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NCDEQ Fights Pro-Polluter Ruling on Mining Permit

A high-profile case with likely adverse impacts to a well-known and beloved state park.

The NC Department of Environmental Quality (DEQ) is fighting back in court—and in blunt terms—against an egregiously pro-polluter decision by a notoriously pro-polluter administrative law judge.

In August, state chief Administrative Law Judge (ALJ) Donald van der Vaart threw out a 2022 DEQ decision denying a state mining permit to Wake Stone for an operation near Umstead State Park. Van der Vaart discarded the factual findings and legal conclusions of the agency, and ordered DEQ to issue the requested permit by September 12, and to pay costs and attorneys fees of the applicant mining company. DEQ complied by issuing the permit, but also filed an appeal to Wake County Superior Court and asked that court to stay any expansion of the mine until the dispute is settled by the court.

The permit denial was a rare one for DEQ’s Division of Energy, Mineral, and Land Resources (DEMLR). It’s only the fourth time in more than 50 years that DEMLR or its predecessor agencies have denied a mining permit. DEMLR found in this case that the expanded mining operation would have “significant adverse effect on the purposes of Umstead Park due to noise, visual, and traffic impacts.”

In his decision, ALJ van der Vaart blasted DEQ’s denial of the permit, and in DEQ’s appeal, it fired back in equally blunt terms. The ALJ’s decision was not only riddled with errors of law, the appeal says, it was “arbitrary and capricious” in its findings and order.

No one who has followed the political career of Donald van der Vaart is likely to be surprised by either the substance of his decision or its acidic tones. Van der Vaart was named as Secretary of DEQ by former Governor Pat McCrory, and swiftly earned a reputation as extreme in his pro-polluter bias, and eager to impose decisions rejecting the recommendations of environmental scientists and public health experts. When McCrory lost the 2016 election to Roy Cooper, van der Vaart quit as Secretary to take a lower civil-service-protected position in the agency. He managed to hang on there for most of a year before he was suspended for asking the Trump Administration to gut air quality protections that his division was responsible for enforcing.

Senate President Pro Tem Phil Berger later appointed van der Vaart to the NC Environmental Management Commission (EMC). After current NC Supreme Court Justice Paul Newby won election in 2020, he appointed van der Vaart to his current job as the state’s Chief Administrative Law Judge. NCLCV and others warned at the time about destructive consequences to environmental law enforcement that were likely to result. The Wake Stone permit decision is a dramatic case in point.

This makes the Wake Stone permit more than one high-profile case of likely adverse impacts to a well-known and beloved state park. It’s a test case of the willingness of our state courts more broadly to rein in an extreme pro-polluter official who has been placed in a position capable of causing enormous damage when misused.

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