text:
    Ex parte THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP, INC. (In re George Perry and Twila Perry v. The Terminix International Company Limited Partnership, Inc.)
    1061247.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      John R. Chiles and Geoffrey S. Bald of Burr & Forman LLP, Birmingham, for petitioner.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden; and Thomas F. Campbell and D. Keiron McGowin of Campbell Law, P.C., Birmingham, for respondents.
   PARKER, Justice.

I. Background

The Terminix International Company Limited Partnership, Inc. (“Terminix”), petitions this Court for a writ of mandamus directing the trial court to issue a protective order limiting discovery by George Perry and Twila Perry in their underlying action against Terminix.

On April 29, 1999, the Perrys entered into a contract with ABC Pest Control to provide termite protection at their residence. On December 28, 2000, Terminix acquired the Perrys’ account from ABC Pest Control.

The Perrys sued Terminix on July 18, 2005, asserting, among other things, claims of fraud, breach of warranty, negligence, breach of contract, and negligent training, supervision, and retention, and claims pursuant to the Alabama Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975, and seeking equitable relief. They allege that Terminix failed to properly inspect their residence, failed to detect a termite infestation in the residence, failed to disclose conditions in their residence that Terminix alleged reduced the effectiveness of treatment measures that had been performed on their residence, and misrepresented the condition of their residence.

The Perrys served four sets of discovery upon Terminix, asking, among other things, for records concerning Terminix’s dealings with other customers from 2000 through 2006. Terminix objected, on the basis that the requested discovery is overly broad, unduly burdensome, not appropriately limited in scope, and not calculated to lead to the discovery of relevant evidence. The Perrys filed a motion to compel discovery. After extensive briefing, the trial court, on September 5, 2006, granted the Perrys’ motion to compel and ordered Terminix to disclose information from the branch office that had serviced the Perrys’ residence regarding 1) all Ter-minix customers for the period beginning the month before the Perrys became customers of Terminix and ending the month after the Perrys ceased being customers; 2) all customers who had received any services from Terminix through Terminix employee Staci Flenoir from 2000 through 2006; 8) all customers whose contract included a set fee for a set period, regardless of the date; 4) all documents related to contract renewals; and 5) customer profiles for the customers as to whom discovery was to be produced. The trial court ordered Terminix, within 14 days of the order, to “fully, completely, substantively, and with detail and specificity respond to or supplement previous responses (if necessary) to the ... discovery requests” of the Perrys. By agreement, the parties extended the 14-day deadline from September 19 to September 22. A further dispute over the responsiveness of Termi-nix’s answers ensued. On September 27 Terminix filed a motion asking the trial court to reconsider its discovery order and a motion for a protective order seeking to limit the requested discovery. On September 28 the Perrys filed a motion for sanctions.

The trial court held a hearing on these and other pending motions on April 16, 2007. On April 19, 2007, the trial court found the September 5 order to be reasonable, and it denied Terminix’s motion to reconsider and the Perrys’ motion for sanctions. It denied the motion for a protective order by separate order on May 10, 2007. Terminix then petitioned this Court for a writ of mandamus, asking this Court to direct the trial court to limit the scope of discovery in accord with its motion for a protective order.

II. Standard of Review
“ ‘ “The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So.2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991) (citing Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court ‘determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.’ Ex parte Horton, 711 So.2d at 983. Moreover, ‘ “[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,” and “[t]he writ will not issue where the right in question is doubtful.” ’ Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981)).” ’
“Ex parte Pitts, 822 So.2d 418, 421-22 (Ala.2001). See also Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (holding that ‘mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.’). The Court in Ocwen noted that ‘[i]n certain exceptional cases ... review by appeal of a discovery order may be inadequate’ and that among those exceptional cases were those in which ‘a discovery order compels the production of patently irrelevant or du-plicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party ....’ 872 So.2d at 813. See also Ex parte Crawford Broad. Co., 904 So.2d 221 (Ala.2004).”

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090,1101 (Ala.2007).

III. Analysis

The Perrys argue that a writ of mandamus is not the proper remedy because, they say, Terminix did not timely file its motion for a protective order.

“A timely-fíled motion for protective order is required both in order to later file a petition for writ of mandamus, remedies having been exhausted, and in order to toll the running of the 42-day period for filing a petition for writ of mandamus. Ex parte Orlcin, Inc., [960 So.2d 685, 640-41 (Ala.2006) ]. ... It is clear that Terminix did not file a motion for protective order until after the time required to answer the trial court’s September 5, 2006 order had passed, no matter how it is figured. Therefore, Terminix has never had the right to file a petition for writ of mandamus and never will at this point.... ”

The Perrys’ answer at 15.

In Ex parte Horton Homes, Inc., 774 So.2d 536, 589-40 (Ala.2000), this Court addressed the necessity of a timely filed motion for a protective order to appellate review of a ruling on a discovery motion by way of a mandamus petition:

“In Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala.1998), this Court determined that orders compelling discovery are reviewable by mandamus petition only if the objecting party has properly moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P.
“Simply put, Reynolds Metals stands for the proposition that a party dissatisfied with the trial court’s ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy. Id. The motion for a protective order pursuant to Rule 26(c) and any subsequent mandamus petition must be filed within the time period set for production by the trial court in its order compelling discovery. See Reynolds Metals, 710 So.2d at 899 (‘Under Rule 26(c), Ala. R. Civ. P., Reynolds may move the tidal court for a protective order at any time before the expiration of the 21-day period prescribed in the order compelling discovery.’); see, also, Brittain v. Stroh, Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C.1991) (interpreting parallel Rule 26(c), Fed.R.Civ.P., to require that a motion for a protective order be filed in a timely or seasonable manner); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990) (stating that a motion for a protective order is timely if made before the date set for the discovery); United States v. International Bus. Machs. Corp., 70 F.R.D. 700, 701 (S.D.N.Y.1976) (‘Such motions under Rule 26(c) must be served before the date set for production.’); 8 C. Wright et al., Federal Practice and Procedure § 2035 (1994); Rule 26, Ala. R. Civ. P., cmt. (discussing the federal rule upon which Alabama Rule 26(c) was modeled and citing Wright & Miller, Federal Practice and Procedure § 2035).”

In Ex parte Orkin, Inc., 960 So.2d 635, 640-41 (Ala.2006), relied on by the Perrys, this Court similarly stated:

“Orkin moved for a protective order within the 30-day period in which the contested production was compelled.5
“5 See Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990) (a motion for a protective order is timely if made before the date set for the discovery); United States v. International Business Machs. Corp., 70 F.R.D. 700, 701 (S.D.N.Y.1976) (‘motions under Rule 269(c)[sic] [, Fed.R.Civ. P.,] must be served before the date set for production’); see also 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2035 (1994).”

More recently, in Ex parte Meadowbrook Insurance Group, Inc., 987 So.2d 540 (Ala.2007), this Court reiterated the prerequisite of a timely filed motion for a protective order to review by a petition for the writ of mandamus:

“[A] petition [for a writ of mandamus] challenging an order compelling discovery is timely only if (1) a protective order is sought, pursuant to Ala. R. Civ. P. 26(c), within the time set for compli-anee with the order, Ex parte Orkin, Inc., 960 So.2d 635, 640 n. 5 (Ala.2006) (citing with approval Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990)), and (2) the mandamus petition is filed no more than 42 days after the denial of the protective order. 960 So.2d at 640.”

987 So.2d at 546.

Here Terminix’s motion for protective order was filed after the time for production ordered by The trial court, as extended by the parties, had expired. Therefore, Terminix’s petition is due to be denied because its motion for a protective order was not timely filed with the trial court.

PETITION DENIED.

COBB, C.J, and SEE, WOODALL, and SMITH, JJ., concur.

      . In a separate petition (case no. 1061235), Terminix sought a writ of mandamus ordering the trial court to compel arbitration. On June 28, 2007, this Court denied that petition.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. ALABAMA RIVERS ALLIANCE, INC., and Friends of Hurricane Creek. Tuscaloosa Resources, Inc. v. Alabama Rivers Alliance, Inc., and Friends of Hurricane Creek.
    2050974 and 2050995.
    Court of Civil Appeals of Alabama.
    Dec. 28, 2007.
    Rehearing Denied March 21, 2008.
    Certiorari Denied (as to Tuscaloosa Resources, Inc.) Feb. 20, 2009 Alabama Supreme Court 1070935.

      Troy King, atty. gen., and James L. Wright, asst. atty. gen., for appellant Alabama Department of Environmental Management.
    Floyd R. Gilliland, Jr., of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellant Tuscaloosa Resources, Inc.

      R. Edwin Lamberth of Cunningham, Bounds, Crowder, Brown & Breedlove, L.L.C., Mobile, for appellees.
    Robert P. Fowler and Jeffrey H. Wood of Balch & Bingham, LLP, Birmingham, for amicus curiae Alabama Coal Association, in support of the appellants.
   MOORE, Judge.

The Alabama Department of Environmental Management (“ADEM”) and Tuscaloosa Resources, Inc. (“TRI”), appeal separately from the Montgomery Circuit Court’s judgment reversing an order of the Alabama Environmental Management Commission (“AEMC”) that upheld the issuance of a mining permit to TRI. The appeals have been consolidated for the purpose of issuing one opinion. We affirm.

Procedural History

On December 17, 2001, ADEM issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. AL0074012 (“the permit”) to TRI for mining operations in Tuscaloosa County. Thereafter, on January 8, 2002, two environmental groups, Alabama Rivers Alliance, Inc., and Friends of Hurricane Creek (collectively referred to hereinafter as “ARA”), petitioned for an administrative hearing in order to contest the issuance of the permit. In support of its petition, ARA alleged that the discharge resulting from TRI’s mining operations would contribute to an existing violation of water-quality standards and was therefore prohibited by law. The case was forwarded to the administrative hearings division of the Office of the Attorney General for assignment of an Administrative Law Judge (“ALJ”) to serve as the hearing officer in this matter. On January 28, 2002, TRI filed a motion to intervene; the ALJ assigned to hear the case granted that motion on January 31, 2002.

After a hearing and a review of the evidence presented, the ALJ issued a report on February 11, 2004, in which he determined that Hurricane Creek and the North Fork of Hurricane Creek were impaired because of excessive amounts of iron and aluminum and high turbidity. Based on that determination, the ALJ recommended that the AEMC grant ARA’s appeal and overturn ADEM’s issuance of the permit. Thereafter, ADEM and TRI filed objections to the hearing officer’s recommendations.

On March 19, 2004, the AEMC held a hearing after which it entered an order rejecting the ALJ’s recommendations, findings of fact, and conclusions of law. The AEMC then adopted its own findings of fact and conclusions of law. Specifically, the AEMC’s order stated, in pertinent part:

“(1) Biota in the watershed of the • North Fork of Hurricane Creek are impaired in places, particularly in Weldon Creek.
“(2) There is no evidence in the record that these impairments are due to iron, aluminum or turbidity.
“(3) Permitted discharges of iron, aluminum or suspended solids from the mine at issue cannot, therefore, cause or contribute to the impairment of biota at the site of this mine.
“(4) There is no evidence that the discharge of iron, suspended solids or aluminum from this mine have caused or contributed to the impairment of biota at or downstream from this mine.
“(8) There is no evidence that this permit is not consistent with applicable EPA [Environmental Protection Agency] requirements, and not in accordance with State law and applicable State rules and regulations.

“There being neither record evidence that the discharges from the [TR.I site] will cause or contribute to violations of either numeric or narrative biological state water quality standards, nor record evidence that iron, aluminum and suspended solids will cause or contribute to a violation of narrative biological standards, the subject permit is therefore APPROVED, subject to the following modifications:

“(1) Once an approved TMDL [total maximum daily load of pollutants] has been established for all streams on the 303(d) list[] in this watershed, this permit will be reopened and evaluated to determine if the permitted discharges are acceptable.
“(2) Based on this review, the permit will be upheld as is, or modified to support the TMDL, or denied until such time as it can be demonstrated that the permit will support the TMDLs.
“(3) The permit holder will continue supplemental monitoring for aluminum throughout the permit term.... ”

On Api’il 19, 2004, ARA appealed the AEMC’s order to the Montgomery Circuit Court, pursuant to Ala.Code.1975, § 22-22A-7(c)(6). After a review of the parties’ arguments, the transcript of the hearing before the ALJ, and the evidence presented to the ALJ, the circuit court entered a judgment on April 21, 2006, reversing the decision of the AEMC. That judgment stated, in pertinent part:

“The AEMC made ten findings of fact in its Order rejecting the Administrative Law Judge’s Recommendations. The first findings of fact at issue concern whether the receiving waters are ‘impaired,’ as defined by Alabama law, because of excessive amounts of iron, aluminum, and turbidity. For permitting purposes, waters are impaired when state water quality standards are exceeded or violated. The reason this first issue is important is that, as [ARA] and ADEM acknowledge, if the receiving waters exceed or violate state water quality standards, the discharges allowed by the Permit cannot contribute to that violation. See Ala. Admin. R. 335-6-6-.04 (stating that a discharge from a new source cannot ‘cause or contribute to a violation of water quality standards’ and in this case, the parties do not dispute that TRI is a ‘new source’ under this regulation). In other words, if the receiving waters are in such a degraded condition that they are already in violation of state water quality standards, then ADEM cannot issue a permit that would further contribute to that violation, i.e., further degrade the receiving waters.
“The AEMC found that the North Fork of Hurricane Creek is in violation of state water quality standards. However, it concluded that ‘there is no evidence in the record that these impairments are due to iron, aluminum, or turbidity.’ (AEMC Order p. 2). This finding is clearly erroneous. Not only is there ample evidence in the record that the impairment is due to ‘iron, aluminum, or turbidity’ but also this Court could discern little to the contrary. For example, the AEMC’s finding ignores the testimony of [ARA’s] experts and the 303(d) list. The 303(d) list specifically states that the subject waters are impaired due to iron, aluminum, or turbidity.
“The impact of this initial erroneous finding infected the remainder of the AEMC’s order. Based on the incorrect determination that the waters are not impaired due to iron, aluminum, or turbidity, the AEMC concluded that additional discharges of iron and aluminum would not further degrade the waters. On the other hand, if, as the ALJ determined, the waters were impaired due to iron, aluminum, and turbidity, then additional such discharges would further imperil Hurricane Creek. In fact, this is what the evidence showed.
“The decision o[f] the AEMC was built upon a flawed foundation. To state that ‘no’ evidence existed that the impairment was caused by iron, aluminum, or turbidity ignores the substantial record compiled by the ALJ. The decision of the AEMC is Reversed.”

On May 17, 2006, ADEM and TRI filed a joint motion to alter or amend the circuit court’s judgment; in that motion, they requested that the circuit court remand the case to the AEMC to make additional findings and to stay enforcement of the judgment while the case is on remand. In support of them motion, they attached the affidavit of Richard Hulcher, the chief of the permits/compliance unit of the field operations division of ADEM. In Hulcher’s affidavit, he testified that the Environmental Protection Agency (“EPA”) had published a total maximum daily load (“TMDL”) of pollutants for Hurricane Creek and its tributaries and that the issuance of TRI’s permit was consistent with that TMDL. The May 17, 2006, motion was denied by operation of law after 90 days. Rule 59.1, Ala. R. Civ. P. On August 25, 2006, and August 29, 2006, respectively, ADEM and TRI filed notices of appeal with this court; those appeals have been consolidated.

Standard of Review

“Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the [circuit] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The [circuit] court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The [circuit] court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the [circuit] court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:

“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Ala.Code 1975, § 41-22-20(k).

“ ‘[A] presumption of correctness attaches to a decision of an administrative agency due to its recognized expertise in a specific area.’ Alabama Dep’t of Envtl. Management v. Wright Bros. Constr. Co., 604 So.2d 429, 432 (Ala.Civ.App.1992) (quoting Shell Offshore, Inc. v. Baldwin County Comm’n, 570 So.2d 698, 699 (Ala.Civ.App.1990)).... In reviewing the determination of the [AEMC], this court applies the same standard of review as the trial court. Dawson v. Alabama Dep’t of Envtl. Management, 529 So.2d 1012 (Ala.Civ.App.1988), cert. denied, 529 So.2d 1015 (Ala.1988), overruled on other grounds by Ex parte Fowl River Protective Ass’n, 572 So.2d 446 (Ala.1990).”

Alabama Dep’t of Envtl. Mgmt. v. Kuglar, 668 So.2d 809, 811-12 (Ala.Civ.App.1995).

Discussion

According to the Alabama Water Pollution Control Act, Ala.Code 1975, § 22-22-1 et seq., the AEMC is chai-ged with issuing permits for the discharge of pollutants into the waters of the State. See Ala.Code 1975, § 22-22-9(g). In February 2001, TRI applied for such a permit to operate a surface coal mine in Tuscaloosa County adjacent to the North Fork of Hurricane Creek (“the North Fork”).

Alabama Admin. Code (ADEM), rule 335-6-6-.04, provides:

“An NPDES permit shall not be issued to a person proposing any of the following discharges:
“(j) a discharge from the operation of a new source or the operation of a new discharger, if the discharge from its operation will cause or contribute to a violation of water quality standards.”

It is undisputed that the TRI mining site is a new source. Thus, we are charged with determining whether, at the time the permit was issued, the North Fork was in violation of water-quality standards and, if so, whether the discharges from TRI’s mining operation would cause or contribute to a violation of water-quality standards.

I. Whether the North Fork Is In Violation of State Water-Quality Standards

A. State Water-Quality Standards

According to the testimony of Lynn Sisk, the chief of the water-quality branch within the water division of ADEM, Alabama water-quality standards for surface waters are designed to protect the different designated uses that the State has assigned to its waters and to restore those waters when they are not adequate for their designated uses. There are seven water-use classifications for waters of the State of Alabama. See Ala. Admin. Code (ADEM), rule 335-6-10-.03. The classified use of the North Fork is “fish and wildlife.” Sisk testified that there are numeric or narrative criteria, in addition to a promulgated antidegradation policy, that are adopted by the State to ensure that waterways are adequate for their designated use. Waters that are not supporting their designated use are considered to be impaired waters. A body of water that has a classified use of “fish and wildlife” is a body of water that is suitable for fishing, propagation of fish, aquatic life, and wildlife. See Ala. Admin. Code (ADEM), rule 335-6-10-.09(5)(a).

Sisk testified that impaired waters, or those that are determined not to be supporting their designated uses, are added to the “303(d) list.” See note 1, supra. ADEM is responsible for identifying those waters within the State of Alabama for which technology-based limits alone do not ensure attainment of applicable water-quality standards to avoid placement of those waters on the 808(d) list. In determining whether a stream is impaired, or should be added to the 303(d) list, ADEM uses chemical criteria, fish consumption and shellfish-harvesting advisories, and biological-assessment data. With regard to chemical criteria, a body of water is considered to be not supporting its designated use if more than 25% of the monitored chemical data exceeds the applicable water-quality standards. When 10% to 25% of the chemical measurements exceed the water-quality standards, the body of water is considered to be partially supporting its designated use. Biological-assessment data involves an assessment of the biological health of a stream; a body of water is considered to be not supporting its designated use if the number of macro-invertebrates inhabiting the body of water are determined to be low and the chemical/physical field data indicates impairment of the biological health of the body of water.

Water-quality-based effluent limitations (“WQBEL”) are limitations that are placed in a permit to ensure that surface-water-quality standards are maintained when the technology-based effluent limits are not sufficient to meet those standards. WQBELs include both “narrative” and “numeric” water-quality standards. Ala. Admin. Code (ADEM), rule 335-6-10-.06, establishes “Minimum Conditions Applicable To All State Waters” as follows:

“The following minimum conditions are applicable to all State waters, at all places and at all times, regardless of their uses:
“(a) State waters shall be free from substances attributable to sewage, industrial wastes or other wastes that will settle to form bottom deposits which are unsightly, putrescent or interfere directly or indirectly with any classified water use.
“(b) State waters shall be free from floating debris, oil, scum, and other floating materials attributable to sewage, industrial wastes or other wastes in amounts sufficient to be unsightly or interfere directly or indirectly with any classified water use.
“(c) State waters shall be free from substances attributable to sewage, industrial wastes or other wastes in concentrations or combinations which are toxic or harmful to human, animal or aquatic life to the extent commensurate with the designated usage of such waters.”

Furthermore, for the classification of “fish and wildlife,” Ala. Admin. Code (ADEM), rule 335-6-10-.09(5)(e)2., requires that “[sjewage, industrial wastes or other wastes shall not cause the pH to deviate more than one unit from the normal or natural pH, nor be less than 6.0, nor greater than 8.5.” Rule 335-6-10-.09(5)(e)9. also addresses turbidity:

“There shall be no turbidity of other than natural origin that will cause substantial visible contrast with the natural appearance of waters or interfere with any beneficial uses which they serve. Furthermore, in no case shall turbidity exceed 50 Nephelometric units above background. Background will be interpreted as the natural condition of the receiving waters without the influence of man-made or man-induced causes. Turbidity levels caused by natural runoff will be included in establishing background levels.”

ADEM has not, however, established numeric standards for either iron or aluminum.

Alabama Admin. Code (ADEM), rule 335-6-6-.14, requires NPDES permits to include certain conditions, including technology-based limits. Additionally, Ala. Admin. Code (ADEM), rule 335-6-6-.14, provides:

“(3) Each NPDES permit shall include conditions meeting the following requirements where applicable:
“(e) Other requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under Sections 301, 304, 306, 307, 318, and 405 of the FWPCA [Federal Water Pollution Control Act] shall be included where necessary to:
“1. achieve water quality standards established under Section 303 of the FWPCA and (AWPCA) Code of Ala.1975, § 22-22-9(g) (1984);
“(i) limitations must be applied to control all pollutants or pollutant parameters which the Director determines are or may be discharged at a level which will cause, have reasonable potential to cause, or contribute to an exceedance of a narrative or numerical water quality standard;
“(h) procedures which account for existing controls on point and non-point sources of pollution, the variability of the pollutant or pollutant parameter in the discharge, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity) and where appropriate the dilution of the effluent in the receiving water shall be considered when determining whether a discharge will cause, have reasonable potential to cause, or contribute to an exceedance of a narrative or numerical water quality standard;
“(iii) when the Director determines that a discharge will cause, have reasonable potential to cause, or contribute to an exceedance of a narrative or numerical water quality standard for an individual pollutant, the permit shall contain a discharge limit for that pollutant;
“(iv) except when it can be determined using the methods described in 335 — 6—6—.14(3)(e)l.(ii), that chemical specific limits are sufficient to attain and maintain the narrative toxicity water quality standard, the permit shall contain effluent limits for whole effluent toxicity sufficient to attain and maintain the narrative standard.
“(f) Toxic Pollutants. Limitations established under subparagraphs 335-6-6-.14(3)(a), (b), or (e), to control pollutants meeting the criteria listed in subparagraph 335-6-6-.14(3)(f)l. of this rule shall be included. Limitations will be established in accordance with subparagraph 335-6-6-.14(3)(f)2. An explanation of the development of these limitations shall be included in the permit rationale and (if prepared) fact sheet. Permit conditions for toxic pollutants shall be in accordance with the requirements of 40 CFR Part 129 (1994).
“3. When no individual water quality standard exists for a substance that the Director determines to be present in concentrations that represent a potential to cause a violation of a narrative water quality standarcl(s), limitations on the discharge of the substance shall be based on the review of any applicable data available to the Department. Information that may be considered includes, but is not limited to the following:
“(i) EPA water quality criteria or other EPA documents that suggest or predict an acceptable instream pollutant concentration,
“(iii) scientific information available to the permit writer.”

In a document entitled “Ambient Water Quality Criteria for Aluminum, 1988,” the EPA offered a “derivation of ambient water quality criteria for the protection of freshwater aquatic organisms.” The EPA limited the criteria to a pH range between 6.5 and 9.0, given as a 4-day average concentration that should not exceed .087 milligrams per liter (mg/1) more than once in 3 years on average and a 1-hour average concentration that should not exceed .75 mg/1 more than once in 3 years on average. In 2000, the EPA acknowledged in a footnote in a document entitled “Nationally Recommended Water Quality Criteria” that it is aware of field data indicating that many high-quality waters in the United States contain more than .087 mg/1 of aluminum.

Effluent limitations of iron and total suspended solids (“TSS”) are promulgated in 40 C.F.R. § 434.45; specifically, § 434.45 provides that the maximum for any 1 day should be limited to 6.0 mg/1 of iron and 70 mg/1 of TSS and that the average of the daily values for 30 consecutive days should not exceed 3 mg/1 of iron and 35 mg/1 of TSS with a pH of 6 to 9 throughout.

B. Application of State Water-Quality Standards to Humean,e Creek, the North Fork, etc.

1. The 303(d) list

“ ‘Section 303(d)’ refers to Section 303(d) of the ‘Clean Water Act’ (‘CWA’), ie., the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 846, which amended the Federal Water Pollution Control Act of 1948 (Act June 30, 1948, c. 758, 62 Stat. 1155);. that section is codified at 33 U.S.C. § 1313(d). The operation of Section 303(d) was succinctly summarized by the United States District Court for the District of Columbia in Bravos v. Green, 306 F.Supp.2d 48 (D.D.C.2004):
“ ‘Nonpoint source pollution is primarily regulated by the States through the water-quality approach. Section 303(d) of the CWA requires each State to identify and rank those waters within its boundaries where technology-based controls are inadequate to attain quality water standards. Such substandard waters are termed “water quality limited segments” (“WQLSs”) and are listed on a State’s § 303(d) list. The State must submit documentation to its EPA Regional Administrator supporting its decision to list, or not list, waters on its § 303(d) list. For each body of water identified on its § 303(d) list, the State must establish the body’s total maximum daily load (“TMDL”). Simply stated, “[a] TMDL is the maximum amount of a pollutant that can be added to a waterbody (its ‘loading capacity’) without exceeding water quality standards.” Each TMDL must “be established at [a] level[] necessary to attain and maintain the applicable narrative and numerical [water quality standards (‘WQS’) ], with seasonal variations and a margin of safety [taking] into account any lack of knowledge concerning the relationship between effluent limitations and water quality.” ’
306 F.Supp.2d at 51 (footnote and citations omitted). Under current federal law, a ‘Section 303(d) list’ of a state’s impaired waters must be prepared by state environmental authorities and revised every two years. See 40 C.F.R. § 130.7(d) (2004).”

Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 922 So.2d 101, 110-11 (Ala.Civ.App.2005) (“LEAF”).

The North Fork appeared on the final 303(d) list for the State of Alabama in 2002; it was listed for metals, specifically aluminum, noting the sources of the impairment as “surface mining abandoned.” Hurricane Creek appears on the list for aluminum, iron, and turbidity; the sources of pollution are listed as “surface mining abandoned” and land development. Both the North Fork and Hurricane Creek also appeared on the 303(d) list in 1998 and in 2000 for the same reasons.

Both ADEM and TRI argue that inclusion on the 303(d) list is not conclusive evidence of impairment. At the administrative hearing, TRI presented an exhibit entitled “EPA list of waters and pollutants of concern added to Alabama’s 303(d) list.” In the comment section of that document, the response to a comment concerning the EPA’s February 11, 1999, “Public Notice Excluding Decision on Tensaw River, Baldwin County,” included the following language:

“The commenter should recognize that the § 303(d) list is merely an identification of impaired waters and is used by EPA and ADEM for planning purposes, but does not by itself implicate any rights, responsibilities, or duties of third parties or the public. It is a planning tool to assist governments in establishing priorities and may also provide the public with general information regarding water quality. EPA ... does not agree that the identification and listing of waters which do not meet water quality standards under the CWA [Clean Water Act] constitutes a restriction of any sort. The Section 303(d) list is a list of impaired waters which constitutes a planning tool for the purpose of prioritizing government decisions regarding the need and timing of Total Maximum Daily Loads (TMDLs). There are no restrictions affecting the people and the State of Alabama with respect to such identification and listing.”

In LEAF, this court cited Missouri Soybean Ass’n v. Missouri Clean Water Commission, 102 S.W.3d 10, 23-25 (Mo.2003), in a footnote for the proposition that the § 303(d) list of impaired waters does not establish standards of conduct having the force of law. 922 So.2d at 111 n. 2. In the present case, Richard Hulcher testified that the 303(d) list is a planning document and that ADEM performs the same comprehensive review to detei’mine whether a permit should be issued regardless of whether the affected body of water has been placed on the 303(d) list. Hulcher explained that a stream may be on the 303(d) list because there was information available, perhaps a sampling or an observation, that would lead ADEM or the EPA to prioritize the stream, look at it more closely, and then determine if that stream is in fact impaired.

Despite the testimony and exhibits offered by ADEM and TRI, there was countervailing evidence regarding the import of listing a body of water on the 303(d) list. First, Shane Jordan, the NPDES inspector at ADEM who was responsible for writing TRI’s permit, testified that the 303(d) list must be considered by the permit winter. As part of ADEM’s permit-review process, Jordan designated the North Fork as a “Tier I water.” A Tier I water is currently degraded or not currently meeting its classification, according to Jordan, which meant that he considered the North Fork to be not meeting its designated use and, thus, that he considered it to be properly included on the 303(d) list. In performing the required antidegradation review for the permit, Jordan identified aluminum as a pollutant impairing the North Fork, and he also noted that there was a reasonable probability that the new or increased discharges caused by the TRI mining operations would cause or contribute to a violation of state-water-quality standards. Lynn Sisk agreed that, generally, the 303(d) list is the first thing that a permit writer should check when reviewing a permit application. Thus, although we recognize that the inclusion of a body of water on the 303(d) list is not conclusive evidence of impairment, we do consider it to be persuasive evidence, particularly when considered in combination with other evidence of impairment.

2. Chemical samples and bioassessments

Hurricane Creek is approximately 32 miles long. Weldon Creek, located upstream of the North Fork, flows into the North Fork, which, in turn, flows into Hurricane Creek. Weldon Creek and the North Fork are part of the same watershed. Beth Wentzel, a former watershed-restoration specialist for ARA, coauthored a profile of Hurricane Creek, in which a sampling site of the North Fork is listed as impaired for macroinvertebrates based on research conducted by ADEM in 1999 and the EPA in 2000.

A “Hurricane Creek Watershed Stream Bioassessment Report” authored by the EPA in November 2000 noted that samples taken from the North Fork sampling station indicated that the North Fork was severely impaired for macroinvertebrates, based on research conducted by ADEM in 1996 and 1997 and research conducted by the EPA in 2000. Furthermore, it stated as a conclusion that, based on a comparison of the macroinvertebrate communities reflected in the samples taken from the North Fork sampling station to the macro-invertebrate communities reflected in the samples taken from a reference site, the North Fork did not fully support the water-quality classification of “fish and wildlife.” A draft report authored by the EPA entitled “Hurricane Creek Watershed Water Quality Sampling Report from July/August of 2002” indicated that the North Fork was severely impaired. Assessments of Hurricane Creek in that report revealed that samples taken from 11 of 19 study stations exceeded the federal ambient chronic-water-quality criterion for freshwater aquatic life for aluminum of .087 mg/1, samples from 4 of the 19 stations exceeded the federal ambient chronic-water-quality criterion for freshwater aquatic life for iron of 1 mg/1 It was noted in the report that “drought and low flow conditions during August 2002 were a major factor affecting the consistently lower habitat evaluation scores at all stations.” Aluminum values at the North Fork sampling site were higher than the EPA chronic-water-quality criterion for freshwater aquatic life. The report concluded that “there remains an apparent effect on the benthic macroinvertebrate and fish communities well downstream of the confluence of Weldon Creek and Blanchet Branch into Hurricane Creek.” Randy Haddock, the field director with the Caha-ba River Society in Birmingham, testified that, in his opinion, the EPA’s report revealed that the North Fork is impaired.

Amy Sides, the Alabama Watershed Awareness Research and Education (AWARE) Program coordinator for Alabama River Alliance, Inc., testified that she had participated in sampling of the North Fork and that there were very few macroinvertebrates in the North Fork and none in Weldon Creek. She testified that there was not a wide array of biodiversity in the North Fork. Sides testified that ARA’s Exhibit 48, which consisted of sampling data from ADEM that had been entered into a spreadsheet by Beth Belk of the EPA, revealed that every sampling of the North Fork except for one exceeded the EPA’s recommended water-quality standards for aluminum in a testing period from June 2000 to August 2002.

Dr. Gerald Vaughan, ARA’s expert witness, testified that he had reviewed an EPA water-quality sampling report from Hurricane Creek and that some of the samples showed that certain branches of Hurricane Creek, including the North Fork, were impaired. According to Vaughan, the values collected in the North Fork showed that the stream is impaired for aluminum, iron, and turbidity. Turbidity, he explained, can affect wildlife in different ways; if the cloudy material in the water contains metals, the metals themselves will affect the organisms. Conversely, if. the water is simply very cloudy, it could affect the organisms’ ability to collect food. Sides testified that turbidity is caused by a combination of dissolved and suspended particles and dissolved minerals or substances in the water.

ADEM and TRI did not offer any evidence suggesting that the North Fork was not impaired. The inclusion of the North Fork and Hurricane Creek on the 303(d) list is prima facie evidence of the North Fork’s impairment due to aluminum and Hurricane Creek’s impairment due to iron, aluminum, and turbidity. Furthermore, the undisputed chemical and biological evidence supports a finding of impairment in the North Fork and Hurricane Creek. That evidence particularly reveals the excessive presence of aluminum in those bodies of water.

ADEM and TRI argue that the circuit court erred in determining that the AEMC’s finding that there was no evidence that the biota of the North Fork are impaired by iron, aluminum, or turbidity constituted clear error. Furthermore, ADEM argues that, in finding that said error infected the remainder of the AEMC’s order, the circuit court misconstrued the AEMC’s finding, substituted its judgment for that of the AEMC, and failed to defer to the AEMC’s interpretations of ADEM’s water quality regulations.

ADEM and TRI argue that “given the AEMC’s scientific and technical composition the AEMC’s Finding of ‘no evidence’ that iron and aluminum cause the biological impairments means simply that, as a scientific matter, no empirical evidence in the AEMC’s record proves ARA’s scientific theory.” Further, according to ADEM, the circuit court erred in concluding that the AEMC’s finding indicated that there was literally no evidence to support the impairment of the stream due to aluminum and iron; rather, ADEM asserts, the members of the AEMC were entitled, as scientific and technical specialists, to ignore, scrutinize, and then give due weight to ARA’s “opinion evidence.” As discussed above, however, the record contained ample evidence, both testimonial and empirical, indicating that the North Fork was impaired due to aluminum and that Hurricane Creek, which the North Fork flows into, was impaired due to iron, aluminum, and turbidity. Furthermore, because there was no evidence presented during the administrative hearing to dispute the evidence indicating that the North Fork was impaired, we are compelled to agree with the circuit court’s determination that the AEMC’s finding was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

II. Whether TRI’s Site Will Contribute to the Impairment

Both Wentzel and Sides testified that they had observed orange coating or deposits in the Weldon Creek area. It is undisputed that Weldon Creek is impaired, largely due to previously run mining sites in the area. Wentzel testified that the low quality waters coming out of Weldon Creek may diminish the assimilative capacity that is available in-stream at the point where TRI discharges enter the North Fork. According to Wentzel, assimilative capacity is the amount of pollution that can be discharged or contained in a stream without causing problems in-stream or, for example, without causing a violation of water-quality standards.

Dr. Vaughan testified that coal mining affects degradation simply by increasing flow. After mining, according to Vaughan, the response to a storm is exacerbated; the rain events may scour the stream bottom, removing the leaf packs where insects lived and fishes bred. Vaughan testified that he believed the discharges from the TRI mine would cause an increase in sediment or turbidity, iron, and aluminum. He stated that TRI’s discharges would cause or contribute to an impairment of the North Fork because runoff will be maintained from that area, there will be increased stream flow from the area, and storm responses will still be exacerbated. Ultimately, Dr. Vaughan stated that adding extra material to an already degraded stream will add to its inability to recover and thereby contribute to an existing impairment.

Dr. Vaughan testified that, at a pH of 6.5 and lower, the metal in the water is mobilized or dissolved, meaning that the metals begin to display toxic effects, and the aluminum would bind to the siltation. Also, in the EPA’s “Ambient Water Quality Criteria for Aluminum, 1988,” the EPA suggested that pH levels be maintained between 6.5 and 9.0. Based on the site’s monitoring, there were recorded pH levels of 6.07, 6.27, and 6.03 in the beginning of 2003 in the North Fork. Additionally, there were several readings at exactly 6.5. Although these pH levels were within the permit’s limitations, there is evidence indicating that these levels are contributing to the impairment of the North Fork.

Dr. Ramble Ankumah, an Associate Professor of Agricultural and Environmental Sciences at Tuskegee University, testified that the soil around TRI’s mining operation contains aluminum. Furthermore, according to Dr. Ankumah, his review of TRI’s discharge monitoring reports that were submitted to ADEM indicate that TRI has discharged aluminum into those bodies of water. In Dr. Ankumah’s opinion, TRI’s discharge monitoring reports reveal several incidences in which the pH of the discharged waters was below 6.5, which indicates the reasonable probability for aluminum to be contained in the discharged waters.

According to C.W. McGehee, a consultant for McGehee Engineering who was retained by TRI to provide engineering services, the original and revised surface-water projections that his company compiled for TRI revealed that there would be an increase in iron discharges during and after mining at the TRI mine site; in the revised projections, at high flow, there was a projected pH of 5.87 before, during, and after mining. McGehee testified that the TRI mining site would include sediment basins that would be used to dilute the discharge. He testified further that if the sediment basins remain after mining, the basins will continue to be discharge points on the property where the mine is located and the surface water will continue to run off the hillside and into those sediment basins. There had not been a removal plan submitted to the Alabama Surface Mining Commission for removal of the existing basins at the time of the administrative hearing.

ADEM and TRI presented testimony by Richard Hulcher indicating that TRI’s permit complies with federal requirements insofar as the permit limits are consistent with and compliant with new source limits for coal mines promulgated by the EPA in 40 C.F.R. § 434. TRI’s permit limits discharges of iron, manganese, total suspended solids (TSS), and pH. There are no limitations listed for aluminum or turbidity. Furthermore, the section of TRI’s permit listing precipitation event discharge limitations states that increases in the volume of a discharge caused by 24-hour precipitation events are exempt from the discharge limitations previously listed, provided that the permittee submits a written claim of exemption to the director.

The issue here is not whether the permit itself complies with State water-quality standards, but, rather, whether the discharge from TRI’s operations will “cause or contribute to a violation of water quality standards.” The overwhelming evidence in this case indicates both that the North Fork is impaired and that TRI’s mining will contribute to that impairment. Expert testimony as well as EPA documents outlining water-quality standards establish that pH levels should be limited between 6.5 and 9.0, particularly when impairments due to aluminum are a concern within a stream. The permit limits for pH are between 6.0 and 9.0. The North Fork was listed on the 303(d) list for aluminum, which, at the very least, is a mechanism meant to heighten attention to certain waterways’ impairments. The permit writer himself identified aluminum as a pollutant impairing the North Fork as a part of the required review process as well. Regardless, there were no limitations placed in the permit on discharges of aluminum.

Based on the testimony and exhibits provided at the administrative hearing, we are compelled to conclude that TRI’s discharges will contribute to the impairment of the North Fork. In fact, the only evidence presented that supports ADEM and TRI’s contentions that TRI’s mining will not contribute to the impairment of the North Fork lies in the introduction of sediment basins, wherein surface water ranoff is to be distilled before flowing into the stream. Those sediment basins, however, are not regulated during precipitation events and there is no plan regarding their removal. Dr. Vaughan testified that the effects on watersheds continue even after reclamation of the mines have been completed. There was no evidence offered by ADEM or TRI to dispute Dr. Vaughan’s testimony.

ADEM and TRI argue that, even if the AEMC committed error in finding no evidence of a causal relationship between iron and aluminum and biological impairments, that error is harmless because TRI’s discharges of iron and aluminum are permissible under ADEM’s regulations as long as they will neither cause nor contribute to the impairment. They argue that because those discharges occur in lower concentrations than the permit limitations, they will not contribute to any alleged impairment.

ADEM did not offer any expert witnesses to testify during the administrative hearing. The suggestion that TRI’s discharges occur in lower concentrations than water-quality standards is not fully supported by the evidence. Although we concede that a lower concentration of metal per liter of water added to a higher concentration of metal per liter of water will not contribute to an impairment in the receiving water, we are unable to find support for this argument in the record. The permit limits require only that the concentration of metals allowed to enter the stream are within the limitations set by ADEM and the EPA, not that they are lower than those concentrations already existing in the North Fork. ADEM and TRI have presented no evidence of the actual concentrations of metals in the North Fork versus those that their mining operations would discharge into the North Fork. Additionally, there was evidence presented indicating that the assimilative capacity of the North Fork would be negatively affected by the waters flowing from Weldon Creek, thereby diminishing their ability to contain pollutants without negatively impacting the water quality of the stream. Finally, the presence of pH levels at or below 6.5 affect the toxicity of aluminum, the dischai’ges of which are not regulated by the permit whatsoever. Thus, it is at best unclear whether the lower concentration of metals will, in fact, negate any impact on the present state of impairment in the North Fork.

Regardless of whether the AEMC’s finding that there was no evidence that the North Fork was impaired due to iron, aluminum, or turbidity infected the remainder of the order, we are unable to affirm the AEMC’S decision based on an argument of “harmless error.”

“The standard of judicial review applied to rulings of administrative agencies differs from that applied to rulings of trial courts. An appellate court will affirm a ruling of a lower court if there is any valid reason to do so, even a reason not presented to — or rejected by — the lower court. See McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So.2d 982, 984 (Ala.1995). See also Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). When reviewing the decision of an administrative agency, hoivever, an Alabama court will affirm only if the action and the stated basis for the action, are correct.
‘[As this court is required to do,] the circuit court ... was required to look to the Commissioner’s decision and the reasons she gave for denying reimbursement. Where such decision is shown to be arbitrary and capricious, no posthoc rationalizations or theories for denying reimbursement can correct it.’
“Alabama Medicaid Agency v. Beverly Enters., 521 So.2d 1329, 1333 (Ala.Civ.App.1987).”

Ex parte Beverly Enters.-Alabama, Inc., 812 So.2d 1189, 1195 (Ala.2001) (emphasis added). Thus, because we find that the AEMC’s stated basis for its action — that there is no evidence that the stream is impaired due to iron, aluminum, or turbidity — -was in error, we are unable to affirm the agency’s resulting action.

Finally, ADEM argues that the circuit court erred in reversing the AEMC’s order, rather than remanding the cause to the AEMC because, it says, (1) the circuit court should have sought clarification of the finding of fact regarding no evidence of the stream’s impairment due to iron, aluminum, and turbidity, and (2) the circuit court should have remanded the cause for consideration of the EPA’s new TMDL for the Hurricane Creek watershed. Despite ADEM’s argument that the AEMC’s finding indicated that there was no empirical evidence presented regarding the causation of the North Fork’s impairment, rather than no evidence to that end whatsoever, we conclude that the finding of fact, as written, is not ambiguous. Thus, it does not merit clarification from the AEMC. Similarly, we conclude that the circuit court was not in error for failing to remand the action in light of the EPA’s TMDL for Hurricane Creek. Richard Hulcher testified that there is a reopening clause incorporated in to each of the permits issued by ADEM that allows ADEM to require modifications to the permits, for example, to comply with newly created TMDLs or more protective standards. The question before the circuit court was whether the permit should have been issued to TRI. Regardless of the permit’s potential compliance with a TMDL published after the hearing, the circuit court determined that the great weight of the evidence exhibited that TRI’s discharges would contribute to an already-existing impairment in the North Fork. The inclusion of a standard reopening clause or the issuance of a TMDL are not necessarily curative of ADEM’s failure to comply with Ala. Admin. Code (ADEM), rule 335-6-6-.04. Thus, we conclude that the circuit court did not err in failing to remand this cause to the AEMC.

For the above stated reasons, we affirm the judgment of the circuit court overturning the AEMC’s decision.

The motion to dismiss the appeal on the basis of mootness filed by ADEM and TRI is denied.

2050974 — AFFIRMED.

2050995 — AFFIRMED.

THOMPSON, P.J., and THOMAS, J., concur.

PITTMAN, J:, concurs in the result, without writing.

BRYAN, J., recuses himself.

      . The 303(d) list refers to § 303(d) of the Federal Clean Water Act, which is codified at 33 U.S.C. § 1313(d).

      . Technology-based effluent limitations are established under the Clean Water Act, 33 U.S.C. § 1313(d), for different categories of discharges and are codified in the Code of Federal Regulations for different categories such as coal mining. These limitations establish the minimum level of treatment of waste-water required by the law.

      . Fish consumption and shellfish-harvesting advisories were not available for the North Fork and, therefore, are not at issue in this case.

      . Sides's testimony was based on the EPA's recommended standard of .087 mg/1 as a 4-day average. Using the EPA's acute standard based on a 1-hour average concentration of .75 mg/1, only 2 of the 11 samples exceeded that amount.


author: THOMPSON, Presiding Judge.

text:
    JAMES RIVER CORPORATION v. Larry E. BOLTON.
    2060675.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2008.
    Rehearing Denied July 18, 2008.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
    Daniel L. McCleave of McCleave Den-son, Shields, L.L.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

On November 18, 1994, Larry E. Bolton filed a complaint seeking workers’ compensation benefits for a back injury he sustained on or about September 4, 1991, while working in the line and scope of his employment for James River Corporation (“JRC”). JRC answered and admitted compensability, but it challenged the extent of Bolton’s disability. Bolton and JRC subsequently entered into a settlement agreement, which the trial court incorporated into its judgment of May 19, 1995. That judgment stated that Bolton had suffered an injury to his back that rendered him permanently and totally disabled, and it provided for a lump-sum payment of workers’ compensation benefits. It also provided that Bolton was “entitled to receive those authorized medical benefits as are due him under the Workers’ Compensation Act.”

On October 16, 1995, Bolton filed a petition to enforce the May 19, 1995, judgment and to require JRC to pay his medical bills. Bolton later amended his petition to seek an attorney fee. JRC opposed the petition, citing two reports rendered following utilization review that determined that the chiropractic treatment Bolton was receiving was not necessary and proper. On March 19, 1996, the trial court entered a judgment in which it found that Bolton was entitled to receive chiropractic treatment and ordered JRC to pay for the treatment. The trial court declined to award Bolton an attorney fee.

In 2005, as part of the utilization-review process, JRC submitted Bolton’s medical records to Dr. Theodore W. Parsons III for peer review, in order to evaluate whether Bolton’s on-going medical treatment was reasonable and necessary. At that time Bolton had moved from Alabama and was living in Texas. In August 2005, Dr. Parsons authored a report in which he concluded that the medical treatment being provided to Bolton was not reasonable and necessary. On December 21, 2005, Sedgwick Claims Management Services, Inc. (“Sedgwick CMS”), a workers’ compensation claims adjuster employed by JRC, notified Dr. Garcia and Dr. Martinez, two of Bolton’s treating physicians at the time, that only the medications Limbitrol, to treat depression, and MetroGel, to treat chronic pain, would be authorized from that date forward to treat Bolton’s chronic pain and that any additional treatment would be limited to an exercise program. Sedgwick CMS gave no reason for the denial of coverage for other forms of treatment.

On January 10, 2006, and February 3, 2006, Bolton’s attorney wrote letters to Sedgwick CMS regarding the disputed medical treatment. In his January 10, 2006, letter, Bolton’s attorney referred Sedgwick CMS to the May 19, 1995, judgment and to the trial court’s March 19, 1996, judgment; those judgments directed JRC to reimburse Bolton for medical treatment and reiterated JRC’s responsibility to pay for treatment related to the September 1991 injury and authorized by Bolton’s attending physician. In his February 3, 2006, letter, Bolton’s attorney enclosed a letter dated January 27, 2006, from Dr. Robert G. Bass, Jr., Bolton’s internist, in which Dr. Bass stated that to maintain a functional quality of life and to control Bolton’s pain, Bolton needed additional medications beyond those authorized by Sedgwick CMS. Sedgwick CMS did not respond to the letters.

On February 14, 2006, Bolton filed a second petition to enforce the workers’ compensation judgment. In his petition, Bolton alleged that the action taken by Sedgwick CMS limiting his medication and treatment was taken “without legal or medical justification.” On March 15, 2006, JRC filed a response in which it denied Bolton’s allegation. Specifically, JRC stated that it had submitted Bolton’s treatment plan to a clinical reviewer, that the reviewer had determined that the treatment plan proposed for Bolton was not reasonably necessary, and that, based on that determination, Sedgwick CMS had notified Bolton’s treating physicians that it would continue to fund only reasonably necessary treatment for Bolton’s work-related back injury.

On August 9, 2006, the trial court held a hearing during which it considered the arguments made by the parties’ respective attorneys and documentary evidence consisting of the August 2, 2005, peer-review report prepared by Dr. Parsons at JRC’s request and a July 15, 2006, peer-review report prepared by Dr. J. Keith Preston at Bolton’s request. After the hearing, the trial court entered an order on August 14, 2006, finding the restrictions placed on Bolton’s treatment to be unreasonable. The trial court also found that the treatment plan recommended by Bolton’s treating physicians was medically necessary and that Bolton was entitled to receive the treatment recommended by his treating physicians pursuant to the Workers’ Compensation Act. JRC was ordered to reimburse Bolton for all medications and treatments for which he had paid since December 21, 2005. The trial court further found that JRC had “willfully and contumaciously failed to comply” with the two previous judgments, and, on that basis, it ordered JRC to pay a reasonable attorney fee, subject to review if a controversy arose concerning the payment of those expenses. Because the trial court ordered JRC to pay an attorney fee without specifying the amount of the attorney fee awarded, the trial court’s August 14, 2006, order was nonfinal. See Goldome Credit Corp. v. Player, 869 So.2d 1146 (Ala.Civ.App.2003) (holding nonfinal a judgment in which the trial court awarded an attorney fee but failed to ascertain the amount of the attorney-fee award).

On August 31, 2006, JRC filed a motion purportedly pursuant to Rule 59(e), Ala. R. Civ. P., in which it argued that the trial court had erred by finding JRC in contempt because, it asserted, when JRC refused to pay the workers’ compensation benefits, it had fully complied with the law as it existed at the time of Bolton’s injury. JRC claimed that it had “denied the benefits based solely on a medical determination that the benefits were not reasonably necessary as is required for coverage under the [Workers’ Compensation] Act.” On November 15, 2006, the trial court entered an amended order to add the following language pertaining to the December 21, 2005, notification from Sedgwick CMS to Bolton’s treating physicians: “The notice contained no reason for the denial of coverage and no recitation of any appeal procedure.”

After the trial court entered its November 15, 2006, amended order, the parties filed several motions regarding the determination of the amount of the attorney fee awarded. JRC contended that the attorney-fee bill submitted by Bolton was excessive. Bolton responded with evidence tending to indicate that the attorney fee requested was reasonable. On March 16, 2007, the trial court entered a final judgment granting Bolton an attorney fee in the amount of $7,760. JRC timely appealed.

Our standard of review in workers’ compensation cases is as follows:

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25 — 5—81(e)(2), Ala.Code 1975. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts ‘in the light most favorable to the findings of the trial court.’ Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(l), Ala.Code 1975).”

Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005). Further, when reviewing a trial court’s finding of civil contempt, this court applies an abuse-of-discretion standard. Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1096 (Ala.Civ.App.2005); Millar v. Wayne's Pest Control, 804 So.2d 213 (Ala.Civ.App.2001).

JRC raises numerous issues on appeal; however, they can be reduced to three dispositive issues: (1) whether the trial court erroneously applied the requirements for precertification review, see Ala. Admin. Code, r. 480-5-5-.08 and -.09, instead of the requirements for utilization review, see Ala. Admin. Code, r. 480-5-5-.07, when finding JRC in contempt; (2) whether the trial court erred by finding that JRC had willfully and contumaciously refused to pay Bolton’s medical expenses; and (3) whether the trial court erred by awarding an attorney fee based on its finding of contempt.

The Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter “the Act”), requires an employer to provide an employee with that medical treatment that is reasonable and medically necessary. Section 25-5-77(a), Ala.Code 1975, provides:

“[T]he employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee ....”

(Emphasis added.) As noted by our supreme court in Ex parte Smitherman Brothers Trucking, Inc., 751 So.2d 1232, 1233 (Ala.1999),

“[Section 25-5-77(a) ] places an affirmative duty on an employer to pay for an employee’s reasonably necessary medical expenses. Implicit in this provision is an employer’s right to oversee that treatment so as to ensure not only that the employee receives the proper treatment, but also that that treatment is reasonably necessary and that it is provided in the most efficient and cost-effective manner, without compromising the quality of care.”

If an employer questions the necessity and reasonableness of an employee’s medical treatment, the employer may seek to review the employee’s medical treatment following a process established in regulations promulgated by the Alabama Department of Industrial Relations, Workers’ Compensation Division, and set forth in Chapter 480-5-5 of the Alabama Administrative Code. The scope of Chapter 480-5-5 is stated in Ala. Admin. Code, r. 480-5-5-.01, as follows:

“These rules are designed to cover permissive bill screening and permissive utilization review undertaken on behalf of an employer by a person or entity other than an employee of the employer and following a determination that an employee has suffered an injury by accident arising out of and in the course of the employee’s employment. These rules are not to be interpreted as limiting the employer’s own prerogative.”

Chapter 480-5-5 sets forth, among other things, two processes by which an employer may review an employee’s medical treatment: precertification review and utilization review. “Precertification review” is defined in Chapter 480-5-5 as “[t]he review and assessment of the medical necessity and appropriateness of services before they occur. The appropriateness of the site or level of care is assessed along with the timing, duration and cost effectiveness of the proposed services.” Ala. Admin. Code, r. 480-5-5-02(60) (emphasis added). “Utilization review” is defined in Chapter 480-5-5 as “[t]he determination of medical necessity for medical and surgical in-hospital, outpatient, and alternative setting treatments for acute and rehabilitation care. It includes pre-certification for elective treatments.” Ala. Admin. Code, r. 480-5-5-02(68).

Rule 480-5-5-.07 of the Alabama Administrative Code sets forth the utilization-review process. Pursuant to that rule, utilization review begins with the review of an employee’s medical records by a technical reviewer, see Ala. Admin. Code, r. 480-5-5-07(2), followed by a first-level clinical review, see Ala. Admin. Code, r. 480-5-5-.07(3), and a second-level clinical review, see Ala. Admin. Code, r. 480-5-5-07(4). If the second-level clinical review leads to a decision by the employer to deny payment of medical expenses, “[t]he claimant may request through the ordering provider that a Third Level Clinical Review be conducted.” Ala. Admin. Code, r. 480-5-5 — -07(6). The attending physician or other ordering provider may also request on his or her own initiative a third-level clinical review of a noncertification or denial of payment for medical services following a second-level clinical review. See Ala. Admin. Code, r. 480-5-5-.07(4)(c). The third-level clinical-review process “shall be initiated by the provider contacting the [utilization-review entity] or employer/agent by telephone or other immediate means following receipt of the decision to be followed by a written request that shall include medical records and/or data needed to reach a decision.” Ala. Admin. Code, r. 480-5-5-.23(l)(a)2. If a provider believes that a determination not to certify a medical service made prior to or during an ongoing service requiring review warrants reconsideration, the provider may initiate an expedited appeal, see Ala. Admin. Code, r. 480-5-5-.07(5)(a), or, if an immediate appeal is not necessary, the provider may initiate a standard appeal, see Ala. Admin. Code, r. 480-5-5-.07(5)(b).

Rule 480-5-5-.09 of the Alabama Administrative Code sets forth the procedure for precertification review. Pursuant to subsection (2) of that rule, the employee’s physician, the hospital, or other provider shall initiate the precertification process by contacting the employer or the employer’s agent in advance of treatment or admission into the hospital. If the requested treatment or admission is denied,

“[a] response shall be generated in writing .... Copies of the written response, if required, shall be sent to the requesting provider and shall notify the party of the right to appeal and the appeal process. The denial letter shall contain the following elements: claimant’s name, social security number and addresses; date of accident; date of requested service; procedure requested; name of provider or facility; reason for denial; and the appeals process. The claimant shall be copied on all denial letters.”

Ala. Admin. Code, r. 480-5-5-09(8).

JRC contends on appeal that, acting within its authority as Bolton’s employer, it initiated the utilization-review process, see Ala. Admin. Code, r. 480-5-5-.01(7)(“Utilization review and bill screening services may be performed at the option of the employer.”), and that the trial court improperly used the notification requirements relevant only to precertification review when finding it in contempt.

In its November 15, 2006, amended order, the trial court found JRC in contempt because, it determined, JRC had circumvented the administrative regulations governing utilization review. Specifically, the trial court found that JRC had failed to notify Bolton and his attending physicians of the reason for the denial of his medical treatment and that JRC had failed to notify Bolton of his appeal rights. The trial court stated in its order:

“Under Ala. Admin. Code Rule 480-5-5-.07, the Utilization Review Process, [JRC] sought to conduct a Peer Clinical Review (Third Level Clinical Review). In pursuit of this, [JRC] had the medical records reviewed by Dr. Parsons. [JRC] then notified [Bolton] and his treating physicians of the ‘covered medications’ and ‘covered treatment’ only. Under Ala. Admin. Code Rule 480-5-5-.09(8), when treatment is denied, the employer ‘shall notify the [worker] of the right to appeal and the appeal process.’
“In this case, neither the expedited appeal nor the standard appeal was afforded [Bolton] because the letters from Sedgwick [CMS] to [Bolton’s] doctors in San Antonio, Texas, notifying them of [JRC’s] determination, failed to comply with the Administrative Code and provide notice of the appeal process.
“Finally, Ala. Admin. Code Rule 480-5-5-09(8) also requires that the employer notify the worker and his attending physicians of the ‘reason for denial’ when notifying them of the denial. The letters from Sedgwick [CMS] fail to recite any reason at all. In both the January 10th letter and the February 3rd letter from [Bolton’s] attorney, [Bolton] asserted that the cessation of medications and treatment was done without cause. It is uncontroverted that Sedg-wick [CMS] failed to respond to either of those letters. Only after [Bolton] was forced to file [this action] was the report of Dr. Parsons — stating the reason for the denial — produced as an attachment to [JRC’s] answer.”

JRC argues on appeal that it disputed the reasonableness and necessity of Bolton’s ongoing medical treatment by initiating the utilization-review process and not the precertification process. Therefore, JRC maintains, the trial court improperly applied the rules governing precertification review when it found JRC in contempt of its earlier orders and ordered JRC to pay an attorney fee.

The record indicates that, pursuant to Ala. Admin. Code, r. 480-5-5-01(7), JRC initiated the utilization-review process to review Bolton’s ongoing medical treatment. At the time JRC initiated the utilization review, Bolton was taking multiple prescription medications, participating in intermittent physical therapy, and receiving epidural spinal injections. The record contains no evidence indicating that Bolton’s treating physicians submitted any request to JRC or Sedgwick CMS to precer-tify a treatment plan. JRC submitted Bolton’s medical records to Dr. Parsons for third-level clinical review to evaluate whether the medical treatment Bolton was receiving at the time was reasonable and necessary. After receiving a report from Dr. Parsons that found that Bolton’s treatment was not reasonable, necessary, or appropriate, Sedgwick CMS, on behalf of JRC, refused all treatment except that noted in the letters sent to Bolton’s treating physicians. Bolton’s treating physicians, who were providers as defined in the regulations, did not appeal the refusal of treatment. See Ala. Admin. Code, r. 480-5-5-07(5).

In its November 15, 2006, order finding JRC in contempt and ordering it to pay an attorney fee, the trial court recognized that JRC had initiated the utilization-review process by conducting a third-level clinical review of Bolton’s medical treatment, but it applied the notification requirements applicable to precertification review. Specifically, the trial court found that the notice given by JRC to the treating physicians “contained no reason for the denial of coverage and no recitation of any appeal procedure.” However, unlike the rules governing precertification review that require a written response containing specific elements upon denial of treatment, see Ala. Admin. Code, r. 480-5-5-.09(8), the rules governing utilization review, although perhaps they should, do not provide for the mandatory inclusion of specific language in a notification to refuse treatment.

Further, even if this court were to extend the notification requirements of pre-certification review to the utilization-review process, thereby requiring JRC to inform Dr. Garcia and Dr. Martinez of the reason for its denial of medical treatment and of the appeal process, it would be incumbent upon the doctors treating Bolton, as providers, to appeal the denial of medical treatment. The rules governing utilization review and precertification review grant the right to appeal an adverse decision only to the provider treating an injured employee.

The record does not indicate, and we are not called on to decide in this case, whether JRC fully and properly complied with the utilization-review process by first submitting Bolton’s medical records to a technical reviewer, see Ala. Admin. Code, r. 480-5-5-07(2), followed by a first-level clinical review, see Ala. Admin. Code, r. 480-5-5-07(3), and a second-level clinical review, see Ala. Admin. Code, r. 480-5-5-.07(4). We are limited in our review to the evidence contained in the record on appeal. See Bullard v. Creative Leasing, Inc., 624 So.2d 199, 201 (Ala.Civ.App.1993) (appellate review is limited to the record on appeal). Further, this court is not permitted to address issues that the parties decline to raise on appeal. Bettis v. Thornton, 662 So.2d 256 (Ala.1995).

Based on its finding that JRC failed to follow the notice requirements provided for in precertification review, the trial court concluded in its November 15, 2006, order that JRC “willfully and contumaciously failed to comply with [its] orders.”

“Rule 70A, Ala. R. Civ. P., governs contempt proceedings that arise out of civil actions. Civil contempt is defined by that rule as the ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’ Rule 70A(a)(2)(D), Ala. R. Civ. P. (emphasis added). Our Supreme Court, in Travelers Indemnity Co. of Illinois v. Griner, 809 So.2d 808, 814 (Ala.2001), characterized its decision 10 years earlier in Ex parte Cowgill, 587 So.2d 1002 (Ala.1991), as holding ‘that the [trial] court, in the exercise of its equitable powers, could hold a party in contempt upon a finding that “the employer willfully and contumaciously refused” ’ to follow the trial court’s order.”

Overnite Transp. Co. v. McDuffie, 933 So.2d at 1099-1100.

In Overnite Transportation Co. v. McDuffie, supra, the employer and the employee entered into a settlement agreement in which the employer agreed to pay “ ‘future medical benefits as required by the Workers’ Compensation Act of Alabama which was in effect at the time of said accident.’ ” 933 So.2d at 1094 (emphasis omitted). Thereafter, the employer learned that the employee was receiving pain-management treatment from Dr. Edwin Kelsey, a doctor not authorized by the employer to treat the employee. The employer stopped paying for the treatment and denied the employee’s claim for a personal-mobility vehicle. The employee subsequently filed a motion to require the employer to pay for the costs associated with his pain-management treatment. The employee asked the trial court to hold the employer in contempt for allegedly violating the terms of the parties’ settlement agreement and sought an award of an attorney fee. After a hearing, the trial court entered an order finding the employer in contempt and awarding the employee $5,000 as an attorney fee for that contempt. 983 So.2d at 1095.

The employer appealed, arguing that the trial court had erred when it ordered the employer to pay for the treatment that the employee had received from Dr. Kelsey and that the trial court had abused its discretion in holding it in contempt for not having paid those expenses. Id. This court held that the employee was entitled to reimbursement under the Act for pain-management treatment by Dr. Kelsey. 933 So.2d at 1099. However, this court reversed the tidal court’s finding of contempt and the attorney-fee award, holding that the employer’s decision to decline to pay for treatment rendered by Dr. Kelsey “was not an unreasonable one and, thus, was not an appropriate basis for a finding of contempt.” Overnite Transp. Co. v. McDuffie, 933 So.2d at 1099.

In the instant case, JRC acted within its authority when it initiated the utilization-review process. Because JRC initiated the utilization-review process and because the rules governing that process do not require JRC to specifically state the reason for the denial of coverage and to detail the appeal procedure when refusing to pay for medical treatment, JRC could not be held in contempt for failing to state with specificity the reason for denying treatment and to detail the appeal process as is required in precertification review. See Ala. Admin. Code, r. 480 — 5—5—.09(8). Given the construction of the rules governing the utilization-review process, we cannot say that the actions of JRC and Sedgwick CMS, on behalf of JRC, were unreasonable. Although we are constrained to interpret the rules set forth in Chapter 480-5-5 as written, we note that the facts of this case demonstrate a need to revisit the rules governing utilization review in order to address the issue of notification to providers of their right to appeal adverse decisions on behalf of the employee.

The record does not support a conclusion that JRC willfully and contumaciously refused to follow the trial court’s orders when it initiated the utilization-review process. The trial court abused its discretion in holding JRC in contempt based on the application of rules pertaining only to pre-certification review. Therefore, we reverse the trial court’s judgment insofar as it found JRC in contempt.

Regarding the trial court’s award of an attorney fee in favor of Bolton, the trial court’s attorney-fee award was based on its finding of willful and contumacious conduct on the part of JRC. Because the trial court's finding of contempt served as the basis for its award of an attorney fee and because we are reversing the trial court’s finding of contempt, we must also reverse its award of an attorney fee in favor of Bolton.

Bolton’s request for an award of an attorney fee on appeal is denied.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs in the result, without writing.

MOORE, J., recuses himself.

      . In his petition, Bolton claimed that at some point after his injury JRC had been acquired by and renamed "Fort James Operating Company, Inc., d/b/a Georgia Pacific.”

      . A postjudgment motion made pursuant to Rule 59 may be taken only from a final judgment. Momar, Inc. v. Schneider, 823 So.2d 701, 704 (Ala.Civ.App.2001).

      . The March 16, 2007, judgment resolved all issues before the trial court and was, therefore, final. See McCollough v. Bell, 611 So.2d 383, 385 (Ala.Civ.App.1992) ("Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.'').

      . In the "Statement of Issues" section of its brief on appeal, JRC asks this court to consider whether Bolton presented substantial evidence that the treatment at issue was medically necessary. However, JRC fails to set forth any argument regarding that issue in its brief on appeal. "Failure to argue an issue, with citation to applicable authority, is tantamount to a waiver of that issue on appeal." Cain v. Haworth, 877 So.2d 566, 584 (Ala.2003) (citing Ex parte Riley, 464 So.2d 92 (Ala.1985)).

      . “Providers” are defined as "[a] medical clinic, pharmacist, dentist, chiropractor, psychologist, podiatrist, physical therapist, pharmaceutical supply company, rehabilitation service, other person or entity providing treatment, service, or equipment, or person or entity of providing facilities at which the employee receives treatment.” Ala. Admin. Code, r. 480-5-5-.02(62).


author: SMITH, Justice. MURDOCK, Justice

text:
    Ex parte Larry E. BOLTON. (In re James River Corporation v. Larry E. Bolton).
    1071521.
    Supreme Court of Alabama.
    Feb. 27, 2009.
    Daniel L. McCleave of McCleave Den-son Shields, LLC, Mobile, for petitioner.
    Submitted on petitioner’s brief only.
   SMITH, Justice.

WRIT DENIED. NO OPINION.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

Although I agree with this Court’s decision to deny the petition for a writ of certiorari in this case, I write separately for two reasons.

First, I would note that precertification reviews and utilization reviews are not two separate processes and that a precertification review is merely one type of utilization review. Alabama Admin. Code (Dep’t of Indus. Relations), r. 480-5-5-02(68), defines “utilization review” as “[t]he determination of medical necessity for surgical in-hospital, outpatient, and alternative setting treatments for acute and rehabilitation care.” Rule 480-5-5-.02(60) similarly defines “pre-certification review” as “[t]he review and assessment of the medical necessity and appropriateness of services ....” The fact that Rule 480-5-5-.02(60) goes on to add that precertification reviews are reviews of the medical necessity of services “before [the services] occur” does not mean that a precertification review is not a utilization review. The definition in Rule 480-5-5-02(68) of “utilization review” contains no suggestion that that term does not refer to determinations of medical necessity made before a procedure or treatment actually occurs; to the contrary, it expressly provides that a “[utilization review] includes pre-ceHification for elective treatments,” where the reference to “elective treatments” is a reference to “nonemergency” treatments. See also, e.g., Rules 480-5-5-.06 and -.07 (explaining that lower levels of “utilization review” may provide an “approval of medical services,” but that a higher level of “utilization review” is required to “deny a medical service”); Rule 480-5-5-.09 (titled “Procedure for Pre-Certification” and referencing the applicability of the second and third levels of clinical review of the utilization-review process described in Rule 480-5-5-.07); and Rule 480-5-5-.10 (providing for yet another form of utilization review, “continued-stay review,” applicable to the continuation of hospital stays). In Ex paorte Southeast Alabama Medical Center, 835 So.2d 1042, 1051 (Ala.Civ.App.2002), the Court of Civil Appeals referred to “utilization review, including precertifica. tion of the medical necessity of various treatments.” (Emphasis added).

That said, it is clear enough from the facts presented that the “utilization review” at issue in this case was not a “pre-certification,” at least not a precertification of the nature contemplated by Rules 480-5-5-.08 and -.09. It is the latter rule, Rule 480-5-5-.09, that contains the notice provision that the trial court faulted James River Corporation for not following. I therefore concur in this Court’s denial of certiorari review.

Second, I write to address the following statement in the opinion of the Court of Civil Appeals:

“[E]ven if this court were to extend the notification requirements of precertification review to the utilization-review process, ... it would be incumbent upon the doctors treating Bolton, as providers, to appeal the denial of medical treatment. The rules governing utilization review and precertification review grant the right to appeal an adverse decision only to the provider treating an injured employee.”

James River Corp. v. Bolton, 14 So.3d 868, 875 (Ala.Civ.App.2008). I offer three comments on this statement.

First, even if it were “incumbent” on the provider of medical services to initiate an administrative “appeal” of the employer’s denial, such an appeal would go only to the merits of the employer’s denial — i.e., whether the requested medical treatment was reasonably necessary. The issue in the present case, however, is whether the failure of the employer to follow a prescribed notification procedure is a ground for contempt. Second, even if the issue in this case was the substantive one of whether the requested medical treatment was reasonably necessary, in point of fact I do not see how “it would [have] be[en] incumbent upon the doctors treating Bolton ... to appeal the denial of medical treatment.” Ex parte Southeast Alabama Medical Center decided this issue to the contrary. 835 So.2d at 1050-63 (holding that employees were not required to pursue or exhaust utilization-review procedures and appeals before seeking relief in the circuit court from an employer’s refusal to pay for medical treatments). Finally, I note that, although Rules 480-5-5-.08 and -.09 do contemplate that it will be the employee’s medical provider that requests precertifi-cation, the “right” to such review is the employee’s.

      . It is only for ''nonemergency'' procedures that "pre-certification reviews" are even contemplated. Rule 480-5-5-.02(68) continues by explaining that, in contrast to such "pre-certification” reviews, "[cjoncurrent review and, if necessary, retrospective review are required for emergency cases." Moreover, Rule 480-5-5-02(24) defines "elective surgery” simply as "surgery which is medically necessary, yet non-emergency in nature."

      . In Ex parte Southeast Alabama Medical Center, the Court of Civil Appeals explained that "the employee's treating physician ... recommended a particular surgical procedure ... as medically necessary,” but before this non-emergency surgery was performed, "[t]he employer refused to pay for this treatment, basing this refusal on the result of its 'utilization review.’ " 835 So.2d at 1059 (emphasis added). Referring to the regulatory scheme applicable to the situation, the Court of Civil Appeals explained that the legislature had “directed the Department of Industrial Relations to adopt utilization-review procedures for use by the employer or its insurer, if either elects to conduct pre-certification reviews.” Id. (first and final emphasis added).