20220122_E-Portman_ADI_3_Questions

Kastrinsky, Josh
Subject: Important concerns on applicant reply to AD13 questions - and suggested follow up
questions to consider
From: Ervin Portman<[e-mail]>
Sent: Sunday, January 2, 2022 7:12 AM
To: Wrenn, Brian L <[e-mail]>
Cc: Hirschman, Daniel S <dhirschman@ncdoi•Rov>; Masemore, Sushma <[e-mail]>; Nicholson,
John A. <[e-mail]>
Subject: RE: [External] FW: Important concerns on applicant reply to AD13 questions - and suggested follow up questions
to consider
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Mr. Wrenn
Happy New year to you and your team.
I am following up on my request for clarification of the 2018 permit modification, to the 92-10 Mining permit for the
triangle Quarry adjacent to William B Umstead State park.
As you know I have done extensive research over the last 18 months and have shared in great detail with you and your
staff new information that shows the assertions by the applicant that the Mining Permit 92-10 contained typographical
errors, was possibly false and misleading information, without any evidence to support the assertion.
The information I have provided documents clearly the 6 week period after the Mining Commission decision on April 3,
1981 and before your predecessor Director Conrad issued the permit, the final agency decision on May 13, 1981.
The information provided is documented from the state archives, and confirms that the information provided
by the applicant to support their "typographical error" assertion was incomplete and copies provided excluded
important context. The archives documents confirm this fact, as well as the department's internal strategy at the time,
to not accept the Mining Commission decision, but rather to seek to improve protections for the park, or appeal the
issue to superior court. This fact is clearly documented in the Griggs memo, and confirms exactly what transpired.
Former Attorney General Rufus Edmisten was directly involved in the 1981 decision, and he has provided you
confirmation that the 50 year donation to the state, aka Sunset clause was not a typographical error, rather it may be
the only reason the permit was issued. You expressed skepticism about the veracity of this statement and I arranged for
you to talk directly with Edmisten, who confirmed to you his understanding that the permit as issued was correct and
not a typo.
It is clear that the decision to remove the 50 year sunset clause was made based on incomplete and possibly false and
misleading information.
The Mining Act of 1971 contains specific enforcement language to guide your actions in the event of such an error.
I was assured by Mr. Hirschman at the Attorney General's office that you were provided this information and your
department would review it and had the authority to take any action you deem appropriate to correct the situation.

My question to you, is the same as I have asked several times before in this email thread, have you evaluated the new
information provided, which includes verification that there was NO Typographical error in the May 13, 1981 permit
Issued, and have you decided what action, if any, is appropriate to rectify the issue?
It is very important to know if you have completed your review of the issue, and have decided to take action or decided
not to act to change the 2018 permit modification issued.
Your department has asked the applicant about these changes, and the applicant has confirmed that these changes
were related to the 2020 permit modification request your department is currently evaluating, in fact the 2018
modification was a prerequisite to the 2020 modification request, a fact the applicant failed to disclose when requesting
the 2018 changes.
Sooner vs later in the donation to state clause or the reclamation plan
Buffer changes eliminating buffer conditions that were always part of the permit for 37 years, and consistent
with DEQ regulations, the application questions completed by the applicant and the Mining manual published
by DEQ all confirm both property and stream buffers are required and should have remained in the permit as
issued.
I hope you will see the evidence is overwhelming that the 2018 permit modifications were in fact the only error made by
your department and the permit should be restored to the correct conditions as it stood before the 2018 change.
Thanks for your work on this issue, which occurred before you assumed your responsibilities for this section of DEQ.
The Mining Act of 1971 is only as good as its enforcement provisions. You alone as director hold the authority and
responsibility to enforce the law, and the permit conditions.
Over 40 years your predecessors did good work to protect the park. The work of former Directors Conrad, Gardner and
Simons has been besmirched by the allegation of a 30 year old typographical error, that was never discovered until
2011. They knew better, that's why in 2011 Simons would not make the change.
Now you will determine if their good work will be defended and the enforcement provision of the law respected, I trust
you will do the right thing and restore the permit to its condition prior to the 2018 modifications, and seek to enforce
the provision of the act if you determine false and misleading information was provided by the applicant.
Either was please let me know if you have decided not to act, are still considering the issue, or have decided to revert
the conditions.
I look forward to your reply as soon as possible. It's never too late to do the right thing.
Respectfully,
Ervin Portman
919 924 6025