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HomeMy WebLinkAbout20210528_E_Portman_CommissionFrom: Ervin Portman To: Wrenn, Brian L; Miller, David Subject: [External] What else did the mining commission prohibit that Wake Stone did not identify to DEQ? Comment to the record for 92-10 permit expansion request. Date: Friday, May 28, 2021 8:18:10 AM Attachments: image003.png image005.ona Mining Commission from State Archives showing what Wake Stone has violated.pdf CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to Report Spam. Mr. Wrenn and Mr. Miller As you work to make an informed decision on the expansion request I ask you to carefully review the assertion that Wake Stone identified a discrepancy between the permit and the mining commission final decision. This 2018 permit modification was strategic and a prerequisite to the 2020 expansion request. Based on the fact that it allows the mine to operate with no time limit, the change in itself is a violation of the Mining Act of 1971 which states a permit cannot be modified if it changes the reclamation plan in a manner inconsistent with the original permit. ( section 74-52 (c) ) The fact that this was approved as a permit modification and then a year later recharacterized and a ministerial correction of an error is revealing. The implication assumed is that the final permit as issued must match the mining commission decision. I suspect that is an invalid assumption, as we know from documents you have been provided that the department had confirmed its option to appeal the mining commission decision, if it was not convinced it could strengthen the protections for the park. You have been provided 4 documents from the state archives that confirm this fact. ( if you need copies just let me know I will resend them) - Asst AG Dan Oakley legal opinion issued to Director Conrad confirms this fact - Memo from Secretary Lee to Governor Hunt confirms that fact - Memo from Neil Griggs to Secretary Lee confirming the same strategy that the department disagreed with the Mining Commission decision and would work to seek additional protections for the park, if they could be obtained they would issue the permit, if not they would appeal to Superior Court. Wake Stone did not tell you that the permit issued on May 13, 1981, had other discrepancies with the Mining commission final decision. The final decision required the berm not be built in the protective buffers, the permit allowed that. The final decision confirmed the buffer north of the 10 year line could not be encroached for any reason or used for any commercial purposes, the permit had no such restriction for allowed exceptions. Here is an excerpt from the Mining commission Final decision confirming what I am telling you, you can verify it yourself. CoMitlon We. ] - BuffOr Eons Plan 1. She extant of the completely uadiatnrbed huff�r xoz+c w be maiatained between the park hamndary during the 10 ygar permtt shall be as indicated on tie revisal plan and modiEi9d by 15aceptions 2, 3, fled 4 Listed on ran 7 of Wake Stone Corporation's rRF*raTW%1m of March 10, 1951, ereept all of the area nartb of the ten-year buffer line shall be Left as a natural !�uffor - A - zone and nor he devclopcd or altered for cormarcLal purposes. Condition No. d - Construction of Berms L. A v"etated earthen berm sha11 bu conhtruCttd hatwvon tho wake storm 001!potati4n plant and the western boundary of the park as shown on Wake Stone Corporation's rmrised site plan. a. perm dimensions shall be no less than indicated on wake stme corporation Fs xwisad ait$ plrn and mAy Sa higher and longer than shoAm, oxcapt the berm aha1L not encroach on tho vr=mnt buffos nano. Why does this matter? Because it shows that the Permit as issued allowed what the Mining Commission prohibited. The assertion that it cannot differ is just not correct. So the word later was in the final decision but not in the permit. Just one other way they differed. It is not credible to imply Wake Stone can accept the permit for 37 years then change the one difference they did not like, ( sooner vs later) but keep the other differences that they did like. The ability to build berms in the buffer and allow exceptions to encroach in the protected buffer north of the 10 year line. In their reply to you dated April 30 Wake Stone says they don't know why they did not object sooner, why they accepted the 2011 change that Director Simons issued keeping the Sunset clause. I think it's obvious why they did not object, until Simons had left the agency and Conrad and Gardner had died. They knew better. They all three worked the case in 1981. I know it would be easier internally to defend the 2018 changes as correct, but let's be honest. Sometimes doing the right thing means admitting a mistake, when you discover it. In fact it's ironic that the 2018 change was about correcting a mistake, that we now know was not a mistake at all. It's never too late to do the right thing. You did not have then the information in 2018, 1 have provided, that confirms Director Conrad had the authority to oppose the final decision and challenge it in court. He did exactly what he said he would do, he worked to better protect the park from the impacts of mining. That was the entire issue before the commission and the department. You now have documents that confirm that fact. I trust you will do the right thing and revoke the 2018 illegal permit modification, and reject the applicants request to expand the permit. That would defend the work of Directors Conrad, Gardner and Simons. They knew what they were doing and they were not sloppy and just made a typo. I hope you conclude that they were right and former AG Edmisten was correct in his email that the word sooner may have been the only reason the department issued the permit, vs appeal to court which was their right. Thanks for your consideration, this was a big deal 40 years ago, it is even a bigger deal today. Thanks for your service to our state. Ery Portman 101 Fern Bluff Way Cary, NC 27518 Cell 919 924 6025 PS in the WS reply dated April 30 they say that the buffer modification request gave them another reason to raise the sunset issue. Actually a review of the record shows that's not the sequence of events. They obtained a modified permit from the department first, then they requested the same day via email to change the buffer, which was approved the same day against advice of mining staff. ( in just 30 minutes ) The buffer change was a clever mixing of two facts; the property line was referenced for some buffer restrictions in the permit, but the top of bank was always also a permit condition form the orginal permit. Eliminting the top of bank buffer effectivly reduced the buffers and the protections for the park. Inadvertant or deliberate? I suspect is was inadverent by DEQ. The result remains that buffer change was a prerequisite for future encroachment of the buffers required in the 2020 expansion request. They need wider hauld roads and can only get them from the buffer side as the other side is the pit, its gone. .a. 71 �a M eaglet, t , .�. �9 9r,i9 tM Io r.e „,it 3M11 Ie as �.... plan . � f.., ,, �,ot,a., ,. ,. m191.9u, M .aM , of WM Rw, Cmporv4m'v Wm ,, of M b M 1991. ru rtn twapt III N t I� mY H t , W f e llte .MSI w 1ett aaea utan9 Nl mm ma m. to a..ewvm ..:ia..a m, mm...,vi vwvm•.. tlt eu, tu&ll tA i. vw�.m .c. � . m,." n u. I .. •......v. sue. c.ry.met.n.m m...m .it. Oat. stall It em.mm 11 aw wtim.. wee.. mm. 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.