This story originally published online at NC Newsline.
Administrative Law Judge Donald Van der Vaart ignored evidence, committed logical errors, and misinterpreted state law when he ruled in favor of Wake Stone, which plans to expand its Triangle quarry to abut Umstead State Park in Raleigh. Those are among the allegations included in documents filed last week by the NC Department of Environmental Quality, which is appealing Van der Vaart’s decision to Wake Superior Court.
DEQ also asked the court to temporarily halt construction on the expansion until the dispute is resolved.
DEQ’s Division of Energy, Mineral and Land Resources—DEMLR—denied the company’s mining application in February 2022, nearly two years after it was filed. Brian Wrenn, then the DEMLR director, based his decision on the “significant adverse effect on the purposes of Umstead Park due to noise, visual, and traffic impacts.” It was only the fourth time DEMLR had denied a mining permit in more than 50 years.
This is one of seven conditions on which a mining permit can be legally denied.
Wake Stone appealed Wrenn’s decision to the Office of the Administrative Hearings, the venue for this type of case. The seven-day trial, overseen by Judge Van der Vaart—himself a controversial former DEQ secretary with an acrimonious history with the agency—occurred earlier this year.
Last month, Van der Vaart issued a scathing ruling against DEQ, writing, “it would be difficult to imagine a set of facts more demonstrative of an arbitrary and capricious government action.” He ordered the state to grant the permit to Wake Stone by September 12, and pay Wake Stone’s attorney and witness fees, as well as other court-related costs.
In its appeal, DEQ rebutted Van der Vaart’s ruling in equally damning terms. Throughout the 24-page filing, agency attorneys cited several examples they say demonstrate Van der Vaart made “incorrect conclusions of law,” and acted “arbitrarily and capriciously.”
For example, in the summer of 2020, while DEMLR was evaluating the permit application, the national engineering firm WSP solicited Wake Stone as a potential client. WSP told Wake Stone it could evaluate the proposed mine’s noise impacts on the park, with the assurance that the “proposed criteria [would] be selected to allow Wake Stone to continue operation without overbearing restrictions,” court filings read.
Van der Vaart allegedly failed to account for that “bias” by WSP, DEQ wrote.
Wake Stone paid WSP $130,000 to develop an acoustical study protocol, which DEQ approved after suggesting several changes.
The results of that study showed that a sound wall could reduce the noise levels from the mine. However, Van der Vaart erred in determining the sound wall would mitigate mine noise entering the park. Instead, DEQ wrote, the evidence showed the sound wall would reduce noise at a private residence that is near, but outside the park—and outside the scope of the case.
Wake Stone: a timeline
The Oddfellows Tract, where Wake Stone plans to expand its mining operations, is owned by the RDU Airport Authority.
2017 – Wake Stone approaches the RDU Airport Authority board about buying or leasing the 105-acre Odd Fellows tract.
2019 – Over vigorous public opposition, the board agrees to lease the tract to Wake Stone. According to the lease terms, Wake Stone must pay RDU $8.5 million over 25 years, plus 5.5% of net sales in annual royalties.
April 2020 – Wake Stone applies to DEQ for a mining permit. Over the next 22 months, the agency requests additional information and meets with the company.
February 2022 – Brian Wrenn, director of the Division of Energy, Mineral and Land Resources, denies the permit. Wake Stone files for a contested case hearing in Administrative Law Court.
September 2022 – The first hearings are conducted as part of the contested case.
February 2023 – A seven-day trial is held, with Administrative Law Judge Donald Van der Vaart presiding.
August 2023 – Van der Vaart rules in favor of Wake Stone, orders DEQ to issue the mining permit by Sept. 12.
Sept. 6, 2023 – DEQ files an appeal in Wake Superior Court and asks for a temporary stay on the the mine expansion until the dispute is settled.
Mine would spoil the view for parkgoers
DEQ also wrote that Van der Vaart allegedly overlooked or ignored that the area of Umstead State Park next to the proposed quarry is a dedicated natural preserve that merits further protection under the North Carolina Nature Preserves Act.
The Umstead State Park Superintendent testified that this designation “gives some additional protections to an area that’s considered to be more sensitive, more in need of protection, and has some type of natural importance,” according to the court filings.
Also at issue was the mine’s disruption of the natural views at the park. Parts of the Yellow Dot Trail run along the boundary between the park and the proposed mine, which would be visible to people using the trail.
In his remarks on the potential visual impacts of the mine, Brian Wrenn referred to “worn recreational trails along the park boundary.” Although he did not call those trails by their colloquial name, “there is no question he was referring to the Yellow Dot Trail,” court filings read.
Van der Vaart also reasoned that because 60 percent of the Yellow Dot Trail is not on park property–which DEQ is also disputing–“the use of that portion of the trail is trespassing,” and can’t be included as a reason to deny the permit.
But park officials have not deemed the Yellow Dot Trial off-limits. The park superintendent further testified that “he is aware of the uses by the public in the area of the proposed quarry and those uses are allowed. Indeed, those uses have been ongoing for such duration that the public has worn a path through the area and given it a common name—the Yellow Dot Trail,” according to court documents.
The superintendent also testified “there’s no enforceable rule that says you have to stay on trails.” While there are signs in the park asking visitors to stay on designated hiking trails, they’re not near the Yellow Dot Trail.
Finally, Van der Vaart ruled Wrenn didn’t have the legal authority to deny the permit because that power had not been delegated to him by the DEQ secretary.
DEQ disagreed, but more importantly, pointed out the pretzel logic: Wake Stone’s entire case rested on Wrenn’s denial of the permit. If Wrenn wasn’t authorized to make a determination, then “it would be impossible” for him to make a decision, let alone one that was “arbitrary and capricious,” as Van der Vaart wrote in his ruling.
Earlier this year, Administrative Law Judge John Evans—DEQ’s former Chief Deputy Secretary under Van der Vaart—used the same premise to toss a historic $260,000 fine against Bottomley Properties because the wrong DEQ employee signed the paperwork assessing the penalty.
However, in that case, lawyers for Bottomley Properties challenged the employee’s authority in court. Wake Stone’s attorneys never did so, and the question was never broached at trial. (DEQ did not appeal Evans’s ruling.)
Instead, Van der Vaart independently requested information about the signing authority and conducted a hearing on the issue, two months after the trial.
Van der Vaart has acrimonious history with agency
Van der Vaart served as DEQ secretary under then-Gov. Pat McCrory, a Republican. During his tenure, he earned a reputation for his anti-regulatory stances. In 2016, after Donald Trump was elected president, Van der Vaart wrote a letter, which read like a job application, asking Trump to gut the federal EPA. Van der Vaart was reportedly in line for the No. 2 EPA position, but was ultimately passed over.
In late 2016, as Democrat Roy Cooper was preparing to ascend to governor, Van der Vaart, knowing he’d soon be out of a job, demoted himself and Chief Deputy John Evans to a mid-level position in the Division of Air Quality.
He lasted in that position a year. Then-DEQ Secretary Michael Regan suspended Van der Vaart and Evans for co-writing an opinion piece in a science journal advocating for relaxed air quality regulations. Both men resigned from the agency in late 2017.
In 2019, Van der Vaart was nominated to the powerful Environmental Management Commission, which has authority over DEQ, by Senate Pro Tem Phil Berger. Two years later, he was appointed as Chief Administrative Law Judge by conservative Supreme Court Justice Paul Newby. Van der Vaart then appointed Evans as a fellow Administrative Law Judge.
Correction: This story has been corrected to reflect the appeal was to Office of Administrative Hearings. The original story said it was made to the Administrative Office of the Courts.
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