Coal Dust Concerns Prompt Lawsuit Against Mobile

A Port of Mobile-based company should conduct a risk benefit analysis before storing or handling coal, maintains a lawsuit against the City Council and city Planning Commission.

The lawsuit, filed Feb. 5, claims the council and commission failed in recent months to determine the extent to which public health would be affected by coal dust generated at Cooper Marine & Timberlands Corp.

The suit claims that CMT never disclosed the amount of coal dust created at its facility or the number of homes, schools, churches and other properties that might be “negatively impacted.” And it states that CMT failed to investigate alternatives – like an enclosed dome around storage piles – to prevent dust from blowing to nearby properties.

The lawsuit requests a judge to issue a temporary restraining order and then a permanent injunction against coal handling at CMTs’ property, pending a detailed analysis of the issues.

“Hopefully an end result is a process that allows for the informed decision-making,” said Pete Burns, a Mobile attorney for the plaintiffs who include residents opposed to the addition of coal at the facility.

The City Council, in a 4-2 decision in early January, refused to overturn a November decision by the Planning Commission allowing for coal storage at CMT’s facility.

‘Scientific viewpoint’

Doug Anderson, the commission’s attorney, said he believes the Planning Commission and the City Council “did what they are legally and obligated to do.” He said the city plans to file a court response to the new lawsuit next week.

But Burns, on Thursday, said that city officials should seek independent engineering reviews of CMT coal dust effects on other companies. He pointed out that in 2014, representatives of a proposed Blue Creek coal terminal provided substantial information to address local concerns. Still, the Blue Creek terminal project was withdrawn amid continuing opposition.

Anderson said that it would be rare, “from a scientific viewpoint,” for the Planning Commission to oversee an engineering analysis on pollution impacts of one company upon others.

“It’s not built into our system, as ordinances are written,” Anderson said.

Anderson did say that council members could consider having independent engineers review applications for company expansions or other projects based on construction issues. He said that the council might examine the approach as it weighs revisions to the city’s ordinance addressing above-ground petroleum storage tanks.

Burns said that the Mobile Area Water and Sewer System has a thorough system of analyzing the environmental impacts of projects. He noted a 2013 review of the potential risks of an oil pipeline constructed through the Big Creek Lake watershed, the city’s main source of drinking water.

Burns said he hopes the new lawsuit helps to create a similar process with city government.

“You need to have a robust decision-making process, and all sides need to be represented,” Burns said. “I think we need to know how much coal dust is going to be released and where will it go. If you remember with Blue Creek, it was ordered to have a science fair. They produced studies saying, ‘Here’s how much coal dust our facility will release and here are the areas that will be affected.’ We did that with Blue Creek but not with (CMT)? What’s up with that?”

Burns continued, “What are the benefits to the community and what are the damages to the community? If you make a decision without being able to answer those questions then I think that is an arbitrary decision.”

Environmental activists and neighbors initially voiced concern before the Planning Commission because CMT was storing coal on its property along the east side of the Mobile River despite not having city permission to do so. Residents claimed that CMT had originally presented itself as a wood-chipping facility in 2010.

Stephen Harvey, an attorney representing CMT, said at the time that the company received permits from federal and state regulatory agencies for coal storage but was unaware that special approval was needed from the city.

He said that CMT’s issues were different from those involving Blue Creek. He said the volumes of coal stored and transported from the CMT property were nowhere near as high, and that CMT was relatively far from the city’s downtown neighborhoods. He said that the Blue Creek terminal would have been near residential areas.

The new lawsuit comes after Councilwoman Bess Rich requested a rehearing of the appeal of the Planning Commission decision regarding CMT’s coal handling.

The council opted not to reconsider the appeal. Rich and Councilman Levon Manzie were the only two to vote against denying the appeal in January.

“It’s true that citizens in the district I represent are highly sensitive to a variety of issues dealing with industry and the environment,” Manzie said. “This isn’t a new issue. It’s been going on for quite a while. We’re listening and working and trying to do what we can in the realm of our authority to be responsive and be sensitive to their concerns.”

The CMT plant has the capacity to store 1.3 to 1.5 million tons of coal, which it loads onto and off of barges and cargo ships. As of early January, the plant had 460,000 tons stored on site.

Rich, though, said in her in weekly newsletter update that there are no “established capacity limits on the site for the Planning Commission staff to monitor.” She also said that citizens were not aware, during a commission meeting in January, about a public discussion that took place on what capacity issues would entail.

“This action prevented the residents effected by the coal dust an equal opportunity to be heard and negated a condition of the Planning Approval meant to protect them,” Rich said. “More importantly, in my mind, there are now unlimited capacities and no controls on the site. One might wonder had the council reopened the appeal a lawsuit at taxpayer expense may have been avoided.”

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