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Save RDU Forest issue: What happened with the “sunset clause”?

In the contentious fight between Umstead Coalition and activists, Wake Stone Corp. and Raleigh-Durham International Airport, one major point of argument has been over the “sunset clause.”

That is the clause in the permit for the existing Wake Stone mine that states how long the mine can operate. That mine, located off Harrison Avenue, has been operating since 1981. The gaps in the trees can be seen from Interstate 40, and fly rocks have leaped over the buffers. It was expected to close at the end of its 50 years, at the latest.

But in March 2018, Morrisville-based Wake Stone and the N.C. Department of Environmental Quality made an administrative change to the wording on the permit, from 50 years or 10 years after mining stops, whichever comes “sooner,” to 50 years or “later.”

This change has raised alarm bells at the Umstead Coalition, the nonprofit that preserves the 5,600-acre William B. Umstead Park, located just north of the mine.

The coalition has been embroiled in a fight with Wake Stone and RDU over a newly proposed mine in the adjacent 105-acre Odd Fellows tract. In March 2019, RDU leased the tract to Wake Stone to mine for $25 million over 35 years. That sparked outcries over the loss of the land, used by Boy Scouts over the decades, not to mention the environmental impact to Umstead Park and Crabtree Creek, which would become a suspended creek above two quarries. A public hearing on the Odd Fellows quarry is scheduled for June 23.

Jean Spooner, chairwoman of the Umstead Coalition, said the expectation has been that the existing mine would close within 50 years, and changing the sunset clause essentially makes it meaningless. Spooner had discovered the change in November of 2018 only when she went to the mining division of the DEQ, or the N.C. Division of Energy, Mineral and Land Resources.

“We were going to the mining permit files and asking for a version of the mining permit and it wasn’t right. Our sunset clause was gone. So we said, ‘We need to see all of the records,’ ” she said.

“‘Later’ would be infinite,” Spooner said of the new clause. “That means they could mine forever and ever.”

1981 clause

The “sunset clause” in the 1981 initial permit, stating “sooner.” Source: The Umstead Coalition

2018 clause

The same clause in the 2018 permit, stating “later.” Source: The Umstead Coalition

“Here’s a commitment they made to the public. And now they’re claiming it was a typo. Give me a break!” she added. “That first permit was fine-tooth edited, with a fine-toothed comb. Certainly they know what was in that permit.”

The Umstead Coalition’s position is that the original 50-year clause should be reinstated.

When reached for comment, Cassie Gavin, senior director of government relations for Sierra Club NC, said: “We agree that it appears that the Division of Energy, Mineral, and Land Resources erred in treating the sunset clause language change as a technical, non-substantive revision when the impact of the change is substantive. The Division should modify the permit language to revert to the original language.”

During a phone interview this week, Sam Bratton, president of Wake Stone, and Tom Oxholm, vice president of finance and administration, said they made the change with DEQ because the N.C. Mining Commission, which sets the terms of mining permits, had stated in 1981 that the clause would be 50 years or “later.” Bratton is a current member of the N.C. Mining Commission.

According to a document provided by Wake Stone, the N.C. Mining Commission in April 1981 did state the “later” clause.

1981 Mining Commission

The N.C. Mining Commission’s “Final Decision” document on Wake Stone’s existing mine, dated April 1981, states 50 years or “later.” Source: Wake Stone Corp.

Bratton and Oxholm also point out that the N.C. Attorney General reviewed the correction.

“We know that the permit was denied originally and the Mining Commission reviewed the appeal, granted the permit. And in their ruling, they said ‘later,’ not ‘sooner,’” Bratton said. “Somehow, we didn’t catch it, they didn’t catch it, and it got put in the permit as ‘sooner.’”

“We tried to get them to change it in 2011 to ‘later,’ and then came 2018, we got with the mining specialist Judith Wehner and pressed it, ‘Look, the language needs to be changed. It’s been incorrect all these years,’” he added.

“The Mining Commission is the ruling document,” Bratton said. “That is legally what we are bound by and what the state is bound by.”

But Wake Stone signed the initial mining permit, dated May 1981, and has renewed that permit for nearly 40 years with the same clause.

When asked if since the original permit was upheld by the company for so long, and the community and the state parks system have expected the mine to close within 50 years, if that should not be considered by Wake Stone, Bratton stuck with the Mining Commission decision.

“The permit is based upon the ruling from the Mining Commission. That is a fact, and that is a document that rules the permit. That’s the condition, and it’s ‘later.’ A lot of people want to hang their hat on the ‘sooner.’ It doesn’t matter,” he said.

Spooner and the Umstead Coalition’s position is that it’s wrong the most recent change was made without input from the state parks system.

“It certainly doesn’t seem like it should happen,” she said. “Early on, when there was all this controversy with the permit, DEQ Mining did coordinate with state parks and work something out originally. When Wake Stone wanted to increase the height of their berm, in those days, DEQ Mining at least reached out and would get input from the state parks as a courtesy.”

“It’s quite disrespectful and wrong toward our state parks,” she said. “In 1992, they had a blast blowout that blew out a side of their canyon and filled up Crabtree Creek. It was not a violation. It would be in any other industry.”

The N.C. General Assembly has made substantive changes to the mining industry in recent years. In 2017, the legislature amended the N.C. Mining Act of 1971 to affect the permit term of existing mining permits.

All existing mining permits under the new law, HB 56, will remove all references to the prior expiration date and convert permits to a life-of-site lease.

The Spring Magazine reached out to the DEQ for a comment. At the time of this story’s publishing, DEQ had not provided one.


  1. Natalie Lew says

    Thank you for writing about this issue! The negation of the Sunset Clause is a big deal. Without it, Wake Stone cannot quarry Odd Fellows.

    Liked by 1 person

  2. Mark Stohlman says

    Thanks for the article. This is such a significant error on the part of DEQ and yet the rest of the media is not investigating it. When is the DEQ going to be sued for changing the sunset clause to they can mine forever?

    Liked by 1 person

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