The legal battle against coal ash permits in Lee County will continue after a three-judge panel from the state Court of Appeals ruled two previous rulings were both made in legal error.
In the opinion written by Judge John Arrowood, a Gov. Roy Cooper and Mike Easley appointee, the Chatham County Superior Court did not utilize “statutorily mandated standards of review,” while an Administrative Law Judge “erred…in converting [a] motion for summary judgement” into an involuntary dismissal and granting it.
The panel, which passed down its ruling on Tuesday, remanded the case back to the state Office of Administrative Hearings for both sides to once again present their case.
This is the latest development in what’s grown to be a nearly three-year saga. The environmental groups EnvironmentaLEE, Chatham Citizens Against Coal Ash Dump and the Blue Ridge Environmental Defense League (BREDL) first filed a petition against four coal ash dumping permits given to Charah in June 2015 by the Division of Energy, Mineral and Land Resources. The petition alleged that the permit would cause health problems and harm property values near the Brickhaven No. 2 Mine in Chatham County and the Colon Mine in Lee County.
Melissa Lassiter, the administrative law judge, filed an order granting an involuntary dismissal of the case in February 2016, saying that the environmental groups “failed to meet its burden of proof.” The Court of Appeals wrote that Lassiter “offered no explanation or support” for changing the original motion for a summary judgement into an involuntary dismissal and “erred in this instance.”
After Lassiter’s initial ruling, the environmental groups appealed to the Chatham County Superior Court, where Judge Carl Fox ruled that two of the permits were acceptable and two were not. The two accepted permits would allow coal ash to be dumped in parts of the sites already mined or excavated, while those areas not mined or excavated could not receive ash.
Arrowood’s ruling stated that Fox “reweighed the evidence and rewrote (Lassiter’s) decision,” thereby ‘“amended … or complete rejected without explanation many of (Lassiter’s) findings of fact and conclusions of law.”
Therese Vick of BREDL said the environmental groups “don’t consider this ruling a loss.”
“Of course, we still feel that Judge Fox’s ruling was appropriate and just,” she said. "The Appellate Court could certainly have ruled in DEQ’s favor and Charah’s favor, which they want it all to go away. We’re looking at our options.”
As the case goes back to the Office of Administrative Hearings, BREDL is planning to bring to the table some emails from the Environmental Protection Agency they found via a Freedom of Information Act request. The emails, Vick said, showed that the EPA considered the mines solid waste landfills, not mine reclamation projects.
“It’s a scheme that was cooked up between the Department of Environmental Quality and the permittees,” she said. “We’ve got some emails that support that supposition, to get it out from under solid waste landfill rules which would allow for local governmental approvals.”
Scott Sewell, COO of Charah, provided a statement to The Herald in response to the ruling.
"Charah is pleased the Court of Appeals has reversed the lower court’s decision," he said. "We are determining next steps as this case is returned to the Office of Administrative Hearings, and we look forward to continued progress on the project at the Brickhaven mine site."
Reach Staff Writer Zachary Horner at 919-718-1217 and on Twitter at @Zachary_Horner.