STATE OF NORTH CAROLINA ZKQQ 7

MECKLENBURG Count In The General Court OfJustice
El District Superior Court Division
GREEN MEADOW, LLC AND CHARAH, INC.,

for Judicial Review
IN THE MATTER OF:

 

 

 

 

ENVIRONMENTALEE, CHATHAM CITIZENS AGAINST COAL ASH

DUMP, AND BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, CIVIL SUMMONS

INC, ALIAS AND PLURIES SUMMONS (ASSESS FEE)
Petitioners,

v.

NC. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF 6.8. 1A4, Rules 3 and 4

WASTE MANAGEMENT, AND DIVISION OF ENERGY, MINERAL Date Original Summons issued

AND LAND RESOURCES,

and Respondents, Dateis) Subsequent Summons{es) issued

GREEN MEADOW, LLC AND INC,
Respondent-Intervenors.

To Each Of The Defendantls) Named Below:

Name And Address Of Defendant 1 Name And Address Of Defendant 2
BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE
Catherine Cralle Jones and Seth E. Barefoot

Law Of?ces of F. Bryan Brice, Jr.

127 W. Hargett Street, Suite 600

Raleigh, NC 27601

You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!

iSe ha entablado un proceso civil en su contra! Estos papeles son documentos Iegales.
TIRE estos papelesl

Tiene que contestar a mas tardar en 30 dies. iPuede querer consultar con un abogado Io antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingl?s que pueda traducir estos
documentos!

 

 

 

 

 

 

 

A Civil Action Has Been Commenced Against You!

You are notified to appear and answer the complaint of the plaintiff as follows:

1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and

2. File the original of the written answer with the Clerk of Superior Court of the county named above.

 

if you fall to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (ifnone, Address Of Plaintiff) Date 790? Time
AM PM
Peter J. McGrath, Jr. 2? WE 
Moore Van Allen PLLC Signature 
100 North Tryon Street. Suite 4700 f} 
..

Charlotte, NC 28202

 

 

VDeputy Assistant Clerk or Superior Court

 

 

 

 

 

Date Of Endorsement Time
El ENDORSEMENT (ASSESS FEE) El AM l:l PM
This Summons Was originally issued on the date indicated Signature
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended SIXW (50) days. Deputy El Assistant Clerk or Superior Court

 

 

NOTE TO PARTIES: Many counties have MANDA TORYARBITRATION programs in which most cases where the amount in controversy is $25. 000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and, if
so, What procedure is to be followed.

(Over)
Rev. 4/18
2018 Administrative Office of the Courts

 

 

 

RETURN OF SERVICE

 

 

I certify that this Summons and a copy of the complaint were received and served as follows:

 

DEFENDANT 1

 

Date Served Time Served Name Of Defendant

DAM 

 

 

 

 

By detivering to the defendant named above a copy of the summons and complaint.

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.

{3 As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.

 

Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

 

 

Other manner of service (specify)

 

Defendant WAS NOT served for the toltowing reason:

 

DEFENDANT 2

 

Date Served Time Served Name Of Defendant

DAM 

 

 

 

By delivering to the defendant named above a copy of the summons and complaint.

By leavin a copy of the summons and com taint at the dwelling house or usual place of abode of the defendant named above with a

person of suitable age and discretion then residing therein.

As the defendant is a corporation, service Was effected by delivering a copy of the summons and comptaint to the person named
below.

 

Name And Address Of Person Whom Copies Left (if corporation, give title of person copies ieft with)

 

 

Other manner of service (Specify)

 

Defendant WAS NOT sen/ed for the following reason:

 

 

 

Service Fee Paid Signature Of Deputy Sheriff Making Return
Date Received Name Of Sheriff (type or print)
Date Of Return County Of Sheriff

 

 

Side Two, Rev. 4i18
2018 Administrative Office of the Courts

STATE OF NORTH CAROLINA

COUNTY OF MECKLENBURG

IN THE GENERALCOEIRTOF JUSTICE
COURT DIVISION

19cvs Z5762,

 

ENVIRONMENTALEE, CHATHAM
CITIZENS AGAINST COAL ASH DUMP,
AND BLUE RIDGE ENVIRONMENTAL
DEFENSE LEAGUE, IN C.,

Petitioners,
v.

NC. DEPARTMENT OF
ENVIRONMENTAL QUALITY, DIVISION
OF WASTE MANAGEMENT, AND
DIVISION OF ENERGY, MINERAL AND
LAND RESOURCES,

Respondents,

and

GREEN MEADOW, LLC AND CHARAH,
INC,

Respondent-Intervenors.

 

RES 
PETITION FOR JUDICIAL REVIEW OF
THE FINAL DECISION OF THE OFFICE

OF ADMINISTRATIVE HEARINGS

 

 

Pursuant to NC. Gen. Stat. 1508-43 and Respondent?

Intervenors Green Meadows, LLC (?Green Meadows?) and Charah, LLC (?Charah,?

collectively, the "Respondent?Intervenors") respectfully petition the Court for judicial review of

the ?nal decision issued by the North Carolina Of?ce of Administrative Hearings dated

December 13. 2019 (the ?Final Decision?), in Contested Case No. 15 EHR 04772. A copy ofthe

Final Decision is attached hereto as Exhibit 1. As described more fully below, the Final

Decision renders partially void certain permits Respondent issued to Respondent?Intervenors.



The Final Decision sets forth two different and apparently contradictory sets of limits on which
portions of the permits remain valid and which are void. Each of those sets of limits is based on
erroneous construction of relevant statutory provisions, and incorrect references to evidence.
The Final Decision is, therefore, affected by error of law, is arbitrary and capricious, is an abuse
of discretion, and includes ?ndings of fact and conclusions of law that are unsupported by
substantial evidence. Finally, the Final Decision adversely affects the interests of Respondent?
lntervenors.

In support of its Petition, Respondent-lntervenors show thefollowing:

BACKGROUND AND PROCEDURAL HISTORY

This case concerns the issuance by the North Carolina Department of Environmental and
Natural Resources, now known as Department of Environmental Quality of four
permits to the Respondent-lntervenors. had acquired the sites of two
existing open-pit mining operations, the Briclrhaven #2 Tract A Mine in Chatham County
(?Brickhaven?) and the Colon Mine in Lee County (?Colon?). Each site was covered by a
mining permit that authorized activities by the permittee. Those pre-existing mining permits
allowed the permittees to expand the boundaries of the mines at the sites beyond areas that had
been excavated prior to the time Respondent?Intervenors acquired the sites. The DEQ issued to
Respondent-Intervenors two structural fill permits (the ?Structural Fill Permits?) and two
modi?ed mine permits (the ?Mining Permits,? together with the Structural Fill Permits, the
?Permits?) which allow for continued mining of the sites, and the use of coal combustion
residuals (?coal ash?) as to be placed as structural fill in the excavated areas of the mine sites.

Speci?cally, Division of Waste Management issued Solid Waste

Management Facility Structural Fill, Mine Reclamation Permit No. 5 306 to Construct and

l-IAR2l2229860v 

Operate a structural ?ll at the Colon site, and Solid Waste Management Facility Structural Fill,
Mine Reclamation Permit No. 1910 for the same purpose at the Brickhaven site, each to Green
Meadow and Charah, Inc.1 (the ?Structural Fill Permits?). Division of Energy, Mineral,
and Land Resources issued Modified Mining Permit for Permit No. 53?05 for the
operation of a clay mine at the Colon site, and issued Modi?ed Mining Permit No. 1925 for the
same type of operation at the Brickhaven site, each to Green Meadow (the ?Mining Permits?).
The structural ?ll permits were the ?rst two permits issued pursuant to the Coal. Ash
Management Act NC. Gen. Stat. Chapter 130A, Article 9, Part2l. The mining
permits were issued and modi?ed pursuant to the Mining Act, NC Gen. Stat. ?74, Article 7.

In June 2015, EnvironmentaLEE and Chatham Citizens Against Coal Ash, chapters of the
Blue Ridge Environmental Defense League Inc. (the ??Petitioners?) filed a Petition for a
Contested Case in the North Carolina Of?ce of Administrative Hearings challenging
the validity of the Structural Fill Permits and Modi?ed Mining Permits.

On May 5, 2016, after a hearing at which Petitioners presented their case, OAH
dismissed Petitioners? case entirely, ruling that that Petitioners failed to meet their burden of
proof to show that (1) they had any right to relief, or (2) BBQ had issued any of the permits
improperly.

Petitioners then ?led a petition for judicial review in Superior Court of Chatham County,
seeking review of the decision dismissing their case. By order dated April 10, 2017, the

Superior Court af?rmed the Decision validating the permits with respect to use of areas

 

Charah, Inc. subsequently changed its entity type and name, and is now known as Charah, LLC.

continued on next page)



?already mined or otherwise excavated? but reversed the decision with respect to areas not
already mined or otherwise excavated.2

Charah and the DEQ appealed the decision of the Chatham County Superior Court to the
North Carolina Court of Appeals, The Court of Appeals stayed the effectiveness of the Superior
Court?s decision during the pendency of the appeal.

The Court of Appeals issued an Opinion on April 3, 2018, ?nding that the Superior Court
had reviewed the decision improperly, and overturning the Superior Court?s decision.
The Court of Appeals also found, though, that the OAH had committed a technical error in
dismissing the case (by converting, on the own initiative, the motion of Respondent-
lntervenors and DEQ for summary judgement into a motion for dismissal). The Court of Appeals
remanded the case to Superior Court with direction to further remand the case to the OAH to
allow Respondent-Intervenors and the DEQ an opportunity to present evidence.
EnvironmenraLEE, er v. Dept. of Environmental Quality, at 01., NC. App(2018).

At a hearing in OAH on August 6, 2019, the BBQ did present some evidence.
Respondentulntervenors did not present any evidence of their own. The DEQ and Respondent?
lntervenors again made motions to dismiss the Petitioners? case.

Even though the Petitioners presented only rebuttal evidence at the 2019 hearing, and had
not presented any relevant new evidence, the OAH issued a decision on December 13, 2019, that
substantively changed its 2016 decision. In one part of the Final Decision, OAH concluded that

to the extent the structural fill and mining permits allow for placement of coal ash in areas

 

2 The Superior Court later clarified its decision, stating that the permits were held to be valid with respect to areas
already mined or otherwise excavated as of April 10, 2017, the date of the Superior Court?s order.



excavated solely for the purpose of disposing of coal ash and not for the purpose of extraction of
minerals, the Permits are void. In another apparently inconsistent part, the OAH concluded

simply that the Permits are void with respect to areas not excavated prior to June 6, 2015. These
changes to the 2016 decision adversely affect Respondent?Intervenors. Respondent?Intervenors

therefore seek judicial review of the Final Decision.

PARTIES, JURISDICTION AND VENUE

1. Each of the Respondent-Intervenors is a limited liability company with its principal North
Carolina place of business in Charlotte, Mecklenburg County.

2. Respondent BBQ and its Divisions DWM and DEMLR are agencies of the executive
branch of the government of the State of North Carolina, and each is an "agency" as described in
NC. Gen. Stat. 

3. Petitioners EnvironmentaLEE and Chatham Citizens Against Coal Ash Dump are
chapters of the Petitioner Blue Ridge Environmental Defense League Inc. The Blue Ridge

Environmental Defense League Inc. is a non-profit organization focusing on environmental

issues.

4. This Final Decision is a ?nal agency decision issued under the authority of NC. Gen.
Stat. and is therefore a ?nal agency decision for purposes of NC Gen. Stat. 
5. This Court has jurisdiction over this matter pursuant to NC. Gen. Stat. MOB-43 and

venue is proper in Mecklenburg County pursuant to NC. Gen. Stat. 



EXCEPTIONS

Pursuant to NC. Gen. Stat. (which provides that ?the petition shall explicitly
state what exceptions are taken to the decision or procedure and what relief the petitioner seeks?),

ReSpondent?lntervenors take the following exceptions to the Final Decision.

Exception No. I. The Final Decision includes provisions that are internally inconsistent, and
therefore are affected by error of law or are arbitrary and capricious, or an abuse of discretion. In
the alternative, such provisions are unsupported by substantial evidence admissible under G.S.

or 15013?31 in view of the entire record as submitted.

The Final Decision includes Conclusions of Law 41 and 42 stating that:

41. To the extent that the structural ?ll permits at issue in this case allow for the
placement of coal combustion products in areas excavated solely for the purpose of
disposing of coal combustion products, and not ?for the pu1poses of extracting minerals,?
DWM exceeded its authority under the statute, and such permits are void.

42. To the extent that the Mining Permits were modi?ed to allowed ?reclamation?
of areas not previously excavated for, ?for the purposes of extracting minerals,? DWM
exceeded its authority under the [Coal Ash Management Act], and such permits are void

as to the areas not previously mined.

The Final Decision also includes, however, in the Section styled ?Final Decision,?

Paragraphs 2 through 5 which state:

2. The Solid Waste Management Facility Structural Fill, Mine Reclamation Permit
No. 5306 to Construct and Operate a Structural Fill at the Colon Road mine site in Lee
County, North Carolina to Green Meadow, LLC and Charah, Inc, is AFFIRMED as to
areas excavated prior to June 6, 2015 and is void as to any areas not excavated prior to

June 6, 2015.



3. The Solid Waste Management Facility Structural Fill, Mine Reclamation Permit No.
1910 for the same purpose at the Brickhaven Mine site in Chatham County, North
Carolina to Green Meadow, LLC, and Charah, Inc. is AFFIRMED as to areas excavated
prior to June 6, 2015 and void as to any area not excavated prior to June 6, 2015.

4. For areas not excavated prior to June 6, 2015, the Modi?ed Mining Permit for Permit
No. 53-05 for the operation of a Clay Mine at the Colon Mine in Lee County, North
Carolina to Green Meadow, LLC issued by the Division of Energy, Mineral, and Land
Resources shall be modi?ed to provide for reclamation by means other than as structural

?ll.

5. For areas not excavated prior to June 6, 2015, the Modified Mining Permit No. 19-25
issued by the Division of Energy, Mineral, and Land Resources issued for the same type
of operation at the Brickhaven No, 2 Mine Tract in Chatham County, North Carolina
to Green Meadow, LLC shall be modi?ed to provide for reclamation by means other than

as structural ?ll,

The Conclusions of Law base the validity of the Permits solely upon the purpose for

which any given area is excavated (whether solely for the disposal of coal ash, or at least in part

for the purpose of extraction of minerals), and the Final Decision bases the validity of the

permits solely upon the date a given area was excavated. Those bases could be consistent if (and

only it) the OAH had found that all excavations conducted at the sites after June 6, 2015 were

conducted sole for the purposes of disposal of coal ash, and that extraction of minerals was not

any part of the purpose of such post?June 6, 2015 excavation. The made no such ?nding

and the record is utterly devoid of evidence that could support any such ?nding. Those

inconsistent provisions of the Final Decision are therefore affected by error of law, are arbitrary

and capricious, are an abuse of discretion, and include findings of fact and conclusions of law

that are unsupported by substantial evidence.

The Administrative Procedure Act provides, at NC. Gen. Stat. that:

The court reviewing a ?nal decision may af?rm the decision or remand the case for
further proceedings. It may also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the findings, inferences,

conclusions, or decisions are:



(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under GS. 15 1508?

30, or 1508-31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.

With regard to asserted errors pursuant to subdivision (4), the court shall conduct its
review of the final decision using the de novo standard of review. With regard to asserted errors
pursuant to subdivisions (5) and (6), the court shall conduct its review of the ?nal decision using
the whole record standard of review NC. Gen. Stat. 

To the extent the Final Decision renders the Permits void with respect to excavations
after a date certain, the Final Decision is arbitrary and capricious, and erroneous. CAMA gives
no indication as to how the DEQ or any other entity should select a date after which excavations
may not be permitted, so to select any particular date as a limit is per se arbitrary and without

basis in CAMA. To the extent the Final Decision renders the Permits void on the basis of the

intent of the excavation, it is wholly unsupported by substantial evidence.

Exception No. 2. Whether the Final Decision renders void the Permits with respect to areas
excavated solely for the purpose of disposal of coal ash and not for the extraction of minerals, or
voids the Permits with respect to areas excavated after June 6, 2015, the Final Decision is
affected by errors of law, is arbitrary and capricious, and is unsupported by the evidence.

The Final Decision sets forth two separate bases for the decision holding the permits
partially void. As the first basis, the Final Decision sets forth Conclusion of Law 36 on pg. 37,
stating that CAMA is designed to "prohibit construction of new, or expansion or existing coal
combustion residual surface impoundments.? The Final Decision erroneously states, though, that
CAMA de?nes ?a ?coal combustion residual surface impoundment? to mean a depressed or

excavated area that is designed to hold coal combustion waste? citing NC. Gen. Stat. 



30920105). Relying solely on prohibition of new or expanded surface impoundments,
but using an incorrect de?nition of surface impoundments, the OAH concludes that CAMA was
speci?cally enacted to prevent the creation of new coal ash waste ?dumping grounds,? a term
neither the Final Decision nor CAMA de?nes. Relying solely on that supposedly implied
prohibition, OAH reached the conclusion of law that ?allowing coal ash as structural ?ll on areas
not previously mined or excavated violates this legislative intent and thus, is an impermissible
construction of The Final Decision, though, improperly cites and relies upon only a
small portion of part of the de?nition of ?coal combustion residual surface impoundment? set
forth at 130An3 The Final Decision takes that small portion totally out of context from

the entire de?nition. That section of CAMA actually de?nes ?coal combustion residuals surface

impoundment? to mean:

a topographic depression, excavation, or diked area ?that is primarily formed from
earthen materials; (ii) without a base liner approved for use by Article 9 of Chapter
130A of the General Statutes or rules adopted thereunder for a combustion products
land?ll or coal combustion residuals land?ll, industrial landfill, or municipal solid waste
landfill; and designed to hold accumulated coal combustion residuals in the form of
liquid wastes, wastes containing free liquids, or sludges, and that is not backfilled or
otherwise covered during periods of deposition. "Coal combustion residuals surface
impoundment? shall only include impoundments owned by a public utility, as
defined in (3.8. 62?3? (emphasis added).

The intent of CAMA with respect to surface impoundments is clear. intent is to
prohibit public utilities from creating new unlined coal ash disposal areas, or expanding any such
existing areas and to require utilities to close such impoundments either by excavating coal ash
in the impoundments and placing excavated coal ash in a permitted facility (including permitted,
lined structural fill facilities such as the facilities in this case), or closing the impoundments with
coal ash in place, if that could be done responsibly. (To date, DEQ has essentially required

excavation of coal ash all utility surface impoundrnents.) The Permits in that case clearly do not



contemplate or allow creation of any new surface impoundment as the legislature de?ned that
term for CAMA purposes. There is no ?nding of fact identi?ed in the Final Decision, and no
evidence in the record, that the facilities covered by the Permits are surface impoundments. In
fact, the evidence is uncontroverted that the facilities are not owned by a public utility and are

lined and are not surface impoundments.

To rely, as OAH did in the Final Decision, on the definition of surface impoundrnent to
prevent the excavation of ash from an actual surface impoundment for placement in a lined,
structural fill is to use the de?nition for a purpose completely opposite to its function in CAMA.

In that respect the Final Decision is affected by error of law, is arbitrary and capricious, and is

unsupported by the evidence.

As the second basis for the Final Decision, the Final Decision states, at Conclusions of

Law 37 and 38, that

The DEQ had permitted land?lls in mines before. In permitting landfills used as mine
reclamation, [the acknowledged that a height of the [reclaimed] site at 50 feet
higher than the ground level was not unusual. However, the structural ?ll areas at the
Brickhaven Mine site and the Colon Road Mine site far exceeded the 50-foot height at
other sites Respondents have approved. The maximum elevations at the Brickhaven Mine
site ranged from 260 feet slope to approximately 294 feet at the
center of the structural fill. (Amended 13-2, Briclthaven Structural Fill Permit Application,
Engineering Plan, p. 5) (Emphasis added). Similarly, the structural fill at the Colon Road
Mine Site showed a?f1nal CCP ?ll condition with a maximum elevation of 320 feet at the
top of the slope,? and after the slope break, ?the top of the structural CCP fill
extends to a maximum elevation of approximately 330 feet at the center of the CCP 
(Amended A-2, Colon Road Structural Fill Permit Application, Engineering Plan, p. 5)

(Emphasis added).

The Final Decision relies solely on these supposed elevation changes, purportedly far in
excess of 50 feet, to conclude that ?Respondents failed to justify how reclaimed land at those
heights was (1) a creasonable rehabilitation? of the affected land or (2) provided for a

?subsequent beneficial use of the mined and reclaimed land? other than to dispose of coal ash.



The Court?s Findings ofF act, though, show that the Court?s interpretation of the relevant
Engineering Plan is erroneous and not supported by substantial evidence.

The only testimony directly relating to this issue was from Respondent?s employee Tracy
Davis, Director of DEMLR. Mr. Davis testified that

Additionally, the height of each site was shown in the mining permit applications, and on

the mine and reclamation maps with cross-sections in the footprint, and on slope angles.
Davis Opined a height of the site at 50 feet higher than the ground level was not unusual.

(2015 r. p. 177).

Finding of Fact 73. That is, Mr. Davis testified that the reclaimed mine sites would include areas
at completion that were 50 feet higher than ground level, which is not unusual for mine
reclamation. Mr. Davis was asked about 50-foot elevation changes because Petitioners had
forecast that testimony from Petitioners? witness Don Kovasckitz, then Director of Lee County
Geographic Information Services, would show such a 50?foot elevation change. Mr. Kovasckitz
testi?ed only with respect to the Colon Rd. site (the only site in Lee County). Mr., Kovasckitz
did testify to that elevation change, but also testi?ed that ?the site?s topology starts at 330 feet
above mean sea level, grades down 2% to 320 feet above mean sea level, then grades down 4?
to?l to 2.70 feet above mean sea level on the east side of the site.? Finding of Fact 83(0).
Petitioners? own witness, that is, explained that the elevations described in the Engineering Plans
identify elevation above mean sea level, not elevation above ground surface. The only evidence
in the case regarding how far above ground surface the ?nal grade of the site would be shows
that the actual structural fill, when, complete, would be ?fty feet above ground surface. The
Final Decision misconstrues two documents (the Engineering Plans) in contradiction to the only
evidence in the case that interprets those documents. The Final Decision in that regard is

therefore unsupported by substantial evidence, and the conclusions based on the



misinterpretation of the Engineering Plans are arbitrary and capricious and affected by error of

law.

CONCLUSIONS
The Final Decision includes two sets of con?icting limits on the validity of the Permits.
Each set of limits is based on an erroneous, arbitrary and capricious, and unsupported reading of
the meaning of terms defined by CAMA, and of the evidence of the nature and ?nal elevations of
the reclamation of sites covered by the Permits. The improper limits on the validity of

Respondent-lntervenor?s Permits is an adverse effect upon the rights of the Respondent?

lntervenors.

RELIEF REQUESTED
In view of the foregoing exceptions, Respondent?Intervenors request that the Court
overturn the Final Decision to the extent the inal Decision invalidates any portion of the

Permits and issue a ruling declaring that each of the Permits is valid in its entirety.

Respectfully submitted thisZR: day of December, 2019.

  

- 
Peteil. MCGreith Jr. 29/ 
NC. State Bar No. 13 _6
MOORE VAN ALLEN PLLC
100 North Tryon Street, Suite 4700
Charlotte, NC 282024003
Telephone: (704) 331-1 126

Attorneys for 



CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that on this day I served upon all parties and the
Of?ce ofAdministrative Hearings and the North Carolina Department of Just1ce a copy of the
foregoing PETITION FOR JUDICIAL REVIEW by placing it in the United States mail ?rst
class postage prepaid US Mail, as follows:

Catherine Cralle Jones

Seth E. Barefoot

Law Of?ces of F. Bryan Brice, Jr.
127 W. Hargett Street, Suite 600
Raleigh, NC 27601



Counsel for Petitioners

and,

T. Hill Davis, 

Carolyn McLain

North Carolina Department of Justice
Environmental Division

Post Office Box 6299001 Mail Service Center
Raleigh, North Carolina 27602
HDavis@nedoi .gov

CMcLain@ncdoi . gov

Cozmselfor Respondents



and

Of?ce of Administrative Hearings
424 North Blount Street

6714 Mail Service Center

Raleigh, North Carolina 276996714

This the day of December, 2019.

 

 



Exhibit 1

FILED
OFFICE OF ADMINISTRATIVE HEARINGS
12/13/2019 2:47 PM

STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CHATHAM 15 EHR 04772

 

EnvironmentaLee, Chatham Citizens

Against Coal Ash Dump, And Blue Ridge

Environmental Defense League Inc,
Petitioner,

V.

NC Department of Environment and
Natural Resources, Division of Waste FINAL DECISION

Management, and Division of Energy,
Mineral and Land Resources,
Respondent,

and

Green Meadow, LLC, and Charah, Inc.
Respondent?lntervenors.

 

 

 

 

 

PROCEDURAL BACKGROUND

On August 6, 2019, Administrative Law Judge Melissa Owens Lassiter
conducted a hearing in this case in Raleigh, North Carolina on remand from the North
Carolina Court of Appeals (?Court of Appeals?), in EnvironmentaLEE v. N. C. Dep't of Env?t
Nat. Res, 813 673 (NC Ct. App. 2018). In March of 201 7, Superior Court Judge
Carl Fox reversed the Final Decision ?as to areas not already mined or otherwise

excavated.?

In April of 2018, the Court of Appeals found that the trial court failed to review the
Final Decision adequately and also found that the ALJ lacked authorization to
convert a summary judgment motion into a Rule 41(b) Motion for Involuntary Dismissal.
The Court of Appeals reversed the trial court's decision and remanded the matter to the
Superior Court for further remand to the OAH to ?allow the Department and Permittees
the opportunity to present their case. At that time, Petitioners shall be permitted to offer
any rebuttal evidence, including any expert testimony that rebuts the Department?s and
Permittee?s contentions.? lot, 813 at 680.

On December 7 and 8, 2015, the Undersigned conducted the initial hearing in this
matter pursuant to Petitioners' appeal of the Department?s issuance of the following
permits to Respondent-Intervenors on June 4, 2015:

(1) Division of Waste Management issued Solid Waste Management
Facility Structural Fill, Mine Reclamation Permit No. 5306 to Construct and

Operate a structural fill at the Colon Road mine site in Lee County, North Carolina
to Green Meadow, LLC and Charah, inc.

(2) Division of Waste Management issued Solid Waste Management Facility
Structural Fill, Mine Reclamation Permit No. 1910 for the same purpose at the
Brickhaven Mine site in Chatham County, North Carolina to Green Meadow, LLC,

and Charah, inc.

(3) Division of Energy, Mineral, and Land Resources issued
Modified Mining Permit for Permit No. 5305 for the operation of a Clay Mine at the
Colon Road Mine in Lee County, North Carolina to Green Meadow, LLC and

(4) Division of Energy, Mineral, and Land Resources issued Modified Mining
Permit No. 19-25 for the same type of operation at the Brickhaven No, 2 Mine Tract
in Chatham County, North Carolina to Green Meadow, LLC.

At the December 2015 hearing, the Undersigned granted Respondent's Motion for
Summary Judgment as to Claim and denied such Motion as to the remainder of
Petitioners? claims. Petitioners opted to Voluntarily Dismiss Claim with prejudice in lieu
of an Order for Partial Summary Judgment. After the Undersigned?s ruling, Petitioners
and Respondent-lntervenors advised the Undersigned that they had reached a settlement
as to Claim regarding the issue of coal dust.

Because the contested case hearings of December 2015 and August 2019
constitute a single case, this Final Decision considers the evidence and arguments
presented during both proceedings. On October 30, 2019, the parties filed their respective
proposed Final Decisions.

APPEARANCES

For Petitioners: Catherine Cralle Jones and Seth E. Barefoot, Law Office of F.
Bryan Brice, Jr. 127 W. Hargett St., Ste 600, Raleigh, North Carolina 27601 (August 6,
2019 hearing on remand only); John D. Runkle, Attorney at Law, 2121 Damascus Church
Road, Chapel Hill, North Carolina 27516 (December 7 and 8, 2015 hearing only).

For Respondents: Thomas Hill Davis and Carolyn McLain, Assistant Attorneys
General, North Carolina Department of Justice, 114 West Edenton St, Post Office Box
629, Raleigh, North Carolina 27602?0629.

For Respondent-intervenors: Peter J. McGrath, Jr., and Thomas D. Myrick,
Moore Van Allen, PLLC, 100 North Tryon St., Ste 4700 Charlotte, North Carolina 28202.

ISSUES

1. Whether Resoondents met the requirements of the Mining Act of 1971 and
the Coal Ash Management Act of 2014 by permitting the Brickhaven and Colon

Road Mine sites as structural fills to be used for mine reclamation rather than as solid
waste landfills (hereinafter ?Claim 

2. Whether Respondents? requirement for the amount of financial assurance
from the permittees met the requirements under the Mining Act of 1971 and the CAMA of

2014 (hereinafter ?Claim 

3. Whether Respondents appropriately applied the requirements of the CAMA
of 2014 by approving the use of an encapsulation liner system, which employed a
composite liner utilizing a clay liner, for the containment of coal combustion
products as part of the permits pursuant to NC. Gen. Stat. 

(hereinafter ?Claim 

4. Whether Petitioners have met their burden of proving that the cumulative
impact of the proposed facilities would have a disproportionate adverse impact on the
Chatham or Lee County communities under the Solid Waste Management Act, NC. Gen.
Stat. 0.9. (hereinafter ?Claim 

5. Whether Respondents appropriately applied the requirements of the CAMA
of 2014 by approving the Toxicity Characteristic Leaching Procedure, pursuant to NC.
Gen. Stat. to characterize the toxic constituents of the coal
combustion products (hereinafter ?Claim 

6. Whether Petitioners met their burden of proof to show that Respondents
substantially prejudiced Petitioners? rights and either exceeded their authority or
jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or
capriciously, or failed to act as required by law or rule by issuing the structural fill and
modified mining permits for the Brickhaven and Colon Road Mine Sites?

STATUTES AND REGULATIONS AT ISSUE

NC. Gen. Stat. 130A, Article 9, Solid Waste Management Act and CAMA of 2014
NC. Gen. Stat. 74, Article 7, Mining Act of 1971
NC. Gen. Stat. 1508-22 through 1508?37
15A NCAC 138 .1700 et seq.
15A NCAC 058 .0100 et. seq.

EXHIBITS RECEIVED INTO EVIDENCE

For Petitioners:
Petitioners 1 Photographs submitted by Terica Luxton

Petitioners 2 Email from Thad Valentine to Judy Wehner, Colon Mine Partial
release inspection, April 16, 2014 (for illustrative purposes only)

Petitioners 3

Petitioners 4

Petitioners 5

Petitioners 6

Petitioners 7

Petitioners 9

For Respondents:

Respondents 1

Respondents A





Blue Ridge Environmental Defense League, EnvironmentaLEE,
Chatham Citizens Against Coal Ash Dump, and NC WARN: ?Joint
Comments on Proposed Coal Ash Landfills in Lee and Chatham
Counties," May 15, 2015 (for illustrative purposes only to reflect
that comments were submitted only)

?Comments on Proposed Disposal of Coal Combustion Ash in
Subtitle Landfill in Clay Mines,? G, Fred Lee, PE, BCEES,
FASCE and Anne Jones-Lee, May 6, 2015 (for illustrative
purposes only to reflect that comments were submitted only)

?Technical and Scientific issues with Coal Ash Structural Fills in
North Carolina,? A. Dennis Lernly, Research Associate
Profession of Biology Wake Forest University, April 22, 2015 (for
illustrative purposes only m- to reflect that comments were submitted

only)

Power point presentation by Don Kovasckitz, Director, GIS Strategic
Services, Lee County, given to the Lee County Board of
Commissioners on December 15, 2014

Power point presentation by Don Kcvasckitz, Director, GIS Strategic
Services, Lee County, given to the Lee?Sanford Environmental
Affairs Board in May 2015. (Except for Slide 3, which was excluded
upon the sustaining of an objection based on relevancy and Slide 4,
which was excluded upon the sustaining of an objection based on

hearsay)

Brickhaven Mine Site Overview, dated 11/2014, part of Brickhaven
Permit Application (admitted August 6, 2019)

Coal Ash Management Act of 2014
Permit Documents for Lee County Site (Colon Mine)

Solid Waste Management Facility Structural Fill, Mine Reclamation
Permit No. 5306 to Green Meadow, LLC and Charah, inc. to
Construct and Operate the Colon Mine Site Structural Fill in
conjunction with DEMLR Mine Permit 53-05 issued on June 5, 2015

Colon Mine Site Structural Fill Permit Application and Addenda 
Design Hydrogeoiogical Report includes Water Quality Monitoring
(as amended on August 6, 2019)

A-3

Respondents E3

84

8?2

8?3

Respondents 

01

c-4

Respondents 

Colon Mine Permit No. 53-05 Modification to Green Meadow, LLC to
change the method for reclaiming the mine by constructing structural
fill using Coal Combustion Byproducts in accordance with the
provisions of the Coal Ash Management Act of 2014 and the terms
and conditions of the Permit to Construct and Operate Colon Mine
Site Structural Fill Permit No. 5306 issued by the DWM, said permit
No. 53?05 being issued by the DEMLR on June 5, 2015.

Permit Documents for Chatham County Site (Brickhaven Mine)

Solid Waste Management Facility Structural Fill, Mine Reclamation
Permit No. 1910 to Green Meadow, LLC and Charah, Inc. to
Construct and Operate the Brickhaven Mine Site Structural Fill in
conjunction with DEMLR Mine Permit 19?25 issued on June 5, 2015

Brickhaven Mine Site Structural Fill Permit Application and Addenda
- Design Hydrogeological Report includes Water Quality Monitoring
(as amended on August 6, 2019)

Brickhaven Mine Permit No. 1925 Modification to Green Meadow,
LLC to change the method for reclaiming the mine by constructing
structural fill using Coal Combustion Byproducts in accordance with -
the provisions of the Coal Ash Management Act of 2014 and the
terms and conditions of the Permit to Construct and Operate
Brickhaven Mine Site Structural Fill Permit No. 1910 issued by the
DWM, said permit No. 1925 being issued by the DEMLR on June 5,

2015.

Financial Assurance Mechanisms for Brickhaven Mine Site

Performance Bond for Closure, Post?closure, and Potential
Assessment and Corrective Action costs in the total amount of

$10,200,560.00

Certificate of Liability insurance for Sudden and Non-Sudden events
in the amount of $4 million per occurrence and $8 million annual

aggregate

Surety Bond Guaranteeing Payment for disaster response costs in
the amount of $65,000.00

$500,000.00 Blanket bond guaranteeing compliance with the Mining
Act of 1971

Financial Assurance Mechanisms for Colon Mine Site





D-3

D-4

Respondents 
Respondents 

F-1

?2
?3
F4
Respondents 
Respondents 
H-1



Performance Bond for Closure, Post-closure, and Potential
Assessment and Corrective Action costs in the total amount of
$10,380,47000

Certificate of Liability Insurance for Sudden and Non-Sudden events
in the amount of $4 million per occurrence and $8 million annual

aggregate

Surety Bond Guaranteeing Payment for disaster response costs in
the amount of $65,000.00

$500,000.00 Blanket bond guaranteeing compliance with the Mining
Act of 1971

Hearing Officer?s Reports and Recommendations
Public Comments

May 16, 2015 Blue Ridge Environmental Defense League public
comments

May 16, 2015 John Wagner?s public comments

April 13, 2015 Public Hearing transcript

April 16, 2015 Public Hearing transcript

October 19, 2000 Environmental Equity Initiative Policy
Petitioners' Discovery Responses

Petitioners? Response to First Set of lnterrogatories
Petitioners? Response to First Request for Admission

PRELIMINARY MATTERS

At the August 6, 2019 hearing, the Undersigned heard arguments from all parties
on Respondents? Motion to Dismiss Petitioners? Claims B, C, and the Motion to
Dismiss by Green Meadow, LLC and Charah, Inc. (?Respondent?lntervenors?), pursuant
to NC. Rule of Civil Procedure 41(b). The Undersigned took such Motions under
advisement and proceeded to Respondent?s presentation of its case-in-chief.

The Undersigned also heard Respondents? Motion in Limine seeking to exclude:
(1) any evidence or testimony that occurred on or after the date of the applicable permits;
(2) the testimony of Elizabeth Werner, permitting Hydrologist (3) the testimony of

Thad Valentine, Senior Specialist and (4) the Water Quality Management
portions of the structural fill permit applications for Colon and Brickhaven. The
Undersigned granted the Motion as to Items (1) and (2) and limited the scope of testimony
by Thad Valentine (Item 3). Respondents withdrew their motion as to item (4).

FINDINGS OF FACT

Based upon careful consideration of the pleadings, testimony, evidence,
arguments, and legal briefs received during the contested case hearing, as well as the
entire record of this proceeding, including Petitioners? casein?chief, Respondents? Motion
for Summary Judgment, Respondents? request that Petitioners? case be dismissed at the
end of Petitioners' casein?chief, Respondents? case-in?chief, Petitioners? rebuttal, and
Respondents and Respondent-lntervenors? Motion to Dismiss pursuant to Rule 41(b) of
the North Carolina Rules of Civil Procedure, the undersigned hereby finds the following:

Parties

1. Petitioners EnvironmentaLEE and Chatham Citizens Against Coal Ash
Dump are chapters of the Petitioner Blue Ridge Environmental Defense League Inc. The
Blue Ridge Environmental Defense League Inc. is a non?profit organization
focusing on environmental issues.

2. Respondent DWM is a State agency established pursuant to NC. Gen.
Stat. 1438?2794 through 1438-34423 who is vested with the statutory authority to
enforce the State?s environmental pollution laws, including laws enacted to regulate solid
waste. TheNorth Carolina General Assembly mandates that Respondent DWM promote
and preserve an environment that is conducive to public health and welfare by
establishing a statewide solid waste management program, and mandates that such
action be deemed acts of the sovereign power of the State.

3. Respondent DEMLR is a State agency established pursuant to NC Gen.
Stat. 1438-2791 through 1438-34423 who is vested with the statutory authority to
enforce the State?s environmental pollution laws, including laws enacted to regulate
mining operations. The North Carolina General Assembly mandates that Respondent
DEMLR promote and preserve an environment that is conducive to public health and
welfare by establishing a statewide mining program, and mandates that such action be
deemed acts of the sovereign power of the State.

4. Respondent?Intervenors Green Meadow, LLC and Charah, Inc. hold the
solid waste management facility structural fill/mine reclamation permits at the Colon and
Brickhaven Mine sites at issue. Respondent-lntervenor Green Meadow, LLC holds the

modified mining permits at issue.

5. In its petition, Petitioner alleged Claims A as listed above. Regarding
Claim A, Petitioners alleged that the proposed sites are solid waste landfills, rather than
mine reclamation projects, and ?both of the present sites will need extensive amounts of

slate and clay removed before the coal ash can be placed on site.? Specifically, Petitioners
contended:

Several of the landfill cells will be excavated on land that has never been
mined. Contrary to the permit application for the proposed sites, nothing
can be built on tap of the finished ?reclamation? sites. The need to keep
liners intact and projected height above grade would make these areas
unsuitable for any future development.

(Petition).

6. To the extent the Findings of Fact contain Conclusions of Law, or that the
Conclusions of Law are Findings of Fact, they should be so considered without regard to

the given labels.
Applicable Statutes and Regulations
Coal Ash Management Act of 2014 (CAMA)

7. On September 20, 2014, the North Carolina General Assembly passed
CAMA (NC Gen. Stat. BOA-309.200 et seq., Article 9, Part 2i) as a comprehensive
management plan for the cleanup of coal ash, and the closure of coal ash ponds.
Specifically, Subpart 3 of NC. Gen. Stat. 130A, Article 9, Part 2i (NC. Gen. Stat. 
ei? seq.,) addresses use of coal combustion products as structural fill by
detailing the permitting, construction, operation, and closure of large projects using coal
ash as structural fill to reclaim open pit mines in North Carolina.

8. NC. Gen. Stat requires that projects using coal
combustion products as structural fill involving the placement of 8,000 or more tons of
coal combustion products per acre or 80,000 or more tons of coal combustion products
in total per project receive an individual permit from DWM.

9. On April 17, 2015, the Coal Combustion Disposal Rule Rule?) of the
federal Environmental Protection Agency was published in the Federal Register.
The purpose of this rule was to establish ?nationally applicable minimum criteria for the
safe disposal of coal combustion residual in landfills and surface impoundment.? 80 Fed.
Reg. 74, 21303. The CCR Rule defined a landfill or landfill" as ?an area of land or
an excavation that receives OCR and which is not a surface impoundment, an
underground injection well, a salt dome formation, a salt bed formation, an underground
or surface coal mine, or a cave.? 40 CPR. 257.53.

10. The COR Rule was not effective until October 19, 2015, four months after
Respondents issued the subject permits in this contested case. Therefore, the OCR Rule
did not apply to the facts and subject permits of this case.

The Mining Act of 1971

11. N.C. Gen. Stat. 74, Article 7 constitutes the Mining Act of 1971 and
regulates mining and reclamation of mined lands in this State. In N.C. Gen. Stat. 74?
47, the General Assembly explicitly provides that:

. finds that the conduct of mining and reclamation of mined lands as
provided by this Article will allow the mining of valuable minerals and will
provide for the protection of the State?s environment and for the subsequent
beneficial use of the mined and reclaimed land.

12. N.C. Gen. Stat. 74-49(7) defines what does and does not constitute
?mining.? ?Mining means any of or as listed in but:

?Mining? does not include: . . .

d. Excavation or grading when conducted solely in aid of on-?site farming
or of on?site construction for purposes other than mining . .

13. NC. Gen. Stat. 74-49(12) also defines ?reclamation? as ?the reasonable
rehabilitation of the affected land for useful purposes and the protection of the natural
resources of the surrounding area."

December 7 8, 2015 Hearing

14. At the 2015 hearing, Petitioners presented testimony of Debbie Hall, Terica
Luxton, Judy Hogan, and Sheila Crump. Debbie Hall and Terica Luxton are from Lee
County and members of EnvironmentaLEE, while Ms. Hogan and Ms. Luxton are from
Chatham County and members of Chatham Citizens Against Coal Ash Dump. All four
witnesses live near the respective mine sites and were concerned that there may be
environmental impacts from the disposal of coal ash at the mine sites, and that the mine
sites may negatively affect their communities.

15. As of the December 2015 hearing, there were about 50 active members of
EnvironmentaLEE who met once a month in the Colon Road community in Lee County.
The Colon community is located right across the road from the Colon Mine site. Debbie
Hall estimated that approximately 30 to 35 EnvironmentaLEE members live:

[On] the roads that go right around that site the Osgood community, Colon

community?those people that are most closelyjoined to the site . . . Iwould
say within three and a half to five miles from the site-uthe majority of the
people.

(2015 T. pp. 54?55) Ms. Hall was concerned about the environmental impact [of the
proposed coal ash facility at Colon Road] to the surrounding community as many
residents in the Colon community use wells to irrigate their gardens they eat from, water

the animals, and eat those animals and eggs. Hall was also concerned about the dust
that will be in the air because the Colon community has already been affected by the brick
industry that has been in that community for decades. (2015 T. pp. 57-58)

16. At the end of Summer 2015, Ms. Hall saw that a pond had been drained on
the proposed coal ash site in Lee County and observed the digging of ditches,
displacement of animals such as beavers, truck traffic, land moved, and grading. (2015
T. pp. 61-64) However, Hall acknowledged that ?there has been no coal ash spots at the
site at this point.? (2015 T. p. 62) Ms. Hall has had no training in environmental science,
and no personal knowledge of any effects of coal ash that extend three to five miles from
where coal ash has been placed. (2015 T. p. 62) She admitted that the brick factory is
no longer in operation, and she cannot say how far the closed brick factory is located from
the Colon proposed coal ash site. (2015 T. p. 63)

17. Terica Luxton has been involved with EnvironmentaLEE for four years
fighting for the environment. She was concerned about the proposed coal ash facility at
Coion Road for several reasons. First, Lee County does not have any coal ash. Second,
the proposed Colon Road facility is located right on top of the Colon community?s largest
water shed. Ms. Luxton explained how ?[t]he watershed is our life. I mean the bottom
line is water without water you don?t have life . . . The people in Colon depend upon
those wells.? (2015 T. p. 66) Ms. Luxton has researched the history of some people who
live and are buried in the Colon community. She believes in fighting to protect the

environment for those people. (2015 T. pp. 73-74)

18. In 2015, Judy Hogan was a resident of Moncure, North Carolina, and
Chairperson for Chatham Citizens Against the Coal Ash Dump (?Chatham Citizens?). At
the time of the 2015 hearing, Chatham Citizens Against the Coal Ash Dump consisted of
eighty?four (84) members. Fifty-three (53) of such members lived in Moncure, NC,
fourteen (14) of such members lived in Lee County, and ten members lived in other parts
of Chatham County or other counties. EnvironmentaLEE and Chatham Citizens groups
supported one another. At the time of the December 2015 hearing, Ms. Hogan lived
approximately five miles, by air, from the Brickhaven proposed coal ash facility in
Moncure, North Carolina on MoncurewPittsboro Road, a major travel route in the county.

(2015 T. p. 77)

19. Beginning around October 23, 2015, Ms. Hogan began seeing trucks
hauling coal ash on Moncure-?Pittsboro Road toward the Brickhaven coal ash site. Ms.
Hogan was aware that residents in the area had notified the Sheriff?s Department and the
North Carolina Highway Patrol about trucks speeding through Moncure and near the site.
(2015 T. p. 79) Ms. Hogan had educated herself about what coal ash looks like. Thus,
about three weeks before the December 7, 2015 hearing, Hogan observed coal ash
coming off the top and behind an older truck. (2015 T. pp. 80-81) Back in April [of 2015],
?people in Brickhaven took photos of coal ash blowing off the old Cape Fear coal ash
mines." (2015 T. p. 81) The coal ash appeared grey to black in color and the truck was
going fast. (2015 T. p. 81) Ms. Hogan lived near Jordan [Lake] dam and also saw coal
ash when she returned from a walk along Jordan Dam Road. (2015 T. p. 81)

10

20. At the time of the 2015 hearing, Sheila Crump was a Moncure, North
Carolina resident who lived six or seven miles from the Brickhaven coal ash site in
Chatham County. Ms. Crump was concerned about additional traffic that would be
created by trucks driving to and from the coal ash facility, along Moncure-Pittsboro Road
and Highway 1. There was existing heavy traffic, especially from log trucks along Old
Highway 1, and other main roads in the area. (2015 T. pp. 84-85) Ms. Crump lived next
to the railroad tracks and had to drive across the train track to reach Old Highway 1.
(2015 T. p. 85) Ms. Crump joined the Chatham Citizens Against the Coal Ash Dump group

in June of 2015.

21. Ed Mussler is a licensed Professional Engineer. At the time of the
December 2015 hearing, Mr. Mussler had worked as the DWM Permitting Supervisor of
the Solid Waste Section for ten years. Mussler worked an additional twelve
years as a permitting engineer for the Solid Waste Section. As Permitting Supervisor,
Mussler was responsible for the supervision and training of, and consultation with, the
professional staff who reviewed SWS permit applications to determine if such applications
met the qualifications required to obtain a permit under the CAMA.

22. in November 2014, Respondent SWS received the subject permittees'
structural fill permit applications. Mussler and his professional staff conducted a review
of such permit applications to ensure the applications met all of the CAMA requirements.

a. Around late November or early December 2014, Mussler visited the Colon
Road site and the Brickhaven site. Mussler observed parts of the site had been
mined and understood the mine had been mined for a clay-like material to make
brick. (2015 T. pp. 94-96)

b. Mussler and his staff reviewed the permit applications. Their review
included, but was not limited to, the type of facility to be permitted (structural fill),
the type of waste (coal combustion products), the type of liners to be utilized in
these structural fills, the type of testing to be employed to characterize the toxic
constituents of the coal combustion products, the need for additional mandatory
permits (modified mining permits and 401 water quality certification permits),
environmental justice concerns, and the financial assurance mechanisms required

under the law.

0. The SWS staff and Mussler attended the public comment and hearing
process for each proposed facility site. They considered all comments from the
public hearing, and reviewed other comments submitted to SWS. Included in
those comments were written comments by: (1) Drs. G. Fred Lee and Anne Jones-
Lee, two consultants and researchers who commented on the environment, public
health issues, and water quality, and (2) Dr. Dennis Lemly, Research Associate
Professor of Biology at Wake Forest University who commented on technical and
scientific issues with coal ash structural fills.

11

23. By letter dated December 19, 2014, Mr. Mussler acknowledged receipt of
the structural fill applications, and requested additional information from the applicants.
Mr. Mussler also notified the applicants that ?prior to commencement of operations"
applicants would need to: ?submit a monitoring report of the four independent background
monitoring events for the eight (8) compliance groundwater monitoring wells.? (Resp. Ex.
A-2 Colon Mine); and (Resp. Ex. 82 Brickhaven No. 2).

24. The Design Hydrogeological Reports forthe Colon Mine and the Brickhaven
Mine sites documented that on February 20, 2015, prior to issuance of the permits, staff
hydrogeologist, Elizabeth Werner, advised applicants that ?only 1 initial independent
background groundwater sampling event would be necessary, prior to placement of coal
combustions residuals.? (Amended Resp. Ex. Colon Mine Site?Design
Hydrogeological Report (Append. and Amended Resp. Ex. B-2, Brickhaven No.2 
Design Hydrogeological Report (Append. These Reports also noted:

A minimum of one background sampling event should be conducted at the
two surface water sample locations. The initial background groundwater
and surface water monitoring events should be conducted prior to issuance
of the Permit to Operate . . .

The eight (8) background monitoring events will be conducted over a 1-year
period of time with an approximately 1.5 month spacing commencing
immediately following issuance of the Permit to Construct. The initial
independent background groundwater sampling event will be conducted
prior to issuance ofthe Permit to Operate and placement of coal combustion

residuals.

(Amended Resp. Ex. A-2, Colon Mine Site?Design Hydrogeological Report (Append. 
and Amended Resp. EX. Brickhaven No.2 Design Hydrogeological Report

(Append. 

25. Before Respondents issued the subject permits, Respondent held two
public hearings in April 2015 in Lee and Chatham counties, at which more than a hundred
individuals attended each meeting (134 and 137 people respectively). (Resp. Ex. E, pp.



26. Jason M. Watkins, Field Operations Branch Head with Respondent DWM
and SWS, served as the Hearing Officer at both public hearings. On June 5, 2015, Mr.
Watkins sent memorandums to Linda Culpepper, Director of DWM detailing the history of
the Colon Mine and Brickhaven Mine, the respective public hearings, and public
comments made during such hearings.

a. Watkins noted that numerous comments made at the public hearings and
in writing objected to the projects being classified as mine reclamation projects
rather than as landfills. In addition, he noted that several commenters remarked

12

that coal ash will be placed in areas of the Colon Mine where product has not been
removed yet. .

b. Watkins opined that "[ujnder the new federal rule the project will be defined
as a landfill. The permit application, under current North Carolina statute is for a
structural fill, the beneficial use of which is mine reclamation 

c. Watkins recommended approval and issuance of the applied-?for permits at
both mines, with specific recommended conditions for the Colon Mine permits.

(Resp. Ex. E.)

27. On June 5, 2015, Mr. Mussler issued a structural fill permit to construct and
operate, permit No. for the Colon lVline to Charah, Inc. and Green
Meadow, LLC and a structural fill permit to construct and operate, permit No. 1910-
5 for the Brickhaven No.2 Tract Mine to Charah, inc. and Green Meadow,
LLC. Both permits incorporated the applicants? permit applications, which included their
respective operating plans.

28. Before CAMA was passed, a "large-scale structural fill" was undefined, and
"structural fills" were handled under other environmental rules. Mussler and specifically
DWM are required to follow the mandates of CAMA in fulfilling their permitting duties.
Mussler may not vary from that mandate, "not if I want to keep myjob." (2015 T. pp. 125?
126)

29. Mussler had no opinion regarding whether the subject mining sites were
"open pit mines," but indicated he saw excavations on both sites (2015 T. p. 94). He
understood Brickhaven had been mined for a clay-like material to make brick but could
not describe what part of the site had been excavated. (2015 T. pp. 94-96). He had ?no
idea? how big the actual open pit at the Colon Road site was but could have determined
this if he had wanted to know. (2015 T. p. 96).

30. As to Petitioner?s Claim A, Mr. Mussler disagreed with Jason Watkins?
classification of the projects as landfills because the federal rule classifying the subject
projects as landfills (?the CCR Rule?) was not released until December [2014] and was
not effective until April [2015]. He explained that the OCR Rule is self-implementing and
enforceable by citizen lawsuits, and therefore, the OCR Rule has no bearing on decisions
made at the State level in terms of issuing permits. (2015 T. p. 119). He opined the
proposed coal ash disposal facilities at Brickhaven, and Colon Road are "structural fills,"
as defined in the North Carolina CAMA statutes that were in effect when the facilities at
issue were permitted. (2015 T. p. 119)

31. Mr. Mussler opined that attempting to compare a solid waste landfill to a
structural fill is like ?comparing apples to oranges? as they each serve a different purpose.
The purpose of a landfill is for the ultimate disposal of specific types of waste, such as
municipal solid waste, industrial solid waste, construction and demolition debris, or inert

13

debris, for a specific area of the State. A landfill is an engineered structure whose purpose
is to entomb the solid waste and keep it there to protect the public health and environment.
(2015 T. p. 127) Most landfills, at least in North Carolina, operate in excess of 20 to 30
years. Whereas, the purpose of a structural fill is for a projected beneficial and use of
some material in replacement of another. CAMA specifically provides for structural fill
permits using coal combustion products as structural fill in open pit clay mines. In contrast
to a landfill, a structural fill project is anticipated to last "probabiy five to seven years."

(2015 T. p. 128)

32. Mussler further noted that the CAMA structural fill requirements in the
Brickhaven and Colon Mine sites regarding ?a liner system, closure cap system, and
groundwater monitoring? were essentially taken directly from the landfill rules. He noted
that if this [the projects at issue] was . . . legally under the definition of landfill, they would
not have been built any differently. (2015 T. p. 128)

33. As to Claim B, there are financial assurance requirements for solid waste
landfills, industrial landfills, and most of the projects Mr. Mussler reviews. (2015 T. p.
123) In this case, there were two sets of financial assurance requirements. There were
financial assurances required under the Mining Act, and financial assurances required
under CAMA separately for the structural fill. (2015 T. p. 123)

34. The financial assurance required under CAMA for structural fill facilities was
more extensive than that required for solid waste landfills.

a. CAMA specifically required financial assurance to cover funding for closure
of a facility, post-closure maintenance and monitoring of a facility for thirty years,
and any corrective action that DWM may require, which is also required for solid
waste landfills. (2015 T. pp. 132?133) The closure and post-closure amounts are
the fund amounts it would take a third party to close a structural fill site/facility in
the absence of the facility owner being around to close a facility. (2015 T. p. 132)
The applicant is required to tell Respondent agencies what they think are the
closure and post?closure amounts, and the Respondent agencies review those

costs. (2015 T. pp. 132433)

b. in addition to the requirements for financial assurance for landfills, CAMA
also required financial assurance for any potential liability for sudden and non?-
sudden accidental occurrences, and any subsequent disaster response costs
incurred by DWM. At the same time, the CAMA financial assurance provisions do
not establish specific amounts of financial assurance that must be required. (2015

T. pp. 132?133)

35. in this case, Mr. iVlussler determined the amount of financial assurance
required for the permits at issue based upon: (1) his own and his staff's long?term
experience with solid waste facilities, including those dealing with coal ash, and (2)

14

Mussler?s consultation with the Hazard Waste Section. DWM determined the following
amounts were required for financial assurance under CAMA:

(1) a $10,200,560.00 Performance Bond for closure, post?closure, and
potential assessment and corrective action costs for the Brickhaven

site,

(2) the $10,380,470.00 Performance Bond for closure, post-closure, and
potential assessment and corrective action costs for the Colon site,

(3) the Certificate of Liability insurance for sudden and non?sudden
events for $4 million per occurrence and $8 million annual

aggregate for each site, and

(4) the Surety Bond guaranteeing payment for disaster response costs
for $65,000.00 for each site.

36. Respondent?s SWS staff, of which CAMA is a subset, and Respondent's
Mining Section staff discussed the permits at issue and whose responsibility rested in
what area. The staff from each section, Mr. Mussler, and Mr. Tracy Davis, head of
Respondent's Mining Section, relied upon each other to deal with the aspect of the
permits for which each section had expertise. (2015 T. pp. 124?125).

37. Regarding the accidental insurance terms, the SWS sought guidance from
other sections in the Division of Waste Management as "that was not something we
normally did." (2015 T. p. 133) SWS looked at what were typical amounts for what
they considered equal risk, for the type of activities, and decided upon the founmillion
and eight million?dollar numbers. (2015 T. p. 133) To determine the "other number, in
terms of reimbursement," Mussler and his staff examined the activities in
responding to the hazardous waste problem that occurred in Apex several years ago, and
based that number on the estimate of staff time to oversee the cleanup on site. (2015 T.

p.133)

38. Regarding Claim C, CAMA specifically required encapsulation liner systems
based on either a composite liner utilizing a compacted clay liner, or a composite liner
utilizing a clay liner. The liner system approved by DWM underthe structural
fill permits at issue met those requirements. Based upon his own experience and
expertise in the permitting of solid waste facilities, and despite Drs. Fred Lee and Dennis
Lemly?s public comments and opinions, Muesler believed the liner system approved under
the subject permits would ?efficiently contain, collect, and remove leachate generated by
the coal combustion products, as well as separate the coal combustion products from any
exposure to surrounding environs? as mandated by CAMA. (Mussler Affidavit dated
11/9/2015, 1) 10, Resp. Motion for Summary Judgment)

39. Specifically, as to Claim F, Mr. Mussler reviewed Petitioners' written
comments, other public comments, and the Environmental Protection Agency?s

15

demographic charts and information regarding these sites. Mussler agreed with the
Hearing Officer?s Report that the examination of demographics did not support the
hypothesis of an unjust or disproportionate impact, especially because the design and
monitoring and other environmental safeguards provided within these permits were
protective of the population in close proximity to the mines. Mussler was also aware that
the applicants were required to acquire an approved 404/401 water quality certification
as a condition of the structural fill permits Mussler issued. The applicants were required
to provide an environmental justice analysis to the US. Army Corps of Engineers for the
404/401 water quality certifications. Mussler opined that if the US. Army Corps had
denied the 404/401 water quality certifications to the applicants, then the structural fill
permits would have been deemed void. (Mussler Affidavit dated 11/9/2015, 1) 12, Resp.

Motion for Summary Judgment).

40. Before issuing the two structural fill permits for the Brickhaven and Colon
Mines, Mussler was aware that these projects constituted the only coal ash structural fill
projects existing, or proposed, for either Lee or Chatham Counties, and that there were,
and currently are, no active or proposed municipal waste landfills, industrial landfills, or
construction and demolition landfills located in either County.

41. As to Claim (3, CAMA mandated the use of the toxicity characteristic
leaching procedure to characterize the toxic constituents in the coal ash.
Mussler thought this mandate was carried out within the structural fill permits as part of
the applicants' Operation Plans. Despite Drs. Lee and Lemly?s public comments and
opinions and based upon his own experiences as a Professional Engineer and in the
permitting of solid waste facilities, Mussler opined that the TCLP is a method that achieves
the goals of protection of the public health and environment. (Mussler Affidavit dated
11/9/2015, 1112, Resp. Motion for Summary Judgment)

42. Based on his experience as a Professional Engineer, and with 22 years of
experience dealing in the area of solid waste permits, Mussler opined that the terms of
the structural fill permits for the Brickhaven and Colon Mines will be protective of human
health and the environment. (Mussler Affidavit dated 11/9/2015, 1] 15, Resp. Motion for

Summary Judgment)

43. Tracy Davis is a licensed Professional Engineer. At the time of the
December 2015 hearing, Davis had been the Director of DEMLR for three years. Mr.
Davis had worked as the Chief Engineer, State Mining Specialist, and/or Assistant State
Mining Specialist for DEMLR for twenty?five years. As Director of DEMLR, he was
responsible for reviewing mining permit applications to determine if they meet the
qualifications required to obtain a permit pursuant to the Mining Act of 1971. Davis has
looked over approximately 250 to 300 permits during the 16 years he was directly involved
with the mining program. Generally, 50 to 60 new permits of different mineral types are

issued by DEMLR each year. (2015 T. p. 140)

44. While the permits at issue were the first ones permitted for coal ash in this
State, DEMLR has permitted a handful of landfills in mines throughout the State, including

16

several in the Winston?Salem area. The landfill would be in the pit itself and could also
be on the land adjacent to the pit and in any areas that are disturbed as part of the mining
operation. (2015 T. p. 142). ?The mine operation is more thanjust the pit. it?s the roads,
the processing areas, stockpile areas, plant, parking, shops . . . that?s the affected land
for a mine has to be reclaimed.? (2015 T. p. 142)

45. The Triassic Basin is the geologic area of the subject permits. Mr. Davis
has permitted ?maybe a handful? of mining permits in the Triassic Basin of which he was
directly involved over 16 years. (2015 T. p. 141 However, he has not permitted any new
mining permits in the Triassic Basin in recent years. (2015 T. p. 141)

46. Mr. Davis explained that the Mining Act defines that the purpose of
reclamation is to "reclaim the mined area and its adjacent areas, anything affected by the
mine operation, to a suitable use so that it's stable and it protects groundwater and
surface water quality." (2015 T. p. 143) The Mining Act does not say the purpose of
reclamation is to ?bring the mining area up to grade.? (2015 T. p. 143). According to Mr.
Davis, DEMLR has had a landfill in other parts of the State go above the nature ground
surface. DEMLR also has had ?other mines that have been backfilled to above the natural
grade to establish a footprint for a commercial or residential construction.? (2015 T. pp.
143?144). The Mining Act not only defines "reclamation" but defines the "affected land"
which the reclamation definition cross-references. (2015 T. p. 145)

47. in November 2014, Mr. Davis' office received the subject permittees? mining
modification applications for the Colon Road and Brickhaven Mine sites. These were not
new mining permits, because the sites were already permitted by General Shale
Company, who was a brick producer. General Shale?s mining permits were modified quite
a few times over the years. (2015 T. pp. 15051, 175)

48. Green Meadow requested permit transfer of those original mining permits
to put those permits in Green Meadow?s name with the same mining plan, and reclamation
plan as originally permitted. Green Meadow also asked for permit modifications to
change the reclamation to "beneficial fill with coal ash, to change the footprint 
and add additional erosion control measures." (2015 T. p. 149) Green Meadow?s mining
plan showed a mining boundary extending across the entire site, except for a 50?foot
buffer along the permit boundary. There was also an erosion control plan for the mining
footprint, and a reclamation plan that showed the beneficial structural fills they were

reclaiming in those footprints over time. (2015 T. p. 150)

49. Mr. Davis and his staff reviewed the permit applications at issue to ensure
that the permits met all of the requirements of the Mining Act of 1971. The usual practice
of Davis' staff is to conduct their own internal review at the central office level as well as
at the regional office level. The Raleigh regional office mining staff performs its internal
technical review by looking at erosion control and the reclamation aspects of that, buffer
zones, reclamation plan and operation plan. That staff drafts a mining permit and then
sends it to Davis for review. (2015 T. pp. 150-153) Davis modifies such drafts, as

17

necessary, based on his experience. (2015 T. pp. 150?153) Such draft permits are then
addressed during the public comment and internal hearing process sessions.

50. in this case, Davis and his staff followed the above-cited practice in
reviewing the mining permit applications at issue. While Davis was involved throughout
that process, Judy Wehner, Assistant Mining Specialist, primarily managed the review of
these mining permit applications and modifications. (2015 T. p.152) Davis' staff had
several meetings discussing different concerns or issues with the applications regarding
the seven statutory criteria, discussed who were the experts on those tooics, and which
permits would cover those conditions. (2015 T. p. 178)

51. Davis and his professional staff?s review of the applications included, but
was not limited to, a review of the type of mining operation and its associated potential
environmental impacts, review of the applicant?s compliance history, the need for
additional mandatory permits (structural fill permits and 401 water quality certification
permits), and the financial assurance mechanisms required under the Mining Act.
DEMLR also requested additional information from the applicant. (2015 T. p. 151)

52. As part of the investigation into the Brickhaven and Colon Road sites, Davis'
mining staff also sent the applications to other State agencies such as the Division of Air
Quality, the Division of Water Resources, and the NC Wildlife Resources Commission for
review and comment based on each staff?s expertise. (2015 T. pp. 150-153, 156, 171-
172) Both the Division of Water Resources? Groundwater Section, and the Division of
Waste Management employ hydrogeologists, while the Wildlife Resources Commission

employs biologists. (2015 T. pp. 171-172).

53. DEMLR does not conduct an independent investigation of issues regarding
the criteria for NC. Gen. Stat. such as groundwater issues. Instead, the
various agencies who have resident experts provide DEMLR with their input and advise
DEMLR ifthose agencies will require the applicant to obtain a permit from those agencies.
DEMLR relies upon the other agencies? professional judgment, and conditions issuance
of its permit to the applicant on obtaining the other agencies? permits. (2015 T.
pp. 171-173) DEMLR cross-references those other permits in its permit. Davis has
confidence in his counterparts at those agencies, and their professional judgments when
they say they have looked at all the issues, such as groundwater, leachate detection
system and collection system, under that agency?s purview. (2015 T. pp. 156-57, 172)
DEMLR handles matters within their purview, such as ?erosion control, stormwater,
vegetation, slope angles, buffers.? (2015 T. pp. 171473). DEMLR followed that same
process for the Colon road and Brickhaven Mine sites. (2015 T. p. 172)

54. For air quality, surface water quality, and groundwater quality criteria under
NC. Gen. Stat. Davis and his staff reviewed erosion sedimentation control
and stormwater measures such as the ?engineering design on the sediment basins,
diversion ditches, channels, ifthey?re lined or unlined, the capacity ofthose basins to treat
the surface water that it can be released" according to water quality standards.? (2015 T.
pp. 157-158) Additionally, they:

18

[L]ook at the dust control system, such as watering roads for keeping
fugitive dust down on roads, sprinkler systems on stockpiles, so, and that
was also in the mining permit conditions.

(2015 T. pp. 157-158)

55. Mr. Davis personally did not examine hydrogeology in reviewing the
modification of these mining permits, because he and his staff coordinated with the other
divisions, primarily Waste Management, who looked at hydrogeolegy from the structural
fill aspect in detail with the monitoring being done before, during, and after the mining
activity. DEMLR deferred to expertise regarding the groundwater issues and
sampling wells. Once was okay with that aspect, then DEMLR would accept that
under the mining permit as proper reclamation of that footprint. (2015 T. p. 155)

56. Regarding criteria in N.C. Gen. Stat. Davis and his staff
looked at the erosion sedimentation control plan, stormwater control around the
perimeters, buffer zones, final slopes of the reclamation, the mine itself, if there was a pit
to remain or a pond, and structural fill final slopes. They also performed a full review of
the public health and safety on the mine site, and proper stabilization at reclamation.

(2015 T. pp. 155?159)

57. In this particular case, there was a 50-foot buffer setback from the property
line or permit boundary into the site before any perimeter roads or erosion control
measures. The active mining and reclamation are proposed interior of that. (2015 T. pp.
159-160) Since there was no blasting at the site, there was no concern of any off-site
impacts if the erosion sedimentation control retained sediment 0n the site before it
reaches those buffers. (2015 T. pp. 159460) Based on that, Davis opined that the 50?-
foot buffer around the mining was adequate protection of public health and safety. (2015

T. p. 160)

58. DEMLR did not consider the ?cumulative impacts? with other facilities
surrounding or nearby the Brickhaven and Colon Road sites, because the mines are self-
contained, and authority is on the mine site. They did not look at neighboring
dwellings, house, school, church, hospital, commercial or industrial buildings around the
mine sites. DEMLR does not look at the cumulative impacts on any mine site. instead,
they try to deal with the environmental surface aspects of it on the mine through the mining

permit. (2015 T. p. 160)

59. in determining the wetland issue, DEMLR generally determines if any
streams are located on the property, provide a buffer along those, and provide erosion
sedimentation control outside the buffer to keep sediment from going into the streams.
Those streams are protected unless the applicant applies for and obtains a 401 and 404
permit to disturb those wetlands or flood plain areas. DEMLR grants a mining permit
modification to a mining site in a flood plain only if the applicant has a 401 and 404 permit
from the proper authorities. (2015 T. p. 161)

19

60. Here, DEMLR required the permittee [or permit applicant] to locate any
wetlands existing within the mining permit footprint and have a buffer to protect those
wetlands. That boundary was also required since the permittee was applying for a (1)
401 Water Quality Certification, and (2) a US. Army Corps of Engineers 404 Wetland
Permit to disturb the wetlands during the life of the mine site. (2015 T. p. 161) Davis
explained that you generally do not have mining in a flood plain or in a creek, unless there
is an mining operation. (2015 T. p. 161) Therefore, as part of that process,
DEMLR would only review the impacts in a flood plan if it applies within the mining permit

boundary.

61. in this case, Mr. Davis attended both public hearings on these proposed
modifications and read the public comments that were emailed to staff in the months
before his decision. He also reviewed the file folder that contained all the comments that
had been received by DEMLR. Before June 5, 2015, Davis reviewed the Hearing Officer?s
report, and some of the Hearing Officer's attachments, including the comments and
PowerPoint presentation by Don Kovasckitz, the GIS person from Lee County. (2015 T.

pp. 161?462)

62. in this case, the permit applicant proposed using backfill with coal ash
structural fill in the subject mine pits and "continue to the footprint of what was already left
behind from the prior mining.? (2015 T. p. 163) From there, DEMLR and DWM conducted
the dual permitting process. CAMA allows open pit mine reclamation as an alternative.
The Mining Act is very open to types of reclamation that can be done and does not specify
any type of structural fill. in fact, it can be any type of beneficial iand use that an applicant
or mine operator wants to propose. DEMLR may not approve all of them. it is up to the
applicant to propose something Respondent feels is reviewable and approvable. (2015

T. pp. 163?64)

63. The Mining Act does not require public notice of a public hearing for permit
modifications. However, the expedited permit provisions of CAMA do require permits that
involve coal ash undergo the public notice process and a public hearing before a decision
is made on the permits. (2015 T. p. 165) The Mining Act does not supersede local zoning
regulations, so a mining permit anywhere in this State does not supersede the right for

applicable local zoning. (2015 T. 165)

64. The timeliness of the permit process depends on whether the application is
complete when Respondent receives it. If an application is complete when it comes in,
DEMLR has 60 days by statute to decide to grant or deny the permit. The clock resets if
DEMLR asks for additional information from the permit applicant. The applicant has 180
days to respond back to the Department. If the applicant does not respond timely, then
DEMLR can grant or deny the mining permit based on the information it has in their hands.

(2015 T. pp. 166-167)

65. in the final stages of permitting these applications, Mr. Davis checked with
Mr. Mussler to confirm that DWM had all the information they needed from the applicant
for ?groundwater sampling or monitoring before, during and after the mine and

20

reclamation operation.? (2015 T. pp. 179) Once Mussler confirmed he had everything he
needed, Davis included a cross?reference in the mining permits requiring the applicant to
follow CAMA, the structural fill, and listed the name of the cross-referenced permit so if
there?s a violation of the solid waste management structural fill permit, then it?s a direct
violation of the mining permit. (2015 T. pp. 179-180)

66. On June 5, 2015, Mr. Davis issued Respondent~lntervenor Green Meadow,
LLC a mining permit modification permit No. 53-05 for the Colon Mine, and a mining
permit modification, permit No. 19-25 for the Brickhaven No. 2 Tract Mine. Both
permits allowed a change in the method of reclaiming the mines by constructing structural
fill from coal combustion by-products in accordance with the provisions of CAMA, and in
accordance with the terms and conditions of the permit to construct and operate Colon
Mine Structural Fill Permit, No. and the permit to construct and
operate Brickhaven No. 2 Tract Mine Structural Fill Permit, No. 

67. At the 2015 hearing, Mr. Davis was not directly aware that several
landowners around the existing Colon Road Mine site had "Do Not Drink" letters issued
by the NC. Department of Public Health. He was also unaware that Respondent was
ever given any information that water contamination occurred while General Shale held
their mining permits. However, if there was an allegation of that type, they 
would take that matter seriously, talk with their Groundwater Division with Water
Resources, and see if it was tied to the mine site itself or if it was some other contaminant

source. (2015 T. p. 168)

68. To ensure that these mine sites would be used beneficially, DEMLR needed
to make sure the line excavation, and all other aspects of the mining sites that were
disturbed or affected by the mining, were stabilized. In Mr. Davis? opinion, ?beneficial
reuse of coal ash at these sites was an acceptable method of reclamation? for both the
Brickhaven and Colon Mine sites. (2015 T. p. 169)

69. As to Claim 8, Mr. Davis explained that the financial assurance required
under the Mining Act of 1971 for mining permits allows an applicant the option of filing a
blanket bond covering all its mining operations within the State for which the applicant

holds a permit.

a. Pursuant to the rules regarding bonding requirements, the bond for mine

reclamation is calculated at $500 per acre up to $5,000 per acre. (2015 T. p. 170)
The Mining Commission uses its rules, a worksheet, and a schedule of costs to
calculate the appropriate amount of bond an applicant must provide. (2015 T. p.

170)

b. Once the Mining staff determines the total amount of blanket bond has

reached the $500,000 amount, which it did with these permit applications, and if
the applicant has a good operating record, then a $500,000 blanket bond is
considered a sufficient bond amount. in other words, Respondent?s rules mandate
that if the applicant has a good operating record, $500,000 is the maximum amount

21

of blanket bond Respondent could require an applicant to post. (2015 T. pp.
170,186)

c. The rule also allows one bond to cover multiple sites rather than
individual sites, so that a $500,00 bond can be considered a blanket bond
covering one or more sites. (2015 T. p. 170)

70. in this case, Respondent accepted Respondent-lntervenor Green Meadow,
required blanket bond of $500,000 since Green Meadow, LLC did not have any
civil penalties assessed against it within the previous two years or a consecutive two-year

period. (2015 T. pp. 170-171)

71. At the 2015 hearing, Davis Opined that the Brickhaven and Colon Road
Mine sites were suitable mine reclamation sites. (2015 T. p. 175-76) As a Professional
Engineer with 28 years of experience in the area of mining permits, Davis opined that the
terms of the modified mining permits for the Brickhaven and Colon Road Mines will be
protective of human health and the environment based on several factors. These factors
were the design of the facilities, the erosion sedimentation control around the sites, the
permit conditions in issued permits, the Waste Management permits, and the
401 Water Resources permits for each site. (2015 T. pp. 175-176)

72. Davis opined that the fact that the Colon Mine was only 38% excavated was
not a problem for Green Meadow?s mining permit modification. Once Green Shale?s
mining permit was transferred to Green Meadow ?as is,? ?there was a mining plan to mine
the majority of the site beyond just the pits existing at the time of the permit transfer.?
(2015 T. p. 176) Yet, Davis acknowledged that ?the same [mining] footprint was proposed
in the modification,? so Green Meadow wasalready at the site ?excavating the same depth
basically as the existing pits and ponds that were out there.? (2015 T. pp. 176-77) Green
Meadow was expanding the footprint of the mine and creating the lined cells that were
proposed for the structural fill. (2015 T. pp. 176-77)

73. Additionally, the height of each site was shown in the mining permit
applications, and on the mine and reclamation maps with cross?sections in the footprint,
and on slope angles. Davis opined a height of the site at 50 feet higher than the ground

level was not unusual. (2015 T. p. 177)

74. In Petitioner's applications for the structural fill permits at issue, a Slope
Stability Analysis, performed by the computer program PCSTABLSM, showed the height
of the structural fill site at the Brickhaven Mine and at the Colon Road Mine site was far

more than just 50 feet higher than the ground level.

a. The Slope Analysis of the structural fill at the Brickhaven Mine Site showed:
The cross-section analyzed extends from north to south along the north

slope of the structural fill and represents a final CCP fill condition with a
maximum elevation a final CCP [coal combustions product] fill condition with

22

a maximum elevation of 260 feet at the top of the slope. After this
slope break, the top of the structural CCP fill extends at a 2% slope to a
maximum elevation of approximately 294 feet at the center of the CCP fill.
(Amended B-2, Brickhaven Structural Fill Permit Application, Engineering
Plan, p. 5) (Emphasis added)

b. Similarly, the Slope Analysis of the structural fill at the Colon Road Mine
Site showed:

The cross?section analyzed extends from north to south along the north
slope of the structural fill and represents a final CCP fill condition with a
maximum elevation of 320 feet at the top of the slope. After this
slope break, the top of the structural CCP fill extends at a 2% slope to a
maximum elevation of approximately 330 feet at the center of the CCP fill.
(Amended Colon Road Structural Fill Permit Application, Engineering
Plan, p. 5) (Emphasis added)

75. A preponderance of the evidence established that a mining permit is valid
from the day the permit is issued until the day the permit expires. A mining permit is good
for up to ten years, and pursuant to the Mining Act, may be renewed within the last two
years of that permit?s life. (2015 T. p. 181) A mining permit remains valid even if a mine
becomes inactive for several months or several years. The permittee could reactivate or
resume its mining operations of an inactive mine up until the date the mining permit
expires. if a permittee renews its mining permit, then it could continue mining for another
ten years. (2015 T. p. 181) Similarly, Respondent can still enforce the conditions of a
mining permit on the mine operator if a mine is inactive but still permitted. (2015 T. p.

181)

76. Before November 2014, Respondent granted General Shale?s request to
release two areas from its mining permit at the Colon Road Mine site. As a result, those
two areas were excluded from the Colon Road mining permit boundaries, and no coal
ash could be placed on the areas that were released from such permit. (2015 T. p. 183)

77. At the 2015 hearing, Davis opined that Respondent does not see any
difference between excavating and mining. (2015 T. p. 184) When Mr. Davis testified in
2015, Green Meadow was expanding the footprint of the previous mining to provide an
excavation or open pit to place the cells for beneficial fill. They were also stockpiling
material on the site to use for liners, and possibly cover. Per their mining permit, Green
Meadow was permitted to haul material off site at any time during the life of that permit.
(2015 T. p. 185) In Davis? opinion, Green Meadow?s operation was a mining operation,
not a structural fill operation. (2015 T. p. 185) Davis acknowledged he had not seen
Green Meadow, LLC selling material at the site, although they have a permit to do so.
(2015 T. pp. 184-185)

78. As of the 2015 hearing, Therese Vick was the Blue Ridge Environmental
League North Carolina Communities Campaign Coordinator.

23

EnvironmentaLEE and Chatham Citizens Against Coal Ash are members of BREDL and
have representatives on the BREDL Board of Directors. Ms. Vick has worked with
EnvironmentaLEE since 2012 and with Chatham Citizens since December 2014. (2015

T. pp. 190?92)

79. At the time of the December 2015 hearing, Ms. Vick's role at BREDL was
that of a community organizer. She reviewed the permit applications in this case, quite a
bit of EPA guidelines that were released in December 2015, and studies done by experts
on environmental justice, leachate treatment, coal ash, and air quality issues. Vick
prepared public comments and participated at the public hearings regarding the subject
permits. She submitted many public comments, including but not limited to, those written
by Dr. Fred Lee and Dr. Dennis Lemly, to Respondent Agencies about the permits at

issue.

80. At the 2015 hearing, Ms. Vick voiced concern over the expediency with
which Respondent acted in reviewing and issuing the subject permit decisions. However,
she conceded that her understanding of how the permit decisions were made in this case
was ?certainly not clear.? (2015 T. 212) Ms. Vick holds an associate degree in Human
Services and but no expertise in environmental effects on landfills or landfill
liners. She solicited and submitted comments in a report from Dr. Lee, Dr. Jones~Lee,
and from Dr. Lemly regarding the proposed permits, because she knew those dectors
possessed the expertise to look at the issues about which she and the other Petitioners

were concerned. (2015 T. pp. 213216)

81. in 2015, Don Kovasckitz was the Director for the Lee County Geographic
information Services Strategic Services. Mr. Kovasckitz?s office visualizes data
through and looks at ?layers, anywhere from street center lines, soils, parcel data,
streams, wetlands.? (2015 T. p. 227) ?if it has any geographical connotation for the [Lee]
County,? Lee County Strategic Services maps it using the GIS. (2015 T. p. 227) Mr.
Kovasckitz is certified by the GISC Council.

82. Pursuant to a request by the Lee County Commissioners, Mr. Kovasckitz
reviewed the permit applications for the Colon Road coal ash disposal facility, compiled
a PowerPoint presentation, and presented such to the Lee County Commissioners. (Pet.
Ex. 5) The purpose of his presentation was to show the County Commissioners the
location where the actual mine reclamation would occur on the Colon Road disposal site,
and what the reclamation would look like. (2015 T. p. 228) Specifically, Kovasckitz's

digital GIS mapping was used to:

(1) determine if Green Meadow's actions on the subject site constituted

actual mine reclamation,
(2) show where the reclamation was going to occur, and 
(3) demonstrate what the site would look like after all reclamation was

complete.

24

(2015 T. pp. 228 232; Pet. Ex. 6) in his presentation, Kovasckitz established how the
Colon Mine would be ?reclaimed by encapsulating CCPs in a lined containment in order
to reestablish the mine contours to a useful design." (Pet. Exs. 6, 7) Kovasckitz also
made an updated presentation to the Lee County-Sanford Environmental Affairs Board.

(2015 T. p. 229; Pet. Ex. 7)

83. With the GIS mapping, Mr. Kovasckitz explained the history of the mined
areas of the Colon Road site since 1950, noting that the Colon Mine closed in 2008. He
demonstrated the following opinion regarding the definition of reclamation: (2015 T. p.

231,234)

a. Mr. Kovasckitz determined that of the total 118-plus acres that will be filled
with coal ash at the Colon Road site, 29% has been excavated, and 71% was
unexcavated. (2015 T. p. 234)

b. Based on the permittee?s reclamation plan and accepted practices,
Kovasckitz created a topological map to demonstrate the appearance of Colon
Road after reclamation is completed. The site?s topology starts at 330 feet above
mean sea level, grades down 2% to 320 feet above mean sea level, then grades
down 4~to-1 to 270 feet above mean sea level on the east side of the site. (2015

T. pp. 235?36)

0. After Mr. Kovasckitz?s presentation to the Lee County Commissioners,
Kovasckitz looked at the hydrogeological study, conducted by Buxton Engineering,
for the permittee?s reclamation plan that was included in the permit application. He
compared the permittee?s drawings in their facility plan and their reclamation plan
with Buxton Engineering?s hydrogeological study, the FEMA maps, and his 
drawing. He examined the well depth, test wells, flood plain, wetlands and streams
on the Colon Mine site. Kovasckitz's established how the permittee?s drawings
failed to show a ?finger of the flood plain that extends into a retention pond? in the
southwest corner of cell 1. Whereas, the FEMA maps, Kovasckitz? drawing,
and the Buxton Engineering hydrogeological study all showed a retention pond in
the southwest corner of cell 1. (2015 T. pp. 242-44; Pet. Exh. 7)

84. At hearing, Mr. Kovasckitz admitted he was neither a professional engineer
nor a mining specialist. He also acknowledged that he did not submit his comments and
presentation to the Respondent agencies during the public comment period for the
subject permits. He had no knowledge if Therese Vick said, at this contested case
hearing, that she submitted his comments to the Respondent agencies during the public
comment period. (2015 T. p. 244)

85. Kovasckitz conceded that the maps/drawings from FEMA, Buxton
Engineering, and Kovasckitz, of the Colon Road site, all came from the same source, and
therefore, would naturally agree. He also conceded that he did not know the source of
the permittee?s drawings/maps that were different from the other three drawings. He

25

agreed he wouldn't be surprised if those drawings were conducted by an actual surveyor
on the ground and thus, differed from Kovasckitz's GIS drawings. (2015 T. pp. 252-53)

86. On the morning of Tuesday, December 8, 2015, after approximately one
and one-half days of testimony, Petitioners? counsel advised the Undersigned that they
?would rest this portion of our case." (2015 T. p. 254) Petitioners? counsel did not explain
what he meant by resting ?this portion of our case." (2015 T. p. 254)

87. Respondents and Respondent~lntervenors renewed their Motions for
Summary Judgment based on the argument that Petitioners had failed to meet their
burden of proof and had not presented any evidence to show that they had a right to relief.
(2015 T. pp. 258-269) Petitioners responded by oralargument. (2015 T. pp. 269273).

88. After Petitioner rested its case in part, and in response to the Undersigned?s
questions, Petitioners? counsel confirmed that the petition for this contested case was filed
on July 6, 2015, and the Notice of Hearing, scheduling the hearing in this case for
December 7-11, 2015, was mailed to the parties on October 27, 2015. (2015 T. p. 273)
The OAH's official record for this case showed Petitioners? counsel received the Notice
of Hearing setting the hearing on the merits of the case on October 30, 2015.

89. The Undersigned summarized, for the record, the Prehearing Conference
with the parties? counsels at which Petitioners? counsel advised that he was not prepared
to go forward on Claims and because its two expert witnesses were unavailable to
testify, and thus, desired a continuance of the hearing. Petitioners? counsel advised that
he was unprepared to go forward that day even after the Undersigned offered Petitioners
use of this Tribunal?s in-house video/audio conferencing system. Petitioners? counsel

replied:

[W]e haven?t contacted them about being available later on this week. We
don?t know what the cost would be for Dr. Lee. And I mean the reason that
they?re not here this week is Dr. Lee, was, you know, as an expert traveling
across the country, was fairly costly. And before the decisions were made
on the motions for summary judgment, we couldn?t afford to have him sit
around and maybe speak maybe not testify this week. And Dr. Lemly
would need an affidavit and try to work out a time frame.

(2015 T. p. 274).

90. The Undersigned denied Petitioners? request to continue the case until
January 2016 to present expert testimony. Petitioner had 39 days? notice that the hearing
on the merits of the case would be conducted the week of December 7?11, 2015 and did
not file a Motion to Continue the hearing. Neither did Petitioner provide ?good cause? why
its case should be continued until January 2016.

26

91. The Undersigned advised the parties that she would take the Motions for
Summary Judgment under advisement and decide the case based upon the evidence
presented at hearing.

92. On January 11, 2016, thirty-four days after the contested case hearing in
this case was concluded, Petitioners filed a Second Motion to Amend Petition, attempting
to add a claim based on a January 6, 2016 newspaper article that described discussions
between Governor Pat McCrory, a Duke Energy official, and the Secretary of the
Department of Environmental Quality that allegedly occurred on June 1, 2015. On
January 19, 2016, the Undersigned issued an Order Staying this case and toiling all
statutory time?frames, including the Undersigned?s issuance of the Final Decision in this
case, pending receipt of Respondent?s Responses to Petitioners? Motion.

93. On February 10, 2016, after reviewing Petitioners? Motion and the other
parties? responses, the ndersigned denied Petitioners? Second Motion to Amend Petition
for being untimely filed and denied Respondents? Motion to Summary Judgment.

94. On May 5, 2016, the Undersigned issued the Final Decision in this
contested case. Based upon the stated basis at the hearing, upon which Respondent
moved for Summary Judgment, the Undersigned converted Respondents? Summary
Judgment Motion to a Motion for involuntary Dismissal, pursuant to Rule 41(b) of the
North Carolina Rules of Civil Procedure, and Petitioners? contested case.
The Undersigned ruled that Petitioners failed to meet its burden of proof, in its case?in-
chief, to show (1) it had a right to relief, and (2) that Respondent violated the criteria in
N.C. Gen. Stat. 1508?23 in issuing the subject permits.

Contested Case Appeaied

95. Petitioners appealed the Undersigned?s Final Decision to Chatham County
Superior Court, after which Superior Court Judge Cari Fox affirmed the Final Decision
relating to use of areas already mined or otherwise excavated but reversed the Final
Decision to areas not already mined or otherwise excavated. Upon appeal ofJudge Fox?s
decision to the N.C. Court of Appeals, the Court of Appeals issued an Opinion, on April
3, 2018, remanding this case to the Office of Administrative Hearings to allow
Respondents and Respondentmintervenors an opportunity to present their cases. See
EnvironmentaLEE v. N. C. Dep't of Env't Nat. Res, 813 673 (N.C. Ct. App. 2018).

96. On November 7, 2018, the Undersigned issued an Order granting
Petitioners? Motion to Stay this contested case and granting Petitioners? Request for a
Mediated Settlement Conference. The OAH proceedings were stayed until March 1, 2019
to allow the parties an opportunity to engage in mediated settlement discussions and for
issuance of a decision by Respondent regarding the closure of remaining coal ash basins
in North Carolina which might impact the use of the Colon facility for coal ash disposal.

97. On March 1, 2019, the parties filed a Joint Status Report with OAH
requesting a continued Stay of this matterto allow time for to make certain regulatory

27

decisions regarding the disposition of coal ash in the State of North Carolina. The
undersigned issued an Order Continuing the Stay.

98. On April 1, 2019, DEQ ordered the excavation of all remaining coal ash
impoundments in North Carolina. On April 4, 2019, the parties advised the Undersigned
that they had reached an impasse such that settlement was not possible at this time and
they believed it necessary to proceed with the hearing of this case.

99. On July 3, 2019, Petitioners filed a Motion for Voluntary Dismissal without
prejudice. After reviewing such Motion, along with Respondent and Respondent-
lntervenor?s responses thereto, the Undersigned Denied Petitioner?s Motion on July 17,
2019. On July 17, 2019, Respondent?Intervenor filed a Motion for Involuntary Dismissal
of this contested case with prejudice.

Auqust 6, 2019 Hearing on Remand

100. On August 6, 2019, the Undersigned resumed the hearing in this contested
case at which Respondents presented its case-inwchief, and Petitioners presented
rebuttal evidence. Respondent-lntervenors did not present any evidence.

101. Toby Vinson, Chief of Program Operations at DEMLR, testified at this
hearing. Mr. Vinson has been Chief of Program Operations since 2014 and
had worked for mining program for fifteen years. Mr. Vinson has reviewed
hundreds of mining permits during his employment with DEMLR. (2019 T. p. 47) In his
current role, Vinson conducts a ?summary final review? of all the information staff has
received for a mining permit application and a draft permit before such application is sent
to the Director for a comprehensive final review. (2019 T. p. 48)

102. Before issuing a mining permit, DEMLR does not look at what a
permittee/applicant will ultimately do with the mined materials. Neither is there a
requirement in the Mining Act that mined materials be sold for profit. (2019 T. p. 48)

103. While the applicant must file a reclamation plan along with the permit
application or modification request, it is not unusual to have a reclamation plan for an
area that has not yet been mined. The reclamation plan can change at any time through
a mining permit modification but is still required to be filed with Respondents before mining

[begins]. (2019 T. p. 52)

104. The area of a mine site that requires reclamation under the Mining Act
includes all land affected by the mining activity, all disturbed areas within the permitted
boundary, and at least a minimum 50-foot buffer around the affected land. Respondent
does not interpret ?affected land? to apply only to the excavated area at the mine site. in
addition, there is no requirement that reclamation be limited to the excavated areas.
(2019 T. pp. 50?51, 56-57) Reclamation is required for all disturbed areas within the
permitted boundary. If an operator disturbs land outside the permitted boundary, he is
required to submit a modification for that disturbed area or immediately reclaim it. (2019

28

T. pp. 56?57) The disturbed areas pertaining to mining activity would include the pit that
was excavated, stockpile waste, and any processing plants, office areas, roads, erosion-
control measures that are left in place. (2015 T. pp. 52-53) ?Once a permit is issued for
a mine, it's a mine until it?s reclaimed.? (2015 T. pp. 54?55)

105. DEMLR does not consider the extent of the permitted mine that has been
previously excavated, under the old mining permits, to be relevant to modification of the
subject mining permits or reclamation plans. Although, DEMLR will look at the
previously-excavated areas to determine what will be the final mining and final
reclamation [areas]. (2019 T. pp. 57?58, 78) The existence of unmined areas within a
permitted mining footprint simply means there remains mineable land under the mining

permit. (2019 T. pp. 57-58)

106. During the hearing, Mr. Vinson was asked if certain portions of the structural
fill used to reclaim the Colon Mine would be up to 50 feet higher than surrounding grade,
then would that have any bearing on Respondent?s decision to approve the reclamation
plan. Vinson opined that "the only bearing that would have would be to make sure that
whatever structures and/or slopes, that final grade was put at are stable . . . and/or can
be stabilized.? (2019 T. p. 58)

107. Mr. Vinson agreed with Mr. Davis that the Mining Act does not require
reclamation of the affected land or restore the land to its original gradient or elevation and
that DEMLR has never interpreted reclamation in this way. (2019 T. pp. 58, 63) Instead,
restoration means returning the site to a condition where the surface and any slopes are
stable to prevent erosion. (2019 T. pp. 58, 63)

108. Vinson opined that an old clay mine is a good place to put structural fill
because it will "reduce the permeability of any flow.? (2019 T. p. 59). in Vinson?s opinion,
reclamation by structural fill at issue here was similar to reclamation by landfill that has
been approved at other mine sites in North Carolina. (2019 T. pp. 55?56) Vinson also
opined that the reclamations associated with the permits at issue meet the reclamation
requirements of the Mining Act. (2019 T. p. 59)

109. Nonetheless, lVlr. Vinson admitted that he never visited either the
Brickhaven or Colon sites before DEMLR issued the mining permits in this case. His
primary familiarity with the sites was through hearsay from staff. (2019 T. p. 61)

110. Before DEMLR issued the subject amended mining permits, Vinson
reviewed the preliminary erosion control plan for proposed conditions and existing
conditions of the mining sites. ?Sedimentation and erosion control" are primary

responsibilities of Vinson?s section. (2015 T. p. 60)

111. Before issuance of the amended mining permits at issue, Vinson did not
review the permit applications for the extent of prior excavation at either site (2019 T. p.
77). The Raleigh regional engineer would have completed an inndepth review of existing
conditions and proposed conditions with erosion control measure. (2019 T. p. 77)

29

112. In Vinson?s opinion, ?surface gradient restoration" would imply that whatever
slope is left would be stabilized. it does not mean that a surface would be restored to
pre?existing conditions as ?[ijt?s never been interpreted as that." (2019 T. pp. 62?63) He
further noted that ?surface gradient" would be the surface of the land at completion of
mining and reclamation. Restoration would be to put [land] back in a serviceable condition
of stable land, whether that is by vegetation, grass, trees, water, structural fill, retaining
wall, or any construction methods that would render a stable final slope to prevent
sedimentation and erosion. (2019 T. pp. 62?63)

113. Respondent-intervenors did not present any evidence at the August 6, 2019
heanng.

114. On rebuttal, Petitioner presented the testimony of Thad Valentine,.a DEMLR
employee since 2006 who worked in sediment erosion control, mining, dam inspections
and reviews, and stormwater. lVlr. Valentine conducted an initial inspection of the
Brickhaven Mine site in 2015. (2019 T. pp. 90-91) When he visited that site, Valentine
observed grading had just started. At one of the inspections, he observed a pond being
built, but not yet stabilized. (2019 T. pp. 90-91)

115. Mr. Valentine inspects a couple of hundred of sites each year. At the time
of the August 2019 hearing, he had limited recollection of his visit to the Brickhaven Mine
site in 2015. (2019 T. pp. 89-94) He could not recall if he inspected that site before or
after the issuance of the permits in this case. (2019 T. p. 90) He was unaware of a water
supply well on the site. He opined that the presence of a water supply well on the site
would not impact his inspection one way or the other for the mining permit. (2019 T. p.

91).
CONCLUSIONS or LAW

1. All parties are properly before the Office of Administrative Hearings, and the
Office of Administrative Hearings has jurisdiction over the parties and the subject matter.
All parties have been correctly designated, and there is no question as to misjoinder or

non?joinder.

2. To the extent the Findings of Fact contain Conclusions of Law, or that the
Conclusions of Law are Findings of Fact, they should be so considered without regard to

the given labels.

Parties

3. Petitioners EnvironmentaLEE and Chatham Citizens Against Coal Ash
Dump are chapters of the Petitioner Blue Ridge Environmental Defense League inc. The
Blue Ridge Environmental Defense League Inc. (BREDL) is a non-profit organization
focusing on environmental issues.

30

4. Petitioners have the burden of proving that the Respondent agencies
substantially prejudiced Petitioners? rights and that Respondents either exceeded their
authority or jurisdiction, acted erroneously, failed to use proper procedure, acted
arbitrarily and capriciously, or failed to act as required by law or rule, in violation of NC.
Gen. Stat. 1503-23, in issuing the permits at issue.

5. Petitioners and Respondent?lntervenors are "persons? as defined by N.C.
Gen. Stat. 

6. Respondent DWM is a State agency established pursuant to N.C. Gen.
Stat. 1438~279 1 through 1438?34423 and vested with the statutory authority to
enforce the State?s environmental pollution laws, including laws enacted to regulate solid
waste. The North Carolina General Assembly mandates that Respondent DWM promote
and preserve an environment that is conducive to public health and welfare by
establishing a statewide solid waste management program.

7. Respondent DEMLR is a State agency established pursuant to NC. Gen.
Stat. 143B-279.1 through 1438-34423 and vested with the statutory authority to
enforce State?s environmental pollution, including regulating mining operations. The North
Carolina General Assembly mandates that Respondent DEMLR promote and preserve
an environment that is conducive to public health and welfare by establishing a statewide

mining program.
Permits Issued

8. On June 5, 2015, issued both Respondent-lntervenors individual
permits, pursuant to N.C. Gen. Stat to construct and operate a
structural fill at the Brickhaven Mine site in Chatham County, and at the Colon Road Mine
site in Lee County. Both the Brickhaven and Colon Mine sites consist of projects using
coal combustion products as structural fill involving the placement of 8,000 or more tons
of coal combustion products per acre, or 80,000 or more tons of coal combustion products

in total per project.

9. On June 5, 2015, DEMLR issued Respondent-lntervenors Green Meadow,
LLC modified mining permits for the Brickhaven Mine site and the Colon Road Mine site.
Both permits changed the mine reclamation method authorized by the mining permits to
allow mine reclamation by constructing structural fill using coal combustion byproducts in
accordance with the provisions of CAMA and the terms and conditions of the two

structural fill permits issued by DWM.
Applicable Statutes and Regulations
Coal Ash Management Act of 2014 (CAMA)

10. On September 20, 2014, the North Carolina General Assembly passed
CAMA (N.C. Gen. Stat. BOA-309.200 et seq, Article 9, Part 2i) as a comprehensive

31

management plan for the cleanup of coal ash, and the closure of coal ash ponds. Subpart
3 of N.C. Gen. Stat. 130A, Article 9, Part 2  (N.C. Gen. Stat. et seq.,)
addresses use of coal combustion products as structural fill by detailing the permitting,
construction, operation, and closure of large projects using coal ash as structural fill to
reclaim open pit mines in North Carolina.

11. N.C. Gen. Stat. requires that projects using coal
combustion products as structural fill involving the placement of 8,000 or more tons of
coal combustion products per acre or 80,000 or more tons of coal combustion products
in total per project receive an individual permit from 

12. N.C. Gen. Stat. defines ?solid waste." Excluded from that
definition are coal combustion products that are beneficially used, including use for
structural fill. See N.C. Gen. Stat. 130A?290(2b) and Reading this
statutory exclusion in combination with the definitions in N.C. Gen. Stat. 
it is clear and unambiguous that the General Assembly intended that beneficial use of
coal combustion products as structural fill is not the same as, and thus, should not be

regulated like, solid waste landfills.

13. N.C. Gen. Stat. provides, ?Unless a different meaning is
required by the context, the definitions of (3.8. 130A-290 and the following definitions
apply throughout this Part.? N.C. Gen. Stat. defines the following terms:

(1) ?Beneficial and beneficial use? means projects promoting public
health and environmental protection, offering equivalent success
relative to other alternatives, and preserving natural resources . . .

(11) ?Open pit mine? means an excavation made at the surface of the
ground for the purpose of extracting minerals, inorganic and
organic, from their natural deposits, which excavation is open to the

surface . . .

(14) ?Structural fill? means an engineered fill with a projected beneficial
and use constructed using coal combustion products that are
properly placed and compacted. For purposes of this Part, the term
includes fill used to reclaim open pit mines . . .

(15) ?Use or reuse of coal combustion products? means the procedure
whereby coal combustion products are directly used as either of

the following:

a. As an ingredient in an industrial process to make a product,
unless distinct components of the coal combustion products
are recovered as separate and products.

32

b. In a function or application as an effective substitute for a
commercial product or natural resource.

(Emphasis added).

14. N.C. Gen. Stat and further require that
projects using coal combustion products as structural fill involving the placement of 8,000
or more tons of coal combustion products per acre or 80,000 or more tons of coal

combustion products in total per project provide:

Toxicity Characteristic Leaching Procedure analysis from a
representative sample of each different coal combustion product?s source
to be used in the project for, at a minimum, all of the following constituents:
arsenic, barium, cadmium, lead, chromium, mercury, selenium, and silver.

15. N.C. Gen. Stat describes the design, construction, and
siting requirements for projects using coal combustion products for structural fill. N.C.
Gen. Stat explains the specific requirements for the liners, leachate
collection system, cap, and groundwater monitoring system required for large structural
fills with specifically requiring a base liner consist of one of two optional designs:
a composite liner utilizing a compacted clay liner or b. a composite liner utilizing a
clay liner." N.C. Gen. Stat a.

16. N.C. Gen. Stat explains the financial assurance
requirements for large projects using coal combustion products for structural fill. The
applicant for a permit to construct or operate a structural fill must establish:

[Fjinancial assurance that will ensure that sufficient funds are available for
facility closure, post?closure maintenance and monitoring, any corrective
action that the Department may require, and to satisfy any potential liability
for sudden and nonsudden accidental occurrences, and subsequent costs
incurred by the Department in response to an incident at a structural fill
project, even if the applicant or permit holder becomes insolvent or ceases
to reside, be incorporated, do business, or maintain assets in the State.

N.C. Gen. Stat 

17. N.C. Gen. Stat 0.9. requires DWM ?deny an application
for a permit for a solid waste management facility? if:

The cumulative impact of the proposed facility, when considered in relation
to other similar impacts of facilities located or proposed in the community,

would have a disproportionate adverse impact on a minority or low?income
community protected by Title VI of the federal Civil Rights Act of 1964.

N.C. Gen. Stat c.9.

33

18. On April 17, 2915, the Coal Combustion Disposal Rule Rule?) of the
federal Environmental Protection Agency was published in the Federal Register.
The purpose of this rule was to establish ?nationally applicable minimum criteria for the
safe disposal of coal combustion residual in landfills and surface impoundment." 80 Fed.
. Reg. 74, 21303. The CCR Rule defined a landfill or landfill? as "an area of land or
an excavation that receives OCR and which is not a surface impoundment, an
underground injection well, a salt dome formation, a salt bed formation, an underground
or surface coal mine, or a cave.? 40 CFR 257.53.

19. Since the OCR Rule was not effective until October 19, 2015, four months
after Respondents issued the subject permits in this contested case, the OCR Rule did
not apply to the facts and subject permits of this contested case.

The Mining Act of 1971

20. N.C. Gen. Stat. 74, Article 7 constitutes the Mining Act of 1971 and
regulates mining and reclamation of mined lands in this State. in N.C. Gen. Stat. 74-
47, the General Assembly explicitly provides that:

. the extraction of minerals by mining is a basic and essential activity
making an important contribution to the economic well-being of North
Carolina and the nation. Furthermore, it is not practical to extract minerals
required by our society without disturbing the surface of the earth and
producing waste materials, and the very character of certain surface mining
operations precludes complete restoration of the land to its original
condition (and) finds that the conduct of mining and reclamation of mined
lands as provided by this Article will allow the mining of valuable minerals
and will provide for the protection of the State?s environment and for the
subsequent beneficial use of the mined and reclaimed land.

21. N.C. Gen. Stat. 7449 defines the terms, as used or referred to in The
Mining Act, unless a different meaning clearly appears from the context of The Mining
Act. Among those terms, N.C. Gen. Stat. 74?49(7) defines what does and does not
constitute ?mining." ?Mining means any of or as listed in but:

?Mining' does not include: . . .

d. Excavation or grading when conducted solely in aid of on?site farming
or of on?site construction for purposes other than mining . .

22. N.C. Gen. Stat. 74?49(12) defines ?reclamation" as ?the reasonable
rehabilitation of the affected land for useful purposes, and the protection of the natural
resources of the surrounding area." It further states: ?[Bjoth the need for and the
practicability of reclamation will control the type and degree of reclamation in any specific

instance,

34

23. N.C. Gen. Stat. 74?49(13) explains that the requirements of a ?reclamation
plan? must be submitted by the operator and approved by DEMLR before reclamation of
the affected land commences. Such plan shall include, but not be limited to:

a. Proposed practices to protect adjacent surface resources;

b. Specifications for surface gradient restoration to a surface
suitable for the proposed subsequent use of the land after
reclamation is completed, and proposed method of
accomplishment;

c. Manner and type of revegetation or other surface treatment of the
affected areas;

at. Method of prevention or elimination of conditions that will be
hazardous to animal or fish life in or adjacent to the area;

Method of compliance with State air and water pollution laws;

f. Method of rehabilitation of settling ponds;

9. Method of control of contaminants and disposal of mining refuse;

Method of restoration or establishment of stream channels and
stream banks to a condition minimizing erosion, siltation, and other
pollution;

i. Maps and other supporting documents as may be reasonably
required by the Department; and

j. A time schedule that meets the requirements of GS. 74-53.

See also N.C. Gen. Stat. 74?53.

24. N.C. Gen. Stat. 745? lists the basis upon which a mining permit may be
modified. N.C. Gen. Stat. 74?54 and 15A NCAC 058 .0103 explain the requirements for
a bond, and the necessary calculations to determine the amount of the bond. Specifically,
15A NCAC 058 .0103(e) requires that once a determination is made that the total amount
of a blanket bond has reached the $500,000 amount, and the applicant has a good
operating record, then the amount of a $500,000 blanket bond is considered sufficient to
reclaim all sites, and "no additional reclamation bond money is needed.? 15A NCAC 058

.0103(e).
Structural Fill for Mine Reclamation (Claim A)

25. When Respondents issued the structural fill permits and modified mining
permits in this case, ?open pit mines" existed within the boundaries of the Brickhaven and
Colon Road Mine facilities and were ?excavations made at the surface of the ground? and
?open to the surface.? While CAMA defines the essential terms ?open pit mines,?
?structural fill? and ?beneficial use," it does not define the terms ?to reclaim open pit mines?
or ?reclamation? of an Open pit mine. Therefore, to determine what is reclamation of open
pit mines with coal combustion products as structural fill, we must look to the legislative
intent and plain language of CAMA, and The Mining Act?s role in that determination.

35

26. The primary goal of statutory interpretation is to ensure that the legislative
intent and purpose of the legislation is achieved. Electric Supply Co. v. Swain Electrical
Co., 328 N.C. 651, 403 SE. 2d 291 (1991). "An analysis using the plain language of the
statute and the canons of construction must be done in a manner which harmonizes with
the underlying reason and purpose of the statute.? Id.

27. The court must first look to the plain language of the statute itself and
determine whether it is clear and unambiguous. Fowler v. Valencourt, 334 N.C. 345, 435
SE. 2d 530 (1993). if, and only if, the statute is ambiguous on a specific issue, then the
court looks at whether the agency?s interpretation is a ?permissible construction of the
statute." County of Durham v. N.C. DENR, 131 N.C. App. 395, 507 310 (1998).

28. Our courts also recognize that ?to determine the legislative?s intent, statutory
provisions concerning the same subject matter must be construed together and
harmonized to give effect to each other.? Cape Hatteras Elec. Membership Corp. v. Lay,

201 N.C. App. 92, 708 399 (2011).

29. Here, both CAMA and the Mining Act concern the same subject matter of
regulating mining and mining reclamation. CAMA and the Mining Act also share common
purposes: (1) protection of the general welfare, health, safety, and property rights of the
citizens of our State, and (2) providing a subsequent beneficial use of the affected land
by mining reclamation. See N.C. Gen. Stat. See also N.C. Gen.
Stat. 74?47 (proper reclamation of mined land is necessary to prevent undesirable land
and water conditions that would be detrimental to the general welfare, health, safety,
beauty, and property rights of the citizens of the State).

30. While CAMA does not define ?reclamation? or ?reclaim," The Mining Act
explicitly defines ?reclamation? as: ?the reasonable rehabilitation of the affected land for
useful purposes, and the protection of the natural resources of the surrounding area."
N.C. Gen. Stat. Reclamation can only be performed on ?affected land.? N.C.
Gen. Stat. 74?49( 13). ?Affected land? is expressly defined as:

[Tjhe surface area of land that is mined, the surface area of land associated
with a mining activity so that soil is exposed to accelerated erosion, the
surface area of land on which overburden and waste is deposited, and the
surface area of land used for processing or treatment plant, stockpiles,

nonpublic roads, and settling ponds.

N.C. Gen. Stat. Further, N.C. Gen. Stat. 74-48 explicitly states that "the
conduct of mining and reclamation of mined lands as provided by this Article? will allow
the mining of valuable minerals and will provide "for the subsequent beneficial use of the

mined and reclaimed land.?

31. in this case, Respondent DEMLR interpreted ?affected land? at the Mine
sites to encompass both already excavated areas and not yet excavated areas as existed
when Respondent issued the subject permits. (2019 T. pp. 50?51, 56?57). Respondent

36

DEMLR reasoned that the purpose of reclamation, under the Mining Act, is to ?reclaim
the mined area and its adjacent areas, anything affected by the mine operation, to a
suitable use so that it's stable and it protects groundwater and surface water quality."
(2015 T. p. 143) As a result, DEMLR issued the subject permits to allow coal combustion
products to be placed not only in the ?open pit mine? areas but on top of previously
unexcavated areas as part of the ?affected land? at both Mine sites.

32. At the time of permitting, only twenty-nine percent of the Colon Mine
site had been an excavated open pit mine and that seventy?one percent (71 was never
excavated. (2015 T. p. 234). Similarly, the site map included in the permit application for
the Brickhaven Mine site showed a large previously?excavated area at the time of
application along with significant undisturbed areas on that parcel. (Pet. Ex. 9)

33. However, neither DWM nor DEMLR took any steps to determine the size or
scope of the excavations ?open to the surface." iVlr. Vinson never visited either the
Brickhaven or Colon sites before DEMLR issued the mining permits. Neither did Vinson
review the permit applications, before DEMLR issued the amended mining permits, for
the extent of prior excavation at either site. (2019 T. p. 77) His primary familiarity with the
sites was through hearsay from staff. (2019 T. p. 61) Similarly, DWM's Mussler could not
describe what part of the site had been excavated, and had ?no idea? how big the actual
open pit at the Colon Road site was but could have determined this if he had wanted to

know. (2015 T. p. 96).

34. Davis opined that the fact that the Colon Mine was only 38%
excavated was not a problem for Green Meadow's mining permit modification. He opined
that once Green Shale?s mining permit was transferred to Green Meadow ?as is,? ?there
was a mining plan to mine the majority of the site beyond just the pits existing at the time

of the permit transfer.? (2015 T. pp. 169, 176)

35. North Carolina courts will only defer to an agency?s interpretation of a
statute that it is authorized to administer if its interpretation is "reasonable and based on
a permissible construction of the statute. Blue Ridge Healthcare Hosps. Inc. v. N. Carolina
Dep?t of Health Human Sen/5., Div. of Health Serv. Regulation, Healthcare Planning 
Certi?cate ofNeed Section, 808 271, 276?77 (N.C. Ct. App. 2017), review denied
sub nom, Blue Ridge Healthcare Hosps., Inc. v. NC Dep't of Health Human Sen/3., Div.
of Health Serv. Regulation, Healthcare Planning Certificate of Need Section, 370 NC.

382, 807 567 (2017).

36. Here, Petitioners demonstrated by a preponderance of the evidence that
Respondents? interpretation of the statutes at issue was unreasonable and not based on
a permissible construction of the statutes at issue. First, the legislative intent behind
CAMA precludes Respondent?s statutory interpretation that ?affected land? includes land
not previously excavated or mined. CAMA was designed to, among other things, ?prohibit
construction of new or expansion of existing coal combustion residuals surface
impoundments . . 2014 NC. Sess. Laws 122, 2013 NC. SB 729. A ?coal combustion
residuals surface impoundment" is a depressed or excavated area that is designed to

37

hold coal combustion waste. NC. Gen. Stat. BOA-309.201 (6). CAMA was specifically
enacted to prevent the creation of new coal ash waste dumping grounds. Therefore,
allowing coal ash as structural fill on areas not previously mined or excavated violates
this legislative intent and thus, is an impermissible construction of CAMA.

37. Second, the ?affected land" at both Mine sites was not a ?reasonable
rehabilitation of the affected land for useful purposes" as required by NC. Gen. Stat. 
Since the permits at issue were the first permits issued for coal ash as
structural fill in mine reclamation in North Carolina, neither DEMLR nor DWM had prior
experience in actually implementing its interpretation of The Mining Act along with the
requirements of CAMA. Although, Mr. Davis had permitted landfills in mines before. in
permitting landfills used as mine reclamation, Mr. Davis acknowledged that a height of
the [reclaimed] site at 50 feet higher than the ground level was not unusual. (2015 T. p.
177) Mr. Vinson opined that portions of the structural fill used to reclaim the Colon Mine
up to 50 feet higher than surrounding grade would only have any bearing on the final
grade and stability of the structures or slopes on the Mine sites. (2019 T. p. 58)

38. However, the structural fill areas at the Brickhaven Mine site and the Colon
Road Mine site far exceeded the 50?foot height at other sites ReSpondents have
approved. The maximum elevations at the Brickhaven Mine site ranged from 260 feet
at the top of the slope to approximately 294 feet at the center of the structural fill.
(Amended 8?2, Brickhaven Structural Fill Permit Application, Engineering Plan, p. 5)
(Emphasis added), Similarly, the structural fill at the Colon Road Mine Site showed a
?final CCP fill condition with a maximum elevation of 320 feet at the top of the 
slope,? and after the slope break, ?the top of the structural CCP fill extends to a maximum
elevation of approximately 330 feet at the center of the CCP fill.? (Amended Colon
Road Structural Fill Permit Application, Engineering Plan, p. 5) (Emphasis added).
Respondents failed to justify how reclaimed land at those heights was (1) a ?reasonable
rehabilitation? of the affected land or (2) provided for a ?subsequent beneficial use of the
mined and reclaimed land? other than to dispose of coal ash. Therefore, Respondent?s
interpretation that ?affected land? included land not previously excavated at each Mine
site was not reasonable or a permissible construction of NC. Gen. Stat. 74-49(1) or



39. Any excavation made on site for the sole purpose of disposing of coal ash,
does not constitute structural fill "to reclaim open pit mines? within the meaning of N.C.
Gen. Stat. and (14).

40. Based on the above reasoning, Respondents substantially prejudiced its
rights, and acted erroneously, exceeded its authority or jurisdiction failed to use proper
procedure by issuing structural fill permits to reclaim ?open pit mines? that included areas
that have never been mined by failing to make any assessment of the scope and location
of open pit mine excavations on each site at the time of permitting.

41. To the extent that the structural fill permits at issue in this case allow for the
placement of coal combustion products in areas excavated solely for the purpose of

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disposing of coal combustion products, and not ?for the purposes of extracting minerals,"
DWM exceeded its authority under the statute, and such permits are void.

42. To the extent that the Mining Permits were modified to allowed ?reclamation?
of areas not previously excavated for, ?for the purposes of extracting minerals,? DWM
exceeded its authority under the statute, and such permits are void as to the areas not

previously mined.
Requirements for Financial Assurance (Claim B)

43. N.C. Gen. Stat. sets out the financial assurance
requirements for large projects using coal combustion products for structural fill. The
applicant for a permit to construct or operate a structural fill must establish:

[Fjinancial assurance that will ensure that sufficient funds are available for
facility closure, post?closure maintenance and monitoring, any corrective
action that the Department may require, and to satisfy any potential liability
for sudden and non-sudden accidental occurrences, and subsequent costs
incurred by the Department in response to an incident at a structural fill
project, even if the applicant or permit holder becomes insolvent or ceases
to reside, be incorporated, do business, or maintain assets in the State.

44. The preponderance of the evidence presented at hearing established that
both the Brickhaven and Colon Mine structural fill permits issued by DWM on June 5,
2015 meet these statutory requirements for financial assurance, and Respondents
lntervenors provided the requisite financial assurance mechanisms.

45. N.C. Gen. Stat. 74-54 and 15A NCAC 058 .0103 establish the
requirements for a mining permit bond, and the calculations to be made to determine the
amount of the bond. Specifically, 15A NCAC 058 .0103 requires that once a
determination is made that the total amount of a blanket bond has reached the amount of
$500,000, which it did with these permit applications, and the applicant has a good
operating record, which Green Meadow, LLC had, then the amount of a $500,000 blanket
bond is considered sufficient to reclaim all sites, and no additional reclamation bond
money is needed. The preponderance of the evidence established that Respondent-
lntervenor Green Meadow, LLC provided the requisite bond.

Use of Encapsulation Liner system (Claim C)

46. N.C. Gen. Stat establishes the design, construction, and
siting requirements for projects using coal combustion products for structural fill. N.C.
Gen. Stat lists the specific requirements for the liners, leachate
collection system, cap, and groundwater monitoring system required for large structural
fills with specifically setting out the requirements for a base liner, which is to consist
of one of two optional designs: a composite liner utilizing a compacted clay liner or 
a composite liner utilizing a clay liner. in this case, DWM required that both

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the Brickhaven and Colon Mine structural fill permits provide for a liner consistent with
these statutory requirements.

Cumulative Impact on Chatham or Lee County Communities (Claim F)

47. N.C. Gen. Stat. 09. requires DWM to ?deny an application
for a permit for a solid waste management facility" if:

[T]he cumulative impact of the proposed facility, when considered in relation
to other similar impacts of facilities located or proposed in the community,
would have a disproportionate adverse impact on a minority or low?income
community protected by Title VI of the federal Civil Rights Act of 1964.

48. in this case, Petitioners failed to demonstrate by a preponderance of the
evidence that the cumulative impact of the Brickhaven and Colon structural fill facilities
would have a disproportionate adverse impact on the Lee or Chatham County

communities.
Toxicity Characteristic Leaching Procedure (Claim G)

49. N.C. Gen. Stat. and require that persons
proposing projects using coal combustion products as structural fill involving the
placement of 8,000 or more tons of coal combustion products per acre, or 80,000 or more
tons of coal combustion products in total per project, shall provide to SWM:

A Toxicity Characteristic Leaching Procedure analysis from a
representative sample of each different coal combustion product?s source
to be used in the project for, at a minimum, all of the following constituents:
arsenic, barium, cadmium, lead, chromium, mercury, selenium, and silver.

50. in this case, as required by statute, DWM mandated Respondenb
lntervenors provide a Toxicity Characteristic Leaching Procedure analysis consistent with
these statutory requirements in both the Brickhaven and Colon Mine structural fill permits.
A preponderance of the evidence showed that Respondentulntervenors complied with

such requirement.

Ultimate Conclusions of Law

51. Ed Mussler, a licensed Professional Engineer, and the Permitting
Supervisor of the Solid Waste Section of the Division of Waste Management, was
properly delegated the authority to issue structural fill permits which meet all of the
requirements of CAMA under N.C. Gen. Stat. 130A, Article 9. Mr. Mussler acted outside
his authority and jurisdiction when he issued the structural fill permits for the Brickhaven
and the Colon Mine sites to the extent areas of the two sites had never been mined or
otherwise excavated. By statute, structural fill can only be used for mine reclamation,

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and not for other purposes. Mining does not include excavation solely in aid of purposes
other than mining.

52. Petitioners established by a preponderance of the evidence that Mr.
Mussler and DWM substantially prejudiced Petitioners? rights, and exceeded their
authority or jurisdiction, acted erroneously, failed to use proper procedure by issuing a
structural fill permit to Charah, inc. and Green Meadow, LLC for both the Colon and
Brickhaven Mine sites to the extent the two sites had never been mined or otherwise

excavated.

53. Petitioners established that DWM substantially prejudiced Petitioners?
rights, and exceeded their authority or jurisdiction, acted erroneously, failed to use proper
procedure, issuing a structural fill permit to Charah, Inc. and Green Meadow, LLC for both
the Colon and Brickhaven Mine sites to the extent the two sites had never been mined or

otherwise excavated.

54. Petitioner failed to present any evidence proving that Respondent was not
bound by the statutory and administrative rules in determining the amount of the mining
permit bond, and that Respondent was otherwise authorized, or had any discretion, to
modify the statutory and regulatory requirements regarding the amount of financial
assurance the permittee should post.

55. Petitioners proved that Mr. Davis and DEMLR substantially prejudiced
Petitioners? rights and exceeded their authority or jurisdiction, acted erroneously, failed to
use proper procedure in following, or failing to follow, the procedural process for issuing
modified mining permits to Green Meadow, LLC for the Colon and Brickhaven Mine sites.

56. Even giving due regard to each Respondent agency's demonstrated
knowledge and expertise regarding the facts and inferences within the specialized
knowledge of the Respondent agencies, Petitioners proved by a preponderance of the
evidence that Respondents substantially prejudiced Petitioners' rights, and exceeded
Respondents' authority or jurisdiction, acted erroneously, failed to use proper procedure,

and failed to act as required by law as noted above.

FINAL DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the
undersigned determines:

1. Respondents? and Respondent-Intervenors? Motion for Summary Judgment
is hereby DENIED.

2. The Solid Waste Management Facility Structural Fill, Mine Reclamation
Permit No. 5306 to Construct and Operate 3 Structural Fill at the Colon Road mine site in
Lee County, North Carolina to Green Meadow, LLC and Charah, lnc., is AFFIRMED as

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to areas excavated prior to June 6, 2015 and is void as to any areas not excavated prior
to June 6,2015.

3. The Solid Waste Management Facility Structural Fill, Mine Reclamation
Permit No. 1910 for the same purpose at the Brickhaven Mine site in Chatham County,
North Carolina to Green Meadow, LLC, and Charah, inc. is AFFIRMED as to areas
excavated prior to June 6, 2015 and void as to any area not excavated prior to June 6,

2015.

4. For areas not excavated prior to June 6, 2015, the Modified Mining Permit
for Permit No. 53?05 for the operation of a Clay Mine at the Colon Mine in Lee County,
North Carolina to Green Meadow, LLC issued by the Division of Energy, Mineral, and
Land Resources shall be modified to provide for reclamation by means other than as

structural till.

5. For areas not excavated prior to June 6, 2015, the Modified Mining Permit
No. 19?25 issued by the Division of Energy, Mineral, and Land Resources issued for the
same type of operation at the Brickhaven No, 2 Mine Tract in Chatham County, North
Carolina to Green Meadow, LLC shall be modified to provide for reclamation by means

other than as structural fill.

6. Respondent and Respondent?intervenors? Motions to Dismiss Petitioners?
Clams B, C, and are GRANTED.

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NOTICE OF APPEAL

This is a Final Decision issued under therauthority of N.C. Gen. Stat. 1508?34.
Under the provisions of North Carolina General Statute 1508?45, any party wishing to
appeal the final decision of the Administrative Law Judge must file a Petition for Judicial
Review in the Superior Court of the county where the person aggrieved by the
administrative decision resides, or in the case of a person residing outside the State, the
county where the contested case which resulted in the final decision was filed. The
appealing party must file the petition within 30 days after being served with a
written copy of the Administrative Law Judge?s Final Decision.

in conformity with 26 NC Admin. Code 03.0102, and the Rules of Civil Procedure,
N.C. General Statute Article 2, this Final Decision was served on the parties as
indicated by the Certificate of Service attached to this Final Decision. N.C. Gen.
Stat. 1508?46 describes the contents of the Petition and requires service of the Petition
on all parties. Under NC. Gen. Stat. 1508?47, the Office of Administrative Hearings is
required to file the official record in the contested case with the Clerk of Superior Court
within 30 days of receipt of the Petition for Judicial Review. Consequently, a copy of the
Petition for Judicial Review must be sent to the Office of Administrative Hearings at the
time the appeal is initiated in order to ensure the timely filing of the record.

This the 13th day of December, 2019.

Melissa Owens Lassiter
Administrative Law Judge

 

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CERTIFICATE OF SERVICE

The undersigned certifies that, on the date shown below, the Office of
Administrative Hearings sent the foregoing document to the persons named below at the
addresses shown below, by electronic service as defined in 26 NCAC 03 .0501 (4), or by
placing a copy thereof, enclosed in a wrapper addressed to the person to be served, into
the custody of the North Carolina Mail Service Center who subsequently will place the
foregoing document into an official depository of the United States Postal Service:

Peter McGrath Jr.
Moore Van Allen, PLLC
(served electronically on December 13, 2019)

Attorney For lntervenor

Thomas D. Myrick
Moore Van Allan PLLC .
tommvrick@mvalaw.com (served electronically on December 13, 2019)

Attorney For lntervenor

Cathy Cralle Jones
Law Office of F. Bryan Brice, Jr.
(served electronically on December 13, 2019)

Attorney For Petitioner

John Runkle

Attorney At Law

2121 Damascus Church Rd

Chapel Hill NC 27516
Attorney For Petitioner

Thomas Hill Davis
North Carolina Department of Justice
hdavis@ncd0i.oov (served electronically on December 13, 2019)

Attorney For Respondent

Carolyn Ann McLain

NC. Department of Justice

cmclain@ncdoi.qov (served electronically on December 13, 2019)
Attorney For Respondent

This the 16th day of December, 2019.

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Jerrod Godwin

Administrative Law Judge Assistant
Office of Administrative Hearings
6714 Maii Service Center

Raleigh NC 27699?6700
Telephone: 919?431'3000

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