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HomeMy WebLinkAbout20210528_E_Portman_Commission2From: Ervin Portman To: Miller, David Cc: Wrenn, Brian L Subject: [External] DEQ seems to be accepting an incomplete document from Wake Stone but finds unconvincing the actual document retrieved from the state archives Date: Friday, May 28, 2021 11:10:07 AM Attachments: DEO seems to be accepting an incomplete document from Wake Stone but finds unconvincing the actual document retrieved from the state archives.docx CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to Report Spam. Further thoughts on Wake Stone April 30, 2021 reply to questions on the Sunset clause. I hope they are helpful, I ask they be made a part of the record . Please also confirm the information you received from the AGs office which I provided has also been added to the record, if not I will send them again. Ery Portman 101 Fern Bluff Way Cary, NC 27518 Cell 919 924 6025 DEQ seems to be accepting an incomplete document from Wake Stone but finds unconvincing the actual document retrieved from the state archives. Worse yet the incomplete document the state finds credible references another document the applicant has never produced. That document confirms the copy provided by Wake Stone to DEQ was not the "final as amended and corrected" document reference in the final decision wake stone supplied. The missing portion is the acknowledgment that the decision of the mining commission was not final and either party could have appealed it if they did not agree with it. In the reply to DEQ when asked about this question Wake Stone provided the following answer, confirming they don't know why they accepted the 1981 permit and did not object, they don't know why they accepted all the revisions over 37 years and they don't know why they accepted the 2011 permit with the sunset clause after they asked it be removed. See their reply and my comments below. WSC resooree We have reviewed the voluminous "additional information" referenced in DEMLR's question 95. We strongly disagree with the erroneous claims and assertions made by the author. We also take issue with use of the term "Sunset Clause", ate" coined by those in opposition to our pending mining permit application. Based on our understanding of the November 198d Mining Commission proceeding related to the denial of the original permit application and the Mining Commi ssion's "Fi tidings of Fact, Cc ncl usi ors, a nd Decisic n" of Jan ua ry 27, 1981 {copy attach l and "Foal Decision" of April 3, 1981(cc py attached), we do not believe the Mining Cam mission or the No rth Carolina Department of Natural Resources and Comm unity Development -Division of Land Resources ever intended to set an absolute date for closure of the quarry operation. Correction of the word "won er'to "later" as originally stated by the Mining Comm ismit {refer to April 3,198E "Fins l 10-isiod' j wa s first bruug h t to the attention cif Mi ni ng staff d uri ng renewal of the permit in early 2011. (Copy of email between David Lee and Judy We hoer attached lot reference). This correctlon was suggested when we reviewed the draft permit document with Ms. Wei as she worked to clear -up ambiguities and permit language that were no longer applicable. For whatever reason, the suggested word change was omitted from the renewal permit as Issued March 30, 2011. Wake Stone chow nut to pursue the I. — further at that time. The February 2018 request for administrative modification of the permit to cameo prier Site map representarron5 of buffer areas prpvlded another opportunity Tor wake Stone Corpo ration to seek ca'rerhon of the "senne r'v.— "later" language (see attached mpy of March 16, 2018 email communication between David Lee and Judy Wehnerl. It Is our understanding (from conversations with Mining Program staff) that DEMLR Mining Program stall sough[ and ❑btamad Attorney General stall review and approoal of the requested "sooner' to "later' language correctlon. The administrativelymodlfled permit Issued March 19, 2018 Incorporated the Identified prior discrepancies In how buffers were illustrated, as well as corrected the "sooner' versus "later' wording In Reclamation Condition S.R to what was originally mandated by the 1981 Mining Commission ruling, Members of the present-day management staff of Wake stone Corporation were not present during the initial permit application and subsequent Mining Cam mission processes. We have no additional relewnt documents or information that is not already available to DEMLR or in the Department file for Permit No. 92-10. Former Wake Stone Corporation CEO John R. firation who was present, and who managed the initial permitting efforts for Wake Stone, has provided his memory of those proceedings in the attached affidavit. Simply stated they strenuously objected to the assertion of the document. They offered no specificity as to what they found erroneous in the report. Commented [EPt ]: After stating they have attached the Findings of fad, conclusions and decision of the Mining Commission, dated January 27, 1981, they in fad did not attach that document. Instead they attached a partial copy of the final decision Issued April 3, 1981, twice. The missing January 271h document is important as they provided an incomplete version of that document to DEQ which is in the record. The document they did provide references the document not provided in the reply nor earlier to DEQ the as amended and corrected copy of the January 27" document, which is itself referenced in the Final decision they did provide. What is missing from their submission and reply is the last paragraph of the as amended and corrected January 27th 1981 document. That paragraph is provided for context here. This decision is not final, In no m grants an extension, the Division and Wa present to the Commission the plans outl Sion will not hear new evidence. At lea shall deposit the plans with B. R. Frolic Following the hearing the Commission she. the parties may appeal pursuant to NCGS . Date of original decision: January 27, As amended and corrected, this the , Even more revealing the reply stated that they were attaching the Findings of fact, conclusions and decision of the mining commission dated January 1981, but they did not. Instead they attached the final decision dated April 3, 1981 twice. This is important because it was the earlier report which documents the fact that the mining commission decision could have been appealed. That fact and the actions by regulators after the April 3, 1981 final decision and before the issuance of the permit on May 3, 1981 are corroborated by three different documents from the state archives and one letter from former attorney general Rufus Edmisten, who was involved in the issue at the time. 1. Assistant AG Dan Oakley memo confirms the department did not have to accept the mining commission decision if they disagreed with it, they held an appeal option to Superior court. 2. Neil Griggs memo documents the strategy of the department and AG office to not immediately appeal the mining commission decision, rather to seek additional stronger protections for the park, if they could be obtained then issue the permit with the additional stronger protections. 3. Letter from Director Conrad confirms his intention to work to improve protections for the park after the mining commission decision. All three of these documents are in the state archives and were provided to deq to explain why the permit was different than the mining commission decision. There is no question that Wake Stone did not want a time limit, nor is there any question that the final decision of the mining commission placed no time limit. But the mining commission final decision is not a permit to open pit mine crushed rock. Only the department could issue that document, and they did with the 50 year sunset clause. Wake Stone accepted that permit with the 50 year sunset clause and never objected to it for 30 years and 8 permit modifications. In 2011 for the first time Wake Stone raises the issue in an email saying they just "discovered "the discrepancy. There are several problems with this. It is not credible that they would have ever accepted a 50 year limit if they did not agree to it. They did accept the permit. That time and 8 more times over 37 years. In 2011 the director responsible was James Simons, he had first had experience about the 1981 approval and conditions. He refused to make the change to eliminate the sunset clause. Wake Stone did not object to the 2011 modifications with the same 50 year sunset clause. For thirty years three directors over mining all enforced the sunset clause, directors Stephen Conrad, Charles Gardner and James Simons all had first had knowledge of the 1981 approval and all consistently maintained the sunset clause. V56AM Sun JW12 'rfir�-7 asx ■ Only after the three had either died (Conrad and Gardner) or retired (Simons) was Wake able to ask the same request with no new justification to a new mining staff and a new acting director to modify the permit. But a modification of the conditions of the permit reclamation plan (the sunset clause was a key part of the reclamation plan) is not allowed per the mining act of 1971, unless the change is consistent with the original permit. Such a change would be illegal. Here is the law; § 74-52. Permit modifications. (a) Any operator engaged in mining under an operating permit may apply at any time for modification of the permit. The application shall be in writing upon forms furnished by the Department and shall fully state the information called for. The applicant must provide the Department with any additional information necessary to satisfy application requirements. In addition, the applicant may be required to furnish any other information as may be deemed necessary by the Department in order adequately to enforce the Article. (b) Repealed by Session Laws 2017-209, s. 13(c), effective October 4, 2017. (c) A modification under this section may affect the land area covered by the permit, the approved reclamation plan coupled with the permit, or other terms and conditions of the permit. A permit may be modified to include land neighboring the affected land, but not other lands. The reclamation plan may be modified in any manner, so long as the Department determines that the modified plan fully meets the standards set forth in G.S. 74-53 and that the modifications would be generally consistent with the bases for issuance of the original permit. Other terms and conditions may be modified only where the Department determines that the permit as modified would meet all requirements of G.S. 74-50 and [G.S.] 74-51. For over a year mining regulators called it a permit modification and defended it as correct. Only a year later did they add a note to the file saying the modification was not really a modification at all, but merely a ministerial correction of a 37 year earlier error? I think they did this after review with the AG office and the realization that the permit modifications which was inconsistent with the original permit issued 37 years ago was not legal. In researching this change I reached out to many involved. Most have either died or have no recollection of these details. It is for that reason that most understood it unwise to change permits after 37 years. Former Assistant Attorney General Dan Oakley said it best, he has no recollection of the details and after the passage of so much time the permit must speak for itself. I spoke with former Governor Hunt and Secretary Lee who also remembered is issue but no recollection of the specifics. Former AG Rufus Edmisten reviewed some old clippings of the case to refresh his memory and offered a strong letter defending Director Conrad and stating that there was no typographical error. The sunset clause may have been the only reason the permit was ever issued. I ask DEQ regulators today to understand clearly the motivations of Wake Stone to set aside the 50 year sunset clause. It stands to gain hundreds of millions of dollars in revenue if the change stands. My motivation to research these facts, to find them in the archives and former AG Edmisten motivations are different. We seek to defend the good work of 3 mining directors over 30 years that did all they could to protect the park. Nobody today should prevail in such a shoddy way to imply they just made a typo. In the reply to DEQ on this issue Wake stone says they don't know why they never objected to the word sooner (sunset clause) ... sooner. They say they don't know why they did not object in 2011 when Simons said no to the removal They offer no explanation just say they don't know why they accepted the permit with the sunset clause in 2011 and did not object. I think it's obvious why they did. Simons knew the truth and knew the mine was only approved with the 50 limit in blasting and adverse impacts on the park. Even more telling is what else was different between the mining commission final decision dated April 3, 1981 and the issuance of the permit May 13, 1981. The final decision stated berms could not be built in the protected buffer, the permit allowed them, The final decision said no commercial use and no exceptions would allow encroachment to the buffer north of the 10 year line, (the upper half of the quarry today), the permit as issued had np such restriction. It seems clear to me Wake Stone is selective in its request, it want to get rid of its obligations to protect the park and close the mine by 2031, but wants to keep the changes that benefited it. That's clearly not a credible argument. For 30 years the experienced directors would not allow such changes, and required the park remain protected, only after they died or retired was Wake Stone also to convince less experienced new staff of their request. Now we have offered DEQ the facts to show this was wrong, it remains to be seen if they will correct their mistake they made in 2018 when they "fixed an error that was not an error". DEQ seems to be accepting an incomplete document from Wake Stone but finds unconvincing the actual document retrieved from the state archives. Worse yet the incomplete document the state finds credible references another document the applicant has never produced. That document confirms the copy provided by Wake Stone to DEQ was not the "final as amended and corrected" document reference in the final decision wake stone supplied. The missing portion is the acknowledgment that the decision of the mining commission was not final and either party could have appealed it if they did not agree with it. In the reply to DEQ when asked about this question Wake Stone provided the following answer, confirming they don't know why they accepted the 1981 permit and did not object, they don't know why they accepted all the revisions over 37 years and they don't know why they accepted the 2011 permit with the sunset clause after they asked it be removed. See their reply and my comments below. WSC resooree We have reviewed the voluminous "additional information" referenced in DEMLR's question 95. We strongly disagree with the erroneous claims and assertions made by the author. We also take issue with use of the term "Sunset Clause", ate" coined by those in opposition to our pending mining permit application. Based on our understanding of the November 198d Mining Commission proceeding related to the denial of the original permit application and the Mining Commi ssion's "Fi tidings of Fact, Cc ncl usi ors, a nd Decisic n" of Jan ua ry 27, 1981 {copy attach l and "Foal Decision" of April 3, 1981(cc py attached), we do not believe the Mining Cam mission or the No rth Carolina Department of Natural Resources and Comm unity Development -Division of Land Resources ever intended to set an absolute date for closure of the quarry operation. Correction of the word "won er'to "later" as originally stated by the Mining Comm ismit {refer to April 3,198E "Fins l 10-isiod' j wa s first bruug h t to the attention cif Mi ni ng staff d uri ng renewal of the permit in early 2011. (Copy of email between David Lee and Judy We hoer attached lot reference). This correctlon was suggested when we reviewed the draft permit document with Ms. Wei as she worked to clear -up ambiguities and permit language that were no longer applicable. For whatever reason, the suggested word change was omitted from the renewal permit as Issued March 30, 2011. Wake Stone chow nut to pursue the I. — further at that time. The February 2018 request for administrative modification of the permit to cameo prier Site map representarron5 of buffer areas prpvlded another opportunity Tor wake Stone Corpo ration to seek ca'rerhon of the "senne r'v.— "later" language (see attached mpy of March 16, 2018 email communication between David Lee and Judy Wehnerl. It Is our understanding (from conversations with Mining Program staff) that DEMLR Mining Program stall sough[ and ❑btamad Attorney General stall review and approoal of the requested "sooner' to "later' language correctlon. The administrativelymodlfled permit Issued March 19, 2018 Incorporated the Identified prior discrepancies In how buffers were illustrated, as well as corrected the "sooner' versus "later' wording In Reclamation Condition S.R to what was originally mandated by the 1981 Mining Commission ruling, Members of the present-day management staff of Wake stone Corporation were not present during the initial permit application and subsequent Mining Cam mission processes. We have no additional relewnt documents or information that is not already available to DEMLR or in the Department file for Permit No. 92-10. Former Wake Stone Corporation CEO John R. firation who was present, and who managed the initial permitting efforts for Wake Stone, has provided his memory of those proceedings in the attached affidavit. Simply stated they strenuously objected to the assertion of the document. They offered no specificity as to what they found erroneous in the report. Commented [EPt ]: After stating they have attached the Findings of fad, conclusions and decision of the Mining Commission, dated January 27, 1981, they in fad did not attach that document. Instead they attached a partial copy of the final decision Issued April 3, 1981, twice. The missing January 271h document is important as they provided an incomplete version of that document to DEQ which is in the record. The document they did provide references the document not provided in the reply nor earlier to DEQ the as amended and corrected copy of the January 27" document, which is itself referenced in the Final decision they did provide. What is missing from their submission and reply is the last paragraph of the as amended and corrected January 27th 1981 document. That paragraph is provided for context here. This decision is not final, In no m grants an extension, the Division and Wa present to the Commission the plans outl Sion will not hear new evidence. At lea shall deposit the plans with B. R. Frolic Following the hearing the Commission she. the parties may appeal pursuant to NCGS . Date of original decision: January 27, As amended and corrected, this the , Even more revealing the reply stated that they were attaching the Findings of fact, conclusions and decision of the mining commission dated January 1981, but they did not. Instead they attached the final decision dated April 3, 1981 twice. This is important because it was the earlier report which documents the fact that the mining commission decision could have been appealed. That fact and the actions by regulators after the April 3, 1981 final decision and before the issuance of the permit on May 3, 1981 are corroborated by three different documents from the state archives and one letter from former attorney general Rufus Edmisten, who was involved in the issue at the time. 1. Assistant AG Dan Oakley memo confirms the department did not have to accept the mining commission decision if they disagreed with it, they held an appeal option to Superior court. 2. Neil Griggs memo documents the strategy of the department and AG office to not immediately appeal the mining commission decision, rather to seek additional stronger protections for the park, if they could be obtained then issue the permit with the additional stronger protections. 3. Letter from Director Conrad confirms his intention to work to improve protections for the park after the mining commission decision. All three of these documents are in the state archives and were provided to deq to explain why the permit was different than the mining commission decision. There is no question that Wake Stone did not want a time limit, nor is there any question that the final decision of the mining commission placed no time limit. But the mining commission final decision is not a permit to open pit mine crushed rock. Only the department could issue that document, and they did with the 50 year sunset clause. Wake Stone accepted that permit with the 50 year sunset clause and never objected to it for 30 years and 8 permit modifications. In 2011 for the first time Wake Stone raises the issue in an email saying they just "discovered "the discrepancy. There are several problems with this. It is not credible that they would have ever accepted a 50 year limit if they did not agree to it. They did accept the permit. That time and 8 more times over 37 years. In 2011 the director responsible was James Simons, he had first had experience about the 1981 approval and conditions. He refused to make the change to eliminate the sunset clause. Wake Stone did not object to the 2011 modifications with the same 50 year sunset clause. For thirty years three directors over mining all enforced the sunset clause, directors Stephen Conrad, Charles Gardner and James Simons all had first had knowledge of the 1981 approval and all consistently maintained the sunset clause. V56AM Sun JW12 'rfir�-7 asx ■ Only after the three had either died (Conrad and Gardner) or retired (Simons) was Wake able to ask the same request with no new justification to a new mining staff and a new acting director to modify the permit. But a modification of the conditions of the permit reclamation plan (the sunset clause was a key part of the reclamation plan) is not allowed per the mining act of 1971, unless the change is consistent with the original permit. Such a change would be illegal. Here is the law; § 74-52. Permit modifications. (a) Any operator engaged in mining under an operating permit may apply at any time for modification of the permit. The application shall be in writing upon forms furnished by the Department and shall fully state the information called for. The applicant must provide the Department with any additional information necessary to satisfy application requirements. In addition, the applicant may be required to furnish any other information as may be deemed necessary by the Department in order adequately to enforce the Article. (b) Repealed by Session Laws 2017-209, s. 13(c), effective October 4, 2017. (c) A modification under this section may affect the land area covered by the permit, the approved reclamation plan coupled with the permit, or other terms and conditions of the permit. A permit may be modified to include land neighboring the affected land, but not other lands. The reclamation plan may be modified in any manner, so long as the Department determines that the modified plan fully meets the standards set forth in G.S. 74-53 and that the modifications would be generally consistent with the bases for issuance of the original permit. Other terms and conditions may be modified only where the Department determines that the permit as modified would meet all requirements of G.S. 74-50 and [G.S.] 74-51. For over a year mining regulators called it a permit modification and defended it as correct. Only a year later did they add a note to the file saying the modification was not really a modification at all, but merely a ministerial correction of a 37 year earlier error? I think they did this after review with the AG office and the realization that the permit modifications which was inconsistent with the original permit issued 37 years ago was not legal. In researching this change I reached out to many involved. Most have either died or have no recollection of these details. It is for that reason that most understood it unwise to change permits after 37 years. Former Assistant Attorney General Dan Oakley said it best, he has no recollection of the details and after the passage of so much time the permit must speak for itself. I spoke with former Governor Hunt and Secretary Lee who also remembered is issue but no recollection of the specifics. Former AG Rufus Edmisten reviewed some old clippings of the case to refresh his memory and offered a strong letter defending Director Conrad and stating that there was no typographical error. The sunset clause may have been the only reason the permit was ever issued. I ask DEQ regulators today to understand clearly the motivations of Wake Stone to set aside the 50 year sunset clause. It stands to gain hundreds of millions of dollars in revenue if the change stands. My motivation to research these facts, to find them in the archives and former AG Edmisten motivations are different. We seek to defend the good work of 3 mining directors over 30 years that did all they could to protect the park. Nobody today should prevail in such a shoddy way to imply they just made a typo. In the reply to DEQ on this issue Wake stone says they don't know why they never objected to the word sooner (sunset clause) ... sooner. They say they don't know why they did not object in 2011 when Simons said no to the removal They offer no explanation just say they don't know why they accepted the permit with the sunset clause in 2011 and did not object. I think it's obvious why they did. Simons knew the truth and knew the mine was only approved with the 50 limit in blasting and adverse impacts on the park. Even more telling is what else was different between the mining commission final decision dated April 3, 1981 and the issuance of the permit May 13, 1981. The final decision stated berms could not be built in the protected buffer, the permit allowed them, The final decision said no commercial use and no exceptions would allow encroachment to the buffer north of the 10 year line, (the upper half of the quarry today), the permit as issued had np such restriction. It seems clear to me Wake Stone is selective in its request, it want to get rid of its obligations to protect the park and close the mine by 2031, but wants to keep the changes that benefited it. That's clearly not a credible argument. For 30 years the experienced directors would not allow such changes, and required the park remain protected, only after they died or retired was Wake Stone also to convince less experienced new staff of their request. Now we have offered DEQ the facts to show this was wrong, it remains to be seen if they will correct their mistake they made in 2018 when they "fixed an error that was not an error".