize possible effects on the park. 3. The Division and Wake Stone shall develop an adequate buffer zone plan for the area between the quarry and the park. 4. The Division shall require Wake Stone to construct a berm or berms between the quarry and the park. 5. Pursuant to Wake Stones proposal that, as part of its reclamation plan, it donate the quarry to the State for park use on termination of the operation, the Commission requests that counsel for Wake Stone meet with Mr. Daniel. C. Oakley, Assistant Attorney General, and Ms. Becky R. French, Director, Office of Administrative Hearings, to reach an agreement, to be submitted to the Commission, on the best method to transfer the land. This decision is not final. In no more than 45 days, unless the Commission grants an extension, the Division and Wake Stone shall, at a public hearing, present to the Commission the plans outlined above. At the hearing the Commis- sion will not hear new evidence. At least 5 days before this hearing the parties shall deposit the plans with B. R. French for distribution to the Commission. Following the hearing the Commission shall render a final decision, from which the parties may appeal pursuant to NCGS 150A--1 et seq. Date of original decision: January 27, 1981. As amended and corrected, this the "Ao-y All 1981. Ll1",; nuf .tuned 6.4 Dr. Henry B. Smith, Chairman North Carolina Mining Commission BEFORE THE MINING COMMISSION In the Matter of Denial. of FINAL DECISION Permit Application of Wake Stone Corporation In accordance with this Commission's initial Findings of Fact, Conclusions, and Decision of January 27, 1981, as amended and corrected, and with the March 12, 1981 Agreement of Wake Stone Corporation and the Division of Land Resources, Department of Natural Resources and Community Development, concerning the Conditions enumerated below as 1, 2, 4, and 5; and upon consideration of the supplementary arguments of the parties concerning Condition 3, infra, the Mining Commission hereby orders that the Division of Land Resources grant to Wake Stone Corporation the permit applied for with the following conditions: Condition No. 1 - Minimize noise, dust, and other possible adverse effects. Noise 1. Noise barriers between crushers and screening towers to minimize noise levels at the park shall be provided from the outset of the operation. Noise barriers may be enclosures, walls, bins, structures, stockpiles, or natural terrain. In the event there is disagreement over the required noise control measures, the final design and emplacement of noise barriers shall be determined by qualified noise and engineering consultants mutually agreed upon by both parties. 2. The plant shall be located at a lower elevation as indicated on the required site plan. 3. The plant shall be designed so that the primary crusher can be relocated in the pit at the earliest possible date. 4. The chutes used in processing shall be rubberized. - 2 - 5. Compressors with noise abatement enclosures (currently called whisperized compressors) shall be used with track drills to open the quarry. Once the quarry is opened, either hydraulic or down -in -the -hole drills shall be used to further reduce noise. 6. Only such blasting techniques as minimize noise shall be employed. 7. Pit haul trucks shall be equipped to exhaust through the beds of the trucks to muffle engine noise. B. Conveyors rather than trucks shall be used for stockpiling material. 9. The quarry shall be operated only on Monday through Friday and shall not be operated on State -recognized holidays. Dust 1. The access road to the quarry,from the scale house to SR 1790,shall be paved. Wake Stone Corporation agrees to cooperate with the Department of Transportation in paving SR 1790 from the entrance to the quarry to the intersection with SR 1654. 2. The provisions of the air quality permit No. 4386 shall be followed. 3. A water wagon with sprays shall be used for wetting roads to prevent dust. 4. Sprays shall be used throughout the plant at transfer points to control dust. 5. Drill hole dust shall be controlled by wetting or other means. 6. Dust control shall be maintained by the use of water sprays. 7. A water spray shall be provided for highway haul trucks. 8. Washed stone shall be stockpiled within the part of the designated plant area which is closest to the park. -3.. Condition No. 2 - Optimize processing and stockpiling facilities to minimize possible effects on the park. 1. The processing and stockpiling facilities shall be relocated as indicated on the Wake Stone revised site plan submitted February 18, 1981. The purpose of this relocation shall be to screen the park from the sight and sound of the operation, reduce erosion, and shield the operation from public view along Interstate 40. 2. The relocation shall place the processing and stockpiling facilities at a lower elevation to reduce visibility and noise. 3. The stockpiles shall be located close to the quarry entrance roads, 4. The plant and stockpile area shall be close to the intersection of SR 1790 and SR 1654. 5. The initial site disturbance from both quarry excavation and plant site development shall be confined to one drainage system, which is now already protected by ponds which will serve as sediment basins. The purpose of this relocation is to aid erosion and sediment control. 6. The new location of the pit shall be such that, once the overburden is removed, the quarry excavating equipment - i.e. compressor and drill, shovels, and trucks -- can be placed below the surrounding land at the initial phases of quarrying. Condition No. 3 - Buffer zone Plan 1. The extent of the completely undisturbed buffer zone to be maintained between the park boundary during the 10 year permit shall be as indicated on the revised plan and modified by Exceptions 2, 3, and 4 listed on Page 2 of Wake Stone Corporation's memorandum of March 10, 1981, except all of the area north of the ten-year buffer line shall be left as a natural buffer - 4 - zone and not be developed or altered for commercial purposes. Condition No. 4 -- Construction of Berms 1. A vegetated earthen berm shall be constructed between the Wake Stone Corporation plant and the western boundary of the park as shown on Wake Stone Corporation's revised site plan. 2. Berm dimensions shall be no less than indicated on Wake Stone Corporation's revised site plan and may be higher and longer than shown, except the berm shall not encroach on the permanent buffer zone. 3. The side slopes of the berm shall be graded to a stable grade of 2 horizontal to 1 vertical grade or flatter and revegetated on the sides and top with grasses and evergreen trees. The toe of the berm shall not encroach on the park property boundary and shall be at least 50 feet from the boundary. 4. Other berms may be required as mining progresses to reduce the noise and visual impact upon the quarry. Condition No. 5 - Donation of Quarry to the State Pursuant to Wake Stone Corporation's offer to donate the quarry site to the State as part of its reclamation plan, the terms and conditions of the offer and acceptance shall be set -forth "_n the reclamation plan as follows. The term, "quarry site", shall include the entire pit as it exists after quarrying has been completed, a strip extending at least 50 feet back from the top of the slope of the pit on all sides (see the reclamation plan for the requirements applying to the slope), and a reasonable area to connect the pit and surrounding strip to Umstead Park, constituting a total area of at least 75 acres. -- 5 The method by which the quarry site will be donated to the State is as follows: Upon acquisition of the land by Wake Stone (by the exercise of its options to purchase), Wake. Stone will grant to the State an option which, if exercised by the State, will require that Wake Stone convey a fee simple title to the quarry site to the State. The State shall have no obligation to exercise its option to accept a conveyance of the quarry site. The terms and conditions of the option shall be as follows: 1. When all quarryable stone has been removed from all of the land belonging to or under the control of Wake Stone Corporation during the period of its quarrying operations and which lies between Umstead Park and Interstate Highway 40, it shall be the duty of Wake Stone to notify the State of this fact. Upon receipt of such notice, the State shall have six months within which it may elect to have Wake Stone convey the quarry site to the State. If the State elects to have Wake Stone convey the quarry site to the State, it shall notify Wake Stone of such election within said six month period. All notices shall be by certified mail with return receipt requested. If the State fails to make an election within said six month period or shall elect not to accept a conveyance of the quarry site, the option shall thereupon terminate and Wake Stone shall have no further obligation to convey the quarry site to the State. 2. 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 1 above. 3. Until the option has expired Wake Stone will not encumber by mortgage or deed of trust any of the area designated "BUFFER AREA" on Wake stone's site plan dated February 17, 1981, revised March 10, 1981, except for purchase money security interests. 2 - 6 - 4. During the option period, Wake Stone shall have the right to encumber all of its remaining property from time to time by mortgage, deed of trust or other security agreement then in common use for the purpose of securing one or more bona fide obligations of Wake Stone, such as the payment of money or the providing of any goods or services. The option to the State shall be subordinate to each such encumbrance in the same manner and to the same extent as if such option had been recorded after the recordation of each such encumbrance. 5. The right of the State to exercise its option shall be subject to: (a) Wake Stone not being prohibited by the U.S. Government, State of North Carolina, Wake County, any municipality having jurisdiction, or by any court from removing from Wake Stone's property all quarryable stone which is outside of the BUFFER AREA referred to in paragraph 3 above. The requirement by the State that Wake Stone comply with laws and rules and regulations generally appli- cable to stone quarries shall not be deemed a prohibition of quarrying for the purpose of the option agreement. (b) The operation of a quarry on Wake Stone's property for a minimum period of five years. 6. The conveyance of the quarry site shall be by deed containing the usual covenants of warranty and conveying the quarry site free and clear of all encum- brances except -those existing at the time of Wake Stone's purchase, ad valorem - taxes at the time of conveyance (which shall be prorated), and such drainage and utility easements as shall have been installed in connection with the development of the property. 7. The option may include such other terms as are mutually acceptable to the State and Wake Stone. - 7 _ The Mining Commission concludes from the evidence submitted in this case that the operation of the quarry, under the conditions set forth in tUs deei4jon, will not have a significant adverse effect on the purposes of the park. APR 3 1981 For the unanimous Mining Commission, this the day of 1981. O;'tginai ign Cal by Henry B. Smith, Chairman �rigie:a� Aignesi �r� T.W. Tysinger Original 3i{gne:i dg W.W. Woodhouse Commissioners Barkalow and Long took no part in the disposition of the case. In the Matter of Denial of) Permit Application of the ) Wake Stone Corporation } BEFORE THE MINING COMMISSION Amendment to the Final Decision The 250' buffer area shown on the northern boundary and the 100' buffer area on the eastern boundary of Wake Stone's pro- perty is considered by the Commission the permanent buffer zone. This the 3rd day of April 1981. Henry B. $nith, Chairman ' T W. Tysinger W. W. Woodhouse, Jr. e BEFORE THE MINING COMMISSION In the Matter of Denial of) Permit Application of the ) Amendment to the Wake Stone Corporation ) Final Decision The 250' buffer area shown on the northern boundary and the 100' buffer area on the eastern boundary of Wake Stone's pro- perty :is considered by the Commission the permanent buffer zone. This the 3rd day of April 1981. HenryyB.,Sfiith, Chairman i �'-- T. W. Tysinger W. W. Woodhouse, Jr. w. 2-t ANIA North Carolina Department of Natural IRV Resources &community Development James S. Hunt, Jr., Governor Howard N, Lee, Secretary February 2, 1981 mi7mn P 4 N111TM TO: Governor James B. Hun FROM: Secretary Howard N. L SUBJCET: Unstead Park and Wake You will be called on to comment on the State's position on the proposed Wake Stone Quarry next to Unstead Park. The purpose of this memorandum is to apprise you of our current thinking on this issue. This Department is very much opposed to the location of any industrial facility or quarry adjacent to Umstead Park: that would impair the use of the park. For this reason, we are seeking ways to protect the State's interest by either opposing the quarry or placing stringent enough restrictions on it to minimize the adverse effects. We have not yet determined exactly how to proceed. The Department is studying alternatives including: 1) an appeal of the Mining Commission's decision to the Superior Court of Wake County; 2) the placement of very stringent conditions on the permit; (3) other actions such as a legal challenge to the zoning decision by the Wake County Commissioners. In reviewing these we recognize that by opposing the quarry we may expose the park to an even less desirable land use at the site. Until we have fully evaluated this issue, our policy is to continue to protect the park using every measure available to this Department. We plan to have a Departmental decision on a possible appeal within a week or ten days. HNL/vbw P. O. Box 27687 Raleigh, North Carolina 27611 A �E-v trinity Affirmative Action Employer A:.as -