ENVIRONMENTALEE, CHATHAM CITIZENS AGAINST COAL ASH DUMP, AND BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., Petitioners,
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.
in the Court of Appeals 24 January 2018.
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.
D. Runkle for petitioners.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Daniel S. Hirschman, for respondents.
& Van Allen PLLC, by Thomas D. Myrick and Peter McGrath,
North Carolina Department of Environmental Quality
("NCDEQ"), 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").
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).
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.
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.
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
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
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.
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
ALJ's order further directed the Department and
Permittees to file a joint proposed decision with the OAH.
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.
May 2016, the ALJ filed an "Order Amending Final
Decision" to correct an error and add a ...