Letter to DEMLR re Wake Stone Mining Permit (7-17-2020) FINAL

MATTOX LAW FIRM
Telephone [phone]
July 17, 2020
VIA U.S. Mail and E-mail
Mr. Brian Wrenn
Director Division of Energy, Minerals, and Land Resources
[e-mail]
[e-mail]
1612 Mail Service Center
Raleigh, NC 27699
Isabel WorthyMattox
[e-mail]
Matthew j. Carpenter
[e-mail]
Re: Wake Stone Mining Permit No. 92-10 filed April 8, 2020 (the "Permit Application")
Dear Mr. Wrenn:
As attorney for the Umstead Coalition in its opposition to Wake Stone's Permit Application, I
write to summarize evidence presented to the Department of Energy, Mineral and Land
Resources ("DEMLR") at the June 23 and July 7 public hearings, and to instruct DEMLR
regarding its duty to evaluate that evidence.
DEMLR has heard overwhelming evidence that Wake Stone's proposed expansion of the
triangle quarry will cause significant unavoidable harm to Umstead State Park and the
environment at large. Accordingly, the Permit Application should be denied.
The purpose of the Mining Act is to allow for mining of valuable minerals from lands throughout
the State, while minimizing the adverse impacts on the surrounding environment, protecting the
general welfare, health, and safety of the citizens from undesirable land and water conditions,
and protecting the scenic value of all such lands. N.C.G.S. §§74-47 and 74-48 (2003). Under
the Mining Act, DEMLR must:
(a) use its judgment to determine if, and to what extent, there is an "adverse effect";
(b) exercise its judgment to define what measures, if any, are necessary to mitigate
adequately any possible adverse effects of the mining operation on the
environment; and
127 W. Hargett Street, Suite 500, Raleigh, NC 27601 1 Post Office Box 946, Raleigh, NC 27602 1 Fax [phone]

(c) expressly condition issuance of a permit on the permit applicant completing such
measures; N.C.G.S. §74-51(d),(e), and (f)
(d) If DEMLR determines proposed conditions are insufficient to mitigate the
identified "significantly adverse effect," then DEMLR must deny the permit to
achieve the purposes of the Mining Act.
DEMLR has received over 1,600 oral and written comments from neighbors, engineers
politicians, and concerned citizens urging it to deny the Permit Application. Speakers included
experts in geology, noise, air quality, water quality, and stormwater engineering. At the June 23
meeting alone, over 500 individuals attended. A representative list of speakers who spoke at the
June 23 and July 7 meetings is attached as Exhibit A. The overwhelming evidence addresses
each and every one of the denial criteria listed in N.C.G.S. §74-51.
The most obvious reason for denial of the Permit Application is the unavoidable damage the
quarry expansion will inflict on Umstead State Park. The North Carolina Court of Appeals has
held that "where a mining operation adversely affects the purposes of a publicly owned park,
forest, or recreation area to a significant degree, such operation violates the Mining Act." Clark
Stone Co., Inc. v. NC DENR, 594 SE 2d 832 (2004).
The fact that N.C.G.S. §74-51(d) uses the word "may" does not relieve DEMLR from its duty to
protect against the harm the statute is meant to prevent. "The general rule is that the word `may'
will be construed as `shall,' or as imposing an imperative duty whenever it is employed in a
statute to delegate a power, the exercise of which is important for the protection of public or
private interests." Puckett v. Sellars, 235 N.C. 264, 268 (1952). Just because the exercise of
judgment by DEMLR is necessary to make the determination whether a mine will have a
"significantly adverse effect" on the purposes of a publicly owned park does not mean there is no
duty to act. The very purpose of the Mining Act is to protect against the harms listed in this
section.
By giving DEMLR the power to deny a mining permit where it finds the existence of the seven
"adverse effects" listed in N.C.G.S. §74-51(d), the North Carolina General Assembly (the
"General Assembly") has made it clear that protection against those "adverse effects" is an
integral part of the statute.
Additionally, DEMLR must consider the nature and purpose of Umstead State Park - created and
protected by the General Assembly through the State Parks Act. N.C.G.S. § 113-44.7 (later
recodified as N.C.G.S. § 143B-135.40). In the State Parks Act, the General Assembly declared
that "the state of North Carolina offers unique archaeologic, geologic, biological, scenic, and
recreational resources" and that these resources "are part of the heritage of the people of this
State." The State Park Act goes on to state "the heritage of a people should be preserved and
managed by the people for their use and for the use of their visitors and descendants. N.C.G.S.
§143B-135.42.

Titus, the General Assembly, through the Mining Act and the State Parks Act has clearly
made it DEMLR's duty to protect the purposes of Urnstead State Park, in particular from
significant adverse effects of mining operations.
The Clark Stone case should serve as a lesson for how mining permit applications should be
evaluated when the operation is located close to a protected park. In Clark Stone, a mining
company was seeking to obtain a mining permit for property located in close proximity to the
Appalachian Trail. At the initial mining permit hearing, DEMLR (formerly DENR) granted the
mining permit. Later, after discovering new evidence that the mining operation would
significantly affect the beauty and scenic value of the Appalachian Trail, DEMLR revoked the
mining permit. The ruling was appealed and the trial court overturned DEMLRs revocation and
granted Clark Stone the mining permit.
The case was appealed to the North Carolina Court of Appeals which overturned the granting of
the mining permit reprimanded the trial court for granting a mining permit when there were
significant adverse effects on the purposes of the Appalachian Trail. Here, in contrast to Clark
Stone, DEMLR has heard and received overwhelming evidence prior to issuing the mining
permit, that the planned quarry expansion will have significantly adverse effects on the
environment and on Umstead State Park.
A decision to grant the permit despite this evidence would be in contradiction with Clark Stone,
the State Parks Act, and the Mining Act. Accordingly, we ask DEMLR to follow North Carolina
law, legal precedent, and the abundance of evidence and deny the Mining Permit Application.
Sincerely,
a"JC
cc: Dan Sams, [e-mail]
Sheila Holman, [e-mail]
John FulIwood, [e-mail]
Brian Strong, [e-mail]
Reid Wilson, [e-mail]
Bill Lane, [e-mail]
Dr. Jean Spooner, [e-mail]
Bill Doucette, [e-mail]

Exhibit A
1. Basic requirements of the Mining Act and rules promulgated thereunder will be
violated by the proposed operation.
See above discussion regarding purposes of the Mining Act.
2. The operation will have unduly adverse effects on potable drinking water supplies,
wildlife, or fresh water, estuarine, or marine fisheries.
• Ron Sutherland (Ph.D. Environmental Science; Chief Scientist at the Wildlands
Network) offered a written evidence and testified that the proposed quarry expansion
will result in the direct loss of wildlife habitat on the Odd Fellows tract including
complete loss or destruction of several streams on the Odd Fellows tract which provide
vital habitats for fish, crayfish, and other aquatic animals. He explained that by itself,
Umstead State Park is not large enough to maintain viable populations of many species of
wildlife such as bobcats, wild turkeys, and eastern kingsnakes. If Umstead becomes fully
isolated as a result of the quarry expansion, these species will become locally extinct,
diminishing the ecosystem of the park and undermining the park's conservation purposes.
Regina Ali (M.S. Environmental Toxicology and Business Administration; B.S.
Biology and Biochemistry) testified that, based on her knowledge, the planned operation
will have detrimental impacts on surrounding wildlife and human health near Crabtree
Creek and Raleigh generally; as a result of toxic PCBs that will be released from the
mining operation.
• Irene Rusnak (Doctor of Veterinary Medicine; B.S. Zoology and Wildlife
Conservation) testified that the environmental impact of Wake Stone's plans should be
analyzed as a whole, rather than attempting to separate the numerous environmental
impacts with imaginary lines. Taken together, the impacts are clearly so severe that DEQ
should require Corps of Engineers to do an individual 401-404 Certification Analysis
before it considers approving the mining permit.
• Kristin Stone (Certificate in Conservation Biology from Columbia; Senior Fellow of
the Environmental Leadership Program) explained that based on her research, after
the quarry is expanded, the Crabtree Creek corridor between the old and new mines will
be so narrow that wildlife will no longer be able to migrate in and out of Umstead State
Park.
• Holly Amato (B.S. Animal Science) testified that the proposed plan will cause "habitat
fragmentation," — a degenerative process that results in ecosystem decay and can lead to
species extinction. She explained this process more severely affects migratory animals
like bobcats. Water pollution from sedimentary runoff will have highly foreseeable
negative impacts on the fish and plant life in Crabtree Creek.

• Lise Liske (B.S. [Minor] Natural Science) testified that allowing the planned mining
operation, construction, and modifications of buffers will have severe negative impact on
mammals living in and around Umstead State park.
• Stef Mendell (Former Raleigh City Council Member) testified that no engineering
study was done in support of Wake Stone's proposed reclamation plan and that the
Permit Application cannot be granted without a specific and practical reclamation plan
developed by professionals.
• Kathleen Rusnak Weaver, P.E. (Civil Engineer) testified that based on her review of
Wake Stone's reports filed under its NPDES Stormwater Permit NCG02, there appear to
be major issues with the water quality sampling conducted by Wake Stone for the
existing quarry. Required data is missing, reporting inconsistencies are apparent, and
some reported values are well above the "benchmarks" required to be met under Wake
Stone's stormwater permit. Sampling experience with the existing quarry shows the
proposed expansion will result in substantial sediment deposits downstream of the quarry.
• The United States Fish and Wildlife Service has noted that the Atlantic Pitgoe Mussel,
a species found in Crabtree Creek, is in the process of being listed as a threatened species.
3. The operation will violate standards of air quality, surface water quality, or
groundwater quality that have been promulgated by the Department.
• William Doucette (Ph.D. Soil Science, Water Resources; 30-year Licensed Geologist)
submitted written evidence and testified that the proposed quarry expansion will violate
groundwater quality standards, negatively affect the flow of Crabtree Creek, extinguish
groundwater supplies to the neighboring property owners, and destroy stream buffers.
• Jean Spooner (Ph.D. Soil Science; Chair of the Umstead Coalition; Professor
Emerita at N.C. State University) testified that the GMA consultant hydrogeological
evaluation study and Permit Application as a whole, fail to address (as required under
Section 1.0) both (1) "the potential impacts on the groundwater system associated with
dewatering of the new open -pit mine," and (2) "potential interaction between the
proposed mine and surface water flow of Crabtree Creek." The evidence presented in the
GMA report suggests that Crabtree Creek will be a "losing" stream with two deep pits on
both sides of Crabtree Creek. Dr. Spooner indicated that the insufficient stream buffers
and the decrease in the 7Q10 base flow rates in the stream would be a concern for the
North Cary Water Reclamation Plan discharge permit.
• Liz Adams (M.S.P.H. Environmental Science; Research Associate at the UNC
Institute for the Environment in the fields of air quality) testified that she has
monitored levels of PM 2.5 (Particulate Matter) at Umstead Park and has on multiple
occasions measured PM 2.5 levels greater than 200 micrograms per cubic meter, an
amount the EPA has designated as "Code Red." Ms. Adams further explained that the

EPA has determined that levels between 201 and 300 micrograms per cubic meter are
extremely unhealthy and can cause or exasperate existing respiratory health issues.
• Barbara Braatz (M.S. in Earth, Atmospheric and Planetary Sciences M.I.T.; B.A.
Geology; Climate Change Policy Expert) testified that, among other things, the
inevitable atmospheric impacts resulting from more mining at this location will harm the
wildlife that travels through and lives in Umstead Park and the surrounding area.
• Laura Wood (Certified NC Environmental Educator) testified that because the
proposed Crabtree Creek buffers in the Permit Application are smaller with proposed
deforestation as compared to the current buffers at Wake Stone's existing quarry, a new
environmental study is required.
• Chad Chandler (President of South Wake Conservationists - Local Chapter of NC
Wildlife Federation) testified that, as a tributary of the Neuse River Basin and subject to
high water volume, the stability of Crabtree Creek will be compromised by quarries on
each side.
• Mary Brice (NC Registered Professional Civil Engineer with Experience in
Sediment and Erosion Control, 404-401, and Riparian Buffer Environmental
Permitting) testified that, based on her experience, and according to the North Carolina
Wildlife Resource Commission's Recommendation, should not be measured from the
middle of the stream and instead should be at least 100ft. from the top edge of the bank.
4. The operation will constitute a direct and substantial physical hazard to public health
and safety or to neighboring dwelling house, school, church, hospital, commercial or
industrial building, public road or other property, excluding matters related to use of a
public road.
• Michael Taylor (Ph. D. Pharmacology and Toxicology; Board Certified Inhalation
Toxicologist) testified that the proposed quarry expansion will cause an inevitable
increase in toxic exposure to PM 2.5 and crystalline silica which is known to cause
cancer and other respiratory toxicity.
• Leah Ranney (Ph. D.; M.A., Associate Research Faculty Member of Family
Medicine at UNC Chapel Hill) testified that based on the magnitude of Wake Stone's
operation, the expansion of this mine will cause severe adverse health effects in the
surrounding area.
• Bill Padgett (Graduate Studies in Physical Chemistry and Advanced Degrees in
Electrical Computer Engineering and Education) testified that quarry dust (PM 2.5)
exposure can cause severe health issues.

• Mary Theresa Scott (M.S. Health Care Consulting; Member of Building Biology
Institute) testified that, based on her research and experience, the proposed quarry
expansion will have negative effects on indoor air and water quality in the area
surrounding the mine.
• Rob Drew (North Carolina Licensed Professional Engineer) testified that he has been
studying existing quarry's seismic impact and air pollution. The results corroborate other
speakers' claims about air quality and that blasts can be felt by neighboring properties.
• Bob Schmitz (M.D.) testified that in his opinion allowing a mining operation so close to
a public park is extremely unsafe and detrimental to the physical safety of park users.
• Tamara and Randal Dunn (Residents of 2232 Old Reedy Creek Road — Less than
300 ft. from Proposed Quarry) testified that they regularly experience vibrations and
shaking at their home as a result of Wake Stone's existing triangle quarry. Expanding
this blasting, and moving it to the surface, within 200 feet from their home constitutes a
direct and substantial physical hazard to their health and safety. (note: blasting experts
speaking on behalf of Wake Stone acknowledged that homes within 500 ft. of blasting
may experience negative effects from blasting).
• Betsy Beals (Owner of 2300 and 2335 Old Reedy Creek Road) testified that she has
lived on Reedy Creek Rd. since 1966 and the proposed quarry expansion poses serious
dangers to her home. Ms. Beal stated further that she is concerned about the impact the
proposed quarry expansion will have on her drinking water supplied by a well on her
property.
5. The operation will have a significantly adverse effect on the purposes of a publicly
owned park, forest, or recreation area.
• Noral Stewart (Ph.D. Mechanical Engineering and Textiles; FASA; FASTMA;
INCE; Senior Principal Consultant with Stewart Acoustical Consultants) filed
written evidence and testified that, based on his professional expertise, the proposed
quarry expansion will have significant adverse noise impacts on Umstead State Park. Mr.
Stewart further testified that based on his significant experience evaluating mining permit
applications and noise mitigation plans, Wake Stone's noise control measures (or lack
thereof) outlined in the Permit are inadequate and fail to contemplate the use of modern
noise control and noise measuring devices. Mr. Stewart testified further that the
proposed 15 ft. berms in the Permit Application are insufficient and will have little sound
reducing benefit and that truck traffic noise could propagate down the creek and into
Umstead State Park. Crabtree Creek presents a challenge as it creates a gap in any berm
protection plan. Sound from trucks crossing the bridge and possibly other sound could
propagate down the channel created by the creek valley reflecting from the water in the
creek. The mining permit application is devoid of an adequate noise mitigation plan.

• Wiley Nickel (North Carolina State Senator, District 16 Representative [which
covers the Umstead State Park and Oddfellows Tract]) testified that the
decisionmakers thus far have ignored and silenced the voice of the people on this matter.
He stated that the proposed quarry poses obvious and directly adverse effects upon
Umstead State Park and the surrounding wildlife and wetlands. He further testified that
the proposed expansion will cause health dangers to local residents and business owners
due to blasting and pollution and that approval of the permit would set a destructive
precedent in NC as the first private rock quarry on public land.
• David Bertram (Licensed Professional Engineer) testified that as an engineer, it is an
absurd proposition to place a quarry directly beside a public park and expect that it will
not have detrimental environmental and pollution impacts.
• David Cox (Current Raleigh City Council Member [District B]) testified that based
on his understanding the Permit Application should not be issued because there is
pending litigation about RDU AA's authority to engage in the Lease without approval of
the owning municipalities.
• Mark Stohlman (Former Mayor of Morrisville) testified that, based on his experience,
the proposed quarry expansion will have significant adverse effects on nearby greenway
trails that the Town of Cary and Town of Morrisville have invested tens of millions of
dollars in, including the Black Creek, Hatcher Creek, and Crabtree Creek trails.
• Lorraine King (Ph.D.; RAC) testified that a mining operation located so close to a
public park poses significant health risks and runs contrary to Umstead State park's goal
of providing a venue for healthy recreational activities.
• Mark Springfield (J.D.) testified that based on his legal experience, DEMLR's decision
should focus on the language of subsection (d)(5). Unlike other denial criteria which
may require expert testimony, impacts on the park may be perceived and testified to by
all individuals with personal experience at the park. He further stated that scarring,
drilling, and exploding the land that abuts Umstead, and flows directly into the creek that
flows through Umstead is significantly adverse to the purpose of keeping the Umstead
are pristine and free of developmental encroachment.
• Blake Burgher (J.D.) testified that under NC law "park lands are to be used by the
people of this state and their visitors in order to promote understanding of and pride in the
natural heritage of this state." NCGS 113-44.8. Mining directly beside a state park is
antithetical to promoting the natural heritage of the neighboring state park. Approving
this permit would be like putting a quarry in Central Park.
• Caroline Lalla (Umstead Coalition Board Member and Member of Sierra Club
Capital Group Executive Committee) testified that the enhanced security fence planned
for installation along the Old Reedy Creek Rd. Greenway, its lack of sufficient property

buffers, and negative impact on wildlife are more than sufficient grounds for denial of the
mining permit because this recreational corridor is the official connection to several local
greenways and parks.
• Drew Ball (Director of Environment North Carolina) objected to the approval of the
Permit Application on behalf of more than 10,000 members that love and regularly use
Umstead.
• Caroline Leonowens (Ph.D. Pharmaceutical Studies) testified that locating a quarry so
close to a public park is detrimental to the health of park visitors and antithetical to the
park's purpose of providing healthy outdoor space.
• Jeff Wald (M.D.) testified that he lives on Reedy Creek Road (2 miles from existing
quarry) and is highly concerned regarding the dramatically decreased size of undisturbed
buffer areas and surface mining associated with initial stages of the new mining pit will
increase the already very bad noise problem near his home and in Umstead Park.
• The North Carolina Division of Parks and Recreation noted that it has many concerns
regarding the proximity of the proposed operation to Umstead State Park. These concerns
include noise, sedimentation, water quality, dust and air quality, truck traffic, blasting,
loss of wildlife, and park expansion.
6. Previous experience with similar operation indicates a substantial possibility that the
operation will result in substantial deposits of sediment in stream beds or lakes,
landslides, or acid water pollution.
• Jean Spooner (Ph.D. Soil Science; Chair of the Umstead Coalition; Professor
Emerita at N.C. State University) testified that she has personally witnessed specific
harms to air quality and water quality caused by Wake Stone's existing Triangle Quarry
and how those harms will be magnified by the proposed expansion. Violations of the
undisturbed buffers have and are still occurring on the existing quarry. The proposed
unexcavated buffers on the Odd Fellows site offers little protection to the streams,
wetlands, and to William B. Umstead State Park.
• Kris Bass (Licensed Professional Engineer; Principal of Kris Bass Engineering, a
leading stormwater and environmental engineering firm) testified that, based on 20+
years in stream and river restoration experience, the proposed quarry expansion will
create significant additional stormwater and sediment runoff into Crabtree Creek and that
the stormwater control mechanisms proposed in the Permit Application are inadequate to
handle the additional runoff. This project will permanently alter the watersheds to at least
four streams, and the future pit perimeter directly overlaps two of them. The only portion
of the documentation that even mentions these streams is a grand total of 3 written pages
and makes unsubstantiated conclusions based on limited data and incorrectly applied

methods. Every part of this application and the supporting data feels irresponsible,
unprofessional, and dismissive of our stream and buffer protection rules.
• Kenneth Shuster (North Carolina Licensed Professional Engineer) testified that
based on 38 years working with NC government, the dewatering of the buffer zone along
Crabtree Creek will have severely negative impacts to the creek itself and Umstead Park.
Wake Stone's hydrogeologic study submitted with the Mining Permit request "was
quickly put together with little samples of surface and ground waters. In addition, the
brief sampling that was conducted indicates a net reduction of flow in Crabtree Creek
may result due to the 2 deep pits on either side of Crabtree Creek. This would result in a
problem for the Town of Cary discharge limits from the Reclamation Plant. He
highlighted sever inconsistencies and concerns with their current NPDES Stormwater
Permit.
• Holly Neal (Former Employee of Umstead State Park Visitor's Office) testified that
based on her own personal knowledge, sediment runoff from Wake Stone's existing
Triangle Quarry already flows into Umstead Park, surrounding streams, and into Crabtree
Creek. She stated that "even with no rain, the streams flowing from the existing quarry
into Umstead State Park and then into Crabtree Creek runs very cloudy white. And,
when the discharge stream is solid white and enters Crabtree Creek, the white plume
remains in Crabtree Creek within Umstead State Park for over 1 mile following the
popular Company Mill Trail, all the way to the historic Company mill site on Crabtree
Creek.
• Mark Durrett (B.S. Software Engineering) that past experience shows detrimental
effects on surrounding creeks, citing the 1992 Notice of Mine Permit Deficiency Memo
where DLR described the blasting accident that occurred at the current Triangle Quarry,
causing a rockslide to almost completely covered 90% of Crabtree Creek.
• Maria Cervania (Public Health Professional and Candidate for Wake County
Commissioner) testified that allowing this permit will inhibit municipalities' ability to
complete biking trails as planned. 100-foot buffer was not properly measured from the
bank of the river. Instead it was measured from center, which increases likelihood of
another 1992 landslide.