20230811 OAH Wake Stone Final Decision

FILED
OFFICE OF ADMINISTRATIVE HEARINGS
08/11/2023 2:21 PM
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 22 EHR 00952
Wake Stone Corporation
Petitioner,
V.
FINAL DECISION
North Carolina Department of Environmental
Quality, Division of Energy Mineral &Land
Resources
Respondent.
THIS MATTER came on for hearing before the Undersigned, Donald van der Vaart,
Chief Administrative Law Judge, on February 14-16 and February 19-22, 2023, at the Office
of Administrative Hearings in Raleigh,North Carolina.
APPEARANCES
Petitioner: A. Charles Ellis, Esq.
Hayley R. Wells, Esq.
Ward and Smith, P.A.
Post Office Box 8088
Greenville,North Carolina 27835
Respondent: Marc Bernstein, Esq., Special Deputy Attorney General
Carolyn McLain, Esq., Assistant Attorney General
Kyle Peterson, Esq., Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh,North Carolina 27699-9001
ISSUES
1. Whether Respondent substantially prejudiced Petitioner's rights and exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or
capriciously, and/or failed to act as required by law or rule in denying Petitioner's application to
modify Mining Permit 92-10.
2. Whether Respondent substantially prejudiced Petitioner's rights and exceeded its authority
or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or
capriciously, and/or failed to act as required by law or rule in failing to appropriately delegate

the Secretary's authority under the Mining Act of 1971 to Brian Director Wrenn to grant or deny
Petitioner's application to modify Mining Permit 92-10.
3. Whether Respondent substantially prejudiced Petitioner's rights and acted arbitrarily or
capriciously, thus entitling Petitioner to an award of reasonable attorneys' fees under N.C. Gen.
Stat. § 150B-33(b)(I1).
APPLICABLE STATUTES AND CASES
N.C. Gen. Stat. § 150B-2 et seq.
N.C. Gen. Stat. § 74-46 et seq.
N.C. Gen. Stat. § 14313-10(a)
Stark v. N.C. Dept of Env't and Natural Res.
Sound Rivers, Inc. v. N.C. Dept of Env't Quality, Div. of Water Res.
Westmoreland v. High Point Healthcare, Inc.
Lewis v. N.C. Dept of Human Res. Godfrey v. Zoning Bd. of Adjustment
Sanchez v. Town of Beaufort
State off.C. v. Hudson
Weaverville Partners, LLC v. Town of Weaverville Zoning Bd. of Adjustment Motor Vehicle
Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
Appalachian Voices v. U.S. Dept of Interior Amanini v. N.C. Dept of Human Res.
Yarborough v. Hughes Praxair, Inc. v. Airgas, Inc.
Sunbelt Rentals, Inc. v. Head&Engquist Equip., L.L.C.
Sun Suites Holdings, LLC v. Bd. of Aldermen of Garner
EXHIBITS
Petitioner: The following exhibits were admitted by Petitioner into evidence at the hearing:
Pet. Ex. 1 Notice of Taking Deposition—David Miller
Pet. Ex. 2 NC Mining Act,N.C.G.S. §§ 74-46 et seq.
Pet. Ex. 3 NC Surface Mining Manual
Pet. Ex. 4 Mining Program Public Hearing Presentation
Pet. Ex. 5 Modification Application
Pet. Ex. 6 2020.04.23 Email thread re Wake Stone info request and D. Miller's
response of no violations recorded
Pet. Ex. 7 2020.05.07 Email thread between D. Miller and Judy Wehner re:joining
the interviews
Pet. Ex. 8 Email from Brian Director Wrenn to Sheila Holman re approximate
timelines for 2 scenarios and Attachment to 2020.04.15 Email from Brian
Director Wrenn re Time Frames for Review
Pet. Ex. 9 2020.07.23 Additional Information Request(ADI)Pet.
Pet. Ex. 10 Response to ADI Request letter dated 2020.07.23
Pet. Ex. 11 Response to Item#20 ADI Request letter dated 2020.07.23
Pet. Ex. 12 2020.09.22 Email from D. Miller re "Wake Stone noise study, my propose
(sic)reply to the Park"
2

Pet. Ex. 13 2020.09.11 Email from Brian Strong to D. Miller re Noise Study for Wake
Stone
Pet. Ex. 14 2020.12.02 Email from D. Miller re draft timeline for Wake Stone and
Attachment Draft Timeline
Pet. Ex. 15 2020.11.04 DEMLR approval of Wake Stone noise study protocol with
additional conditions and, Email from D. Miller to S. Bratton re
transmittal of noise study letter
Pet. Ex. 16 2021.02.12 Email from D. Miller to T. Vinson re transmittal of final Wake
Stone Quarry Expansion Acoustical Study(2-11-21) and Attachment
(Final Report on Triangle Quarry expansion)
Pet. Ex. 17 2021.02.10 Additional Information Request(ADI)
Pet. Ex. 18 2021.02.25 Letter from D. Miller to S. Bratton re Triangle Quarry Draft
Noise Study
Pet. Ex. 19 2021.02.25 Email from David Lee to D. Miller re Wake Stone Triangle
Quarry Expansion Acoustical Study (2-11-21) (report illustrated as draft)
Pet. Ex. 20 2021.03.22 Letter to D. Miller from Wake Stone re supplemental
information to pending Mining Permit Modification Application and
attachment of Wake Stone Triangle Quarry Expansion Acoustical Study
Pet. Ex. 21 2021.05.13 Email from D. Miller to C. Atkins re noise study questions
plus some other little things
Pet. Ex. 22 2021.03.26 Letter from Noral D. Stewart, Ph.D. on behalf of Umstead
Coalition to B. Director Wrenn and David Miller re comments on noise of
Wake Stone Quarry Expansion at Umstead Park—draft Wake Stone
Triangle Quarry Expansion Acoustical Study
Pet. Ex. 23 2021.04.14 Additional Information Request(ADI)
Pet. Ex. 24 2021.04.30 Wake Stone response to ADI Request dated 2021.04.14
Pet. Ex. 25 2021.05.24 Additional Information Request(ADI)Pet.
Pet. Ex. 26 2021.05.25 Memorandum to B. Director Wrenn from E.
Thalheimer(WSP)re Wake Stone Quarry Noise
Pet. Ex. 27 2021.07.06 Additional Information Request(ADI)
Pet. Ex. 28 2021.07.26 Additional Information Request(ADI)
Pet. Ex. 29 2021.08.12 Wake Stone Response to ADI Requests dated 2021.05.24;
2021.07.06; and 2021.07.26
Pet. Ex. 30 2021.09.09 Additional Information Request(ADI)
Pet. Ex. 31 2021.11.01 Wake Stone Response to ADI Request dated
09.09.2021
Pet. Ex. 32 2022.01.21 Letter to D. Miller from D. Lee enclosing 2 printed copies of
Neuse River Waterdog Survey Report and attachment(Meuse River
Waterdog Survey)
Pet. Ex. 33 2021.01.07 [sic] Letter to Brian Director Wrenn from Pete Benjamin
(USFWS)re consultation complete on Neuse River Waterdog
Pet. Ex. 34 2022.01.11 Email thread between D. Miller and Josh Kastrinsky re
comments to DEMLR re Neuse River Waterdog and proposed expansion
Pet. Ex. 35 DEMLR Weekly Update dated 01.05.2022
Pet. Ex. 36 2022.01.17 Email from D. Miller to D. Lee re RDU clock
Pet. Ex. 37 2022.01.18 Email from J. Ellis to D. Lee and D. Miller Fwd RDU clock
3

Pet. Ex. 38 2022.01.18 Email from A. Parr to D. Miller re 92-10 Triangle Quarry Mod
—FWS Letter
Pet. Ex. 39 2022.01.20 Email from B. Director Wrenn to John Ellis re FWS comments
to DEMLR re Neuse River Waterdog and proposed exp. of Triangle
Quarry
Pet. Ex. 40 Draft permit dated April 2021; Parr listed as author
Pet. Ex. 41 2021.05.14 Email from D. Miller to B. Director Wrenn re Wake Stone
draft permit is in the Mining doc. section of Teams, under 92-10
Pet. Ex. 42 2021.05.19 Email from D. Miller to D. Lee re does the South pit at
Triangle/RDU have a name?
Pet. Ex. 43 2021.08.25 Email from D. Miller to T. Vinson re permit review
Pet. Ex. 44 Analysis re application of a safety factor
Pet. Ex. 45 2021.09.08 Draft permit
Pet. Ex. 46 2021.09.07 Email from D. Miller to J. Kastrinsky re For Review: Wake
Stone decision release
Pet. Ex. 47 2021.09.07 Email from J. Kastrinsky to D. Miller re Review of Wake
Stone decision release and Attachment: Draft press release—2021.09.10
DEMLR issues modification for Wake Stone Quarry permit
Pet. Ex. 48 2022.01.18 Chat between D. Miller and B. re draft permit conditions
Pet. Ex. 49 2020.05.08 Letter from Dwayne Patterson of Div. of Parks and Rec. to B.
Director Wrenn re Wake Stone expansion
Pet. Ex. 50 2022.02.17 Denial Letter
Pet. Ex. 51 2022.02.17 Attachment to Denial Letter—Memo from Brian Director
Wrenn re Modification Application Denial
Pet. Ex. 52 2020.06.23 D. Miller draft letter re Mining Act jurisdiction
Pet. Ex. 53 Umstead State Park Map
Pet. Ex. 54 Umstead State Park Map with notation by D. Miller
Pet. Ex. 55 Printout from North Carolina State Parks'website regarding Park Rules
Pet. Ex. 56 D. Miller visibility "study" on Wake Stone's proposed "North pit at RDU"
conducted 2022.01.04
Pet. Ex. 57 2022.01.05 Email from D. Lee to D. Miller re Umstead Coalition
"rendering"
Pet. Ex. 58 2022.01.20 DEMLR PPT Report—Wake Stone Triangle Quarry
Pet. Ex. 59 2020.04.23 Email from J. Wehner to D. Miller re DOT contact
Pet. Ex. 60 2020.04.23 Email from J. Wehner to B. Director Wrenn re DOT contact
Pet. Ex. 61 Mining Review from June 2021; 2021.08.25 cover email from D. Miller to
T. Vinson re Permit Review
Pet. Ex. 62 2022.02.25 Mining Review
Pet. Ex. 63 2021.08.20 Email from B. Director Wrenn to D. Miller re request DEQ
action on unanswered ADI comments from Wake Stone and request to add
these comments to the public record
Pet. Ex. 64 2022.01.28 Email from D. Miller to B. Director Wrenn re Mining Permit
Application 92-10: formal complaint
Pet. Ex. 65 2022.02.10 Email from K. Summers to D. Miller re Wake Stone
inspection report 02.02.2022 and Attachment: Mine Inspection Report
Pet. Ex. 66 2020.05 Draft letter from J. Wehner re Mining Act jurisdiction
4

Pet. Ex. 67 2020.10.13 Email from B. Director Wrenn to Chris Rivenbark re noise
study expert
Pet. Ex. 68 2020.10.13 Email from C. Rivenbark to B. Director Wrenn re noise study
expert
Pet. Ex. 69 2020.10.13 Email from B. Director Wrenn to Missy Pair re noise study
review
Pet. Ex. 70 2020.10.15 Email from M. Pair to B. Director Wrenn re noise study
review
Pet. Ex. 71 2021.09.01 DEMLR leadership meeting notes
Pet. Ex. 72 2021.09.02 Public Affairs meeting notes
Pet. Ex. 73 2021.09.07 Email from J. Kastrinsky to B. Director Wrenn re For Review:
Wake Stone decision release
Pet. Ex. 74 2021.09.27 Email from D. Miller to Bill Denton re Wake Stone Permit
concerns
Pet. Ex. 75 2022.01.20 Email from B. Director Wrenn to T. Vinson re Mining Permit
Application 92-10, Formal Complaint
Pet. Ex.75A Respondent's Supplemental Response to Petitioner's First Set of Discovery
Requests to Respondent
Pet. Ex. 76 2022.01.18 Email from A. Parr to D. Miller re 92-10 Triangle Quarry Mod
—FWS Letter
Pet. Ex. 77 2021.07.01 Email from A. Parr to D. Miller re Wake Stone ADI Items
Pet. Ex. 78 2022.01.06 Email from G. Johnson to B. Director Wrenn re Permit
Modification 92-10 Wake Stone
Pet. Ex. 79 Noral D. Stewart CV, Page 1
Pet. Ex. 80 Noral D. Stewart—Trial and Deposition Testimony Experience
Pet. Ex. 81 NC DOJ Expert Services Agreement
Pet. Ex. 82 2020.07.13 Letter from N. Stewart Acoustical Consultants to Brian
Director Wrenn and Daniel Sams re comments on noise of Wake Stone
Quarry Expansion at Umstead Park
Pet. Ex. 88 2020.07.02 Applicant Statement from Wake Stone including 1999.08.06
Letter from the Umstead Coalition re Wake Stone
Pet. Ex. 89 2021.03.12 Wake Stone Acoustical Study
Pet. Ex. 90 Erich Thalheimer CV
Pet. Ex. 91 William B. Umstead State Park General Management Plan
Pet. Ex. 92 Conceptual Bird's Eye Perspective Maps (Zac Pierce Dep Ex. 29)
Pet. Ex. 93 Survey—Yellow Dot Path Pet. Pet. Ex. 96 Map of General Area
Pet. Ex. 97 2020.09.02 Email re Noise Study Protocol with attachment Memorandum
Pet. Ex. 98 Triangle Quarry Mining Permit No. 92-10 Modification Application Site
Plans and E&SC Plan
Pet. Ex.100 Samuel Telfair Bratton CV Pet. Pet. Ex.101 Video 1 —IMG_5675.MOV
Pet. Pet. Ex.102 Video 2—IMG_5676.MOV Pet. Pet. Ex.103 Video 3 —
IMG_5677.MOV
Pet. Ex.111 Wake Stone Corporation Awards and Honors
Pet. Ex.112 2022.02.15 Letter from S. Bratton to B. Director Wrenn re Mining Permit
Modification Application
Pet. Ex.113 Photo—Restricted Area Sign
5

Pet. Ex.117 Photo—What Would a Million Trails Through the Park Look Like
Pet. Ex.118 Map of William B. Umstead Park and informational text
Pet. Ex.120 Map of North Carolina Mining Permits
Pet. Ex.121 2022.01.03 Email from D. Lee to S. Bratton re Triangle Quarry Crabtree
Creek Bridge Buffer Authorization
Respondent: The following exhibits were admitted by Respondent into evidence at the hearing:
Resp. Ex. 3 Email from Will Letchworth, WSP USA, Inc. to Sam Bratton, Wake
Stone, et al (Aug. 19, 2020)
Resp. Ex. 6 WSP USA, Inc., Wake Stone Triangle Quarry Expansion Acoustical Study
(Mar. 12, 2021) (color version)
Resp. Ex. 7 Memo from Erich Thalheimer, WSP USA, Inc. to Sam Bratton, Wake
Stone (Aug. 9, 201) (color version)
Resp. Ex. 8 WSP USA, Inc., Wake Stone Triangle Quarry Expansion Acoustical Study
(Feb. 11, 2021)
Resp. Ex. 9 USDOT FHA, Highway Traffic Noise: Analysis and Abatement Guidance
(Dec. 2010)
Resp. Ex. 10 US EPA, Office of Noise Abatement and Control, Information on Levels
of Environmental Requisite to Protect Public Health and Welfare with an
Adequate Margin of Safety(Mar. 1974)
Resp. Ex. 11 FERC Guidance Manual for Environmental Report Preparation (Feb.
2017) (Excerpt)
Resp. Ex. 13 NC DOT Traffic Noise Manual (Oct. 6, 2016)
Resp. Ex. 14 Mass DEP Code of Massachusetts Regulations, 310 C.M.R.7.00, 7.09
(excerpted)
Resp. Ex. 15 Commonwealth of Massachusetts, Department of Environmental Quality
Engineering, Division of Air Quality Control Policy(No. 90-001) on noise
regulations, (Feb. 1, 1990)
Resp. Ex. 17 Email from Jacob Poling, WSP, to Erich Thalheimer, WSP (Mar. 1, 2021)
Resp. Ex. 18 Quarry Site Isopleth Sound Difference Contours (color version)
Resp. Ex. 19 Memo from Brian Director Wrenn,NC Div. of Energy, Mineral &Land
Resources, to Wake 92-10 Triangle Quarry Permit File (Feb. 17, 2022)
Resp. Ex. 33 Wake Stone Corp. Triangle Quarry—RDU Tract Expansion, Required
Operating Permits And Environmental Approvals
Resp. Ex. 34 Email from David Lee, Wake Stone, to Cole Atkins, Wake Stone (Jan. 5,
2020), with attachment
Resp. Ex. 41 WSP USA, Inc., Wake Stone Triangle Quarry Expansion Acoustical Study
(Mar. 12, 2021)
Resp. Ex. 43 Email from Cole Atkins, Wake Stone, to Erich Thalheimer, WSP, et al.
(Feb. 8, 2021,1:33:29PM)
Resp. Ex. 46 Email from Cole Atkins, Wake Stone, to Erich Thalheimer, WSP, et al.,
(Mar. 11, 2021)
Resp. Ex. 50 Email from Cole Atkins, Wake Stone to Erich Thalheimer, WSP, et al.
(Jul. 9, 2021)
6

Resp. Ex. 55 Raleigh-Durham Airport Authority&Wake Stone, Option and Lease
Agreement(Mar. 1, 2019)
Resp. Ex. 56 Email from David Lee, Wake Stone, to Sam Bratton, Wake Stone (Feb.
19, 2019)
Resp. Ex. 58 Sound Meter Readings of Triangle Quarry Perimeter Resp. Ex. 60 Email
from David Lee, Wake Stone, to Sam Bratton Wake Stone (Jan. 5, 2020)
Resp. Ex. 61 Email from Sam Bratton, Wake Stone to Al Parker, Wake Stone, et al.
(Apr. 7, 2020)
Resp. Ex. 62 Email from Sam Bratton, Wake Stone, to Ted Bratton, Wake Stone, et al.
(Jul. 23, 2020)
Resp. Ex. 63 Email from Tracy E. Davis, ATS Env. Solutions, to Sam Bratton, Wake
Stone, et al. (Jul. 9, 2020)
Resp. Ex. 75 Letter from David Miller, DEMLR, to Sam Bratton, Wake Stone (Feb. 25,
2021)
Resp. Ex. 79 Email from Tracy Davis, ATS Envtl. Solutions, PLLC to Sam Bratton,
Wake Stone (Jan. 19, 2022)
Resp. Ex. 86 Curriculum Vitae, Erich Thalheimer, WSP
Resp. Ex. 91 Email from Erich Thalheimer, WSP to Cole Atkins, Wake Stone, et al.
(Jan. 14, 2021)
Resp. Ex. 92 Email from Erich Thalheimer, WSP to Cole Atkins, Wake Stone, et al.
(Mar. 11, 2021)
Resp. Ex. 93 Wake Stone Triangle Quarry Expansion Acoustical Study with Track
Changes
Resp. Ex. 94 Email from Erich Thalheimer, WSP to Sam Bratton, Wake Stone, et al.
(Feb. 7, 2021)
Resp. Ex. 108 William B. Umstead State Park General Management Plan (Nov. 2017)
(color)
Resp. Ex. 115 Stewart Dep. Ex. 4: Letter from Noral D. Stewart, Stewart Acoustical
Consultants, to Brian Director Wrenn, DEMLR(Jul. 13, 2020)
Resp. Ex. 116 Stewart Dep. Ex. 6: Letter from Noral D. Stewart, Stewart Acoustical
Consultants to Brian Director Wrenn, DEMLR(Mar. 26, 2021)
Resp. Ex. 117 Publications and Presentations by Noral D. Stewart(May 2022)
Resp. Ex. 118 Quarry Site Isopleth Sound Difference Contours (color version) (with
additional detail)
Resp. Ex. 119 Wake Stone Permit Modification Application(Apr. 8, 2020)
Resp. Ex. 120 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (July 23, 2020)
Resp. Ex. 121 Memo from Erich Thalheimer, WSP to Samuel Bratton, Wake Stone, re
Wake Stone Quarry Noise Study Protocol (Sep. 2, 2020)
Resp. Ex. 122 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Noise Study Protocol (Nov. 4, 2020)
Resp. Ex. 123 Wake Stone Response to July 23, 2020 ADI (Nov. 12, 2021)
Resp. Ex. 124 Email from David Miller, DEMLR to Douglas Ansel, OGC re COA ruling
(Dec. 15, 2020)
Resp. Ex. 125 Cover Letter from Wake Stone to David Miller, DEMLR re Supplemental
Information (Jan. 11, 2021) (excerpt)
7

Resp. Ex. 126 Letter from David Miller, DEMLR to David Lee, Wake Stone re extension
granted(Jan. 12, 2021)
Resp. Ex. 128 Wake Stone Triangle Quarry Acoustical Study (Feb. 11, 2021)
Resp. Ex. 129 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (Feb. 25, 2021)
Resp. Ex. 130 Letter from Wake Stone to David Miller, DEMLR re Supplemental
Information (Mar. 22,2021) and Final Wake Stone Triangle Quarry
Acoustical Study (Mar. 12, 2021) (excerpt)
Resp. Ex. 131 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (Apr. 14, 2021)
Resp. Ex. 132 Letter from Wake Stone to David Miller, DEMLR containing combined
response to ADI 3 (Apr. 30, 2021) including Mar. 12, 2021, Acoustical
Study with highlighted changes and comments (excerpt)
Resp. Ex. 133 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (May 24, 2021)
Resp. Ex. 134 Memo from Erich Thalheimer, WSP to Brian Director Wrenn, DEMLR
(May 25, 2021)
Resp. Ex. 135 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (July 6, 2021)
Resp. Ex. 136 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone re
Additional Information (July 26, 2021)
Resp. Ex. 137 Letter and Combined Responses from Wake Stone to DEMLR(Aug. 12,
2021) (excerpt)
Resp. Ex. 138 Letter from David Miller, DEMLR to Samuel T. Bratton, Wake Stone, re
Additional Information (Sep. 9, 2021)
Resp. Ex. 139 Letter and Combined Responses from Wake Stone to DEMLR(Nov. 1,
2021) (excerpt)
Resp. Ex. 142 Director Wrenn Aff. Ex. 6: Visibility Study conducted by David Miller(c.
Jan. 4, 2022) (color version)
Resp. Ex. 143 Director Wrenn Aff. Ex. 8: Letter from Dwayne Patterson,N.D. Div. of
Parks &Recreation, to Brian Director Wrenn, DEMLR(Feb. 10, 2022)
Resp. Ex. 144 Deposition Transcript of Sam Bratton (condensed) with signed errata sheet
Resp. Ex. 145 Deposition Transcript of Cole Atkins (condensed) with signed errata sheet
Resp. Ex. 146 Deposition Transcript of David Lee (condensed)with signed errata sheet
Resp. Ex. 147 Deposition Transcript of Erich Thalheimer(condensed)
Resp. Ex. 148 Deposition Transcript of Brian Director Wrenn (condensed) with signed
errata sheet
Resp. Ex. 149 Deposition Transcript of David Miller(condensed) with signed errata
sheet
Resp. Ex. 150 Deposition Transcript of Noral Stewart(condensed)with signed errata
sheet
Resp. Ex.152 Email from David Miller to David Lee, et al re has Wake Stone met all
outstanding elements concerning ADIs (Nov. 30, 2021)
8

WITNESSES
For Petitioner: Sam Bratton, Wake Stone Corporation
Cole Atkins, Wake Stone Corporation
Erich Thalheimer, WSP USA, Inc.
David Lee, Wake Stone Corporation
For Respondent: Dr.Noral Stewart, Stewart Acoustical Consultants
Scott Letchworth,North Carolina Division of Parks and Recreation
Brian Wrenn, formerly of Division of Environmental Quality,
Division of Energy Mineral and Land Resources
INTRODUCTION
The Mining Act of 1971 (the "Mining Act") sets forth the legislature's desire to provide
for the economic benefits of the mining industry while protecting the environment during the
mining process and ensuring the restoration of the environment after mining has ceased.
As many environmental statutes do,the Act utilizes a permitting system implemented by
the Department of Environmental Quality ("Respondent" or "DEQ") to meet these goals. The
application process in the Mining Act describes criteria DEQ must consider when evaluating an
application for a mining permit. It lists specific findings that must be made before DEQ may
deny an application. The Mining Act is a somewhat unusual environmental law in that it
mandates the granting of the permit if the specified findings are not made.
The Mining Act also includes compliance mandate DEQ must implement subsequent to
permit approval. The enforcement of the permit even includes a process whereby the permit may
be revoked by DEQ. The use of this process was clarified in Clark Stone Mining Co. v. N.C.
Department of Environment and Natural Resources, 359 N.C. 322, 603 S.E.2d 878 (2004). That
case made clear that, inter alia, the very same criteria DEQ must consider if a permit is to be
denied can also be the basis of a subsequent revocation.
The Mining Act approach to permit approval is well designed. The processing of an
application is necessarily a prospective analysis. In this contested case, for example, DEQ
considered one of the statutory criterion for possible denial of an application by Wake Stone,
Inc., .i.e., whether the mining operation would, if approved, "have a significantly adverse effect
on the purposes of nearby William B.Umstead Park State Park. Such an analysis involves trying
to predict the possible adverse effects on the Park a priori. The hearing revealed, for example,
that sophisticated noise modeling techniques were used in an attempt to help predict the noise
effect of the mining operation on the Park.
Clark Stone Mining showed that even after the granting of a permit, the Act provides for
a retrospective inquiry of the same criterion made after the initiation of construction and
operation that can be the basis of revocation of the permit. Obviously, retrospective inquiry
benefits from hindsight.
9

THE FOLLOWING Findings of Fact are made after careful consideration of the sworn
testimony, the Joint Stipulation of Facts, the exhibits, and the entire record in this proceeding. In
making these Findings of Fact, the Undersigned has weighed all of the evidence, or the lack
thereof, and has assessed the credibility of the witnesses by taking into account the appropriate
factors for judging credibility including, but not limited to, the demeanor of the witness; any
interest, bias, or prejudice the witness may have; the opportunity of the witness to see, hear,
know, or remember the facts or occurrences about which the witness testified; whether the
testimony of the witness is reasonable; and whether the testimony is consistent with all other
believable evidence in the case.
FINDINGS OF FACT
1. This matter came to be heard pursuant to Petitioner's Petition for a Contested Case Hearing
filed in the Office of Administrative Hearings on March 15, 2022.
2. Petitioner Wake Stone Corporation is a North Carolina corporation with a principal place
of business in Knightdale,North Carolina. (Joint Stip.,¶ 1)
3. Petitioner operates five quarries, four in North Carolina and one in South Carolina. It
produces aggregate to use, among other things, in constructing roadways and producing asphalt
and concrete. (T. pp. 1.41-42; Joint Stip., ¶ 8)
4. Respondent North Carolina Department of Environmental Quality is the state agency
tasked with administering the Mining Act. (T. p. 6.1377; Joint Stip.,¶3)
5. Brian Wrenn is the former'Director of the Division of Energy Mineral & Land Resources
("Division") within DEQ. (T. p. 5.1137)
6. David Miller, PE is the Division's State Mining Engineer. (Joint Stip.,¶5)
7. Petitioner operates the Triangle Quarry in Cary pursuant to Mining Permit 92-10, issued
by Respondent in 1981 and renewed three times without issue. (T.pp. 1.47, 1.63; Joint Stip.,¶ 12)
8. For each renewal, Respondent investigated Petitioner's mining operations and found them
satisfactory. (T. p. 1.63; Joint Stip.,¶ 14)
9. Beginning in 2017, Petitioner was no longer required to obtain renewal of the Triangle
Quarry mining permit because mining permits were converted to "life of mine" permits. (Joint
Stip.,¶ 13)
'Director Wrenn's employment with Respondent terminated in 2022,and he is now employed in the private sector.
(T.p. 6.1347).
10

10. Respondent initially denied Petitioner's mining permit application in 1981. Following
Respondent's denial of that application, Petitioner appealed to the Mining Commission, which
reversed the denial and Permit 92-10 was issued to Petitioner. (Joint Stip.,¶ 10)
11. Triangle Quarry is located on North Harrison Avenue in Cary between Raleigh-Durham
International Airport("RDU Airport"),William B.Umstead State Park(the"Park"), and Interstate
40. (T. p. 1.48)
12. The current Triangle Quarry property comprises approximately 223+/-acres,with a quarry
pit located on the property. The current pit comprises 90.25 +/- acres. (Joint Stip.,¶ 15)
13. Petitioner's standard hours of operation are 7:00 a.m.to 5:00 p.m.,Monday through Friday,
excluding holidays. (T. p. 1.61; Joint Stip.,¶25)
14. The reserves at Triangle Quarry are "winding down." (T. p. 1.60). Petitioner plans to close
the Triangle Quarry pit in the near future and, if a revise permit is granted, transition to mining
only the Odd Fellows pit. (Id.)
15. The Park is a North Carolina state park located in Wake County. It is bordered to the west
by Triangle Quarry, a parcel of land known as the Odd Fellows tract, and RDU Airport. (Pet. Ex.
96; T. pp. 1.50-53). It is bordered to the south by Interstate 40 (an eight—lane interstate highway)
and to the north by Highway 70 (a four—lane highway). (Id.). Commercial and residential
development surrounds the Park. (Pet. Ex. 96; T. p. 1.55)
16. The Park comprises approximately 5,600 acres. (Joint Stip.,¶23; T. p. 4.866)
17. The number of visitors to the Park has increased by 300% during the 40+ years that
Triangle Quarry has operated adjacent to the Park. (Resp. Ex. 148, Director Wrenn Dep. Vol.
II, 412:12-15)
18. The busiest times at the Park are on weekends,after work hours on weekdays,and holidays.
(T. p 4.902; www//ncparks.gov/william-b-umstead-park)
19. The purposes of the Park are conservation,recreation, and education. (T.p. 4.781)
20. The Umstead Coalition is a nonprofit organization with a stated mission of protecting the
Park, including from external sources of degradation caused by traffic, noise, and water pollution.
(Pet. Ex. 88)
21. In August 1999, the Umstead Coalition chair, Jean Spooner, issued a statement that the
Umstead Coalition's experience with Petitioner had been positive, that she had "never heard a
complaint about Wake Stone's operation next to Umstead" in the ten years she had been a
Coalition member, and that Petitioner was "willing to participate in activities to protect Umstead
State Park." (Pet. Ex. 88)
11

22. In 2016,Raleigh Durham International Airport Authority("RDUAA")published its Vision
2040 plan, which is the airport's long-range plan. (T. p. 1.64)
23. As part of the Vision 2040 plan, the Odd Fellows tract, adjacent to the existing Triangle
Quarry,was designated by RDUAA as an industrial or mining use property. (T.p. 1.65)
24. From 1985 through 2016 (when RDUAA published its Vision 2040 Plan), Petitioner
received no complaints about the noise, visual, or traffic impacts of its operations at Triangle
Quarry from the Park,the Umstead Coalition,the North Carolina Division of Parks and Recreation
("DPR"), the Umstead Park Advisory Committee, Wake County, the Town of Cary, the City of
Raleigh, any businesses in the area, or Respondent. (T. pp. 1.65-68, 1.73, 1.81-82)
25. Following the publication of the Vision 2040 plan, various complaints were made about
the Triangle Quarry, none of which were validated or resulted in the issuance of a Notice of
Violation. (T. p. 1.73)
26. In the 40-plus years of the Triangle Quarry's operation under Mining Permit 92- 10,there
has never been a Notice of Violation issued related to the Permit. (T. p. 1.73)
27. A mining operator's track record and previous history should be considered when
reviewing a permit modification application. (Joint Stip., ¶ 17)
28. In recent months, RDUAA announced plans to expand its park and ride facilities adjacent
to the Park and to expand a runway to allow larger cargo jets to utilize the airport. (T. pp. 1.52-
53)
29. Aside from Triangle Quarry, there are a number of other rock quarries in close proximity
to the Park. (T. pp. 1.53-55; Pet. Ex. 96)
30. The Embassy Suites Hotel off Harrison Avenue is the closest occupied structure to the
Triangle Quarry, located at a distance of approximately 1,100 feet from the current pit. (T. pp.
1.55-56) The Umstead Hotel is located approximately 1,300 feet from Triangle Quarry. (T. p.
1.56)Neither hotel has ever complained about Petitioner's operations. (T. pp. 1.66-67, 1.81-82)
31. In 2019, Petitioner entered into a written Option and Lease Agreement(the "Agreement")
to lease the Odd Fellows tract from RDUAA. (Resp. Ex. 55, Joint Stip., ¶ 18)
32. The Odd Fellows tract is immediately adjacent to Triangle Quarry and the Park. (Joint Stip.,
¶ 18)
33. The sole purpose of the Agreement is to allow Petitioner to conduct mining operations
within the Odd Fellows tract. (Resp. Ex.55)
34. The Odd Fellows tract is 106 +/- acres, with a proposed pit of approximately 55 acres. (T.
pp. 1.56-57)
12

35. Petitioner made lease option payments to RDUAA under the Agreement of $20,000 in
March 2019 and$40,000 in August 2019 and August 2020. (T. pp. 1.93-94; Joint Stip.,¶ 19)
36. In August 2021, the Agreement's option period ended and the 25-year lease term began.
(T.p. 1.93; Resp. Ex. 55 at 3; Joint Stip.,¶20)
37. Under the lease contained in the Agreement, Petitioner must pay, for the first five years,
an advance annual minimum royalty of $100,000 per year. (Resp. Ex. 55 at 5). The annual
minimum royalty increases to $200,000 per year for lease years 6-10, $400,000 for lease years
11-20, and $600,000 for lease years 21-25. (Resp. Ex. 55 at 5). This amount is credited against
an annual sales royalty owed to RDUAA of 5.5% of net sales from the quarry during the lease
year. (Resp. Ex. 55; Joint Stip., ¶21)
38. In compliance with these Agreement terms, Petitioner made a $100,000 payment to
RDUAA in August 2021. In August 2022, Petitioner made another $100,000 annual lease
payment and its first annual $360,000 bike recreation lease payment. (T. pp. 1.93-95; Joint Stip.,
¶ 22). The annual lease payments will be due every August for the term of the lease. (Resp. Ex.
55)
39. The annual bike recreation lease payments of $360,000 per year are due each August
and will continue for ten years, until payments totaling $3.6 million are made. (Resp. Ex. 55 at 6)
These payments will be used by RDUAA to lease a tract of land near the Odd Fellows tract for
the construction of mountain biking trails and related activities. (Resp. Ex. 55 at 6)
40. On April 8, 2020, Petitioner submitted a Permit Modification Application (the
"Application") to Respondent. (T. pp. 1.84, 1.95; Joint Stip., ¶ 26) The Application sought to
modify Permit 92-10 to add an additional 106+/- acres on which Petitioner intends to open a new
pit area of approximately 55 acres on the Odd Fellows tract while eventually phasing out its current
resource extraction operations at Triangle Quarry. (T. pp. 1.95-96; Joint Stip.,¶26)
41. The Application was pending before Respondent for 681 days before Director Wrenn,
on behalf of Respondent, issued Respondent's written decision denying the Application. (T. pp.
1.131, 6.1447; Pet. Ex. 50)
42. Respondent denied the Application because it determined that the "proposed quarry is
located and designed such that normal operation would have significantly adverse effects on the
purposes of the Park through noise, visual, and traffic impacts." (Pet. Ex. 50)
43. Based on the above determination, Respondent concluded that the denial criteria set forth
in N.C. Gen. Stat. § 74-51(d)(5)would be triggered. (Id.)
44. As Respondent's State Mining Engineer, David Miller was the lead technical reviewer of
the Application. (T.p. 5.1166)He is a professional engineer with relevant experience in the mining
industry. (T. p. 6.1424)He has handled hundreds of applications. (Resp. Ex. 149,Miller Dep.Vol.
I, 15:22-16:6, 25:23-26:16)
13

45. At the time the Application was submitted, Director Wrenn had occupied the position
of Division Director for approximately 2 months. (T. p. 6.1374) Prior to assuming the position,
Director Wrenn had no relevant mining industry experience. (Id.)
46. Although State Mining Engineer Miller is still employed by Respondent, Respondent did
not call him as a witness at the contested case hearing. However, Petitioner introduced Miller's
complete deposition transcript. (Resp. Ex. 149)
47. State Mining Engineer Miller confirmed that he had never reviewed a more thorough and
detailed modification application than the Application. (Resp. Ex. 149,Miller Dep. Vol. I, 89:25-
90:7)
48. State Mining Engineer Miller created an internal mining permit review document (the
"Mining Review"), which he and other Respondent staff updated as the review of the Application
progressed. (T. pp. 6.1425-1426; Resp. Ex. 149, Miller Dep. Vol. 1, 129:23-130:6-21). The
purpose of a mining review document is to show how the reviewer of the mining application "got
from point A to point B," so that Respondent's analysis and actions are clear. (T.pp. 6.1425-1426;
Joint Stip., ¶32)
49. DEQ leadership, including Director Wrenn and legal counsel, had access to the Mining
Review through SharePoint. (T. p. 7.1539. This access allowed them to add comments to and edit
the Mining Review throughout the evaluation process, which they did. (T. p. 6.1426; Pet. Ex. 62
at 6-20)
50. The Mining Review described the Application as "a very good and complete application."
(T. p. 6.1299; Pet. Ex. 61)
51. Respondent conducted two public hearings on the Application because of the high volume
of public comments received. (Joint Stip.,¶¶27-28)
52. Respondent issued seven formal requests for additional information("ADIs")to Petitioner,
to which Petitioner responded fully. (T. p. 1.106)
53. Petitioner and Respondent engaged in extensive communications throughout the
pendency of the Application, including a series of requests from Respondent and proposals by
Petitioner regarding potential strategies for noise and visual mitigation. (Joint Stip.,¶30; Pet. Ex.
9, 29)
54. Respondent continued to receive and accept public comments and comments from various
state agencies for the entire 681-day period during which the Application was under review.
Specifically, DPR and the Department of Natural and Cultural Resources("DNCR")provided five
letters opposing the Application;the most recent letter was dated February 10,2022. (T.p. 6.1393;
Resp. Ex. 143)
55. State Mining Engineer Miller testified at a deposition that the letters from DPR were not
worth the paper they were written on. (Resp. Ex. 149, Miller Dep. Vol. III, 569:14-18)
14

56. In the first ADI, issued following the two public hearings, Respondent required
Petitioner to perform a noise study (the first in the mining program's 52-year history) using a
protocol approved by Respondent to analyze the potential noise effects of the proposed mining
expansion on the Park. (T. pp. 1.106-108, 1.227-228; Pet. Ex. 9)
57. Petitioner engaged WSP USA, Inc. ("WSP") to develop a protocol for and ultimately
conduct this acoustical study(the "Acoustical Study"). (T. pp. 1.108, 1.228)
58. Petitioner spent in excess of$130,000 on the Acoustical Study and follow-up reports. (T.
P. 1.108)
59. Prior to Petitioner performing the Acoustical Study, Respondent approved the protocol
proposed by WSP. (T. pp. 1.108, 2.438; Pet. Ex. 15)
60. Respondent also conferred with DPR on the Acoustical Study protocol, which that agency
approved. (T. pp. 1.108, 5.1186)
61. Prior to WSP performing the Acoustical Study,Respondent also investigated and approved
WSP. (T. pp. 1.108, 5.1186; Resp. Ex. 149, Miller Dep. Vol. 1, 126:21-127:7; 138:15— 139:3;
142:22-24)
62. WSP's Erich Thalheimer, a board-certified acoustical engineer for over 20 years, was the
lead engineer on the Acoustical Study. (T. p. 2.409-411; Pet. Ex. 90)
63. Mr. Thalheimer serves as the National Technical Specialist for Acoustics and Vibration at
WSP. (T.p. 2.405-408). He worked as an acoustical engineer on approximately 300-400 projects,
including the Big Dig in Boston. (T. pp. 2.409, 2.416-417)
64. This Tribunal accepted Mr. Thalheimer as an expert witness in acoustical engineering,
noise control, and noise modeling. (T. p. 2.424)
65. This Tribunal finds Mr. Thalheimer to be credible and extremely experienced in the field
of acoustics.
66. The protocol provided that WSP would submit a draft of the acoustical study to
Respondent for its comment before the study was finalized. (Pet. Ex. 15, 97)
67. The Acoustical Study protocol,approved by Respondent,provided that WSP would conduct
a literature search for purposes of defining and quantifying the criteria of"significantly adverse
effect" used in the Mining Act. (T. p. 2.430; Pet. Ex. 97)
68. The protocol reflected that WSP would place noise monitors at certain identified locations
in the field, including within the Park, to collect noise measurements. (T. pp. 2.431-432; Pet. Ex.
97; Joint Stip.,¶ 40)
15

69. The protocol further reflected that WSP would model current and future noise
conditions at various discrete receptors (predefined locations)using the CadnaA program. (T. pp.
2.432-433; Pet. Ex. 97) The CadnaA program also allowed WSP to calculate isopleth contours
to visually depict how sound flows or radiates in different locations. (T. p. 2.433)
70. Mr. Thalheimer explained that sound isopleths do not indicate whether sound will be
perceptible in a given area,but merely are intended to demonstrate how sound flows.(T.pp. 3.562-
564)
71. WSP performed the Acoustical Study required by Respondent using the protocol that
Respondent approved. (Joint Stip.,¶39)
72. The Acoustical Study involved WSP placing six long-term noise monitors in the Park at
different sites for a one-week period (two more were eventually added) and short-term monitors
(taking 15-minute measurements) at four different sites for two weeks. (Id.¶40; Pet. Ex. 97)
73. These monitors recorded ambient noise—that is, Petitioner's mining operations and the
surrounding airport, highway, traffic, park users, nature sounds, and commercial noises. (T. p.
2.457; Pet. Ex. 89) The ambient noise measurements revealed a sound level of 55 dBA Leq (1
hr) during daytime working hours at the monitor location nearest to the Odd Fellows tract. (Pet.
Ex. 89)
74. After gathering this data, WSP modeled the sound levels produced only by Petitioner
through its existing quarry operations and the proposed quarry expansion. WSP then calculated
the relative sound increases, which reflect the difference between the modeled sound levels for
the projected quarry expansion compared to the modeled sound levels for the existing quarry.
(Joint Stip.,¶60)
75. Mr. Thalheimer explained that a relative standard as opposed to an absolute standard is the
appropriate way to evaluate whether quarry noise would have a significantly adverse effect on the
purposes of the Park because Petitioner can only control its noise sources,not all noise sources. (T.
pp. 2.451-452)
76. A relative standard is also appropriate because Petitioner has been an existing noise source
in the area for over 40 years and therefore is part of the Park's ambient noise. (T. p. 2.453) Mr.
Thalheimer explained that: "The question was not whether Petitioner's existing noise was a
problem. It wasn't. The question was is future noise going to be a problem." (T. p. 2.453:10-12)
77. WSP's CadnaA noise model incorporated "conservative worst-case noise assumptions,"
including: (1) all equipment on site operating simultaneously; (2) less absorptive ground factors
for areas not covered with foliage; (3) blasting every hour(instead of the actual one to two times
per week); (4) no sound attenuation for foliage (i.e., always winter); and (5) the wind always
blowing from the noise source toward each receptor. (T. pp. 2.446-448; Pet. Ex. 89)
16

78. WSP determined that a 10 decibel ("dBA") or more relative increase in future noise was
the appropriate measure of determining whether a noise increase constituted a "significantly
adverse" noise effect on the Park. (T. p.2.482)
79. Mr. Thalheimer explained that noise increases become perceptible at 5 decibels, but that
perceptible does not mean significantly adverse. He further testified that it is common in the
acoustics field to use a 10 dBA increase to determine whether a noise increase is significant or
substantial. (T. p. 2.483)
80. WSP based its recommended measure of significantly adverse effect in large part on the
North Carolina Department of Transportation's Traffic Noise Policy. This policy also uses a 10
dBA threshold to determine a substantial noise increase for highway construction adjacent to
residential areas, including at night. (T. pp. 2.482-483; Pet. Ex. 89; Resp. Ex. 13)
81. The protocol provided that as part of the Acoustical Study,WSP reviewed the noise analysis
that was performed in the 1980s when Petitioner's original permit was initially considered
by Respondent. (T. pp. 2.486-488; Pet. Ex. 97)
82. Given the rapid advancements in the field of acoustics since then, the analysis
performed in the 1980s is inapplicable to sound modeling performed today. (T. p. 2.487)
83. As required by the protocol, Petitioner submitted the acoustical report in draft form to
Respondent to give it an opportunity to comment before the draft was finalized and accepted. (T.
p. 2.284; Joint Stip., ¶ 44)
84. Respondent made suggested modifications to the draft acoustical report and requested
additional information.WSP provided additional information responsive to Respondent's requests.
(T. pp. 1.113-114, 2.533-544; Pet. Ex. 18)
85. Petitioner then submitted the final report with the additional information and Respondent
accepted it on March 12, 2021. (T. pp. 1.113-114, 6.1491; Pet. Ex.89)
86. At no time did Respondent ever suggest or require that WSP or Petitioner use any other
standard for "significantly adverse effect" or require that WSP or Petitioner model anticipated
quarry noise against some alternative standard, including an absolute standard. (T. pp. 2.280,
2.304, 4.732)
87. Respondent never required or requested that WSP or Petitioner use a decibel threshold
other than 10 dBA for determining if noise constituted a significantly adverse effect. Nor did
Respondent explicitly reject WSP's use of a 10 dBA standard. (T. p. 2.282)
88. Before Respondent accepted the final report from the Acoustical Study, Respondent
asked Petitioner and WSP to "justify" the use of the 10 dBA threshold in evaluating whether
noise constitutes a significantly adverse effect. (T. pp. 2.285, 3.711; Pet. Ex. 18)
17

89. Petitioner provided the requested justification. (T. p. 2.285; Pet. Ex. 24 at 12).
Respondent never told Petitioner or WSP that the justification that they provided regarding the use
of this standard was insufficient. (T. p. 3.711)
90. At no time did Respondent ever identify for Petitioner or WSP what Respondent
contended was the appropriate measure of significantly adverse effect with respect to noise
increases. (T. p. 3.709)
91. The final Acoustical Study recommended that a 10 dBA relative increase be used as
the measure of significantly adverse with respect to noise impacts on the Park. (Pet. Ex. 89). It
also confirmed that all projected increases in noise levels were modeled to be well below 10 dBA
and that the vast majority of the Park would experience a noise increase of less than 3 dBA,
which is below what acousticians consider to be the "onset threshold of audible changes." (Pet.
Ex. 89; T. pp. 2.291-292, 2.531-532)
92. The Acoustical Study concluded that "expansion of [Petitioner's] operations into Pit 2
will not pose a "significantly adverse [noise] effect on the purposes of a publicly owned park,forest
or recreation area [in Umstead State Park]." (Pet. Ex. 89; T. pp. 2.291-292)
93. Mr. Thalheimer testified that, in his opinion, the modeled noise levels associated with the
expanded operation contemplated by the Application would not have a significantly adverse
effect on the purposes of the Park. (T. p. 2.488). Mr. Thalheimer's conclusion has not changed
since March of 2021,but rather has been reinforced by a recent visit to the Park. (T. p. 2.532)
94. WSP modeled data shows one small area of the Park east of Foxcroft Lake (measuring
approximately 1.24 acres or .02% of the total Park area) as experiencing an increase of between 6
and 7 dBA during the overburden stripping phase of the proposed expansion. (Pet. Ex. 89, T. pp.
3.598-599)
95. This area remains well below the defined threshold of 10 dBA increase (Pet. Ex. 62 at 18;
T pp. 4.789,7.1613)
96. Mr. Thalheimer expressed the opinion that based on his experience, knowledge, and
observations, an increase of approximately 5 dBA in a 1.24 acre area of a 5,600 acre park would
not in any way constitute a significantly adverse effect on the purposes of the Park. (T. p. 3.599)
97. The quality and character of the noise that is expected to be generated by mining on the
Odd Fellows tract is exactly the same as the quality and character generated by the Triangle
Quarry. (T. p. 7.1687)
98. On May 24, 2021, Respondent issued an ADI to Petitioner regarding its concerns over
noise levels at two specific points—the area of the Park east of Foxcroft Lake, where WSP
modeled the noise increase to be between 6 and 7 dBA, and the Dunns' residence, which is not
in the Park. (T. p. 2.310; Joint Stip., ¶43; Pet. Ex. 25)
18

99. After Respondent accepted WSP's final report, it also sent an ADI dated July 6, 2021,
asking for limited explanations regarding several aspects of the report. (T.p. 2.311;Pet. Ex. 27)
100. To address Respondent's concerns over noise at the two sites raised in the May 24, 2021
ADI, Petitioner amended its site design to further mitigate any potential noise and visual impacts
at these areas. As part of these design changes, Petitioner proposed building a decorative DOT—
style sixteen—foot sound wall rather than an earthen berm. (Joint Stip., ¶ 44). WSP revised its
acoustical modeling to show the reduction in noise levels that would be achieved by the proposed
sound walls. (T. pp. 2.312-315; Pet. Ex. 29)
101. Petitioner submitted its response to Respondent's May 24 and July 6 ADIs by
memorandum dated August 12, 2021, which response includes an August 9, 2021, memorandum
by WSP with updated modeling incorporating the proposed sound walls. (Pet. Ex. 29)
102. The parties stipulated to the results of Table 1 in WSP's August 9, 2021, memorandum.
(Joint Stip., ¶66). Table 1 shows the modeled absolute noise levels from the proposed expansion
for a worst-case 280 feet production scenario at twelve receptor sites, incorporating the proposed
sound walls. (Pet. Ex. 29). The Table 1 results show that only two receptors are modeled to have
absolute noise levels slightly above 55 Leq(h)dBA with the proposed sound walls—Foxcroft Lake
(55.4) and Foxcroft property line (56.7). (Id.)
103. WSP's August 9, 2021 response contained updated isopleth contour maps. (Pet. Ex. 29)
104. Mr. Thalheimer cautioned that these isopleth contour maps were simply an estimate to
provide a visual representation of how noise flows. They are not specific calculations of what a
listener will be able to hear at any discrete point. (T. pp. 2.433-436).These maps also do not take
into account the masking of noise that would occur, which directly impacts whether a modeled
noise increase will be perceptible in a given area. (T. p.7.1680)
105. Director Wrenn is unfamiliar with the concept of masking in acoustics and its effect on the
perceptibility of a noise increase. (T. p. 7.1522-1523)
106. Director Wrenn did not have any acoustical training on which to base his decision that the
10 dBA standard was not appropriate. (T. p. 6.1493).
107. After Petitioner provided the supplemental information in August 2021, Respondent did
not request any further information or noise modeling from Petitioner or WSP. (T. p. 2.365)
108. Respondent did not perform any independent noise analysis or modeling. (T. p. 6.1415;
Resp. Ex. 149,Miller Dep.Vol. III, 547:2-5)Respondent intended to rely on the Acoustical Study
results for purposes of evaluating the Application. (T. p. 6.1491) Director Wrenn has no reason to
doubt the results of the Acoustical Study. (Resp. Ex. 148, Director Wrenn Dep. Vol. II, 274:19-
275:3)
109. The Acoustical Study's modeling shows that the relative noise increase at all discrete
receptor sites is well below 10 dBA. (T. pp. 2.504, 3.598; Pet. Ex. 89)
19

110. The Acoustical Study's modeling shows that the relative noise increase at all discrete
receptor sites is below 8.5 dBA. (T. pp. 3.592, 3.598; Pet. Ex. 89)
111. No area of the Park would experience a noise increase of 8.5 dBA or more. (T. pp. 3.598,
5.1069)
112. The Acoustical Study concluded that moving extraction operations to Pit 2 (on the Odd
Fellows tract)"should be a noise benefit(i.e.,reduction) ...because the majority of[the Park's] fixed
sites (picnicking and camping)" are located closer to Triangle Quarry than the Odd Fellows tract.
(Pet. Ex. 89) The Park's designated trails are closer to Triangle Quarry than the Odd Fellows
proposed pit. (T. pp. 1.194, 1.196-200)
113. The stationary equipment currently at Triangle Quarry (conveyors, crushers, and screens)
would not move to the proposed new pit if the Application were granted. (T. pp. 1.59— 60) This
equipment would remain in place, below grade, and would be used to process the deposits
from the new pit at their current location. (Id.). Only mobile equipment (trucks, excavators,
wheel loaders) would be on the Odd Fellows tract. (T. pp. 1.59, 1.101)
114. Respondent accepted the WSP Acoustical Study and its results, as supplemented, and
intended to rely on the Acoustical Study in evaluating the Application. (T. pp. 6.1485— 1486,
6.1489-1491)
115. The Tribunal finds that Director Wrenn was evasive when questioned about whether
Respondent accepted the Acoustical Study results and intended to rely on them, but the record
makes clear the results were accepted by Respondent and that Respondent relied on them. (T. pp.
6.1489-1491)
116. Although Respondent has the ability to hire experts and consultants, it did not hire its own
acoustical engineer while the Application was pending, but rather relied on the analysis
performed by WSP. (T. pp. 6.1415-1416)
117. Respondent did engage a sound expert after it denied the Application and did so for
purposes of supporting this litigation. (T. pp. 6.1416-1417).
118. Respondent engaged Dr. Noral Stewart, an expert in acoustics and noise control, and the
Tribunal accepted him as an expert witness in these subjects. (T. p. 4.957)
119. Prior to Respondent engaging Dr. Stewart, he was engaged by the Umstead Coalition to
oppose the Application. (T. pp. 5.1045-1046)
120. During the time the Application was under review, Dr. Stewart, on behalf of the Umstead
Coalition, submitted two letters to Respondent opposing the Application, one of which was
submitted before any acoustical study was performed. (T. pp. 5.1046-1048; Resp. Ex. 115, 116)
20

121. Dr. Stewart also opposed the Application at one of the two public hearings. (T. pp.
5.1046-1047)
122. Dr. Stewart remained on retainer by the Umstead Coalition, throughout the time he was
engaged by Respondent in this matter. (T. p.5.1051)
123. Dr. Stewart was engaged by Respondent at the suggestion of counsel for the Umstead
Coalition. (T. p. 5.1051)
124. Dr. Stewart conducted no field measurements, calculations, or sound modeling of noise in
the Park. (T. pp. 4.943, 5.1056)
125. Dr. Stewart has never been to the Odd Fellows tract, never been to the area of the Park
adjacent to the Odd Fellows tract, and could not remember the last time he visited the Park,
although he believes it was in the 1990s. (T. pp. 5.1079-1080)
126. Although Dr. Stewart indicated that WSP's use of the CadnaA model was appropriate, he
has never conducted any CadnaA or SoundPLAN modeling. He has never been trained to
conduct noise modeling using either the CadnaA or SoundPLAN system and could not explain the
differences between the two programs. (T. pp. 5.1040-1041)
127. Dr. Stewart has never validated results from a CadnaA sound model and does not know
what WSP did to validate its model, although he believed validation occurred. (T. pp. 5.1041-
1042)
128. The last time that Dr. Stewart personally conducted any noise modeling was in 2016 or
before. (T. pp. 5.1043-1044).
129. The Tribunal finds that Dr. Stewart lacks impartiality.
130. Despite that, Dr. Stewart agrees that the vast majority of the Park will experience an
increase of 3 decibels or less if the Application is approved. (T. p. 5.1070)
131. Respondent never asked Dr. Stewart for any information or consulted with him during its
review of the Application. (T. pp. 5.1087-1088; Resp. Ex. 148, Director Wrenn Dep. Vol. II,
446:18— 447:20)
132. The unsolicited opinions that Dr. Stewart provided to Respondent in the form of two letters
while Respondent was reviewing the Application did not influence Director Wrenn's decision to
deny the Application. (T. pp. 5.1087-1088; Resp. Ex. 148, Director Wrenn Dep. Vol. II,452:1-6)
133. Dr. Stewart is not familiar with the Mining Act and although he has heard of it, he has
not read it in detail. (T. p. 5.1074) At the time that Dr. Stewart sent his criticisms of WSP and its
noise study protocol and results to Respondent, he had never read the Mining Act. (T. p. 5.1075)
134. Dr. Stewart is unfamiliar with the purposes of the Park. (T. p. 5.1078)
21

135. Dr. Stewart has never been to Triangle Quarry. (T. p. 5.1078)
136. Dr. Stewart has never been to the Odd Fellows tract. (T. p. 5.1079)
137. Dr. Stewart's opinion is that the majority of the Park will not experience a significantly
adverse effect from the proposed expansion. (Resp. Ex. 150, Stewart Dep., 129:20-22)
138. Director Wrenn's only visit to the Park during the 681 day evaluation process was on
February 9, 2022. (T. 7.1607-1608) During this visit, Director Wrenn never went to the ridge on
the east side of Foxcroft Lake or stood on the Park border to look back towards the Odd Fellows
tract. (T. pp. 6.1321, 7.1560) Despite never having been to the ridge in question, Director Wrenn
believes that the expanded mining operation would have a significantly adverse effect on the
purposes of the Park because a Park user standing at the Park border on the ridge on the east side
of Foxcroft Lake could potentially see into the pit area of the proposed expansion. (T. pp.
6.1366-1367)
139. Any mining activity that might be visible from the Park property line near Foxcroft Lake
would occur only during the initial "overburden" removal period, when Petitioner would remove
some 60 feet of dirt to reach the stone to be quarried. (Resp. Ex. 149, Miller Dep. Vol. I, 162:16-
163:9; Pet. Ex. 20)
140. Someone standing at that spot might be able to see a void (absence of trees) where the
perimeter road is located. (Resp. Ex. 149, Miller Dep. Vol. III, 498:15-23, 504:13-505:12)
141. The vast majority of Foxcroft Lake is located on the Odd Fellows tract, which is private
property. (T. p. 1.58)
142. Foxcroft Lake is not open for recreation to Park users and is not used for recreation except
by the occasional trespasser. (T. p. 1.211)
143. The area east of Foxcroft Lake contains no designated trails. (T. p. 7.1613; Pet. Ex. 20)
144. This area does contain an undesignated pathway that crosses back and forth between the
Odd Fellows tract and the Park, colloquially known as the Yellow Dot Trail. (T. pp. 1.263-270,
4.795; Pet. Ex. 101-103; Letchworth Aff., ¶ 5) Sixty percent of the trail is on the Odd Fellows
tract, and most people access the trail through private property north of the Dunn residence. (T.
pp. 1.250, 1.259; Pet. Ex. 93) Thus, users of the Yellow Dot Trail are trespassing when not on the
Park portion of the trail. (Id.)
145. The Yellow Dot Trail is not mentioned in the agency record. Respondent did not raise the
existence of the Yellow Dot Trail until its summary judgment briefing in this contested case.
(Respondent's Response to Petitioner's Motion for Summary Judgment,p. 33)
146. The Rules and Regulations published by the DPR state that hikers should "stay on
designated trails and hiking areas" for their own safety and to protect "rare plants" that "live on
22

thin soils and wet rocks and are vulnerable to damage from climbing,trampling and scraping." (T.
pp. 4.883, 4.885-888; Pet. Ex. 55)
147. According to Park Superintendent Scott Letchworth, the Park does not enforce this
published rule of the DPR at the Park. (T. pp. 4.889-490)
148. The veracity of Mr. Letchworth's testimony on this point, however, is undermined by
photos of various signs from the Park asking visitors to stay on designated hiking trails. (Pet. Ex.
113, 117, 118)
149. In March of 2021, Petitioner submitted to Respondent photos of the Foxcroft Lake area
taken in the summer and winter, which Respondent concluded showed that the density of tree
vegetation provided satisfactory visual screening for this location. (Resp. Ex. 149; Miller Dep.
Vol. I, 161:19-162:13; Pet. Ex. 20) Petitioner later proposed a DOT-style wall to provide both
noise buffering and further visual screening. (T. pp. 2.306-308; Pet. Ex. 58)
150. Respondent later received visual renderings of the Foxcroft Lake area from Petitioner and
the Umstead Coalition, which conflicted as to whether the operations at the proposed expansion
would be visible from this area. (Resp. Ex. 149; Miller Dep. Vol. III, 499:14-21; 519:18-
520:2). Director Wrenn admitted that the Umstead Coalition's visual renderings were not
accurate and were misleading; they took what he described as "artistic license" in that they
did not accurately represent the vegetation that was present, showed mine haul trucks on a road
limited to street legal traffic, and in some cases provided perspective from the Odd Fellows tract,
not the Park. (T. pp. 6.1276-1277, 7.1545)
151. Nonetheless, Director Wrenn relied on some of the inaccurate renderings submitted by the
Umstead Coalition in determining that the proposed mining operation would have a significantly
adverse effect on the purposes of the Park through visual impacts. (T. pp. 7.1545-1547)
152. In January of, 2022, State Mining Engineer Miller conducted a non-scientific visibility
analysis in an attempt to resolve this purported conflict in renderings. (Resp. Ex. 149, Miller Dep.
Vol. III, 499:12-21; 506:13-14; Pet. Ex. 56) He took pictures on his cell phone as he walked up
the ridge above Foxcroft Lake to see if cardboard he had placed at certain intervals near the
proposed land disturbance was visible in the photos. (Resp. Ex. 149; Miller Dep. Vol. III, 501:3-
10; Pet. Ex. 56)Based on the cardboard being visible in some of the photos,Miller concluded that
Petitioner "should propose additional means to reduce visibility of the disturbance or the effect of
the disturbance." (Pet. Ex. 56)
153. State Mining Engineer Miller did not share this conclusion with Petitioner,and Respondent
did not send an ADI following Miller's study to request mitigation information or formally request
that Petitioner provide additional information on this issue. (Resp. Ex. 149, Miller Dep. Vol. III,
510:14-19; 511:17-512:9)
154. State Mining Engineer Miller has no relevant training to conduct a visibility study and the
study was not scientific. (T. p. 7.1550) Even if his study were reliable, Miller admitted that any
visibility issues would be "predominantly in the winter" and that this area was a"low-level impact"
area with no official designated trails. (Resp. Ex. 149, Miller Dep. Vol. III, 482:2-9; 488:9-14)
23

155. State Mining Engineer Miller contacted David Lee of Wake Stone and specifically asked
if Petitioner would be willing to plant several staggered rows of evergreen trees to assist with
visual mitigation in the Foxcroft Lake area. (T.pp. 7.1660-1661)Mr.Lee made clear to Mr.Miller
during that phone call and in a subsequent email that Petitioner was "willing to consider the
addition of vegetative screening near the head end of the lake, the one area where the potential
exists for minimal view of the quarry expansion from Umstead State Park." (T. pp. 7.1660-1664;
Pet. Ex. 57, 121; Resp. Ex. 149, Miller Dep. Vol. III,517:19-518:8)
156. Mr. Lee made clear that Petitioner would be willing to add additional vegetative screening
and to discuss with State Mining Engineer Miller and Respondent what Respondent required for
visual screening, but Miller and Respondent never followed up with Petitioner on this offer. (T.
pp. 7.1663-1664; Pet. Ex. 121; Resp. Ex. 149, Miller Dep. Vol. III, 520:3-11)
157. Respondent did not request further visual screening because State Mining Engineer Miller
acknowledged it was not obvious that it would even be necessary—but Miller noted that Petitioner
was offering more screening if it became clear that it was necessary. (T. p. 7.1563-1564)
158. Director Wrenn lacked any experience with respect to conditioning a permit on visual or
vegetative screening. (T. pp. 6.1405-1406)
159. DNCR requested that Director Wrenn and Division staff visit the area near Foxcroft
Lake on February 9, 2022, so that DNCR and DPR could express their concerns as to the
Application. (T. p. 6.1313) This site visit was a major factor in Director Wrenn's decision to
deny the Application. (Joint Stip., ¶46)
160. Director Wrenn did not actually climb to the ridgeline on the east side of Foxcroft Lake.
(T. pp. 6.1321-1322, 7.1635) Based on his view from the valley below the ridgeline, Director
Wrenn concluded that a Park user standing on the ridgeline on the Park boundary (that he never
stood on) would be able to see into the proposed operation on the Odd Fellows tract. (T. pp.
6.1321-1322, 6.1324)
161. Director Wrenn testified that he believed that the portions of the mining operation would be
visible from the Park boundary where the maintenance road that goes around the perimeter of the
pit, clearing of trees, and the wall on the far side of the pit (rock). (T. p. 7.1566) Director Wrenn
could not quantify the size of the Park area from which these sites would be visible. (T.pp. 7.1566-
1567)
162. Director Wrenn has no photos or documentation to reflect what he observed that day. (T.
p. 7.1548) M r. Letchworth has taken photos of the area,but Respondent failed to introduce them
at trial. (T. pp. 4.851-852)
163. Respondent opposed Petitioner's request for a site view of this area. (See Respondent's
Opposition to Petitioner's Motion for Site Visit filed February 10, 2023)
24

164. Petitioner presented three videos taken from the "Yellow Dot Trail," including two from
the ridge in question. Respondent objected to the introduction of these videos into evidence. (T.
pp. 1.262-264; Pet. Ex. 101, 102, and 103)
165. The videos were admitted into evidence and the Tribunal finds that the videos do not
support Respondent's conclusion that a Park visitor would be able to see the proposed mining
operation from the Foxcroft Lake area.
166. Immediately following his site visit with DNCR, Director Wrenn met on-site at the Odd
Fellows tract with a number of Petitioner's employees, including Sam Bratton, David Lee, and
Cole Atkins, to discuss surface waters delineations on the site. (T. pp. 6.1315, 7.1620-1621,
6.1330)Director Wrenn did not mention what he saw or concluded during his Park visit that same
day, even though it was a pivotal factor in Director Wrenn's decision to deny the Permit. (T. pp.
7.1620-1621)
167. Following this site visit(only eight days before he issued his denial),Director Wrenn failed
to give Petitioner the opportunity to address his personal concerns or to offer mitigation as to
the potential visual impacts. (T. p. 7.1621)
168. Early in the review process, Respondent asked for the Department of Transportation's
("D O T ' s") expert recommendation regarding traffic at the proposed expansion. (T. pp.
6.1456-1457; Resp. Dep. 149, Miller Dep. Vol. III, 538:15-16, 541:2-6) DOT reported that it
was satisfied with the entrance to the quarry and opined that the traffic flow there was good. (T.
pp. 6.1456-1457; Resp. Ex. 149, Miller Dep. Vol. III, 544:2-11)
169. In his December 2, 2020 Mining Review, State Mining Engineer Miller stated that "DOT
is good with the intersection." (Pet. Ex. 14; Resp. Ex. 149, Miller Dep. Vol. I, 135:18-20)
170. None of the ADIs requested any information about traffic or mitigation of traffic
concerns. (T.p. 1468). Respondent performed no traffic study or analysis. (Resp.Ex. 148,Director
Wrenn Dep. Vol. II, 390:6-10) Director Wrenn's January 20, 2022 PowerPoint presentation to
DEQ leadership contained no discussion about traffic. (Resp. Ex. 148, Director Wrenn Dep. Vol.
II, 365:10-12)
171. None of the various iterations of the Mining Review reflect any issues with traffic other
than to note that traffic is outside the scope of the permit and that truck volume is not expected to
increase. (Pet. Ex. 14 at 11, 61, 62)
172. Director Wrenn did not identify any issues with traffic until he heard from Park staff during
his February 9, 2022, site visit, eight days before he issued the denial of the Application. (T. p.
6.1468) Director Wrenn did not ask the State Parks Division if it planned on expanding the Park's
parking lots to alleviate any queuing concerns. (Resp. Ex. 148, Director Wrenn Dep. Vol. II,
398:24-399:1)
25

173. Director Wrenn and State Mining Engineer Miller both admitted that truck traffic volume is
not expected to increase if the Application is granted. (T. p. 6.1457; Resp. Ex. 149, Miller Dep.
Vol. III, 537:20-538:4)
174. Traffic was not a"reasonable criteria"upon which to deny the Application. (Resp. Ex. 149;
Miller Dep. Vol. III, 537:15-23). Director Wrenn acknowledged that traffic was an adverse effect
on the purposes of the Park, but not a significantly adverse effect. (T. p.6.1467)
175. Respondent provided Petitioner no opportunity to propose mitigation with respect to any
perceived traffic concerns. (Resp. Ex. 149, Miller Dep. Vol. III, 539:1-9)
176. In December 2020, Miller State Mining Engineer stated in the Mining Review that "the
Park and Quarry have existed side by side for about 40 years,with little impact to the Park." (Pet.
Ex. 14)
177. As of June 2, 2021, the Mining Review contained evaluations of the noise and visual
impacts of the proposed expansion. As to visual impacts, the Mining Review stated that the
photographs submitted by Petitioner showed "adequate visual screening" for the Foxcroft Lake
area. (Pet. Ex. 61; Resp. Ex. 149, Miller Dep. Vol. III, 545:11-23, 547:6-548:11, 548:25-549:4)
178. As for noise, State Mining Engineer Miller relied on Petitioner's Acoustical Study,
concluding that:
• the noise attributable to the expansion "will not have a significant adverse
effect on the park" under N.C. Gen. Stat. § 74-51(d)(5) because: (1) the
current mining operation showed only a one to three decibel impact to the
Park; (2) in its worst-case scenario, the proposed expansion would have an
additional one to two decibel impact; and (3) the total impact to the Park
would be, at a maximum, five decibels; and
• the noise would be considered an adverse effect if the proposed expansion
were in a rural environment but "since this park lies in an urban
environment with a major interstate just South of the proposed expansion,
another multiple lane highway to the north of the Park, an airport to the
West, and two additional quarries near the park, the ambient occurring
noise caused by man's activity is a far greater impact." (Pet. Ex. 61)
179. State Mining Engineer Miller's August 12, 2021, entry on the Mining Review states that
Petitioner had changed the proposed screening buffers on the Odd Fellows tract to a"highway type
sound wall." (Resp. Ex. 149;Miller Dep.Vol.III, 552:24-553:5;Pet. Ex. 62) The Mining Review
concluded that "by making these changes, the Company's Noise model shows the noise impact
to the park has been sufficiently mitigated." (Resp. Ex. 149,Miller Dep. Vol. III, 552:19-553:15;
Pet.Ex. 62)
180. On August 30, 2021, State Mining Engineer Miller prepared an internal document
analyzing the noise impact on the Park. (T. pp. 7.1528-1532; Pet. Ex. 44) Miller decided, based
on his "personal belief," that the 10 dBA threshold recommended by WSP was not reasonable for
26

an "urban park." (Pet. Ex. 44; Resp. Ex. 149, Miller Dep. Vol. I, 152:3-153:10) Thus, he applied
a 15% "safety factor" to the 10 dBA threshold to lower it to 8.5 dBA. (Pet. Ex. 44)
181. State Mining Engineer Miller incorrectly arrived at 8.5 dBA by applying a linear
percentage reduction(15%)to a logarithmic decibel quantity(10 dBA). As Mr. Thalheimer stated,
"That just doesn't work mathematically well at all." (T. pp. 3.572:24-573:6)
182. Director Wrenn knew the mathematical calculations performed by State Mining Engineer
Miller in applying the safety factor were incorrect. (T. p. 7.1529)
183. Despite the mathematical errors, State Mining Engineer Miller found that "all predicted
amounts" in the Park were below this new 8.5 dBA threshold, even the area east of Foxcroft Lake
where the noise increase was the greatest. (T.pp. 7.1528-1533; Pet. Ex. 44)Mr. Miller concluded
that "because this is a low use area with no maintained trails," the impact to the Park was
"minimum" and the proposed pit would not present an adverse effect. (Id.)
184. Director Wrenn is not aware of how many Park visitors use this area. (T. p. 7.1534) State
Mining Engineer Miller determined that it is a low use area. (T. pp.7.1533-1534)
185. In April 2021, State Mining Engineer Miller began modifying Petitioner's previous permit
to create a draft permit for the Application. (Joint Stip., ¶35) Mr. Miller notified Director Wrenn
that he put the draft permit in the"Teams" software program so others could edit it. (Joint Stip., ¶
36) Director Wrenn also worked on the draft permit. (T. p. 7.1572;Pet. Ex. 45,48;Resp. Ex. 149,
Miller Dep. Vol. II, 362:18-363:2; 370:25-372:12.)
186. On September 8, 2021, Josh Kastrinsky, Respondent's public information officer, drafted
a press release announcing Respondent's decision to approve the Application, which he
"intend[ed] to get ... out on 9/10." (Resp. Ex. 148, Director Wrenn Dep. Vol. II, 315:11-317:22;
Pet. Ex. 47)
187. As of that date, Respondent had received all photos requested of Petitioner of the Foxcroft
Lake area from both summer and winter months, and State Mining Engineer Miller had
documented in the Mining Review that, based on those photos, the area would be adequately
screened. (T.p.7.1572)Respondent had also received and accepted the Acoustical Study. (T. pp.
7.1572-1573)
188. Respondent did not issue a decision on the Application in September 2021. (T. p. 7.1573).
Respondent took no steps at that time to prepare a denial memo or letter but continued to work on
draft permit conditions. (Id.).
189. Respondent did not approve the Application in September of 2021 because it learned that
Petitioner's Neuse River Buffer Authorization was going to be reversed. (T. p. 7.1574)
190. On September 9,2021,Respondent issued its seventh and final ADI to Petitioner. (Pet. Ex.
30; Joint Stip.,¶ 49)
27

191. On January 20, 2022, Director Wrenn gave a PowerPoint presentation to Respondent's
leadership, including Assistant Secretary Sushma Masemore, to provide an update on the
Application. (T. p. 6.1305) Based on the Acoustical Study and Miller's August 30, 2021, noise
analysis document, Director Wrenn informed Respondent's leadership on that date that "[a]ll
predicted noise levels were below the 8.5 dBA level of increase." (T. pp. 6.1305, 6.1308; Pet. Ex.
58) Director Wrenn also concluded and informed Respondent's leadership that Petitioner's
proposal to build a sound barrier wall would "provide adequate visual screening for the park."
(T.p. 6. 1309)
192. State Mining Engineer Miller had "multiple conversations" with Director Wrenn during
the Application review process in which Mr. Miller "told him that I felt there was good reason to
grant the application." (Resp. Ex. 149, Miller Dep. Vol. I11, 452:8-22).
193. The Mining Review was edited by a few individuals over the course of many months. State
Mining Engineer Miller consistently recommended that the Application be approved and the
modified permit issued. (Pet. Ex. 14, 61, 62)
194. Director Wrenn was able to and did access and edit the Mining Review. (T. pp. 6.1426,
7.1540-1544)
195. State Mining Engineer Miller last edited or revised the Mining Review on February 10,
2022. (Joint Stip.,¶ 33) Director Wrenn edited the Mining Review on February 14, 2022, three
days before he denied the Application. (T. p. 7.1544; Joint Stip., ¶ 33). Neither State Mining
Engineer Miller's nor Director Wrenn's final edits changed or removed the recommendation that
the Application be approved. (T. p. 7.1639; Pet. Ex. 62)
196. As of February 17, 2022, the date Director Wrenn denied the Application, the Mining
Review last edited by Director Wrenn stated:
• "[T]he threshold established by the denial criteria 74-51(d)(5)has not been
met." (Pet. Ex. 62)
• "The noise created by this [proposed] expansion will not have a
significant adverse effect on the purposes of Umstead State Park." (Id)
• "I recommend modifying the Wake Stone-Triangle Quarry mining
permit, Permit Number 92-10, by adding the Odd Fellow tract to the mine
permit." (Id.)
197. Director Wrenn did not remove any of these conclusions. (T. pp. 7.1540-1544, 7.1639)
198. Director Wrenn claims that, shortly before Respondent denied the Application, Director
Wrenn asked State Mining Engineer Miller to revise the Mining Review to make it consistent with
Director Wrenn's denial. (Resp. Ex. 148, Director Wrenn Dep. Vol. 1, 199:3-200:19) Mr. Miller
did not do so. (T. pp. 7.1639-1640)
28

199. Respondent did not call State Mining Engineer Miller to testify at the contested case
hearing.
200. At State Mining Engineer Miller's deposition, he made several sworn statements adverse
to Respondent's position in this contested case. These statements include the following:
• Miller had never reviewed a more thorough and detailed modification
application than Petitioner's (Resp. Ex. 149, Miller Dep. Vol. I, 90:4);
• Miller had "multiple conversations" with Director Wrenn during the
review process in which he "told him that I felt there was good reason to
grant the application." (Resp. Ex. 149, Miller Dep. Vol. III, 452:8-22);
• Director Wrenn never discussed using a 55 dBA Ldn standard with Miller
(Resp. Ex. 149, Miller Dep. Vol. III, 474:17-475:9);
• only the access road and the void caused by the clearing activity would
potentially be visible from the Foxcroft Lake area,not the mining pit(Resp.
Ex. 149, Miller Dep. Vol. III, 504:13-506:4);
• although vegetation at the ridge top could mitigate a potential visibility
issue, DEMLR should not require Wake Stone to incur this expense when
"[t]here is a marginable [sic] chance that that area would not be necessarily
that visible once construction starts." (Resp. Ex. 149, Miller Dep. Vol. III,
518:17-519:2);
• Miller did not think the quarry expansion would have an adverse impact
on traffic and "did not consider that a reasonable criteria" to deny the
Application. (Resp. Ex. 149, Miller Dep. Vol. III, 537:15-23);
• Miller told Mr. Ery Portman that DPR's letter requesting that the
Application be denied was "not worth the paper it's written on." (Resp. Ex.
149, Miller Dep. Vol. III, 569:13-18);
• Miller told Ery Portman that "this site is the best place for a new
quarry," testifying in his deposition that the Odd Fellows tract was the
best site for a "modification of the existing quarry." (Resp. Ex. 149,
Miller Dep. Vol. III, 570:21-571:7); and
• Miller told Mr.Sam Bratton; immediately after the February 9 site visit;that
the State Parks was "looking for cumulative adverse effect, but that Wake
Stone had good science on its side." (Resp. Ex. 149, Miller Dep. Vol. III,
459:13-18)
201. Director Wrenn relied on State Mining Engineer Miller to provide recommendations to
him as to mining applications and he was required, as Division Director, to review the most
recent mining review before denying an application. (T. pp. 6.1420-1421; Resp. Ex. 148,
Director Wrenn Dep. Vol. I, 195:18-197:2) Mr. Miller is a licensed mine engineer and has
handled hundreds of applications. (Resp. Ex. 149, Miller Dep. Vol. I, 15:22-16:6, 25:23-26:16)
29

202. Director Wrenn acknowledged that there was "quite a bit of [internal] documentation"
contradicting his decision to deny the Application. (Resp. Ex. 148, Director Wrenn Dep. Vol. II,
403:3— 404:16)
203. Director Wrenn has no engineering degree,no graduate degree,no mining experience, and
no licenses or certifications. (Resp. Ex. 148, Director Wrenn Dep. Vol. I, 9:14-18; 20:15-21:4;
32:19— 33:10) He had been the Division Director for only two months when the Application was
submitted and only two years when he rejected State Mining Engineer Miller's recommendation.
(Id.)
204. There are 750 permitted mines in North Carolina. (T. p. 6.1379, Pet. Ex. 120)
205. Director Wrenn is familiar with four mining permits that have been denied in the 53-
year history of Respondent's Mining Program. (T. pp. 6.1382-1383) Of those four denials,
three occurred when Director Wrenn was serving as Division Director, a position he held for less
than three years. (T. pp. 6.1383-1386)
206. The only denial not made by Director Wrenn was the 1980 denial of Petitioner's Triangle
Quarry application,which was ultimately reversed by the North Carolina Mining Commission. (T.
p. 6 . 1383)
207. Director Wrenn denied the Application by letter dated February 17, 2022. (Pet. Ex. 50)
The denial letter states that "[t]he proposed quarry is located and designed such that normal
operation would have significantly adverse effects on the purposes of the Park through noise,
visual, and traffic impacts." (Id.) It also states that "as the current configuration of the pit is
proposed, the Department is not aware of modifications which would mitigate all significantly
adverse effects on the purposes of the Park." (Id.)
208. The denial letter attached a memorandum drafted by Director Wrenn that provides the basis
for his denial of the Application. (Pet. Ex. 51)
209. As to noise impacts,Director Wrenn's denial memorandum rejected both the conclusion of
the Acoustical Study and the recommendation of the State Mining Engineer,Mr. Miller,that noise
would not have a significantly adverse impact on Park purposes. (Pet. Ex. 51)
210. Director Wrenn rejected the Acoustical Study's recommended 10 dBA relative threshold
and State Mining Engineer Miller's lowered 8.5 dBA threshold. (T.p. 7.1513;Pet.Ex. 51)Director
Wrenn's denial memorandum focused on the noise impact on the small area of the Park east of
Foxcroft Lake, which would experience a "predicted worst case scenario" 6-7 dBA increase in
noise. (Pet. Ex. 51)Director Wrenn admitted that no designated trails were located in the Foxcroft
Lake area and that he had never observed any recreational activity on Foxcroft Lake. (Resp. Ex.
148, Director Wrenn Dep. Vol. I, 69:13-70:3; Vol. II,422:10-423:2)
211. Director Wrenn's denial memorandum said that noise would increase 3-5 dBA further into
the Park. (Pet. Ex. 51. This erroneous statement was based on the isopleth maps prepared by WSP.
(T. p. 7.1519) The maps do not indicate whether the noise depicted by the isopleth maps would
30

be audible, because the noise study protocol approved by DEMLR did not require WSP to model
background noise. (T. pp. 7.1519-1520, 7.1701)
212. Director Wrenn could not quantify what area of the Park he believed would experience
a "predicted worst case scenario" 6-7 dBA increase in noise. (T. p. 7.1524) Mr. Thalheimer
quantified that area as 1.24 acres or .02% of the Park's total acreage. (Pet. Ex. 89, T. pp. 3.598-
599)
213. Director Wrenn could not identify how the Park's purposes of recreation, conservation, or
education are carried out in that area of the Park or how it would be affected by the noise from the
proposed mining operation. (T. p. 7.1523-1525)
214. In his denial memorandum, Director Wrenn used an absolute threshold of 60.8 dBA as
constituting a significantly adverse effect. (T. p. 7.1640, Pet. Ex. 51 at 4
215. In formulating his 60.8 dBA absolute standard, Director Wrenn took the values from the
isopleth map and added them to the maintenance day measured noise level. (T.pp. 7.1633; 7.1693-
1694)
216. The data from the sound isopleth contour maps show the difference in modeled noise levels
between the proposed operation and the existing Triangle Quarry. Director Wrenn added these
numbers to the total measured noise level from all sources on a maintenance day. (T. pp. 7.1684-
1685; 7.1694)
217. Prior to denying the Application, Director Wrenn never communicated the absolute
standard of 60.8 dBA to Petitioner or WSP. (T. p. 7.1640)
218. In his denial memorandum, Director Wrenn also applied an absolute threshold of 55 dBA.
(Pet. Ex. 51) He chose this threshold because it was the standard used in the 1980 noise impact
analysis done for Petitioner's original permit,based in turn on the standard used in a 1970 analysis
of noise impacts to the Everglades National Park from the proposed Everglades Jetport (the
"Everglades Study"). (Id.)
219. State Mining Engineer Miller was not familiar with the Everglades Study and Director
Wrenn never discussed using the 55 dBA standard with him. (Resp. Ex. 149, Miller Dep. Vol.
III, 474:17-475:9). Director Wrenn also supported using a 55 dBA standard based on comments
from the general public. (Pet. Ex. 51)
220. Mr. Thalheimer is familiar with the Everglades Study and explained that the metric it
uses is a 55 dBA Ldn metric. (T. pp. 3.589-590, 7.1688) The Everglades Study was based on a
different acoustical measurement (a day and night Ldn measurement) than the Acoustical Study
models (based on a Leq measurement for working hours only,because Petitioner does not operate
at night). (T. pp. 3.589-590, 7.1688-1689)
31

221. If the metrics were made equivalent—i.e, if Petitioner's noise emission levels in the Park
were computed as an Ldn level, the noise levels would be below the 55 dBA standard Director
Wrenn relied on in the denial memorandum. (T. pp. 3.589-591)
222. Even if the Acoustical Study's Leq measurements are compared to Director Wrenn's 55 dBA
Ldn standard, only two small areas near Foxcroft Lake exceed this standard and by a barely
perceptible amount—one by .4 decibels and one by 1.7 decibels. (T.pp. 3.591, 7.1641;Pet. Ex. 51)
223. Director Wrenn never communicated the 55 dBA standard to Petitioner or WSP. (T. p.
7.1640)
224. Respondent's acoustical expert, Dr. Stewart, was critical of Director Wrenn's acoustical
analysis in the denial memo. (T. p. 5.1090)
225. As to visual impacts, Director Wrenn stated in his denial memo that Petitioner's "proposed
sound barrier wall would screen much of the operation from view within the Park." (Pet. Ex. 51)
Despite that, Director Wrenn found a significantly adverse effect on Park purposes because he
felt that the mining operation would be visible from the small area of the Park east of Foxcroft
Lake. (Id.) Director Wrenn acknowledged that there are no "mapped trails" in this area of the
Park. (Id.) Director Wrenn also surmised that"[a]dditional vegetative screening would likely have
little mitigating effect on the visual impacts to the purposes of the Park." (T. p. 7.1637)
226. Director Wrenn could not identify how the Park's purposes of conservation,recreation, and
education would be affected in any way by the visual impacts of the proposed mining operation.
(T. p. 7.1638)
227. Director Wrenn's determination that the proposed quarry expansion would have a
significantly adverse effect on the purposes of the Park through visual impacts is contradictory to
his own presentation to DEQ leadership on January 20, 2022. Director Wrenn's presentation said
Petitioner's sound barrier wall proposal "will provide adequate visual screening for the Park and
the Dunns." (Pet. Ex. 58)
228. As to traffic impacts, Director Wrenn found that "truck traffic would not be expected
to increase significantly as a result of the proposed expansion." (Pet. Ex. 51)
229. Director Wrenn found that traffic at the Park's Harrison Avenue entrance had increased
"dramatically" based on increased Park visitation. (Pet. Ex. 51). Director Wrenn concluded that
there would be "negative impacts on the purposes of the Park through public interactions with
quarry traffic." (Id.)
230. Director Wrenn based this opinion on his belief that a dump truck leaving Triangle Quarry
has the potential to interact with park users queuing to enter the Park via Harrison Avenue. (T. p.
6.1450-1451)
231. Director Wrenn does not know when Park users queue up outside the Park on Harrison
Avenue. (T. p. 6.1452)
32

232. Director Wrenn was unaware of any "interactions" or wrecks between any Park users and
Wake Stone dump trucks leaving the Triangle Quarry. (T. pp. 6.1454-1455). There have been no
traffic accidents involving trucks entering or leaving Triangle Quarry. (T. p. 1.120)
233. Director Wrenn acknowledged that traffic would not constitute a significantly adverse effect
on the purposes of the Park. (T. p. 6.1448-1449)
234. Director Wrenn is unaware of the last time the Park expanded its parking lot. (T. pp.
6.1451-1452)
235. Respondent issued its final request for additional information to Petitioner on
September 9, 2021 ("7th ADI"). (Joint Stip.,¶49; Pet. Ex. 30)
236. The 7th ADI requested four categories of information. (Pet. Ex. 30) Two categories
related to Neuse River Buffer Authorization, one category requested that Petitioner engage in
consultation with the USFWS regarding the presence of the Neuse River Waterdog, and the final
category was a request for visual renderings from various vantage points including from a bird's
eye perspective. (Pet. Ex. 30)
237. The request for information specific to USFWS stated, in relevant part, "Please provide
any further threatened and endangered species coordination you have conducted with the US Fish
and Wildlife Service in response to this final rule." (Pet. Ex. 30) Respondent asked that Petitioner
forward two copies of the requested information to Respondent "[i]n order to complete the
processing of your application." (Id.)
238. Petitioner provided a narrative response to the final ADI on November 1, 2021. (Pet.
Ex. 31; Resp. Ex. 139; Joint Stip.,¶50)
239. Petitioner's response completely answered the four requests contained in the 7th ADI.
(Pet. Ex. 31; Resp. Ex. 139). Petitioner's cover letter enclosed "duplicate copies of[its]responses
to your request for additional information," as Respondent had requested. (Pet. Ex. 31). The letter
also stated that "we believe these additional data will provide you with the final information
you need to move forward to permit issuance." (Id.)
240. Regarding the request for USFWS consultation, on November 1, 2021, Petitioner
responded that since receiving the 7th ADI, Petitioner had engaged in on-going consultation with
USFWS. (Pet. Ex. 31). Petitioner's response also stated that since there were no federal permits
required for the expansion onto the Odd Fellows tract ("federal nexus") and with no impacts
proposed to Crabtree Creek or its tributaries, there was no need for Petitioner to engage with
USFWS for formal consultation under the Endangered Species Act. (Pet. Ex. 31)
241. Petitioner's environmental engineers and USFWS's species status assessment both
confirmed that the Neuse River Basin likely is not occupied by the Neuse River waterdog, and that
the last one identified was seen in 1979 in an area near Ebenezer Church Road. (Pet. Ex. 31)
Although formal consultation was not required, Petitioner contacted Mr. Pete Benjamin, field
33

supervisor for USFWS,requesting concurrence that the proposed quarry expansion is not likely to
affect the Neuse River waterdog based on no Crabtree Creek impact proposed by the project, the
previously noted habitat assessment of Petitioner's environmental consultant, no documented
occurrence since 1979, and USFWS's own species status assessment report. (Pet. Ex. 31)
Petitioner's response to Respondent stated that it had requested that Mr. Benjamin send that
concurrence directly to State Mining Engineer Miller. (Pet. Ex. 31; Joint Stip.,¶ 51)
242. On January 7, 2022, Mr. John Ellis, on behalf of Mr. Benjamin, sent directly to State
Mining Engineer Miller USFWS's concurrence that there is no federal nexus to the proposed
expansion and that the Neuse River waterdog is not present in the relevant portion of Crabtree
Creek. (Pet.Ex. 33;Joint Stip.¶52)(Mr.Benjamin' letter is hereinafter referred to as the"USFWS
Letter.")Director Wrenn also received a copy of this letter at that time. (T.pp. 7.1585-1586; Joint
Stip.,¶53)
243. As is evident from Petitioner's Exhibit 33, the USFWS Letter from was on USFWS
letterhead and bore an electronic signature. (Pet. Ex. 33)
244. Respondent did not issue or deny the modification of the permit sought by the
Application within 30 days of receiving the USFWS Letter. (T. p. 7.1588)
245. Director Wrenn confirmed in a weekly update in early January that "USFWS provided the
official consultation determination on letterhead for our files on January 7, 2022." (Pet. Ex. 35;
Joint Stip., ¶ 54; T. pp. 6.1289-1291) Director Wrenn stated in this update that Respondent's 30-
day review period under N.C. Gen. Stat. § 74-51(b) began that day, and a decision was due by
Respondent on the Application by February 6 (a Sunday, which Director Wrenn stated "had
traditionally" defaulted to the last business day before the deadline, which was February 4). (Pet.
Ex. 35)
246. Respondent published the USFWS Letter to Respondent's website on January 11,2022. (T.
p. 7.1589; Pet. Ex.34)
247. Respondent did not issue or deny the modification of the permit sought by the
Application within 30 days of posting the USFWS Letter to Respondent's website. (T.pp. 7.1589-
1590)
248. On January 14, 2022, (7 days after Respondent received the USFWS Letter), State
Mining Engineer Miller informed Petitioner that Respondent, and specifically Director Wrenn,
was going to require Petitioner to submit a "hard copy" of Mr. Benjamin's letter to Respondent
before the "30-day clock" to make a decision on the Application would start. (T. pp. 7.1592-
1593; Pet. Ex. 37)
249. On January 18, 2022, Mr. Ellis of USFWS wrote to Respondent and informed Respondent
that the USFWS letter emailed from him to State Mining Engineer Miller and Director Wrenn was
the "official" correspondence" of USFWS and that USFWS was not issuing "hard copies" of its
letters due to a Covid lockdown. (T. pp. 7.1592-1593; Pet. Ex. 37)
34

250. On January 18, 2022, Petitioner printed out the emailed USFWS Letter from and hand-
delivered it to Respondent. (T. p. 7.1593) Only at that time did Respondent consider the
Application complete and ripe for decision. (T. p. 7.1593)
251. On this same date, Respondent was drafting language for the modified permit. (T. pp.
7.1594-1596; Pet. Ex. 48)
252. Respondent did not issue its decision denying the Application until February 17,2022,well
after 30-days from January 7, 2022, the date Respondent originally received the USFWS Letter.
(Pet. Ex. 50)
253. Director Wrenn did not know what the consequence was of Respondent failing to take action
on the Application by the deadline prescribed by the Mining Act, although he did seek a legal
opinion on the question. (T. p. 6.1388-1389)
254. Respondent publishes a Surface Mining Manual on its website that is considered
Respondent's recommended procedures and best practices. (T. p. 6.1458; Resp. Ex. 149, Miller
Dep. Vol. I, 50:4-25; Pet. Ex. 3) The Surface Mining Manual serves as a guideline for permit
applicants and is used by Respondent staff as a protocol in evaluating permit applications under
the Mining Act. (T. p. 6.1458)
255. With respect to public hearings,the Surface Mining Manual states, "Note: comments must
be relevant to the seven criteria listed under G.S. § 74-51 of the Mining Act of 1971. The Mining
Act does not address truck traffic, noise, property values or aesthetics." (T. p. 6.1459; Pet. Ex. 3,
§§ 3-7, 8-4)
256. Director Wrenn, during his tenure as Director,never instructed anyone within the Division
to revise the Surface Mining Manual and post it on the Division's website. (T. pp. 6.1459-1460)
257. In accordance with the Surface Mining Manual, State Mining Engineer Miller instructed
the audience at both public hearings on the Application that "offsite truck traffic on public
roads, noise, and potentially negative impacts on property values are not within the jurisdiction
of the Mining Act of 1971. These items are more properly addressed through local zoning
ordinances." (Resp. Ex. 149, Miller Dep. Vol. 1, 74:6-25; T. p. 6.1460; Pet. Ex. 4) M r.
Miller acknowledged that he agreed with this statement at the time of the public hearings and didn't
know when he changed his mind. (Resp. Ex. 149, Miller Dep. Vol. I, 75:14-77:10)
258. The Surface Mining Manual does not make an exception to this guideline for
applications being considered under N.C.G.S. § 74-51(d)(5). (T. pp. 6.1461-1462)
259. Director Wrenn reviewed the comments that State Mining Engineer Miller delivered at the
public hearings prior to the hearings and did not instruct Miller to revise the comments to reflect
that truck traffic and noise are within the jurisdiction of the Mining Act. (T. pp. 6.1462-1464)
Director Wrenn also did not correct Miller on this point during either public hearing. (T. pp.
6.1463-1464)Director Wrenn took no steps after the hearing to clarify that truck traffic and noise
are within the jurisdiction of the Mining Act. (T. p. 6.1464)
35

260. Respondent also sent communications to the local press prior to the public hearings,
stating: "G.S. § 74-51 lists seven denial criteria that can be considered by the Department in
making its decision to grant or deny a mining permit. Please note that the Act does not have
jurisdiction over offsite truck traffic, noise, and potential impacts to property values." (T. pp.
6.1465-1466; Pet. Ex. 52; Resp. Ex. 149, Miller Dep. Vol. III, 447:22-449:3)
261. The Mining Review stated that the issue of"truck traffic" was "outside the scope of the
permit." (Resp. Ex. 149, Miller Dep. Vol. I, 134:17-135:9; Pet. Ex. 14; Pet. Ex. 62 at 6)
262. Despite that, Director Wrenn considered and relied upon the impacts of truck traffic and
noise on the purposes of the Park in his decision to deny the Application. (T. p.6.1467; Pet. Ex.
19)
2
263. Michael S. Regan was DEQ Secretary from January 2017 through March 2021.
3
264. Danny Smith was appointed Interim Division Director effective December 1, 2018.
265. On January 29, 2019, shortly after Smith's appointment, Secretary Regan signed a
"Delegation of Authority"under N.C. Gen Stat. § 143B-10 for the Division Director to "administer
the regulatory provisions" of the Mining Act and to sign on behalf of the DEQ, all instruments
reasonably necessary to exercise the delegated authority. (See Respondent's Notice of Response
and Objections, Ex. 1)
266. In February of 2020, Brian Wrenn became Director of the Division. (Resp. Ex. 148,
Director Wrenn Dep. Vol. I, 18:6-18)
4
267. In June of 2021, Elizabeth S. Biser became DEQ Secretary and is the current Secretary.
268. By letter dated July 14, 2021, to DEQ Chief Deputy Secretary John Nicholson, Biser
removed herself from participating in three DEQ matters, one of which was Petitioner's
Application. (Sushma Masemore Apr. 14, 2023 Aff., Ex. A) Secretary Biser specifically recused
herself from participating in "applications, permits ... deliberative processes, or final agency
actions" pertaining to the excluded matters. (Id.) Secretary Biser delegated to Mr. Nicholson the
responsibility for this matter. (Id.)
2 See hops://www.deg.nc.gov/about/leadership/michael-s-reizan#:-:text=Governor%20Roy%20Coope%20r
Michael,Carolina's%20environment%20and%20natural%20resources:https://www.epa.aov/aboutgpa/epa-
administrator.
3 See https:llwww.myncma.or. /g ncdeg-announces-organizational-staffing-decisions/
4 See hops://www.deg.nc.gov/about/leadership/elizabeth-s-biser#:—:text=Biser,-
SecretM&text=Governor%20Roy%20Cooper%20named%20Elizabeth,Environmental%20Quality%20in%20
June%202021.
36

269. After M r. Nicholson left DEQ in January 2022, Secretary Biser issued an almost
identical letter, dated February 14, 2022, to DEQ Assistant Secretary Sushma Masemore.
(Masemore Aff., Ex. B) Secretary Biser again recused herself from participating in, among other
things, "final agency actio'ns" with respect to the Application and assigned her authority to
Assistant Secretary Masemore. (Id.)
270. Respondent failed to produce any evidence that Secretary Biser ever issued a proper
delegation of authority to Director Wrenn or the Division Director, as required by the Mining
Act and the Executive Organization Act.
CONCLUSIONS OF LAW
I. Introduction
1. The North Carolina Office of Administrative Hearings has jurisdiction over the parties
and the subject matter pursuant to Chapter 15013-23, et seq. of the North Carolina General
Statutes. All necessary parties have been joined and have received proper notice of the hearing
in this matter. Notice of Hearing was provided to all parties in accordance with N.C. Gen. Stat. §
15013- 23(b) and(c).
2. In this contested case, Petitioner bears the burden of proving by a preponderance of the
evidence that: (1) the agency substantially prejudiced its rights; and (2) the agency acted
erroneously, arbitrarily or capriciously, used improper procedure, or failed to act as required by
law or rule. N.C. Gen. Stat. §§ 15013-23(a), 15013-25.1(a); Sound Rivers, Inc. v. N.C. Dept of
Env't Quality, Div. of Water Res., 271 N.C. App. 674, 686-87, 845 S.E.2d 802, 811-12 (2020).
3. Respondent concedes that its denial of the Application has substantially prejudiced
Petitioner. Accordingly, the Undersigned holds that Respondent substantially prejudiced
Petitioner's rights under the substantial prejudice element of N.C.G.S. § 15013-23(a) by denying
the Application.
4. To the extent that the findings of fact contain conclusions of law or the conclusions of law
are findings of fact, they should be so considered without regard to the given labels. See
Westmoreland v. High Point Healthcare, Inc.,218 N.C.App. 76,79,721 S.E.2d 712, 716(2012).
5. North Carolina's Mining Act of 1971, N.C. Gen. Stat. § 74-46 et seq., governs the
permitting process for mining operations in the State. The Mining Act recognizes that, although
it is "not practical to extract minerals required by our society without disturbing the surface of
the earth," mining can be conducted to "minimize its effects on the surrounding environment."
N.C. Gen. Stat. § 74-47. Accordingly, the Mining Act allows for mining while requiring
"reasonable provisions"to protect the surrounding environment to the "greatest practical degree."
N.C. Gen. Stat. § 74-48.
6. The Mining Act mandates that Respondent "shall grant or deny the permit requested as
expeditiously as possible." N.C. Gen. Stat. § 74-51(b) (emphasis added). If a public hearing is
37

held, the decision must be made "within 30 days following the hearing and the filing of any
relevant and material supplemental information reasonably required by the Department." Id.
7. Respondent issued seven ADI's for additional or supplemental information to Petitioner
over the 681 days that the Application was under review.
8. Administrative agency decisions may be reversed as arbitrary or capricious if they are
"patently in bad faith" or "whimsical in the sense that they indicate a lack of fair and careful
consideration or fail to indicate any course of reasoning and the exercise of judgement."Lewis v.
N.C. Dept of Human Res., 92 N.C. App. 737, 740, 375 S.E. 2d 712, 714 (1989). An arbitrary or
capricious agency decision is one that "lacks a rational basis—where there is no substantial
relationship between the facts disclosed by the record and conclusions reached by the [agency]."
Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 60, 344 S.E.2d 272, 278 (1986); see also
Sanchez v. Town of Beaufort, 211 N.C. App. 574, 580, 710 S.E.2d 350, 354 (2011) (defining
arbitrary or capricious as "not supported by substantial evidence"). In applying an arbitrary or
capricious standard, the court must determine whether the agency made a good faith judgment,
"after considering all relevant factors, including possible alternative or mitigative measures."
State of N.C. v. Hudson, 731 F. Supp. 1261, 1268 (E.D.N.C. 1990), affd, 940 F.2d 58 (4th Cir.
1991).
9. An agency's denial of a permit is arbitrary or capricious where it is based on"[s]peculative
assertions" or "mere opinion evidence" rather than competent substantial evidence. Weaverville
Partners, LLC v. Town of Weaverville Zoning Bd. of Adjustment, 188 N.C. App. 55, 654 S.E.2d
784 (2008). An agency's permit denial also is arbitrary or capricious where the agency applies a
factually unsupported or unreasonable standard. See Sanchez, 211 N.C. App. at 581-83, 710
S.E.2d at 355-56.
II. Respondent Failed to Act on the Application Within the Statutory Deadline
10. The Mining Act mandates that, if a public hearing is held, the decision to grant or deny
the permit must be made "within 30 days following the hearing and the filing of any relevant and
material supplemental information reasonably required by the Department."N.C. Gen. Stat. § 74-
51(b).
11. DEMLR's final ADI sought information from the U.S.Fish&Wildlife Service(USFWS)
concerning the project's potential impact on the Neuse Waterdog. On January 7, 2022, the
USFWS sent a letter(the "USFWS Letter")via e-mail to Director Wrenn stating that a Section 7
[Endangered Species Act] consultation was not required. (Pet. Ex. 33)
12. Upon receipt of the USFWS Letter, Director Wrenn informed DEQ Senior Management
about the statutory significance of this letter. (Pet. Ex. 35) (T 6.1290). Director Wrenn wrote,
"On January 7th USFWS provided the official consultation determination on letterhead for our
files. DEMLR's 30-day review period has began. A decision to approve, deny, or request
additional information must be made by Sunday February 6th. When the deadline falls on a
weekend or holiday, the Mining Program has traditionally defaulted to the last business day
before the deadline which would be February 4tn"
38

13. On January 11, 2022, four days after receipt, DEMLR posted the USFWS Letter on its
public-facing website.
14. In contradiction of Director Wrenn's clear statement establishing the February 4th
deadline,David Miller,the State's Mining Engineer,sent an email to Petitioner on Friday,January
14, 2022, at 6:00 pm, stating that "he was informed that your clock stops when Brian [Director
Wrenn] receives the hard copy of Pete Benjamin's [USFWS] letter on the Neuse River Waterdog.
Brian said he hasn't seen it yet." Respondent then told Petitioner that until a hard copy of the
USFWS Letter was received by Director Wrenn, the 30-day clock would not start. (Miller Dep.
Vol. II, 330). This is the USFWS Letter that was addressed to Director Wrenn, received by him
on January 7, 2002, posted on the public website by DEMLR on January 11, 2022, and relied
upon by Director Wrenn to inform Senior Management at DEQ that the deadline to make a
decision on the application was February 4, 2022.
15. Petitioner contacted USFWS to obtain the hard copy of the USFWS Letter for
Respondent. In response to this request,on January 18,2022,USFWS sent an e-mail to Petitioner
and Respondent stating that, due to COVID,the agency officials were not physically in the office
and that no hard copy was mailed or forthcoming. (Pet. Ex. 37)
16. Respondent accepted from Petitioner a printed hard copy of the website document in
fulfillment of its request. (Pet. Ex. 38) According to the Respondent, it was only the receipt of a
printed version of the USFWS Letter - the same letter Respondent had already received via e-
mail on January 7, 2022, - that would start the statutory 30-day clock.
17. This Tribunal finds that State Mining Engineer Miller's January 14, 2022, request to
Petitioner to provide a hard copy of the USFWS Letter was a pretext to avoid the actual 30-day
deadline of February 4, 2022. The only plausible explanation for this attempt to reset the clock is
that, late in the process, Respondent decided to deny the Application but needed more time to
devise a reason for the denial. This last-minute attempt to reset the clock is a quintessential
example of bad faith and unlawful tactic to circumvent the statutory timelines for processing
applications.
18. Not only was Respondent's request for a hard copy of the USFWS Letter already in its
possession a transparent attempt to evade a statutorily-mandated deadline, the request was not
authorized under N.C. Gen. Stat. § 74-51(b). This section requires that "[t]he Department shall
grant or deny the permit requested as expeditiously as possible,but in no event later than 60 days
after the application form and any relevant and material supplemental information reasonably
required shall have been filed with the Department, or if a public hearing is held, within 30 days
following the hearing and the filing of any relevant and material supplemental information
reasonably required by the Department." The last-minute,Friday evening request for a hard copy
of the USFWS Letter was not "relevant" or "reasonably" required and, therefore, cannot be the
basis for delaying the February 4, 2022, deadline to act. Respondent already possessed the
information (i.e., the USFWS Letter), posted it on its website, and Director Wrenn had already
relied on it when he established the February 4, 2022, deadline to act. Moreover, Respondent
never did receive what State Mining Engineer Miller originally requested, i.e., a hard copy of the
39

USFWS Letter from USFWS, settling instead, for a simple printout of the document from
Respondent's own website.
19. After the actual February 4, 2022, deadline passed without any action taken on the
Application,the Tribunal holds that the Application was approved pursuant to the governing law.
The Mining Act differs from various environmental and statutory regulatory permitting schemes
in that the Mining Act specifies that"a permit shall be granted" if Respondent does not make an
adverse finding under N.C. Gen. Stat. § 74-51(e). Respondent's attempt to reset the February 4,
2022,deadline was ineffectual. Any interpretation of the Mining Act that would require returning
the application to Respondent for another review after its failure to act by the deadline (e.g.,
remand) contradicts the statutory scheme established by the General Assembly and would thus
render the statutory timing mandate a nullity.
III. Director Wrenn Did Not Have the Authority to Deny the Application
20. In the Mining Act, the North Carolina General Assembly granted sole authority to
Respondent, when acting within the proper deadlines, to approve or deny mining permits. See
N.C.G.S. § 74-51(a) ("Any operator desiring to engage in mining shall make written
application to the Department for a permit");N.C. Gen. Stat. § 74-51(d) ("The Department may
deny the permit upon finding ..."); N.C. Gen. Stat. § 74- 49(4) (defining "Department" to mean
"the Department of Environmental Quality").
21. The Mining Act states that "whenever in this Article the Department is assigned duties,
they may be performed by the Secretary or an employee of the Department designated by the
Secretary." N.C. Gen. Stat. § 74-49(4).
22. The Executive Organization Act of 1973 allows the "the head of each principal State
department" to "assign or reassign any function vested in him or in his department to any
subordinate officer or employee of his department." N.C. Gen. Stat. § 14313-10(a).
23. In January of 2019, then DEQ Secretary Michael Regan signed a "Delegation of
Authority" under N.C. Gen. Stat. § 14313-10 for the DEMLR Director to administer the Mining
Act provisions. (Respondent's Notice of Response and Objections to Order for Delegation of
Authority,Ex. 1).Director Wrenn became DEMLR's Acting Director in February of 2020. (Resp.
Ex. 148, Director Wrenn Dep. Vol. I, 18:6-18)
24. Secretary Elizabeth Biser replaced Mr.Regan as DEQ Secretary in June of 2021.By letter
dated July 14, 2021, to DEQ Chief Deputy Secretary John Nicholson, Secretary Biser removed
herself from participating in three DEQ matters, one of which was the Application. (Sushma
Masemore Aff., Ex. A). In this letter, Secretary Biser specifically recused herself from
participating in "applications, permits ... deliberative processes, or final agency actions"
pertaining to the excluded matters. (Id.). After Mr. Nicholson left DEQ, Secretary Biser issued
an almost identical letter, dated February 14, 2022, to DEQ Assistant Secretary Sushma
Masemore. (Masemore Aff., Ex. B). Secretary Biser again recused herself from participating in,
among other things, "final agency actions"with respect to the Application,assigning her authority
to Assistant Secretary Masemore. (Masemore Aff., Ex. B)
40

25. Secretary Biser delegated the permitting authority for the Wake Stone application to DEQ
Assistant Secretary Masemore. See February 14, 2022 letter from Secretary Biser to Assistant
Secretary Masemore. ("As Assistant Secretary, you will be responsible for the oversight of any
issues that arise concerning [Wake Stone: Triangle Quarry Mining Permit].")
26. The case law cited by Respondent in its response to this Tribunal's request for
supplemental briefing on the issue of delegation supports the conclusion Directory Wrenn did not
have the authority to approve or deny the Application. Specifically, even assuming, arguendo,
Secretary Regan's delegations remained in effect, they were valid only until subsequent changes
are made by the new office holder. See United States v. Wyder, 674 F.2d 224,227 (4th Cir. 1982)
(holding that a delegation by the Attorney General remained in effect under a new Attorney
General because "[t]he acts of administrative officials continue in effect after the end of their
tenures until revoked or altered by their successors in office")(emphasis added).That is precisely
what occurred in this case. Secretary Biser's February 14, 2022, delegation to Masemore for the
Wake Stone permitting process was precisely the type of subsequent action referred to in Wyder,
above, that extinguished previous delegations for this matter.
27. Director Wrenn had no authority to approve or deny the Application. Accordingly,
Respondent failed to use proper procedure and failed to act as required by law under N.C.
Gen. Stat. § 150B- 23(a)(3) and(5).
28. This Tribunal holds that Respondent's failure to delegate authority in adherence to the
governing law resulted in a denial of the Application that has no legal effect. Consequently,
Respondent did not meet the statutory deadline. As discussed above in Conclusion of Law
number 19,due to the failure of Respondent to act on the Application,the permit must be granted
by operation of law.
IV. Respondent's Denial of the Application Was Arbitrary or Capricious5
29. Under the Mining Act, a mining operator may apply to modify an existing mining permit
to add neighboring land. N.C. Gen. Stat. § 74-50(a). Respondent "may deny" the permit
application upon finding one of seven denial criteria that cannot be sufficiently mitigated. N.C.
Gen. Stat. § 74-51(d), (e). A permit "shall be granted" if Respondent finds none of these criteria
to be applicable or if the applicant mitigates any"adverse effects"found"as determined necessary
by the Department." N.C. Gen. Stat. § 74-51(e).
30. N.C. Gen. Stat. § 75-51(d)(5) permits denial of a mining permit application if the
Respondent determines that the mining operation "will have a significantly adverse effect on the
purposes of a publicly owned park, forest or recreation area" that cannot be mitigated as
determined necessary by Respondent. N.C. Gen. Stat. § 74-51(d)(5).
31. The Mining Act does not define "significantly adverse effect."
5 Notwithstanding the Conclusions of Law contained in Section IIl.,above,that Director Wrenn was without the
authority to deny the Application,the following discussion imputes Director Wrenn's actions to Respondent.
41

32. The Application was pending before Respondent for 681 days before Director Wrenn
issued a written decision denying the Application. (T. pp. 1.131, 6.1447; Pet. Ex. 50)
33. Director Wrenn denied the Application because he determined that the "proposed quarry
is located and designed such that normal operation would have significantly adverse effects on
the purposes of the Park through noise, visual, and traffic impacts." (Pet. Ex. 50)
34. Director Wrenn's denial of the Application on the grounds that the proposed expansion
would have a significantly adverse effect on the purposes of the Park through noise, visual, and
traffic impacts was arbitrary or capricious, as follows:
A. Noise
35. Early in the process Respondent identified a need for more expertise to determine the
impact the noise generated by the proposed mine pit might have on the Park. Petitioner agreed to
engage an expert, WSP, who would perform an acoustical study. WSP developed a protocol for
the acoustical study and Respondent approved that protocol. Included in the approved protocol
were two important conditions. First, Petitioner would submit a draft of the acoustical study to
Respondent for comment before the study was finalized. Second, Petitioner would conduct a
literature search for the purpose of defining and quantifying the criterion of"significantly adverse
effect" used in the Mining Act. (T. p. 2.430; Pet. Ex. 97)
36. As required by the protocol, Petitioner submitted the Acoustical Report in draft form to
provide Respondent an opportunity to comment before the draft was finalized and accepted. (T.
p. 2.284; Joint Stip., ¶44)
37. Respondent made suggested modifications to the draft Acoustical Report and requested
additional information. WSP provided additional information responsive to Respondent's
requests. (T. pp. 1.113-114, 2.533-544; Pet. Ex. 18)
38. Before Respondent accepted the final Acoustical Report,Respondent requested additional
justification for the selection of the 10 dBA threshold. Petitioner provided the requested
information.Petitioner then submitted the final Acoustical Report with the additional information
to Respondent and Respondent accepted it on March 12, 2021. (T. pp. 1.113-114, 6.1491; Pet.
Ex. 89)
39. At no time did Respondent suggest or require that WSP or Petitioner use any threshold
other than 10 dBA for determining if noise constituted a significantly adverse effect. Nor did
Respondent reject WSP's use of a 10 dBA threshold. (T. p. 2.282)
40. Respondent decided internally to apply a 15 percent safety factor to the 10 dBA threshold.
The basis for the 15 percent safety factor was unrelated to any noise or acoustic study. Instead,
the safety factor came from the state's dam construction program where a 15 percent safety factor
is applied to engineering calculations dealing with dam construction, the catastrophic failure of
which could result in potential serious harm to life and/or property.
42

41. Not only does the safety factor have no basis in noise or acoustical engineering, in
applying the factor Respondent found that the 15 percent reduction in noise only corresponded
to a reduction to 9.82 dBA due to the logarithmic nature of the dBA scale. This adjustment
concerned Respondent,not because the 15 percent reduction had no basis in science or acoustical
engineering,but because Respondent believed that the public would think the 9.82 dBA threshold
would not appear low enough. State Mining Engineer Miller explained, "If you told the public
that we reduced the noise level by 15 percent to come up for a level, and we throw out that
number, I'm sure I would be hearing howling all over the place." and that an "...0.18 decibels
drop, energy speaking, I might be [scientifically] correct, but that would not be a good optic for
the situation." (Miller Dep. Vol. II, 357)
42. Rather than making the scientifically appropriate calculation to develop a new threshold,
Respondent simply assumed a linear scale and deducted 15 percent from the 10 dBA threshold
which brought the new threshold to 8.5 dBA. Apparently, the result was more palatable to the
public in Respondent's eyes. Mr. Miller admitted that, because of the logarithmic form of the
dBA scale, the reduction to 8.5 dBA was a massive 3160 percent reduction in noise rather than
the 15 percent"safety factor"borrowed from the dam safety program. (Miller Dep. Vol. II, 358)
43. Respondent's application of a safety factor lacked any scientific or acoustical engineering
justification, rendering the application of the safety factor arbitrary. Respondent then took this
arbitrary standard and deliberately misapplied the 15 percent reduction solely to mitigate
potential public comments, assuming that either the public would be unable to understand the
intricacies of a logarithmic noise scale, or that the public would not grasp the rationale behind the
reduction.
44. Respondent,having now moved the goalpost,then compared the results of the Acoustical
Study against the new and arbitrarily calculated 8.5 dBA threshold. The study demonstrated that
the proposed transfer of the mining pit would not exceed this new threshold and,therefore,would
not lead to a significantly adverse effect.
45. On January 20, 2022, 652 days into a 681-day Application review process, Director
Wrenn gave a PowerPoint presentation to Respondent's leadership, including Assistant Secretary
Sushma Masemore, to provide an update on the Application. (T. p. 6.1305). Based on the results
of the Acoustical Study, Director Wrenn informed Respondent's leadership that "[a]ll predicted
noise levels were below the 8.5 dBA level of increase." (T. pp. 6.1305, 6.1308; Pet. Ex. 58)
46. On February 17, 2022, Respondent moved the goalpost again. In his memorandum
attached to his denial letter (Pet. Ex. 51), Director Wrenn ignored the use of the Acoustical
Study's recommended 10 dBA threshold and the safety-factor adjusted threshold of 8.5 dBA.
Director Wrenn, a person with no engineering degree,no graduate degree,no mining experience,
and no licenses or certifications, applied a new absolute threshold of 55 dBA. (Pet. Ex. 51). He
chose this threshold because it was the standard used in the 1980 noise impact analysis done for
Petitioner's original permit,based in turn on the standard used in a 1970 analysis of noise impacts
to the Everglades National Park from the proposed Everglades Jetport (the "Everglades Study").
43

47. Director Wrenn never discussed the use of the Everglades Study noise threshold with the
public or Petitioner. (Resp. Ex. 149, Miller Dep. Vol. III, 474:17-475:9) Director Wrenn never
discussed the use of the Everglades Study with State Mining Engineer Miller—a professional
engineer and the lead technical reviewer assigned to evaluate the Application.
48. Director Wrenn used the Everglades Study without any meaningful engineering or
scientific analysis as to whether it was appropriate to use the Everglades Study for the
Application. That Director Wrenn had no reasonable scientific understanding of the Everglades
Study was evident when he applied the Everglades Study. He was unconcerned that the
Everglades Study was based on a different acoustical measurement (a day and night Ldn
measurement) than the Acoustical Study models submitted under an approved protocol by
Petitioner (based on a Leq measurement for working hours only, because Petitioner does not
operate at night) (T. pp. 3.589-590, 7.1688-1689).
49. Director Wrenn ignored a carefully developed and fully vetted study, created and
submitted under an approved protocol,by Petitioner's expert in acoustical engineering. Director
Wrenn ignored the work of his own staff performed over the first 652 days of the Application
review.Very late in the review process,Director Wrenn arbitrarily selected a new noise threshold
based on a "1970 analysis [52-year-old study] of the noise impacts to the Everglades National
Park from the proposed jetport." Director Wrenn then made fundamental scientific errors when
attempting to apply the study to the Application. Even Respondent's noise expert Dr. Stewart
was critical of Director Wrenn's noise analysis.
50. This Tribunal acknowledges that, had Director Wrenn been properly delegated the
authority to make the decision on the Application, he could have disagreed with his highly
experienced staff.However,this Tribunal's review must be based on the record developed during
Respondent's entire evaluation of the Application. Director Wrenn's memorandum does not even
attempt to explain how or why the scientific studies and evidence produced during the entire
review period, including ones shared with the public, were incorrect or inapplicable. These are
the same scientific studies that Respondent required Petitioner to produce and that Director
Wrenn himself relied on when he made a presentation to his Senior Management on January 20,
2022, saying that"All predicted noise levels were below the 8.5 dBA level of increase."). These
are the same scientific studies that led State Mining Engineer Miller to tell Petitioner on February
9, 2022 — eight days before the denial — that "good science was on its [the Petitioner's] side."
Several paragraphs of unsupported statements riddled with basic errors,written on the day of the
denial, cannot overcome the record of careful and scientifically supported analysis showing that
there would be no significant adverse noise effects.
51. This Tribunal finds that it would be difficult to imagine a set of facts more demonstrative
of an arbitrary and capricious government action. The abrupt and unsupported finding with
respect to noise is precisely the type of governmental action that the statutory and regulatory
application review process was designed to prevent, and the Administrative Procedures Act was
enacted to correct. Thus, Respondent's denial of the Application was arbitrary and capricious
under N.C. Gen. Stat. § 150B-23(a)(4).
B. Visual Impacts
44

52. Respondent denied the Application because it determined that the "proposed quarry is
located and designed such that normal operation would have significantly adverse effects on the
purposes of the Park through noise, visual, and traffic impacts." (Pet. Ex. 50)
53. While the Application review and subsequent record for the visual impacts is less
extensive than the noise issue discussed above, the Undersigned holds that Director Wrenn's
findings with respect to visual impacts were no less arbitrary and capricious.
54. On February 10, 2021, Respondent issued an ADI requesting, inter alia, "information
regarding [visual] screening. In March of 2021, Petitioner submitted to Respondent photos of
the Foxcroft Lake area taken in the summer and winter, which Respondent concluded showed
that the density of tree vegetation provided satisfactory visual screening for this location. (Resp.
Ex. 149, Miller Dep. Vol. I, 161:19-162:13; Pet. Ex. 20) Petitioner later proposed a DOT-style
wall to provide both noise buffering and further visual screening. (T. pp. 2.306-308; Pet. Ex. 58)
55. Following the submittal of this information,Respondent received visual renderings of the
Foxcroft Lake area from the Umstead Coalition that brought into question whether the proposed
operations at Wake Stone would be visible from this area. Director Wrenn admitted that the
visual renderings were not accurate and were misleading, but relied on them, nonetheless.
56. In January 2022, State Mining Engineer Miller conducted a non-scientific visibility
analysis in an attempt to resolve this purported conflict in renderings. (Resp. Ex. 149,Miller Dep.
Vol. 11I, 499:12-21; 506:13-14; Pet. Ex. 56) He took pictures on his cell phone as he walked up
the ridge above Foxcroft Lake to see if cardboard he had placed at certain intervals near the
proposed land disturbance could be seen in the photos. (Resp. Ex. 149, Miller Dep. Vol. III,
501:3-10; Pet. Ex. 56)Based on the cardboard being visible in some of the photos, State Mining
Engineer Miller concluded that Petitioner "should propose additional means to reduce visibility
of the disturbance or the effect of the disturbance." (Pet. Ex. 56)
57. State Mining Engineer Miller contacted David Lee of Wake Stone and specifically asked
if Petitioner would be willing to plant several staggered rows of evergreen trees to assist with
visual mitigation in the Foxcroft Lake area. (T. pp. 7.1660-1661). Mr. Lee made clear to Miller
during that phone call, and in a subsequent email, that Petitioner was "willing to consider the
addition of vegetative screening near the head end of the lake, the one area where the potential
exists for minimal view of the quarry expansion from Umstead State Park." State Mining
Engineer Miller stated "there is a marginable chance that the area would not be necessarily that
visible once construction starts. Why should the State require the company to make an
expenditure that may not be necessary? If it becomes obvious it is necessary, the company is
agreeing to do it." (T. pp. 7.1660-1664; Pet. Ex. 57, 121; Resp. Ex. 149, Miller Dep. Vol. III,
517:19-518:8)
58. On February 9, 2022, Director Wrenn made a site visit to the Park, which according to
the Director,was a major factor in his decision to deny the Application. However, during the visit
Director Wrenn did not climb the ridgeline near Foxcroft Lake and instead made his observations
from the valley below the ridgeline. Director Wrenn simply guessed that a park visitor standing
45

on the ridgeline would be able to see the proposed operation at Wake Stone. Not surprisingly,
having not actually climbed the ridge,Director Wrenn could not quantify the size of the Park area
from which he guessed the Wake Stone operations would be visible. Director Wrenn took no
photos to support his guess.Director Wrenn's statement that someone standing on the ridge could
see the operations was unsupported by substantial evidence.
59. Furthermore, in his February 17, 2022, memorandum supporting his denial, Director
Wrenn made a conclusory statement, without providing supporting evidence, that "[a]dditional
screening would likely have little mitigating effect on the visual impacts to the purposes of the
park." Director Wrenn provided no discussion or evidence as to what, if any, "additional
screening" he considered. He provided no discussion or evidence as to "mitigating effect" the
"additional screening"strategies he considered might have had. Finally,he simply concluded that
"additional screening" would be "unlikely" to mitigate the visual impacts he guessed would be
present. This "unlikely" standard is arbitrary and capricious in that it "indicate[s] a lack of fair
and careful consideration or fail[s] to indicate any course of reasoning and the exercise of
judgement."Lewis v. N.C. Dep't of Human Res., 92 N.C. App. 737, 740, 375 S.E. 2d 712, 714
(1989).
60. The Mining Act specifically anticipates some level of visual impact resulting from mining
operations and provides that a permit may include "a requirement of visual screening, vegetative
or otherwise, so as to screen the view of the operation from public highways, public parks, or
residential areas, where the Department finds screening to be feasible and desirable."N.C. Gen.
Stat. § 74-51(f). Director Wrenn's conclusory statements provided no information related to the
technical feasibility, economic feasibility, regulatory feasibility, or timeline and resource
feasibility. This approach stands in stark contrast to State Mining Director Miller's approach,
which included a discussion with Petitioner about the possibility of planting staggered rows of
evergreen trees to address visual concerns in the Foxcroft Lake Area based on State Mining
Engineer Miller's cardboard test.
61. Director Wrenn simply guessed that there would be a visual impact,then failed to explain
what if any mitigation strategies he considered, and finally assumed without any supporting
evidence that the unidentified strategies would not be likely to mitigate supposed impact.Director
Wrenn's"finding"with respect to visual impact rests entirely on unsupported assertions. Against
these unsupported assertions is Director Wrenn's own statement on January 20, 2022, in a
presentation to senior management that the Petitioner's sound barrier wall proposal"will provide
adequate visual screening for the Park..." (Pet. Ex. 58).
62. As this Tribunal noted with respect to the noise discussion above, had Director Wrenn
been duly authorized to make the final decision on the Application, he could have changed his
mind or disagreed with his highly trained engineering staff. However, his decision must be
supported by substantive and relevant evidence. It was not. On January 20,2022,Director Wrenn
concluded that there would be adequate screening for the Park. Then, 18 days later, on February
17, 2022, Director Wrenn reversed his finding based on no substantial evidence. Director
Wrenn's decision to deny the Application lacked a rational basis,was not supported by substantial
evidence, lacked fair and careful consideration, and was based on speculative assertions without
46

factual or quantitative support. Thus, Respondent's denial of the Application was arbitrary and
capricious under N.C. Gen. Stat. § 15013-23(a)(4).
C. Traffic
63. Respondent denied the Application because Respondent determined that the "proposed
quarry is located and designed such that normal operation would have significantly adverse
effects on the purposes of the Park through noise, visual, and traffic impacts." (Pet. Ex. 50)
64. For the first 652 days of the review process, there was little discussion related to traffic
impacts on the Park and any information that was submitted and reviewed confirmed that any
changes in traffic resulting from the project would not adversely impact the Park. None of the
ADI's requested any information about traffic or mitigation of traffic concerns. (T. p. 1468)
Respondent performed no traffic study or analysis. (Resp. Ex. 148, Director Wrenn Dep. Vol. II,
390:6-10) At Respondent's request, the North Carolina Department of Transportation reported
that it was satisfied with the entrance to the quarry and opined the traffic flow there was good.
(T. pp. 6.1456-1457; Resp. Ex. 149, Miller Dep. Vol. III, 544:2-11) Director Wrenn's January
20, 2022, PowerPoint presentation to DEQ leadership contained no discussion about traffic.
(Resp. Ex. 148, Director Wrenn Dep. Vol. II, 365:10-12)
65. Respondent's own Surface Mining Manual states that, with respect to public hearings,
"Note: comments must be relevant to the seven criteria listed under G.S. § 74-51 of the Mining
Act of 1971. The Mining Act does not address truck traffic,noise,property values or aesthetics."
(T. p. 6.1459; Pet. Ex. 3, §§ 3-7, 8-4).
66. In accordance with the Surface Mining Manual, State Mining Engineer Miller instructed
the audience at both public hearings on the Application that"offsite truck traffic on public roads,
noise, and potentially negative impacts on property values are not within the jurisdiction of the
Mining Act of 1971. These items are more properly addressed through local zoning ordinances."
(Resp. Ex. 149, Miller Dep. Vol. I, 74:6-25; T. p. 6.1460; Pet. Ex. 4)
67. Respondent also sent communications to the local press prior to the public hearings,
stating: "G.S. § 74-51 lists seven denial criteria that can be considered by the Department in
making its decision to grant or deny a mining permit. Please note that the Act does not have
jurisdiction over offsite truck traffic, noise, and potential impacts to property values." (T. pp.
6.1465-1466; Pet. Ex. 52; Resp. Ex. 149, Miller Dep. Vol. III, 447:22-449:3)
68. The Mining Review prepared by State Mining Engineer Miller stated that the issue of
"truck traffic" was "outside the scope of the permit." (Resp. Ex. 149; Miller Dep.Vol. I, 134:17-
135:9; Pet. Ex. 14; Pet. Ex. 62 at 6) Director Wren ultimately denied the Application based, in
part, on traffic, an impact Respondent specifically instructed the public they could not comment
on.
69. Despite 652 days of review demonstrating that traffic was not a concern, on the 68Is'day,
Director Wrenn stated in his memorandum in support of his denial that the "proposed expansion
would extend the timeline for truck traffic and would result in negative impacts on the purpose
47

of the Park through public interaction with quarry traffic." The Undersigned holds that this is an
unsupported conclusion.
70. While Director Wrenn characterized the project as an expansion, he admitted that truck
traffic volume was not expected to increase if the Application were granted. (T.p. 6.1457; Resp.
Ex. 149;Miller Dep. Vol. III, 537:20-538:4). Director Wrenn's conclusion that the project would
"expand the timeline" is contradicted by his acknowledgment that traffic volume was not
expected to increase and DOT's conclusion that existing traffic flow was good.
71. In his memorandum, Director Wrenn also cites a statement made by Umstead Park
Superintendent Scott Letchworth that traffic at the Harrison Road entrance has increased
dramatically with visitors queuing outside the entrance waiting for parking spots to open up.Any
change in interactions with truck traffic would not be the result of the project, as Director Wrenn
agreed there is no expected increase in truck volume, but rather because of existing
mismanagement of parking facilities.
72. This Tribunal finds that Director Wrenn's conclusion regarding the negative impact of the
project on the Park due to traffic is entirely unsupported and contradicted by the evidence. His
decision lacked fair and careful consideration,rendering Respondent's reliance on traffic impacts
as part of the denial of the Application arbitrary and capricious under N.C.G.S. § 150B-23(a)(4).
V. The Denial of the Application was Unlawful
73. Notwithstanding the arbitrary and capricious denial of the Application, Respondent erred
in applying the Mining Act.
74. "[T]he responsibility for determining the limits of statutory grants of authority to an
administrative agency is a judicial function for the courts to perform."High Rock Lake Partners,
LLC v. N.C. DOT, 366 N.C. 315 (2012);In re Broad& Gales Creek Cmty. Assn, 300 N.C. 267,
280, 266 S.E.2d 645, 654 (1980) (citing Garvey v. Freeman, 397 F.2d 600 (1Oth Cir.1968)); see
also Wells v. Consol. Jud'l Ret. Sys. off.C, 354 N.C. 313,319, 553 S.E.2d 877, 881 (2001)("[I]t
is ultimately the duty of courts to construe administrative statutes; courts cannot defer that
responsibility to the agency charged with administering those statutes."). In making this
determination, this Tribunal applies the enabling legislation practically so that the agency's
powers include all those the General Assembly intended the agency to exercise. In re Broad &
Gales, 300 N.C. at 280, 266 S.E.2d at 655. This Tribunal gives great weight to an agency's
interpretation of a statute it is charged with administering, e.g.,Frye Reg'l Med. Ctr., Inc. v. Hunt,
350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999); Wells, 354 N.C. at 319-20, 553 S.E.2d at 881;
however, "an agency's interpretation is not binding,"Lee, 365 N.C. at 229-30, 717 S.E.2d at 358
(citations omitted), and, "[u]nder no circumstances will the courts follow an administrative
interpretation in direct conflict with the clear intent and purpose of the act under consideration."
Watson Indus., Inc. v. Shaw, 235 N.C. 203, 211, 69 S.E.2d 505, 511 (1952) (citations omitted).
75. In this case,Director Wren recognized that both noise and visual effects impacted the sub-
area of the Park just east of Foxcroft Lake. That sub-area is very small with respect to the Park
as a whole, but more importantly, no mapped trails are located in this area. The Park officially
48

prohibits visitors from straying off designated trails for good reasons. The Park lists those reasons
to include "for the safety and protection" of the visitors themselves,but also for the protection of
the "many rare plants [that] live on thin soils and wet rocks, [which] are vulnerable to damage
from climbing,trampling and scalping."(Resp.Ex. 148,Director Wrenn Dep.Vol.I,69:13-70:3;
Vol. II,422:10-423:2, T. p. 7.1523-1525)
76. In seeking a balance between protecting the purposes of North Carolina parks and the
benefits of the mining industry, the Mining Act limits denial of permit applications to those
operations that will have "a significantly adverse effect on the purposes of a...park..." The
purposes of the Park were given as conservation,recreation, and education. The noise and visual
impacts on the extremely small area of the Park in which visitors are not allowed to traverse
cannot be adverse to the purposes of the Park. According to the Park's own rules, unauthorized
visitors trampling on rare plants is adverse to the conservation of those rare plants. Insofar as
fostering a habitat for those rare plants could lead to their study, their loss would be adverse to
possible educational opportunities as well. Finally, recreation in an area that is prohibited from
visitors is not possible. (T. p. 7.1523-1525)
77. This is not to say the purposes of the Park do not apply to this small area. To make a
finding that the proposed operation would significantly adversely affect the purposes of the Park,
those purposes must be served in that area. People are not intended to be in this area, so they
cannot recreate. Far from the purposes of conservation and education being served in this area,
the trampling by visitors there would do the opposite. There was no evidence given that noise
and visual impacts would adversely affect that which the Park's prohibition against visitors there
was intending to protect. If, however, dust from the proposed operation were predicted to reach
this same small area in an amount that would represent a significantly adverse effect on certain
rare plants in the area, Respondent could consider this in making its decision.
78. In sum, the Mining Act seeks to provide for the coexistence of mining and a public park.
Pursuant to the Mining Act, Respondent was wrong to deny the Application. Director Wrenn
erred in interpreting the Mining Act when he stated that the purposes of the Park, in a small area,
were significantly adversely affected by the proposed mining operation. Unless the purposes of
the Park are significantly adversely affected by the mining operation, the Mining Act is clear, "a
permit shall be granted."
VI. Attorneys' Fees
79. N.C. Gen. Stat. § 15013-33(b)(11) permits an administrative law judge to order that
reasonable attorneys' fees be imposed against the respondent state agency where the
administrative law judge holds that the agency has "substantially prejudiced the petitioner's
rights and has acted arbitrarily or capriciously." Respondent substantially prejudiced
Petitioner's rights by denying the Application and did so in an arbitrary or capricious manner,
as set forth above. Accordingly, Petitioner is entitled to an award of reasonable attorneys' fees,
witness fees, and costs.
80. An agency's actions"must be upheld,if at all,on the basis articulated by the agency itself."
Motor Vehicle Mfrs.Assn of U.S., Inc. v. State Farm Mut.Auto. Ins. Co.,463 U.S. 29, 50(1983).
49

In determining whether the agency made an error, the reviewing body may look only "to the
agency's contemporaneous justifications for its actions." Appalachian Voices v. U.S. Dept of
Interior, 25 FAth 259, 269 (4th Cir. 2022). The basis articulated by the agency must be the
"administrative record, not subsequent litigation rationalizations." Id. at 274 (citation omitted).
See also Amanini v. N.C. Dept of Human Res., 114 N.C. App. 668, 681, 443 S.E.2d 114, 122
(1994) (courts may not accept counsel's "post hoc rationalizations for agency action") (citation
omitted).
DECISION
Respondent's decision to deny the Application to modify Mining Permit 92-10 is REVERSED.
Respondent violated the Mining Act by failing to issue its decision on the Application as
expeditiously as possible and not within the 30-day period mandated by the Mining Act. The
failure of Respondent to act within the statutory deadline mandates the approval of the application
by operation of the Mining Act.
As an alternative and independent ground warranting reversal, Director Wrenn was not
appropriately authorized to act on the Application; thus, Director Wrenn acted without authority
to deny the Application and thus Respondent failed to act on the Application within the time
prescribed by the Mining Act. Again, this failure mandates approval of the application by
operation of the Mining Act.
Even if Respondent had acted within the statutory deadline,Petitioner met its burden of showing,
by a preponderance of the evidence, that Respondent substantially prejudiced Petitioner's rights
and that Respondent acted erroneously, arbitrarily or capriciously, used improper procedure, or
failed to act as required by law or rule. See N.C. Gen. Stat. § 15013-25.1(a).
The agency record contains substantial and overwhelming evidence that Respondent had neither
established a credible finding that Petitioner's proposed mining operation would have a
significantly adverse effect on the purposes of the Park nor that Petitioner could not mitigate any
such adverse effects were they found to exist. The hearing record, consistent with the agency
record, leads to the same conclusion. Respondent errored by failing to approve the Application
in the absence of the Endings required by N.C. Gen. Stat. § 74-51(d)(5). See N.C. Gen. Stat. §
74-51(e).
Finally, not only did Respondent act arbitrarily and capriciously by failing to act within the
statutory deadline mandated by the Mining Law, Respondent erred in applying an additional
aspect of the Mining Law. Director Wrenn misinterpreted the proposed operation's effects on
the purposes the Park. The small area of the Park potentially affected by the proposed operation
would not, due to the prohibition against visitors in that area, affect anything at all.
Respondent is hereby ordered to grant the modified Permit 92-10, within thirty days from the
date of this decision, incorporating the proposed sound wall as mitigation and all other site and
erosion control plans as last agreed to by Petitioner.Respondent also is ordered to pay Petitioner's
reasonable attorneys' fees. Petitioner shall submit an affidavit with documentation necessary to
50

allow the Undersigned to determine the amount of those fees within 30 days of the date of this
Order.
51

NOTICE OF APPEAL
This is a Final Decision issued under the authority of N.C. Gen. Stat. § 15013-34.
Under the provisions of North Carolina General Statute § 15013-45, any party wishing to
appeal the final decision of the Administrative Law Judge must file a Petition for Judicial Review
in the Superior Court of the county where the person aggrieved by the administrative decision
resides, or in the case of a person residing outside the State, the county where the contested case
which resulted in the final decision was filed. The appealing party must file the petition within
30 days after being served with a written copy of the Administrative Law Judge's Final
Decision.
In conformity with the Office of Administrative Hearings' rule, 26 N.C. Admin. Code
03.0102, and the Rules of Civil Procedure, N.C. General Statute IA-1, Article 2, this Final
Decision was served on the parties as indicated by the Certificate of Service attached to this
Final Decision. N.C. Gen. Stat. § 150B-46 describes the contents of the Petition and requires
service of the Petition on all parties. Under N.C. Gen. Stat. § 15013-47, the Office of
Administrative Hearings is required to file the official record in the contested case with the Clerk
of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a
copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at
the time the appeal is initiated to ensure the timely filing of the record.
IT IS SO ORDERED.
This the 11 th day of August, 2023.
Donald R van der Vaart
Administrative Law Judge
52

CERTIFICATE OF SERVICE
The undersigned certifies that, on the date shown below, the Office of Administrative
Hearings sent the foregoing document to the persons named below at the addresses shown below,
by electronic service as defined in 26 NCAC 03 .0501(4), or by placing a copy thereof, enclosed
in a wrapper addressed to the person to be served, into the custody of the North Carolina Mail
Service Center who subsequently will place the foregoing document into an official depository of
the United States Postal Service.
A Charles Ellis Kyle Peterson
Ward and Smith, P.A. NC Dept. of Justice
[e-mail] [e-mail]
Attorney For Petitioner Attorney For Respondent
Hayley R. Wells Shannon Marie Arata
Ward and Smith, P.A. Calhoun, Bhella& Sechrest
hrw(abwardandsmith.com sarata(&cbsattome, s
Attorney For Petitioner Attorney for Non-Parry Movant
Carolyn Ann McLain James L Conner
N.C. Department of Justice Calhoun Bhella& Sechrest LLP
cmclain(c�r�,ncdoj.gov [e-mail]
Attorney For Respondent Attorney for Non-Parry Movant
Marc D Bernstein
NC Department of Justice
mbemstein(&ncdoi.gov
Attorney For Respondent
This the 1 lth day of August, 2023.
Julie B. Eddins
Paralegal
N. C. Office of Administrative Hearings
1711 New Hope Church Road
Raleigh,NC 27609-6285
Phone: [phone]
53