Judge rejects latest challenge to mining permit for quarry near park, RDU

A group opposing operations of a stone quarry near William B. Umstead State Park has faced another legal setback. The state’s top administrative law judge issued a ruling on Feb. 21 rejecting the group’s challenge of two changes to the quarry’s permit.

The Umstead Coalition had hoped its challenge would force the Wake Stone quarry, also known as the RDU Quarry, to stop operations as early as 2031. That would mark 50 years after the state issued a quarry permit.

Coalition lawyers argued that prior to 2018, the quarry’s permit included a “sunset” or “donation” clause that would force quarry owners to shut down operations and donate the site to the state.

A 2018 permit change removed the “donation” provision. The coalition filed a complaint to contest the change.

Chief Administrative Law Judge Donald van der Vaart determined this month that the donation clause was “ultra vires and therefore unenforceable.” An action that is “ultra vires” is beyond one’s legal power or authority.

“This contested case arises from Petitioner Umstead Coalition’s challenge to two 2018 modifications made by the North Carolina Department of Environmental Quality, Division of Energy, Mineral & Land Resources (‘DEMLR’), to a mining permit issued to Wake Stone,” van der Vaart wrote. “The first modification involved buffer conditions, which was minor in scope by any reasonable measure. … Petitioner failed to establish that the buffer modifications resulted in substantial prejudice or that DEMLR erred procedurally in making the changes.”

“The second modification concerned the permit’s so-called land ‘donation’ provision, a misleading term that belies the nature of the transaction,” van der Vaart explained. “Petitioner failed to articulate a cognizable right at stake or demonstrate substantial prejudice resulting from the change. Petitioner failed to establish that DEMLR erred procedurally in modifying the provision.”

“More significant, however, is Umstead Coalition’s allegation that DEMLR ‘exceeded its authority or jurisdiction’ in modifying the ‘donation’ provision,” van der Vaart’s order continued. “The extensive historical evidence produced by the Petitioner leads this Tribunal to the unavoidable conclusion – one dictated not by sentiment or policy preference – that the original land ‘donation’ provision, contained in the 1981 permit, was and remains an extra jurisdictional exertion of regulatory power, ultra vires in its conception and unenforceable in any manifestation.”

“The ‘donation’ was no act of public benefaction toward Umstead Park but rather a negotiated exchange,” van der Vaart wrote. “Moreover, the land ‘donation’ condition was included in the 1981 permit under the guise of the legally required Reclamation Plan and thus obfuscated what was, in form and substance, a negotiated transaction — land offered as consideration for the permit’s issuance. Its inclusion, framed as compliance with the Mining Act, has no legitimate foundation in the statute but instead functions as a contractual bargain.”

Van der Vaart emphasized that North Carolina government’s chief executive objected to the disputed “donation” provision when it was proposed more than 40 years ago.

“The ‘donation’ provision directly contravened the explicit directive of Governor James B. Hunt, who, despite his misgivings about the mining project, prudently directed DEMLR to evaluate the permit strictly within the environmental framework of North Carolina’s Mining Act,” van der Vaart wrote. “DEMLR took it upon itself to transcend its statutory limitations by engaging in an act of regulatory adventurism that this Tribunal cannot and shall not countenance.”

“Accordingly, the matter of whether this ‘donation’ provision is triggered ‘sooner’ or ‘later’ is a question rendered entirely academic. The provision was never enforceable at any moment in time, and it shall not be endowed with legitimacy now,” van der Vaart’s order continued.

The Umstead Coalition can appeal the decision to Wake County Superior Court.

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