The Water Works Bd. of City of Birmingham v. Ala. Surface Mining Comm'n

1

The Water Works Board of the City of Birmingham v. Alabama Surface Mining Commission and Mays Mining, Inc.

No. CL-2022-1059

Alabama Court of Civil Appeals

July 7, 2023

Appeal from the Walker Circuit Court (CV-21-900190)

EDWARDS, Judge.

The Water Works Board of the City of Birmingham ("the WWB") appeals from a summary judgment entered by the Walker Circuit Court in favor of the Alabama Surface Mining Commission ("the ASMC") and Mays Mining, Inc. ("MMI"), regarding the renewal of a mining permit that the ASMC had issued to MMI and that the WWB had challenged.

This appeal involves a proceeding under the Alabama Surface Mining Control and Reclamation Act of 1981 ("the Reclamation Act"), Ala. Code 1975, § 9-16-70 et seq. See also Ala. Admin. Code (Surface Mining Comm'n), r 880-x-5a-.01 et seq. Review procedures under the Reclamation Act "take precedence over the Alabama Administrative Procedure Act." Ala. Code 1975, § 9-16-79. Any petition challenging the regulatory authority's approval or disapproval of a permit or the renewal of a permit is first heard by a hearing officer from the Division of Hearings and Appeals, after which a party may petition the ASMC for review on the administrative record. Ala. Code 1975 § 9-16-79(2)-(3); see also Ala. Code 1975 § 9-16-72(15) (defining the "regulatory authority" as "[t]he Alabama Surface Mining Commission acting by and through its director or his designee"). After receiving decisions from the regulatory authority, the hearing officer, and the ASMC, a party "may secure a judicial review [of the ASMC's decision] by filing a notice of appeal in the circuit court of the county in which the [ASMC] maintains its principal office," i.e., Walker County. § 9-16-79(4)b. "The cause shall be tried de novo in said circuit court," which

"shall have jurisdiction to determine the reasonableness and lawfulness of the order of the [ASMC]. Upon a finding by the court that the order is not reasonable or lawful, or not supported by the clear preponderance of the evidence, the cause shall be remanded to the [ASMC] for further proceedings in accordance with the provisions of this article."

§ 9-16-79(6). See also Ex parte Van American Ins Co., 843 So.2d 180, 185 (Ala. 2002) ("Pursuant to [Ala. Code 1975,] § 9-16-79(6), the circuit court has jurisdiction only to determine the reasonableness and lawfulness of the order issued by the regulatory agency. ... [E]ven if the trial court had found the [ASMC's] order to be unreasonable or unlawful it had no authority to modify it. The court's only statutory remedy was to remand the cases to the [ASMC] for the [ASMC] to enter an order that was reasonable and that comported with the law.").

The WWB's dispute regarding the permit at issue has a protracted history. The regulatory authority entered an order issuing permit no. P-3957-64-17-S ("the permit") to Reed Minerals, Inc. (a predecessor applicant to MMI), on October 30, 2012. The permit had an expiration date of October 29, 2017. See Ala. Code 1975, § 9-16-82(a) (stating that, generally, "[t]he term of a permit shall not exceed five years"); see also Ala. Admin. Code (Surface Mining Comm'n), r. 880-X-8k-.12(3). The permit area was near a water-intake facility owned by the WWB.

The WWB filed with the Division of Hearings and Appeals a petition for review regarding the issuance of the permit. The WWB contended that no adequate survey of the permit area had been performed, particularly in relation to potential residual pollutants from the previous use of part of the permit area as a plywood processing facility ("the brownfield site") from approximately 1969 to 1980. A hearing officer for the Division of Hearings and Appeals entered an order denying the WWB's petition. Likewise, on petition for review to the ASMC, it entered an order denying the WWB's petition.

On August 8, 2014, the WWB filed a notice of appeal to the Jefferson Circuit Court regarding the ASMC's denial of the WWB's petition; that appeal was assigned case no. CV-14-000432 ("the 2014 appeal").^[1] On December 31, 2014, Reed Minerals, Inc., transferred the permit to Centennial Natural Resources LLC ("Centennial"), and, presumably, Centennial was added as a party to the 2014 appeal. The Jefferson Circuit Court held ore tenus proceedings over three days. See § 9-1679(6). On October 28, 2016, the Jefferson Circuit Court entered a "Final Order on Appeal" reversing and remanding the ASMC's decision ("the October 2016 final order"). The October 2016 final order stated that the terms of the permit were "reasonable and supported by the clear preponderance of the evidence as regards most, but not all, of the proposed mining site." The October 2016 final order continued:

"[T]he court is not convinced from the testimony and evidence presented that [the ASMC] has fully and adequately considered the potential environmental impacts unique to mining those portions of this site which were formerly used as a plywood processing plant. _ [T]he court was presented with no experiential data or studies or testimony from experience regarding the mining of brownfield sites. Similarly, the court was not presented with evidence that [the ASMC] considered requiring affirmative precautionary measures to avoid or eliminate any potential environmental impact unique to mining those portions of this site which were formerly used as a plywood processing plant, such as (a) including a 'condition' in the permit that 'no disturbance is to occur on any part of the permit' where the former plywood processing plant [and its various facilities] were located, or (b) if surface mining operations are allowed on these parts of the site, requiring a reasonable layer of the soil from these areas to be transported to an appropriate landfill rather than re-deposited on the site during the reclamation process or, even, (c) requiring a reasonable layer of the soil from these areas to be tested for potential pollutants once the soil has been disturbed and, then, if any pollutants are detected at unsatisfactory levels, transporting that soil to an appropriate landfill rather than re-depositing it on the site. In other words, the court is not convinced from the testimony and evidence presented that the reasonable course with regard to mining those portions of the site which were formerly used as a plywood processing plant is to simply not mine there at all, or to mine those portions in a different way or with a different monitoring system in place that what was used at [other greenfield site locations for other mines], in order to avoid a situation where potential pollutants from the former industrial areas are released into the environment."

Quoting Ex parte Van American Insurance Co., 843 So.2d at 185, the October 2016 final order remanded the cause to the ASMC for it to "'enter an order that [i]s reasonable and that comport[s] with the law.'"

On December 8, 2016, the ASMC entered an order remanding consideration of the permit to "the regulatory authority for further assessment of the potential environmental impacts, if any, that may result from disturbance of the former plywood plant and related features, and for consideration of any conditions, restrictions or limitations to incorporate into the permit as the result of any findings so made."

According to the ASMC, its December 2016 order tolled the permit term while the permit was under further consideration.

On January 11, 2017, the ASMC sent Centennial a status letter regarding the reconsideration of the permit. The status letter stated that no surface coal mining could occur until the permit was approved. The status letter also requested that Centennial conduct further site investigation regarding the environmental issues noted in the October 2016 final order and submit "such additional site evaluation and risk assessment information" to the ASMC if Centennial wanted to proceed with its permit application.

According to the ASMC, Spectrum Environmental, Inc., on behalf of Centennial, thereafter performed a soil and groundwater study on the brownfield site and submitted that study ("the Spectrum report") to the ASMC. The Spectrum report concluded that the brownfield site had very low or nondetectable concentrations of the pollutants that had been of concern to the WWB, and that surface mining would not materially impact the water intake owned by the WWB. The ASMC reissued the permit to Centennial on May 21, 2018, authorizing it to mine the brownfield portions of the permit area. The permit was reissued effective May 21, 2018, and had an expiration date of May 22, 2019. As to that issue, the permit stated: "This permit was previously issued on October 30, 2012, for a 5-year term. Approval of the permit was remanded for further consideration 1 year and 1 day (366 days) prior to the end of the permit term. As the term of a permit may not exceed 5 years[, ...] this permit shall expire May 22, 2019."

On June 29, 2018, Centennial transferred the permit to MMI. On July 20, 2018, the WWB filed in the 2014 appeal a "Motion to Review and Remand Re-Issued Permit." The WWB argued to the Jefferson Circuit Court that the reissued permit did not comply with the terms of the October 2016 final order. The WWB made no argument that the permit had expired on October 29, 2017, or that the ASMC could not suspend or toll the term of the permit pending further proceedings. Also, the WWB made no argument that the ASMC had exceeded its authority on remand or gone outside the mandate of the Jefferson Circuit Court by reconsidering the permit as to surface coal mining of the brownfield portions of the permit area.

MMI filed a motion to substitute itself as a party in the 2014 appeal and that motion was granted. MMI and the ASMC also filed a motion...