20231031 - Settlement Agreement - fully executed, 4869-2553-7677

DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783BO01DA
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 23 CV 024626-910 and
23 CV 028002-910
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY,
DIVISION OF ENERGY, MINERAL, AND LAND
RESOURCES,
PETITIONER,
SETTLEMENT AGREEMENT
V.
WAKE STONE CORPORATION,
RESPONDENT.
Wake Stone Corporation ("Wake Stone") and the North Carolina Department of
Environmental Quality ("Department"), Division of Energy, Mineral, and Land Resources
("Division")(collectively referred to as"the Parties"),hereby enter into this Settlement Agreement
("Agreement") in order to resolve matters in controversy between them.
BACKGROUND
The underlying controversies arose out of the Division's February 17, 2022 denial of the
application submitted by Wake Stone to the Division for a modification to Mining Permit No. 92-
10. Upon a petition for contested case hearing by Wake Stone, the matter was litigated before an
administrative law judge("ALJ"). Wake Stone Corp. v.N.C. Dept. of Env. Quality,Div. of Energy,
Mineral, & Land Resources, 22 EHR 00952. The ALJ issued a final decision ("Final Decision")
on August 11, 2023. Following the Final Decision, on September 11, 2023 the ALJ ordered ("Fee
Order") the Division to pay attorney and witness fees and costs to Wake Stone in the amount of
$878,966.58.
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DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783B001DA
The Division separately petitioned for judicial review by Wake County Superior Court of
the Final Decision and the Fee Order.N.C. Dept. of Env. Quality, Div. of Energy, Mineral, &Land
Resources v. Wake Stone Corp., 23 CV 024626-910 (Final Decision);N.C. Dept. of Env. Quality,
Div. of Energy, Mineral, &Land Resources v. Wake Stone Corp., 23 CV 028002-910(Fee Order).
Those petitions are currently pending.
AGREEMENT
In order to avoid the cost and delay of additional litigation, the Parties have entered into
this Agreement in good faith and IT IS THEREFORE AGREED BY THE PARTIES AS
FOLLOWS:
1. WITHDRAWAL OF PETITIONS: Within seven calendar days following the
effective date of this Agreement, the Division shall withdraw with prejudice both petitions for
judicial review currently pending before the Wake County Superior Court in the matters numbered
23 CV 024626-910 and 23 CV 028002-910.
2. SETTLEMENT OF FEES AND COSTS: In full settlement of the Fee Order, the
Division shall pay the amount of five hundred thousand dollars ($500,000.00) ("Settlement
Amount") to Wake Stone in accordance with the terms set forth below:
a. TIMING OF PAYMENT(S): Full payment by the Division to Wake Stone shall be
completed on or before the end of the current fiscal year(June 30, 2024).
b. METHOD OF PAYMENT: Payment(s) shall be made by money order or check
made payable to Wake Stone Corporation and delivered to the following address:
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DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783B001DA
By hand delivery or courier: By US Mail:
Wake Stone Corporation Wake Stone Corporation
Attn: Thomas Oxholm Attn: Thomas Oxholm
6821 Knightdale Blvd. PO Box 190
Knightdale,NC 27545 Knightdale,NC 27545
c. OTHER FEES AND COSTS: Except as specified in this Agreement, each Party
shall bear its own fees and costs with respect to the above-referenced litigation.
d. AVAILABILITY OF FUNDS: Any and all payments to Wake Stone shall be
dependent upon and subject to the availability of funds appropriated or allocated to
the Division that may be lawfully used for the purpose set forth in this Agreement.
3. RELEASE OF CLAIMS BY WAKE STONE: Wake Stone hereby fully releases
and forever discharges any and all claims, damages, demands, actions or causes of action, or suits
at law or in equity of whatever kind or nature, whether based upon any legal or equitable theory
of recovery, known or unknown, past or present, suspected to exist or not suspected to exist,
anticipated or not anticipated, which have arisen or are now arising against the Division in
connection with the above-referenced litigation and above-referenced permit modification
application process and decision, including without limitation: all claims by whatever name called
arising under any federal, state, or local constitution, statute, enactment, common law, rule,
regulation, or order; all issues that could be raised under the Administrative Procedure Act through
a contested case or otherwise; all claims by whatever name called that are adjudicated by a federal
or state court, administrative law judge, or administrative agency; all attorneys fees, witness fees,
or costs pursuant to N.C. Gen. Stat. § 15013-33, N.C. Gen. Stat. § 6-19.1, or otherwise; and all
claims which could be brought under the North Carolina Tort Claims Act. The release set forth in
the previous sentence shall also cover any employee, agent, representative, or contractor of the
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DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783B001DA
Division or Department in that person or entity's official and individual capacity. Nothing in this
section shall release the Division or Wake Stone from any obligation under this Agreement and
the release in this section shall not be asserted by the Division against any claim asserted by Wake
Stone alleging breach of the Agreement by the Division.
4. NO ADMISSION OF LIABILITY: This Agreement is not to be construed as an
admission of any liability under, or violation of, any federal, state, or local constitution, statute,
enactment, rule, regulation, or common law, or any duty owed by the Division or Wake Stone.
5. CONSIDERATION: The promises and obligations made by Wake Stone in this
Agreement, including but not limited to those set forth in Paragraphs 2 and 3, are made in
consideration for the promises and obligations of the Division in this Agreement,including but not
limited to those set forth in Paragraphs 1 and 2.
6. RULE 408: The Parties specifically intend that this Agreement is a mutually
accepted offer of valuable consideration in compromise of pending claims as contemplated in Rule
408 of the North Carolina Rules of Evidence.
7. NO LIMITATION OF ENFORCEMENT:Nothing in this Agreement shall restrict
the right of the Division to inspect or take enforcement action against Wake Stone for any new or
existing violations of the Mining Act of 1971, N.C. Gen. Stat. § 74-46 et seq., permit conditions,
statutes, enactments, or rules promulgated thereunder. Similarly, nothing in this Agreement shall
restrict Wake Stone's right to contest any new or subsequent enforcement or permitting action
taken by the Division under the Mining Act.
8. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the Parties
and their successors and assigns.
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DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783B001DA
9. REPRESENTATION OF AUTHORITY: The undersigned represent and warrant
that they are authorized to enter into this Agreement on behalf of the Parties hereto.
10. NO DETERMINATION: This Agreement shall not be construed to be a
determination on the merits of any factual allegations or legal claims advanced by any parry to the
above-referenced litigation.
11. MUTUALITY OF DRAFTING: The Parties acknowledge that this Agreement was
jointly drafted and that there should be no presumptions against any Party as the drafter of the
Agreement.
12. AGREEMENT CONTINGENT ON APPROVAL: This Agreement shall not be
final and effective until the date upon which it is approved by the North Carolina Attorney
General's Office. In the event this approval is not obtained within sixty days of the execution of
this Agreement, the obligations of all Parties shall be dissolved.
13. EFFECTIVE DATE: Except as provided in paragraph 12, this Agreement shall
become effective upon execution by both Parties. In the interests of time and efficiency, the
signature pages may be delivered separately to the Parties. Scanned and e-mailed execution are as
valid as original execution. Thereafter, all copies of the Agreement and executed signature pages
shall constitute an original. However, in making proof with respect to this Agreement it will be
necessary to produce only one copy hereof signed by the Party to be charged.
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DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783BO01DA
Page 6 of 7

FOR WAKE STONE CORPORATION FOR THE NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIVISION OF ENERGY,
MINERAL,AND LAND RESOURCES
Thomas B. Oxholm «.� -_Vi ft, ��
Title: Executive Vice President Title: QG a0.2
7
T�
Date: Date:
Page 6 of 6

DocuSign Envelope ID:7648DOD1-5F32-402B-AOBF-D34783B001DA
FOR WAKE STONE CORPORATION FOR THE NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIVISION OF ENERGY,
MINERAL, AND LAND RESOURCES
mDocuSigned bb 0 `
604.
1293542829E743D...
Thomas B. Oxholm
Title: Executive Vice President Title:
10/26/2023 1 17:06:22 EDT
Date: Date:
Page 7 of 7

N*C REPLY TO: CAROLYN McLAIN
JOSH STEIN ENVIRONMENTAL DIVISION
ATTORNEY GENERAL TEL:[phone]
FAx:[phone]
MEMORANDUM
To: Wake Stone file
From: Carolyn McLain
Assistant Attorney General
Re: N.C. Dept. of Envtl. Quality, Div. of Energy, Mineral, & Land Resources v.
Wake Stone Corp., 23 CV 024626 and 028002 (Wake Super. Ct.)
Date: November 7, 2023
This memorandum regards the effective date of the Settlement Agreement in
the above-referenced matter.
The Division of Energy, Mineral, and Land Resources executed the
Agreement on October 31, 2023. Wake Stone Corporation's signature on the
Agreement is dated October 26, 2023. Despite that signature date, Wake Stone
represented that it was not authorized to release the signature until November 6,
2023. Wake Stone did not communicate to the Division until November 6, 2023,
that it had signed the Agreement, and did not transmit its signature until that date.
Wake Stone has represented that the effective date of the Agreement is November
6, 2023. See Email from H. Wells, Ward & Smith, P.A., to C. McLain, N.C. Dept.
of Justice (Nov. 7, 2023) (attached).
Accordingly, the Division may treat the Agreement as having an effective date
of November 6, 2023.
WWW.NCDOJ.GOV 114 W.EDENTON STREET,RALEIGH,NC 27603 919.716.6400
P.O.Box 629,RALEIGH, NC 27602-0629

From: Hayley R.Wells
Sent: Tuesday, November 7, 2023 10:06 AM
To: McLain,Carolyn;Charles Ellis
Cc: Peterson, Kyle; Bernstein, arc
Subject: RE:Wake Stone
Carolyn,
Effective date is yesterday. He signed before going out of town, but we had to receive
authorization before we could release the signature.
Thanks for checking.
Hayley
Hayley R. Wells
Attorney
Ward and Smith, P.A.
82 Patton Avenue,Suite 300(28801)
Post Office Box 2020
Asheville,NC 28802-2020
P:828.348.6018 1 F 828.348.6077 1 M:828.450.3489
www.wardandsmith.com
Cam)Le eune'Alater Contamination Law,suit-Informnation nalm
If you have received this confidential message in error,please destroy it and any
attachments without reading,printing,copying or forwarding it. Please let us know
of the error immediately so that we can prevent it from happening again.You may
reply directly to the sender of this message.Neither the name of Ward and Smith,
P.A.or its representative,nor transmission of this email from Ward and Smith,P.A.,
shall be considered an electronic signature unless specifically stated otherwise in
this email by a licensed attorney employed by Ward and Smith,P.A.Thank you.
From: McLain, Carolyn<[e-mail]>
Sent:Tuesday, November 7, 2023 10:04 AM
To:Charles Ellis<ACf,@wardanc1smith.com>; Hayley R.Wells<HRW@warc1andsrnithcorn>
Cc: Peterson, Kyle<kpgterso ncdoj.ggv>; Bernstein, Marc<Mbernsteipfa1g dojggv>
Subject: Re:Wake Stone
Hayley and Charles,
I was looking at the agreement this morning and it appears that Tom Oxholm's
electronic signature is dated 10/26. Is that correct or was that to in error?
Because we were not informed of your signature until yesterday, we believe that
the effective date of the agreement should be yesterday. Can you please confirm
that the effective date of the agreement is yesterday, 11/6?
Thanks,
Carolyn

From: McLain, Carolyn<C cLain nc oj.ggv>
Sent: Monday, November 6, 2023 6:01 PM
Charles Ellis< CE wardandsmith.corn>; Hayley R. Wells<HRW wardandsmith.coM>
: Peterson, Kyle< Peterson ncdo .gQv>; Bernstein, Marc< bernstein ncdoj.gQv>
Subject: Re:Wake Stone
Thank you!
Best,
Carolyn
From:Charles Ellis< CE wardandsmith.com>
Sent: Monday, November 6, 2023 5:51 PM
o: Hayley R. Wells<HRW wardandsrnith.corn>
c: McLain, Carolyn <C cLain ncdo .g v>; Peterson, Kyle<kpeterson ncdo.go >; Bernstein,
Marc<Mbernstein n�dpjmg v>
Subject: Re:Wake Stone
I echo that. Thanks to all of you.
Sent from my iPhone
Charles Ellis
Attorney
Ward and Smith, RA.
Post Office Box 80881 Greenville,NC 27835-8088
Overnight Delivery:
120 West Fire Tower Road I Winterville,NC 28590
P:252.215.4007 1 F:252.215.4077( M:252.714.1839 ��
www.wardandsmith.com
Camp Leie ne Water Contamination Lawsuit information
If you have received this confidential message in error,please destroy it and any
attachments without reading,printing,copying or forwarding it.Please let us know
of the error immediately so that we can prevent it from happening again.You may
reply directly to the sender of this message.Neither the name of Ward and Smith,
P.A.or its representative,nor transmission of this email from Ward and.Smith,P.A.,
shall be considered an electronic signature unless specifically stated otherwise in
this email by a licensed attorney employed by Ward and Smith.,P.A.Thank you.
Can Nov 6, 2023, at 5:44 PM, Hayley R.Wells<H W Wardandsmith.com>wrote:
Thanks Carolyn.Attached is the fully executed agreement.Thanks to each of you for
your help in bringing this matter to a resolution.
Sincerely,
Hayley

From:McLain, Carolyn<C cLainncdomggv>
Sent:Wednesday, November 1, 2023 12:08 P
Hayley R.Wells<HR wardansrith.cor >;Charles Ellis
<A a wardandsrnith.co >
c: Peterson, Kyle< petersonncdojmgpv>; Bernstein, Marc
< bernstein ncdojmgv>
Subject:Wake Stone
Hayley and Charles,
Please see attached the signature page with DEMLR`s execution completed.
Thanks,
Carolyn
<image001.png> Carolyn McLain (she/her)
Assistant Attorney General
Environmental Division
Phone:[phone]
Email: cmclain ncdoj. ®v
114 W. Edenton St., Raleigh, NC 27603
ncdoj.g v
Please note messages to or from this address may be public
records.
<2023.10.31-Settlement Agreement-fully executed,4869-2553-7677.pdf>