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EnvironmentaLEE, Chatham Citizens Against Coal Ash Dump v. N.C. Department of Environment and Natural Resources

Court of Appeals of North Carolina

April 3, 2018

ENVIRONMENTALEE, CHATHAM CITIZENS AGAINST COAL ASH DUMP, AND BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., Petitioners,
v.
N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT, AND DIVISION OF ENERGY, MINERAL AND LAND RESOURCES, Respondents, and GREEN MEADOW, LLC AND CHARAH, INC., Respondent-Intervenors.

          Heard in the Court of Appeals 24 January 2018.

          Appeal by respondents and respondent-intervenors from order entered 10 April 2017 by Judge Carl R. Fox in Chatham County No. 16 CVS 386 Superior Court.

          John D. Runkle for petitioners.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel S. Hirschman, for respondents.

          Moore & Van Allen PLLC, by Thomas D. Myrick and Peter McGrath, for respondent-intervenors.

          ARROWOOD, JUDGE.

         Respondents North Carolina Department of Environmental Quality ("NCDEQ")[1], Division of Waste Management ("DWM"), and Division of Energy, Mineral and Land Resources ("DEMLR") (collectively "the Department"), and respondent-intervenors Green Meadow, LLC and Charah, Inc. (collectively "Permittees") appeal from "Order on Judicial Review" (the "Order") that affirmed in part and reversed in part the Administrative Law Judge's ("ALJ") decision to uphold permits allowing for the use of coal combustion residual ("coal ash") to be used as structural fill at open pit mines in Chatham and Lee counties. For the following reasons, we reverse and remand to the superior court for further remand to the North Carolina Office of Administrative Hearings ("OAH").

         I. Background

         Subsequent to the Dan River coal ash spill in February 2014, the North Carolina General Assembly passed the Coal Ash Management Act of 2014 ("CAMA"), N.C. Gen. Stat. § 130A-309.200 et seq., in August 2014 to mandate the closure and remediation of coal ash surface impoundments. 2014 N.C. Sess. Laws 122. As part of the CAMA framework, CAMA provides for expedited review by the Department of applications for permits necessary to conduct closure and remediation activities required by the act. See N.C. Gen. Stat. § 130A-309.203 (2017). Those activities requiring permits include the use of coal ash as structural fill. N.C. Gen. Stat. § 130A-309.219 (2017).

         The present case concerns four permits issued by the Department to Permittees on 5 June 2015. Specifically, the DEMLR issued two modified mining permits and the DWM issued two structural fill permits. Together, those permits allow for the continued excavation and the use of coal ash as structural fill at the Brickhaven No. 2 Mine in Chatham County and the Colon Mine in Lee County, both open pit mines.[2]

         On 6 July 2015, Blue Ridge Environmental Defense League, Inc., and its chapters in Chatham and Lee counties, Chatham Citizens Against Coal Ash Dump and EnvironmentaLEE (collectively "Petitioners"), filed a petition in the OAH for a consolidated contested case hearing on all four permits. The petition alleged that "[t]he actions allowed by the permits would have a significant and adverse impact on the health and well-being of the members of the Petitioners, and on their families, the use and enjoyment of their property, the value of their property and other economic interests[, ]" and that "[t]he [Department's] issuance of the [p]ermit[s] has substantially prejudiced the rights of the Petitioners and their members." The petition specified seven issues with the permits.

         On 14 July 2015, Permittees filed motions to intervene in the contested case hearing, which were granted by an OAH order filed 18 August 2015. Following amendments to one of the permits, the petition, and an OAH scheduling order, notice of hearing was filed on 27 October 2015 scheduling the matter for hearing in Raleigh in early December 2015. Prior to that hearing, the Department filed a motion for summary judgment on 9 November 2015. Petitioners filed a response to the

         Department's motion for summary judgment on 19 November 2015 seeking summary judgment in their favor. Permittees joined the Department's motion for summary judgment on 20 November 2015.

         The contested case was heard in the OAH before the Honorable Melissa Owens Lassiter, on 7 and 8 December 2015. Upon hearing arguments on the motion for summary judgment, the ALJ granted summary judgment on one of the issues raised by Petitioners, which Petitioners then voluntarily dismissed as opposed to having a partial summary judgment order entered. When the hearing proceeded on the other issues, it was brought to the ALJ's attention that Petitioners were not ready to proceed on two of the remaining issues because their expert witnesses were not available. As a result, the Department moved to dismiss those issues. The ALJ denied the motion to dismiss and the hearing proceeded without Petitioners' expert witnesses present. At the conclusion of the Petitioners' presentation of evidence, the Department renewed its motion for summary judgment, which Permittees joined. Petitioners opposed the motions and sought summary judgment in their favor. The ALJ took the motions under advisement so that she could review the evidence.

         On 10 February 2016, the ALJ filed an order granting an involuntary dismissal. In the order the ALJ explained as follows:

[U]pon consideration of the evidence presented by both parties during Petitioner's case in chief, Respondent's Motion for Summary Judgment at the close of Petitioner's evidence, and Petitioner's response thereto, the undersigned hereby DENIES Respondent's Motion for Summary Judgment. The undersigned hereby converts Respondent's Motion for Summary Judgment to a Motion for Involuntary Dismissal, pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure, and GRANTS such Motion. Petitioner failed to meet its burden of proof in its case-in-chief, by failing to show it had a right to relief. Petitioner failed to show by a preponderance of the evidence that Respondent substantially prejudiced Petitioners' rights, exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, and failed to act as required by law or rule in issuing the subject permits to [Permittees].

         The ALJ's order further directed the Department and Permittees to file a joint proposed decision with the OAH.

         On 5 May 2016, the ALJ filed her "Final Decision" with detailed findings and conclusions. In addition to denying the Department's and Permittees' motion for summary judgment and granting the Department's and Permittees' converted motion for involuntary dismissal pursuant to Rule 41(b), the order explained the consequences of the dismissal as follows:

The decision by DWM to issue two permits on June 5, 2015 for a Structural Fill Permit to Construct and Operate, Permit No. 5306-STRUC-2015 for the Colon Mine to Charah, Inc. and Green Meadow, LLC and a Structural Fill Permit to Construct and Operate, Permit No. 1910-STRUC-2015 for the Brickhaven No. 2 Tract "A" Mine to Charah, Inc. and Green Meadow, LLC is hereby UPHELD. Further, DEMLR's decision to issue two permits on June 5, 2015 for a mining permit modification, Permit No. 53-05 for the Colon Mine to Green Meadow, LLC and mining permit modification, Permit No. 19-25 for the Brickhaven No. 2 Tract "A" Mine to Green Meadow, LLC is hereby UPHELD.

         On 6 May 2016, the ALJ filed an "Order Amending Final Decision" to correct an error and add a ...


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