THE LOUISIANA ENVIRONMENTAL LAWYER Volume 8, Number 1, Summer 2004 The “IT Decision” An Evaluation of its Factual, Judicial and Legislative History and A Consideration of its Future By Al Robert, Jr.
The Louisiana Supreme Court weigh them against social and eco- and the subsequent proceedings that decision in Save Ourselves, Inc.1 v. Loui- nomic benefits of the project.”5 These ultimately denied IT Corp. its operat- siana Environmental Control Commis- concerns are commonly referred to as ing permits. Part II affords a brief sion2 was handed down almost twenty part of the public trust doctrine6 and analysis of the decision and its foun- years ago. Commonly referred to as are the source of many concerns and dation and also provides insight into the “IT Decision” (or “IT Case”), the criticisms regarding the “IT Require- the reasoning of the Louisiana Su- case was appealed to the Louisiana ments.” The requirements now con- preme Court. Additionally, Part II Supreme Court by a group of citizens stitute a substantive part of the envi- summarizes the substantial body of who organized Save Ourselves, Inc. ronmental permitting process in Loui- law that has expanded, supplemented, (Save Ourselves) to challenge IT siana. and interpreted the “IT Decision.” Part Corporation’s (IT Corp.) plans to con- III examines common industry criti- struct the “World’s Largest Hazardous The “IT Decision” has been de- cisms of the “IT Decision” and pro- Waste Disposal Facility3 ” in their com- scribed as an infamous,7 wide-rang- vides insights and alternative view- munity.4 Save Ourselves originally in- ing,8 landmark decision9 that judi- points. Finally, Part IV considers the tervened in the state permit process cially imposes extra-legislative will on lessons learned from the “IT Decision” and challenged the decision of the the state.10 Further, the decision’s and provides suggestions as to how the Environmental Control Commission legacy in administrative, judicial and regulated community can minimize (ECC) to grant environmental permits statutory law and the subsequent de- the likelihood that the “IT Require- to IT Corp. The Louisiana Supreme velopment of the “IT Requirements” ments” will substantially impact or re- Court eventually remanded the deci- have been sharply criticized as overly tard future permit activities, with an sion to grant the permits back to the burdensome and confusing law11 that emphasis on grassroots facility devel- ECC and outlined several areas for provides justification for result-ori- opment. further consideration. ented decisions.12 Although the deci- sion has received significant treatment Part I: Case History and Analysis These considerations included and commentary, little has been pro- several site-specific concerns and also vided about the factual circumstances IT Corp.’s plans to expand its op- more general concerns that the court that ultimately led to the decision and erations outside of California became developed using constitutional and its evolution into the modern-day “IT “one of Louisiana’s biggest political statutory framework analyses. These Requirements.” This paper considers headaches and one of the hottest con- general concerns, which eventually the factual, judicial and legislative his- troversies in which the state found it- evolved into the “IT Requirements” tory of the “IT Requirements” and also self [from 1979 to 1981].”13 Unwit- and are also referred to as the “IT addresses concerns regarding its fu- tingly caught in a firestorm of Louisi- Questions,” included “whether the ture. ana politics and local opposition, IT agency considered alternate projects, Corp. fought to permit its proposed alternate sites or mitigation measures, Part I provides an overview of the facility for nearly ten years before fi- or whether it made any attempt to substantive history of the battle be- nally abandoning its plans for the quantify environmental costs and tween the IT Corp. and Save Ourselves multi million dollar facility.14 An IT
Published by the Section on Environmental Law, Louisiana State Bar Association, as a service to its members.
Chairman Council Members Features Christopher A. Ratcliff Daria Burgess Diaz The IT Decision ...... 1 Vice-Chairman (Past Chairman) LDEQ Regulatory Additions and Warren E. Byrd II Esteban Herrera, Jr. Amendments ...... 15 Secretary Tim Poche Recent Developments in Administrative Jim Marchand Paul Hughes Law: District Court Rules Division of Treasurer Greg L. Johnson R. Charles Ellis Administrative Law Act Unconstitu- Joseph Bailey tional ...... 17
Newsletter Editor: James G. Wilkins -- Associate Editor: Erinn W. Neyrey -- Design/Layout: Amori J. Landry Corp. Vice-President remarked in early lyst for the establishment of a genu- Waste Management Plan to govern the 1981, a full eight years before the com- ine grassroots environmental move- treatment, storage, and disposal of pany would finally decide not to build ment in south Louisiana. hazardous waste in Louisiana.30 the facility, “We expected some oppo- DNR’s plan outlined the procedures sition, of course, but we didn’t realize There were several distinct chap- necessary for industry to apply for haz- that people in Louisiana don’t trust ters that led IT Corp. to the decision ardous waste permits and the review their state officials. We certainly did to abandon its plans for construction processes for such permits.31 Next, the not anticipate that having state ap- of the “World’s Largest Hazardous 1979 Legislature passed Act 449, proval of our plans would be an auto- Waste Plant.”22 These included: (1) which created the ECC and gave it the matic strike against us.”15 Clearly ex- the IT Corp. feasibility study; (2) the authority to conduct adjudicatory pressing the frustrations the company ECC adjudicatory hearings; (3) Save hearings and to issue or deny hazard- was experiencing with Louisiana poli- Ourselves appeal to the Louisiana ous waste permits.32 The ECC was the tics, he added, “It is certainly not like courts; (4) remand to the ECC and the precursor to the modern-day Depart- this in California.”16 The aggravation Louisiana Department of Environ- ment of Environmental Quality expressed by IT Corp. was understand- mental Quality (DEQ); and (5) the (DEQ) and was comprised of seven able considering that Louisiana had State Ethics Board hearings and ap- representatives. These representatives invited the company into Louisiana peals. Before these chapters of the included the agency head, or his ap- to help the state handle its mounting project are considered individually, it pointed representative, from the fol- hazardous waste problems, which would be appropriate to consider the lowing Louisiana executive depart- were only becoming apparent in the background and history of both IT ments: (1) Agriculture33 ; (2) Com- late 1970’s.17 Corp. and the Louisiana environmen- merce and Industry; (3) Culture, Rec- tal regulatory climate prior to 1979. reation and Tourism; (4) Health and South Louisiana communities Human Resources; (5) Natural Re- and the media began to recognize the IT Corp. was originally formed as sources; (6) Transportation and De- serious problems associated with haz- a partnership in 1975 under the name velopment; and (7) Wildlife and Fish- ardous waste management when a of Industrial Tank.23 It was created eries. Once the IT Corp.’s application young man met his death at an unli- through a merger of a waste clean-up, was certified complete by DNR, the censed waste disposal site in Bayou treatment, storage and disposal com- ECC was the primary governmental Sorrel in July 1978 as he was dump- pany (which originally operated un- entity responsible for reviewing the ing hazardous waste and was over- der the name Industrial Tank) and a application and issuing or denying the come by toxic fumes.18 At the same marine service company (which op- permits.34 Nonetheless, before IT time, Love Canal was receiving na- erated as William H. Hutchinson24 Corp. ever decided to expand into tional media attention, further high- and Sons), both in California.25 In- Louisiana, it was hired by the state to lighting Louisiana’s own growing haz- dustrial Tank first earned industry rec- conduct a feasibility study to evaluate ardous waste problems.19 “The out- ognition for its clean up of the Los and determine the best methods and cry of the public concerning the dan- Angeles Harbor following the explo- strategies for solving Louisiana’s grow- gers and perils caused by the many sion of the S.S. Sansinea.26 As the ing hazardous waste problems. hazardous waste dumps in the State company’s services continued to grow, of Louisiana had reached a crescendo it changed its name to IT Corp. in 1—Feasibility Study dictating action by responsible pub- 1977 and gained business success by 20 lic officials.” Accordingly, then Gov- operating several hazardous waste dis- Presumably in an effort to quickly 27 ernor Edwards sent Natural Resource posal sites throughout California. In address the growing hazardous waste Deputy Secretary Jim Hutchinson to 1978, the company was recognized as problems of the state, DNR attempted a national hazardous waste conference a leader in the treatment and disposal to obtain a sole-source contract with 21 28 in an effort to locate a solution. At of hazardous wastes. IT Corp. to conduct a proposed feasi- the conference, Hutchinson met rep- bility study to determine the best resentatives of the IT Corp. and a rela- At the same time, in response to methods for addressing the state’s tionship was formed. Unbeknownst the public outcry regarding Louisiana’s growing hazardous waste problems. to all at the time, the meeting was the hazardous waste issues, the 1978 Leg- Accordingly, House Concurrent Reso- birth of a decade long relationship islature passed Act 334, which was the lution No. 79, which would have sus- between IT Corp. and Louisiana that State’s initial effort to confront the pended applicable provisions of the would prove to result in a tortuous ex- problems associated with hazardous public bid law and the professional 29 perience for both the company and waste management. As required by services contract law so as to autho- local residents as IT Corp. tried to help Act 344, and within the confines of rize DNR to enter into a sole-source Louisiana manage its growing hazard- the Louisiana Administrative Proce- contract with IT Corp., was introduced ous waste problems. Furthermore, dures Act (LAPA), the Department of to the 1979 Louisiana Legislature.35 Louisiana’s burgeoning relationship Natural Resources (DNR) promul- The resolution failed and DNR sub- with IT Corp. was to become a cata- gated a comprehensive Hazardous sequently released a request for pro-
2 Louisiana Environmental Lawyer • Summer 2004 posals for the feasibility study.36 Al- ber 1979, then-Governor Edwards an- were present for the presentation of though IT Corp. submitted the sec- nounced the intent of IT Corp. to evidence due to the extended time pe- ond-highest bid, it was still awarded build the largest chemical waste treat- riod of the hearings, so they often sent the contract to investigate the best ment complex in the world.47 Within alternates in their place.57 Nonethe- available methods for handling twenty-four hours, the announcement less, considering modern-day stan- Louisiana’s hazardous waste.37 It is unleashed a torrent of criticism, largely dards, where it often takes several years also relevant to note that IT Corp. sub- originating from Ascension Parish for DEQ to review a hazardous waste contracted with Research Associates of politicians, who were angry that they application and issue a permit, the fact Louisiana, Inc. (Research Associates) had not been informed about the pro- that IT Corp. received its permits (air, for the project, which also had a cur- posed project, and from residents who water, and waste) less than a year after rent contract with DNR to develop the feared that hazardous wastes would be filing the application is indicative of State’s Hazardous Waste Management shipped into their backyards.48 At that the nature of the state’s emerging en- Plan.38 point, IT Corp. began defending ac- vironmental program during that cusations that the site would become time. IT Corp. completed its 292-page a dumping ground for the nation’s study,39 titled Model Regional Hazard- hazardous waste as it prepared to The hearings were also directly ous Waste Recovery and Disposal Facility make the proposed facility a reality.49 impacted by world and national for Louisiana, in less than sixty days and events. Specifically, a hazardous waste submitted it to the state in September 2—ECC Adjudicatory Hearings incinerator explosion in Europe raised 1979.40 The report estimated that the questions and concerns regarding IT industrial corridor between Baton Six months later, after gaining Corp.’s proposed treatment technolo- Rouge and New Orleans produced support from the Ascension Parish gies.58 But more importantly, the approximately 50 million gallons of Police Jury,50 but still lacking broad looming November 1980 deadline set hazardous waste annually and also popular support, IT Corp. submitted by the United States Environmental predicted the waste stream would its hazardous waste permit application Protection Agency (EPA) became a likely increase to 80 million gallons to the Louisiana Department of Natu- critical issue to IT Corp. Unless the per year within two years.41 The study ral Resources (DNR) and the applica- company’s permits were issued prior considered two primary options for tion was accepted as complete in May to the deadline, it would be required handling the growing amounts of haz- 1980.51 The permit process required to obtain a federal Resource Conser- ardous wastes—(1) individual on-site that public hearings be conducted and vation and Recovery Act (RCRA) per- processing by each generator or (2) a the first was held in Ascension Parish mit in addition to its state permits, single regionally coordinated facility.42 in July 1980. Over 500 residents at- potentially delaying the project as IT Corp. concluded that on-site pro- tended the hearing and many spoke much as a year.59 Ultimately, the ECC cessing was undesirable because the passionately against the proposed fa- issued IT Corp. a “pre-construction increased demand for space would cility.52 Inexplicably, “members of the activity” permit in an effort to estab- “compete with demands for plant ex- hearing panel and representatives of lish the proposed project as an exist- pansion” and would adversely affect [IT Corp.], said citizen opinion about ing facility. The permit was essentially the local economy and environ- the plant probably would have little useless, as IT Corp. was eventually re- ment.43 Accordingly, the study recom- impact upon a state decision on quired to apply for a RCRA permit, mended a regionally coordinated whether to grant a construction and which was granted.60 A month later, waste treatment facility and evaluated operation permit.”53 Shortly thereaf- the ECC issued its final decision to three possible sites.44 The study fur- ter, the project lost the support of the award the state permits in a 6-1 vote, ther considered options regarding Ascension Parish Police Jury. The rejecting then Governor Treen’s offer transportation, treatment, storage, and ECC’s adjudicatory hearing on IT to finance a more detailed study of the disposal of the hazardous wastes. In Corp.’s permit applications began a proposed project site.61 conclusion, the study recommended month later, in September 1980. a 1000-acre site in Burnside, Louisi- The ECC adopted nearly 200 find- ana, whereby equipment and physi- The ECC hearings were continu- ings throughout the course of the hear- cal structures would utilize 50 to 60 ally interrupted by claims of impro- ings.62 With the exception of only a acres of the tract, landfarming would priety54 and lasted for more than three few, these findings supported the make use of 300 acres and the remain- months.55 “The Commission con- ECC’s decision to issue permits to IT ing acreage would provide a buffer vened to consider [the] applications Corp. Not surprisingly, those findings zone for the facility.45 over 18 times; spent approximately that failed to support the ECC’s deci- IT Corp. obviously had confi- 150 hours hearing testimony (ap- sion became the focus of Save Our- dence in its report because it pur- proximately 5,000 pages); received selves’ appeal in the judicial proceed- chased an option on the proposed site over 80 exhibits offered by IT Corp. ings. within one week of submitting the and 32 exhibits offered by others.”56 study.46 Shortly thereafter, in Octo- Not all of the ECC commissioners
3 Louisiana Environmental Lawyer • Summer 2004 3—The Louisiana Courts the stored and treated hazardous quickly faded into the sea of jurispru- wastes, the ECC failed to adopt any dence. Instead, because of Justice The scope of this paper does not findings that indicated the three aqui- Dennis’ discussion of the ECC’s con- permit a comprehensive consider- fers and the Mississippi River (surface stitutional mandate and the impor- ation of the multiple lawsuits and is- water) would be isolated by the engi- tance of the public trust, the “IT Deci- sues that were litigated regarding the neered barriers.67 Accordingly, the sion” has become an integral part of consideration and issuance of the IT court battles, especially in the Louisi- Louisiana environmental law. Before Corp. permits. Although petitioners ana Supreme Court, focused on the this landmark decision of the Louisi- raised many issues, such as alleged ECC’s decision to grant the permits in ana Supreme Court is fully considered, conflicts of interest, the ECC’s capac- light of the incompatibility of these the remainder of the IT Corp. case his- ity to render a final permit decision, findings, as well as the standard of re- tory is addressed. the insufficiency of IT Corp.’s permit view that should be afforded its deci- applications upon filing, procedural sion. 4—Remand to ECC/DEQ errors made during the ECC hearings, and the propriety of the permit issu- In both the 19th Judicial District As there were no procedures or ance, only those issues that were ulti- Court and the First Circuit Court of protocols for remand to the ECC, mately relevant to the Louisiana Su- Appeal, IT Corp. argued that the which had since been subsumed by preme Court are considered here.63 As “manifest error” (or an even stricter) the new DEQ,72 the rehearing issue indicated, the ECC made few findings level of review was applicable, pursu- was novel. Accordingly, IT Corp. and that failed to support its final decision ant to the LAPA.68 This argument Save Ourselves disagreed as to whether to issue the hazardous waste permit. proved persuasive to the lower courts. additional hearings should be held to These included the following: Although both courts noted the incon- determine if the IT Corp. permit ap- sistencies between the findings of fact plication complied with the require- Three aquifers identified as the and the ECC’s final decision, they were ments and considerations outlined by water table aquifer, the shallow compelled to uphold issuance of the the Louisiana Supreme Court.73 Af- aquifer and the Gonzales aquifer permits because of the deference the ter receiving briefs submitted by the lie under the proposed site. ECC’s decision was afforded by the parties and an unexplained two-year LAPA. This is evidenced by Judge delay, DEQ Secretary Pat Norton made The shallow aquifer is hydrologi- Ponder’s concurrence at the First Cir- it clear that DEQ was taking its man- cally connected to the Mississippi cuit Court of Appeal: “Despite my date from the Louisiana Supreme River. fears [regarding the permit process] I Court seriously. She stated: “To me, have concluded that under the struc- it’s a whole new ball game at this The water table aquifer is hydro- tures of appellate review of all deci- point.”74 Nonetheless, as the permit logically connected to the Missis- sions in general, and of administra- hearings were scheduled to begin in sippi River. tive decisions in particular, a negative April 1986, the scope of review was vote would constitute a substitution limited to updating the existing The shallow aquifer and the wa- of my judgment for that of the com- record—and did not require an in- ter table aquifer exhibit evidence missioners . . .”69 depth review of the concerns outlined of surface contamination. by the Louisiana Supreme Court.75 The Louisiana Supreme Court The first half of the remand hearings The source of the surface contami- believed, however, that the evidence were held before an administrative law nation of the shallow and water warranted that the case should be re- judge who determined that IT Corp. table aquifers has not been iden- manded to the ECC so that it could should combine its state application, tified by the applicant.64 reconcile its decision with its findings. federal applications, transcripts of the It stated: “This court has held that for ECC hearings and other documents Further, Section 8.3.4(A) of the Haz- the purposes of judicial review, and into one new document—to be con- ardous Waste Management Plan, which in order to assure that the agency has sidered Part II of the IT permitting pro- regulated the consideration and issu- acted reasonably in accordance with cess.76 The consolidation was ordered ance of the state’s permits, required the law, in a contested case involving because of the differences that existed that “sites utilized [for hazardous complex issues, the agency . . . must between IT Corp.’s current proposal waste treatment, storage or disposal] articulate a rational connection between and the proposal it presented to DNR shall be isolated from adjoining land the facts found and the order issued.”70 in 1980.77 and from subsurface and surface wa- Further, the court added: “The [ECC] Upon submittal of the Part II78 ters naturally, or by created barriers.”65 did not assign reasons for its decision, Application nearly two years later, Although evidence was presented by and its factual findings do not suffi- DEQ issued a notice of seventy-five IT Corp. that engineered controls (i.e., ciently illumine its decision-making deficiencies to be addressed by IT an impermeable clay liner and a slurry process.”71 If the decision had simply Corp. As a new hearing officer was wall)66 that would be used to isolate supported this holding, it would have appointed midway through the re-
4 Louisiana Environmental Lawyer • Summer 2004 hearing, he commented: “This is a case agreement or even the acquisition vides: “The natural resources of the like no other. I think we’re making of the proposed tract of land un- state . . . and the healthful . . . quality jurisprudence here.”79 Amid a host til after September 21, 1979— of the environment shall be protected, of other occurrences (e.g. IT Corp.’s when he read the feasibility study conserved, and replenished insofar as plans to sell the site and its permits, for the first time—and yet some- possible and consistent with the claims that the originally issued per- how prior to September 25, health, safety, and welfare of the mits had expired, intervention by the 1979—is unacceptable to the people. The legislature shall enact laws State Attorney General’s office80 and point of being ludicrous.83 to implement this policy.” Further, the further claims of conflicts of interest, court cited Part VII of the Environmen- etc.), the hearings ended with a rec- Nevertheless, IT Corp. did prevail on tal Affairs Act,87 which required the de- ommendation that DEQ Secretary one issue. The Louisiana Supreme velopment of hazardous waste regu- Paul Templet “terminate for cause IT Court found that the Ethics Commis- lations that “assure safe treatment, Corp.’s permit and return the sion did not have the power to void storage and disposal [of hazardous company’s reformatted permit.”81 the contract or to order that the fee waste] without substantial risk to the en- Accordingly, IT Corp.’s state permits paid to IT Corp. be returned to the vironment, water supplies, air, and hu- were revoked and IT Corp. decided to state. The victory was soured, how- man health.”88 In explaining its deci- abandon the project.82 ever, because the Ethics Commission sion to remand, the Court noted that filed a civil suit and eventually recov- it was unclear whether the ECC com- 5—Ethics Commission Investigation ered the entire fee, plus legal interest.84 plied with the duties outlined in these constitutional and statutory man- In addition to the legal battles re- There can be little argument that dates. In explaining the application garding the permits, IT Corp. was also IT Corp.’s experience in Louisiana was of the mandate, the court cited sub- embroiled in a bitter dispute with the very costly and anything but pleas- stantially from a case that had been State Ethics Commission regarding ant—for both IT Corp. and the citi- decided over ten years previous in the the timing of its purchase of the acre- zens who tenaciously fought the con- United States Court of Appeals, Fed- age for the proposed facility and its struction of the facility for ten years. eral Circuit (See Calvert Cliffs’ Coordi- contract with Research Associates re- Although the company ultimately nating Committee v. U.S. Atomic Energy garding the feasibility study the two failed to construct its proposed facil- Commn., 449 F.2d 1109 (U.S. App. companies prepared for the state. The ity, it did go on to reach commercial D.C. 1971)). Calvert Cliffs’ held that dispute arose out of a fourteen-month success across the United States, the federal courts had the power to investigation conducted by the State largely as a hazardous waste require agencies to comply with the Ethics Commission that brought IT remediation company.85 Coinciden- mandate of the National Environmen- Corp. before the Louisiana Supreme tally, IT Corp., which changed its name tal Policy Act (NEPA).89 Court for the second time in a year, to the IT Group in the 1990s, was re- where it argued that it should not be cently purchased by the Louisiana- How the Calvert Cliffs’ decision considered an employee subject to the based Shaw Group and now finds its became central to the Louisiana Su- state ethics code and thereby subject corporate headquarters in Baton preme Court decision is puzzling be- to the jurisdiction of the Ethics Com- Rouge, just a few miles north of the cause it was not argued in either the mission. location where it had hoped to revo- applicants’ or respondents’ briefs. lutionize the world’s management of Nonetheless, the author of the Calvert Specifically, IT Corp. asserted that hazardous waste. Instead of trans- Cliffs’ opinion was the Honorable J. is should not be subject to the state forming the world’s ideas regarding Skelly Wright. Judge Wright served as ethics code because it was a private hazardous waste management, IT a judge in the Eastern District of Loui- corporation that contracted with the Corp. transformed Louisiana’s envi- siana from 1950 until 1962, when he state. The courts disagreed and the ronmental law. began serving on the Court of Appeals Louisiana Supreme Court affirmed the in the District of Columbia Circuit, decisions of the lower courts uphold- Part II: The “IT Decision” and its which establishes a minor Louisiana ing fines against IT Corp. and Research Progeny connection to Calvert Cliffs.90 Regard- Associates. The defense raised by IT less of how Justice Dennis became Corp. regarding its purchase of the In remanding the decision to aware of the Calvert Cliffs’ case, he used proposed site within a week of sub- grant the permits to the ECC, the Loui- it to illustrate how the ECC should mitting its feasibility study to the State siana Supreme Court recognized that interpret its constitutional and statu- was not successful: the case raised “issues intersecting the tory mandates to “see that the envi- State Constitution’s Natural Resource ronment would be protected to the The testimony of [the IT Corp. Article and the Louisiana Hazardous fullest extent possible consistent with President] that he did not con- Waste Control Law.”86 Specifically, it the health, safety and welfare of the template recommending to IT noted that Article IX, Section I of the people.”91 Corp. the execution of the option Louisiana Constitution of 1974, pro-
5 Louisiana Environmental Lawyer • Summer 2004 In Calvert Cliffs, a citizens group The Progeny of Save Ourselves v. The challenged the rulemaking process of ECC (5) Are there mitigating mea- the federal Atomic Energy Commis- sures which would offer sion, claiming that the Commission Commentators have pointed out more protection to the envi- failed to comply with the congres- that the modern day IT Requirements ronment, than the facility as sional mandates included in NEPA.92 do not necessarily parallel the lan- proposed, without unduly NEPA, which was cast in terms of a guage of the Louisiana Supreme Court curtailing non-environmen- general mandate with a broad delega- in Save Ourselves.98 Although the lan- tal benefits? tion of authority to require that ad- guage originating from Calvert Cliffs’ ministrative agencies consider the was certainly the primary factor in In the fifteen years since Blackett was “values of environmental preservation DEQ’s decision to revoke the IT Corp. decided, Louisiana courts have ap- in their spheres of activity,”93 specifi- permits, DEQ did not apply the “IT plied the constitutional and statutory cally requires consideration of direct Requirements” as they are known to- mandate discussed in the “IT Deci- and indirect effects of a project, po- day to their consideration of the IT sion” to most, if not all, functions per- tential interference with other activi- Corp. Part II Application on remand. formed by the DEQ, including: (1) ties, energy and resource require- Instead, the modern day “IT Require- permit issuance for hazardous waste ments, conservation and restoration ments” evolved from subsequent case treatment100 and storage,101 solid waste potential, preservation of urban, his- law. disposal,102 water discharges103 and air toric and cultural quality, and ways to emissions;104 (2) permit variances;105 minimize potential environmental One of the first cases challenged (3) permit exemptions;106 (4) settle- damage.94 These considerations, al- in the Louisiana Court of Appeals sub- ment agreements;107 and (5) licensing though not identical, are substantially sequent to the issuance of the Louisi- actions.108 Additionally, courts have similar to Louisiana’s “IT Require- ana Supreme Court’s “IT Decision” not limited consideration of the “IT ments.” was Blackett v. Louisiana Dept. of Envi- Requirements” to permitting activities, ronmental Quality.99 Accordingly, indicating that the requirements “In fact, most of the key IT Re- Blackett was the first reported case might also be applicable to opera- quirement statements that appear in where the First Circuit presented the tional activities of the regulated com- Save Ourselves are direct quotes from mandate of the Louisiana Supreme munity.109 The “IT Decision” has also Calvert Cliffs.”95 Considering just one Court as having five distinct questions been found to apply to other agencies of many examples, Judge Wright that departments must consider when that are responsible for environmen- noted that: “Environmental amenities issuing a permit: tal functions.110 Furthermore, these will often be in conflict with economic cases have required additional admin- and technical considerations. To con- (1) Have the potential and real istrative requirements from DEQ that sider the former along with the latter adverse environmental ef- are not found in either the “IT Deci- must involve a balancing process.”96 fects of the proposed facility sion” or other applicable rules and This same language appears verbatim been avoided to the maxi- regulations.111 in Justice Dennis’ opinion.165 Al- mum extent possible? though Justice Dennis did not refer- For example, the Louisiana First ence the first line of the Calvert Cliffs’ (2) Does a cost benefit analysis Circuit Court of Appeals decision in opinion, “These cases are only the be- of the environmental impact In re Rubicon, requires DEQ to develop ginning of what promises to become costs balanced against the so- a written “Basis for Decision” (BFD) a flood of new litigation—litigation cial and economic benefits of for all actions that are appealed to the seeking judicial assistance in protect- the proposed facility demon- judicial system. Specifically, the court ing our natural environment,” it strate that the later outweighs suggested that each BFD include: (1) would certainly have been relevant. 97 the former? a general recitation of the facts as pre- Although not quite a flood, there has sented by all sides; (2) a basic finding been a substantial amount of litiga- (3) Are there alternative projects of facts as supported by the record; (3) tion that has expanded and refined the which would offer more pro- a response to all reasonable public impact of the “IT Decision” on those tection to the environment comments; (4) a conclusion or con- agencies responsible for protecting than the proposed facility clusions on all issues raised which ra- Louisiana’s environment. The follow- without unduly curtailing tionally support the order issued; and ing section provides a consideration non-environmental benefits? (5) any and all other matters which of Louisiana cases that have inter- rationally support the DEQ’s deci- preted and further expanded the “IT (4) Are there alternative sites sion.11 2 The court also indicated that Decision”. which would offer more pro- the BFD should fully consider the “IT tection to the environment Requirements.” This decision also than the proposed facility site consolidated the last three (of the five) without unduly curtailing questions of the “IT Requirements” non-environmental benefits?
6 Louisiana Environmental Lawyer • Summer 2004 into a single consideration: whether sions.122 Accordingly, the following stripped Louisiana courts of the abil- “there are alternative projects or alter- section addresses these concerns with ity to ever question a decision of the native sites or mitigating measures alternate viewpoints that are sup- ECC, DEQ or any other administra- which would offer more protection to ported by recent cases regarding the tive agency for that matter, regardless the environment than the proposed IT Questions/Environmental Assess- of how incompetently the agency had project without unduly curtailing non- ments, a recent DEQ IT Guidance exercised its duties. In fact, in support environmental benefits to the extent Document and the work of other com- of the notion that this decision applicable.”11 3 mentators in the field. strengthened the capacity of adminis- trative agencies, rather than lessened The ever-expanding nature and 1—The “IT Decision” Imported Com- the deference afforded their decisions, applicability of the “IT Decision,” re- mon Law into Louisiana the Louisiana Supreme Court has sulting from judiciary interpretation, since cited the “IT Decision” for the raised numerous complaints from One commentator has argued proposition that administrative action business and industry. These com- that it is “open to interpretation as to should only be disturbed when arbi- plaints eventually resulted in the pas- whether the [“IT Decision”] creates a trary, capricious or characterized by an sage of legislation aimed at limiting public trust doctrine in the common- abuse of discretion.129 Furthermore, the increased burdens placed on DEQ law sense or whether the term ‘public the “IT Decision” is also cited for au- and, incidentally, the regulated com- trust’ is used as a general policy state- thority that that courts will not sup- munity—especially smaller facilities. ment.”123 Although the argument has ply or assume findings of fact when In 1997, the Louisiana Legislature been rendered moot by the Louisiana the challenged agency does not pro- passed Act 1006, which requires the Legislature’s statutory adoption of the vide a reasoned basis for its action in preparation of an “Environmental “IT Requirements,” it is instructive to the record.130 Accordingly, it should Assessment Statement”11 4 for new per- consider the actual “IT Decision” and be concluded that the Louisiana Su- mits or major modifications of exist- some Louisiana constitutional history. preme Court did not intend to import ing permits.11 5 The statute specifically Justice Dennis was a delegate to the the common law public trust into exempts most other actions (e.g., mi- 1973 Constitutional Convention and Louisiana. Instead, it was referenced nor modifications, applications for voted for the proposal that made the as a metaphor to illustrate the duties minor source permits, construction Natural Resources Article a general imposed on the ECC by its constitu- permits, remediation activities, etc.) policy statement rather than a self-ex- tional and statutory mandates. If such from the environmental assessment ecuting constitutional right.124 It has a criticism were accepted, it would requirements.11 6 The statute also leg- also been noted that Justice Dennis’ strengthen arguments that the last sec- islatively adopts the constitutional use of the word “mandate”125 and his tion of the Environmental Assess- and statutory mandate set forth in Save references to applicable environmen- ments Statute, La. R.S. 30:2018(H), is Ourselves and indicates that subse- tal statutes and regulations “is a rec- a “savings” clause,131 which is contrary quent case law interpreting the “IT ognition that the constitutional pro- to the legislative intent. Decision” may be used to implement vision is not self executing and is a the “public trustee” requirements.11 7 nonenforceable policy statement ad- 2—The Public Trust was Legislatively The regulated community has raised dressed to the legislature.”126 Rather Adopted numerous criticisms as a result of the than trying to import the common law legislative adoption of the “IT Deci- public trust into Louisiana—a concern It has been argued that the inclu- sion” jurisprudence. of which he was clearly aware—Jus- sion of the purported “savings clause” tice Dennis was only preventing the in the statutes only serves to preserve Part III: Criticisms of the “IT Deci- courts from becoming a rubber stamp the very case law that the statute was sion” that blindly approved the recommen- attempting to limit and creates a “be- dations and decisions of those State wildering wonderland of confu- Criticism of the “IT Decision” and agencies charged with protecting sion.”132 A careful reading of the stat- its subsequent judicial and legislative Louisiana’s environment.127 ute reveals that such arguments are history has been substantial. Many misplaced and unwarranted. La. R.S. commentators have raised concerns As already indicated, both the dis- 30:2018(H) provides that: regarding the (1) unnecessary import trict and appellate courts had concerns of the common law into Louisiana regarding the ECC’s failure to recon- Nothing in this section shall re- jurisprudence;11 8 (2) the confusion re- cile its findings with its ultimate deci- lieve permit applicants or the de- sulting from the adoption of the judi- sion to grant the IT Corp. permits, but partment from the public trustee cial history into a statute;11 9 (3) the rather than remanding for a more requirements set forth in Article lack of guidance available from complete report, the courts deferred IX, Section 1 of the Constitution DEQ;120 (4) the overly burdensome to the ECC.128 If the Louisiana Su- of Louisiana and by the Supreme nature of the requirements;121 and (5) preme Court had affirmed these deci- Court of Louisiana in Save Our- the public’s impact on DEQ deci- sions, it would have effectively selves v. Louisiana Environmental
7 Louisiana Environmental Lawyer • Summer 2004 Control Commission, 452 So.2d decisions regarding these issues indi- (1) a proposed facility that will 1152 (La. 1984). Subsequent case cate that this “rule of reasonableness” predictably generate ‘a con- law and laws interpreting said de- is being followed. Further, subsequent tested case involving com- cisions and the rules and regula- to the adoption of this legislation, plex issues;’ or tions adopted by the department DEQ has developed a guidance docu- in accordance with those deci- ment to address complaints about the (2) a proposed facility that will sions may be used to implement lack of written guidance available for be located in an area with an these requirements (emphasis complying with the “IT Require- existing history of significant added). ments”/Environmental Assessments public interest; or (hereafter referred to as “IT Require- The statute only mandates the adop- ments”). (3) a proposed facility owned by tion of the requirements outlined in a company with an existing the Louisiana Constitution and the “IT 3—DEQ Provides No Guidance history of significant public Decision”—the decision’s subsequent Regarding Applicability of the “IT Re- interest; or judicial history is only referenced as quirements” guidance material to be used when (4) a proposed facility involving implementing the constitutional and A common complaint regarding a project with an existing his- statutory mandate outlined by the “IT the “IT Requirements” is that there is tory of significant public in- Decision.” This interpretation sup- “a lack of specific written guidance on terest.137 ports the legislative intent, evident in applying [them] with practical limi- the remainder of the statute, to limit tations [resulting] in inconsistent, ap- Furthermore, the document provides the applicability of the ”IT Require- parently arbitrary and logically un- guidance for one of the most often ments”/Environmental Assessment to sound decisions.”133 As a result of the cited concerns regarding the “IT Re- those instances defined by the legisla- recent issuance of DEQ’s Guidance quirements”, the alternatives sites ture. Remember that the “IT Decision” Document for the “IT Requirements” and analysis.138 The document recom- did not specifically outline the “IT Re- the “Basis For Decision,”134 such com- mends the following considerations: quirements” or define the scope of plaints have been rendered moot. (1) identify the environmental, eco- their application. As previously dis- This comprehensive document ad- nomic, business and other siting cri- cussed, subsequent case law—which dresses a substantial number of the teria utilized to identify potential sites; is now limited to discretionary guid- uncertainties regarding the applicabil- (2) describe the brokerage/consulting ance—provided for the definition and ity of the “IT Requirements”. Specifi- firms and processes involved in the expansive application of the modern cally, it provides guidance regarding siting search; (3) describe the filtering day “IT Requirements”. those situations where an IT response process that resulted in selecting the and review are required and/or advis- final site; and (4) consider the remain- Accordingly, statutory interpreta- able; it also provides suggested re- ing alternative sites in comparative tion supports the argument that: (1) sponses; and details the DEQ proce- form.139 This is essentially the same the “IT Decision” and the Constitu- dures used to review IT responses. process that has been utilized success- tion only mandate a “rule of reason- Perhaps the most useful section of the fully in several cases and it represents ableness” to ensure that the environ- document outlines those situations the intent of the constitutional and ment is protected to the fullest extent where the preparation of an IT re- statutory mandate that was outlined possible, they do not outline the “IT sponse is advisable. by the Louisiana Supreme Court. In Requirements” and the scope of their order to further illustrate the applica- application [that has been accom- First, in Section 3.0, the guidance bility of this process, it will be used to plished by its subsequent judicial his- document outlines those situations illustrate the next common criticism tory]; (2) the statute outlines the re- when an IT response is an absolute of the “IT Requirements,” which is that quirements for an environmental as- requirement (i.e., when the permit ap- the requirements are overly burden- sessment [essentially replacing the “IT plication is for a new permit or a ma- some and fail to correspond with the Requirements” previously defined by jor modification of an existing permit associated environmental risks. the courts subsequent to the “IT Deci- authorizing the treatment, storage or sion”] and defines the scope of its ap- disposal of hazardous wastes, disposal 4—The “IT Requirements” are Overly plicability; and (3) the statute indi- of solid wastes, discharge of water pol- Burdensome cates that the subsequent judicial his- lutants constituting a major source, tory may be utilized to further imple- and discharge of air emissions consti- A comparison of two cases where ment its requirements. Accordingly, tuting a major source).135 The docu- alternative sites have been challenged the “rule of reasonableness” asserted ment then outlines those instances offers some insight into the idea that by the Louisiana Supreme Court in the where it “may be advisable for the the “IT Requirements” are overly bur- “IT Decision” is most likely the proper permit applicant to submit an IT re- densome. One of the cases most of- standard to be applied today. Recent sponse and for the LDEQ to effect an ten cited to illustrate the supposed IT review.”136 These include:
8 Louisiana Environmental Lawyer • Summer 2004 oppressive burden of the alternative DEQ and was able to prove that all of cial and economic benefits of the pro- sites analysis is Matter of American the sites it considered were suitable posed activity. This is true because a Waste and Pollution Control Co.140 This when considering only environmental good faith consideration of these ele- case concerned the permitting of a factors (emphasis added).146 This ments, in combination with other solid waste landfill that was proposed contrasts with the circumstances of business and economic drivers, will to serve a three-parish area around American Waste, in which the chosen identify the site that best accommo- Lafayette.141 After a contentious per- site was not environmentally ideal and dates and minimizes potential envi- mit process that involved substantial the court was not persuaded that the ronmental effects while maximizing public input, the court remanded the majority of the waste stream entering expected economic benefits. decision to grant the permit back to the facility was going to originate in DEQ, finding that the alternative sites the three-parish service area claimed Since the “IT Requirements” ap- analysis had not been satisfied because by the applicant. Furthermore, in ply only in limited situations that al- the scope of alternative sites consid- American Waste, the court questioned ready require the type of business ered had been limited to the immedi- the true motives of the facility: “What planning and feasibility studies just ate service area.142 The court noted actually happened was that [the ap- discussed (i.e., major permit applica- that other sites available outside of the plicant] picked this site with the tri- tions and modifications), arguments service area were environmentally bet- parish service area in mind and then that these factors place significant bur- ter suited for the project. Further, as they got greedy and decided they dens on proposed projects are rather only 25 to 35 percent of the disposed wanted a super landfill to take garbage unpersuasive because the “IT Require- wastes would originate from the three- from the whole State.”147 Discount- ments” can be considered along with parish service area, the company ing the incendiary nature of the court’s the economic drivers of the proposed should have considered a larger geo- statement, this statement offers a criti- project. In comparison, if the “IT Re- graphic area for its alternative sites.143 cal insight into the permit process; quirements” were only found to ap- Compare this decision with a more when a permit action is challenged in ply after a finding of “no environmen- recent decision concerning the con- court, the “IT Requirements” are more tal impact” was made, their consider- struction of a grass roots chemical pro- likely to be a failure point when they ation would require the duplication duction facility. appear to have been “backed into” af- of previous efforts that might be un- ter a decision was made based on necessarily biased by the results pre- In In re Shintech, Inc.,144 a local other non-environmental factors. viously obtained—potentially leading community challenged the construc- to a result similar to American Waste. tion of a chemical plant that proposed It has been argued that “the ab- Applied in the proposed manner, the to share resources with an existing fa- sence of a finding for an adverse envi- “IT Requirements” are not burden- cility in the area. The alternative sites ronmental impact should eliminate some environmental requirements, study was limited in geographic scope the need for a full-blown IT analy- but simply additional factors to be to the area surrounding the existing sis.”148 This argument fails to ac- considered in a business plan or fea- facility and the appellants’ com- knowledge the very nature and intent sibility study. These insights are also plained that the site study was funda- of the “IT Requirements.” The consti- relevant to the final issue addressed mentally flawed because of the restric- tutional and statutory construction of in this comment, that the public has tion.145 In finding that the study was the “IT Decision” mandates that envi- too much impact in the permit pro- adequate, the court accepted that DEQ ronmental factors should be a primary cess. reasonably determined that any ad- concern when decisions are made that verse environmental impacts had have the potential to impact the envi- 5—The Public Exerts Too Much Influ- been minimized or avoided as much ronment. In a proper application, the ence on DEQ Decisions as possible consistent with the public “IT Requirements” should be consid- welfare without requiring a more ex- ered in the very initial stages of a pro- All of the criticisms previously pansive alternative sites analysis. This posed project. Such consideration re- outlined often combine to support a result was especially noteworthy be- quires that business partners respon- greater criticism that application of the cause the facilities were both located sible for developing a business plan “IT Requirements” provides “an un- within an area of the state designated or feasibility study coordinate their ef- clear, sliding-scale standard to the as non-attainment for air quality by forts with environmental staff or con- DEQ to grant or deny permits, vary- EPA. sultants. If a court is convinced that ing with the amount of public pres- an applicant seriously considered the sure on the agency.”149 Such com- Shintech prevailed in the case by “IT Requirements” when it developed ments are usually accompanied by distinguishing itself from American its project, it is much more likely to complaints that politics should be Waste and other cases requiring a more prevail on a showing that the environ- taken out of the environmental pro- expansive alternatives sites analysis mental impact costs have been cess if progress is to be made in its because it followed a process very avoided to the fullest extent possible protection.150 Although many of the similar to the one recommended by and that they do not outweigh the so- criticisms asserted against the “IT Re-
9 Louisiana Environmental Lawyer • Summer 2004 quirements” can be understood and should be confident in its chances to The Exxon expansion encoun- justified when considering previous prevail in a judicial review. tered significant public opposition, yet inconsistent applications of the doc- DEQ was not pressured into denying trine, suggestions that the public has Part IV—Lessons Learned from the the permits, nor were the courts pres- too much impact on DEQ decisions “IT Decision” sured into remanding the permit ac- are laughable. In fact, EPA has criti- tions. Exxon addressed the “IT Re- cized DEQ for failing to solicit and en- Two recent expansion projects quirements” properly and made a gage more public input.151 that have been challenged in court by conscious effort to establish its record citizen groups offer some insight into as a positive member of the commu- Nonetheless, the assertion that the current status of the “IT Require- nity.156 More importantly, Exxon and permit grants or modifications are ments” in Louisiana and also illustrate DEQ successfully addressed all of the more likely to be denied when there how crucial it is for the administra- substantive environmental require- is substantial public involvement and tive record to be fully supported when ments applicable to the expansion. opposition is factually based. Such a permit action is challenged. These Nonetheless, the court still had to al- permit denials are explained as a re- cases also illustrate how a company’s low Exxon to supplement the record sult of the intense scrutiny that facili- reputation and trustworthiness can be regarding its compliance history in ties experience when public opposi- instrumental when it is trying to per- order to make its final decision.157 As tion is encountered. Typically, when mit either a grassroots facility or the the following case shows, when the there is little or no opposition to a expansion of an existing facility. This judge has discretion to remand on a permit application or modification, concept can be considered as a differ- “technicality,” the trustworthiness and the process between the applicant and ent type of public trust—one where a public reputation of the applicant can DEQ is largely cooperative.152 But in company must develop the public’s often be a deciding factor in the case. those instances where public opposi- trust that the facility will be operated tion is present, the permit process be- properly and ethically. In the matter of: Waste Management comes adversarial, resulting in a more of Louisiana, L.LC., Woodside Landfill, thorough and exacting application of In North Baton Rouge Environmen- Type I and II Solid Waste Landfill,158 a regulatory requirements. Accordingly, tal Association v. Louisiana Department DEQ decision to grant Waste Manage- when a facility and agency are chal- of Environmental Quality,154 the Loui- ment of Louisiana, L.L.C. (Waste Man- lenged to comply with such an im- siana First Circuit Court of Appeals agement) a permit to vertically expand mense body of law, the opportunity upheld the decision of DEQ to grant its landfill was remanded. In his de- for both making and finding errors an operating permit for an expansion cision, the district judge said the record and omissions increases substantially. of the Exxon Baton Rouge Polyolefins didn’t show DEQ had enough infor- As a result, the public’s involvement Plant (Exxon). The facility was located mation to properly decide if Waste often encourages the consideration of in part of the non-attainment area for Management was prepared for emer- factors that might have otherwise gone ozone pollution, which was an issue gencies and also noted that DEQ unchallenged by DEQ, thereby delay- contested by the North Baton Rouge failed to address public concern that ing, and in some cases, derailing an Environmental Association (NBREA) its employees accepted gratuities that applicant’s permit attempts. and Louisiana Environmental Action tainted the permitting process.159 Al- Network (LEAN). Among other is- though the judge doubted that Waste When the public gets involved, sues, NBREA and LEAN also asserted Management was unprepared for the burden on the applicant and DEQ that DEQ failed to comply with its emergencies, he noted: “[I]t does not to comprehensively address all of the constitutional duty as public trustee appear in the record so that DEQ substantive, procedural, and public of the environment. In considering could make a decision.”160 In re- comments in the administrative the balancing effect required by the “IT manding the decision, the court did record is increased. Accordingly, the Decision,” the district court noted: not allow DEQ or Waste Management DEQ Guidance Document offers “Exxon itself has been one of those to supplement the record to address some critical advice for applicants ad- industries which has significantly re- the court’s concerns—as was done in dressing “IT Requirements”: “The per- duced emissions. It has done little Exxon. Both the Exxon and Waste mit applicant should view its response things, like paid people to be on jury Management decisions highlight how to the “IT Requirements” as the best duty, which we always appreciate. important it is for a company to dili- opportunity to document for the They’ve put money back in the com- gently work with DEQ to ensure that DEQ, but more importantly the pub- munity.”155 Both the district and ap- all applicable concerns are addressed lic, its reasons supporting the pro- peal court concluded that DEQ was prior to judicial review, because the posed facility.”153 Provided that an reasonable in finding that the balanc- absence of a single piece of informa- applicant properly considers the “IT ing test weighed in the favor of Exxon tion can be the difference between suc- Requirements” and complies with all and upheld the issuance of the oper- cess and failure in the courts when a other applicable requirements, it ating permits. permit applicant encounters signifi- cant public opposition. The case also
10 Louisiana Environmental Lawyer • Summer 2004 highlights how perceived or actual lic support can be for a proposed if the public is concerned about the mistakes and deceit can create sub- project. project, they immediately become stantial burdens for a permit appli- defensive. Secondly, if they begin to cant. It is possible to permit a proposed raise issues that were not previously facility or expansion in the face of sub- addressed, it has the potential to cause In circumstances that parallel the stantial public opposition, but it is not significant problems and to increase original “IT Case,” citizens living near easy. Such results are not a flaw in the costs for either re-engineering or try- the Woodside Landfill successfully process that can be addressed by leg- ing to back into “IT Requirements” to raised concerns regarding the propri- islation or administrative actions; but justify decisions already made. Efforts ety of the permit process and the abil- are inherent in our democratic soci- such as these are often apparent and ity of Waste Management to properly ety and the adversarial nature of our might result in a facility having to operate its existing facility. Specifically, judicial system. The fact that these abandon the entire project or start allegations were raised regarding the cases introduce legal uncertainty into from scratch if they are unable to pre- acceptance of hazardous waste at the the environmental process is a conse- vail in judicial proceedings. The po- facility, which resulted in a criminal quence encountered in much of our tential for such results is minimal, but investigation into the operations by law. Courts are designed to provide it happens, as illustrated by IT Corp. the EPA.161 Although nothing has ever reasoned and personal justice tailored and American Waste. Alternatively, resulted from the investigation, its to each individual case. This is the making efforts to evaluate and deter- mere existence raised concerns regard- function of law and avoids the harsh mine likely public reception to a pro- ing the operation of the facility. Fur- application and injustice that results posed project can provide substantial ther, the allegations resulted in an in- from the legislation pronouncement benefits. vestigation by the Louisiana Board of of “bright line” rules and laws. Ethics, which concluded with the is- At the worst, a facility might com- suance of fines against Waste Manage- The “IT Decision” and its subse- mission a poll or public opinion sur- ment and three DEQ employees.162 quent jurisprudence indicate that un- vey and determine that a certain com- This type of conduct, and its related certainty is a part of Louisiana envi- munity poses too much of a risk to publicity, was harmful to Waste Man- ronmental law. Legislative attempts even propose a facility.163 At best, a agement when the court reviewed the to address the uncertainty raised even company can establish relationships “IT Decision” balancing process and more concerns among the regulated with future neighbors that will prove it also prevented the judge from giv- community. This comment has ad- beneficial throughout pending and fu- ing the company the benefit of the dressed many of these concerns. It is ture permit activities. These efforts re- doubt—as evidenced by the district suggested that the regulated commu- quire the education of the business court’s decision not to allow the record nity can further reduce the uncertainty community, including attorneys, to to be supplemented and to remand regarding the environmental permit ensure that they are aware of the “IT the case for further inquiry. process by engaging the public in Requirements.” Efforts to include in- projects from their inception. Such creased environmental awareness The Exxon and Waste Manage- public involvement will allow com- among the business community have ment cases illustrate that the public’s panies to gage the likelihood of pub- made significant progress in the last trust in a company can substantially lic acceptance for their proposed decade, but improvements can still be affect the outcome of a judicial review. projects and allow for public concerns made. A recent issue of the American In Waste Management’s case the ques- to be addressed and implemented as Bar Association’s Business Law Today164 tions of impropriety, whether well the project progresses—thereby in- had an environmental law theme that founded or not, allowed the court to creasing the public’s trust in a com- outlined basic environmental con- remand the case for further consider- pany. Public opposition is a part of cepts that business lawyers should be ation. This outcome emphasizes the the environmental landscape today. aware of—such as environmental importance of developing a complete Rather than considering it an obstacle emergencies, natural resource damage and well-supported “IT Response.” Al- that must be overcome, the regulated assessments, environmental insur- though speculative, if the trustworthi- community might find that collabo- ance, citizen suits, etc. Accordingly, ef- ness of DEQ and Waste Management rative efforts can result in positive forts to educate the business commu- had not been raised by citizen groups, gains in the community. Although nity about the “IT Requirements” and it is possible to assume that the DEQ these suggestions might be dismissed their potential impact on proposed decision would have been afforded as impracticable and idealistic, con- projects would be timely and might more deference and been affirmed— sider the alternatives. prove to reduce much of the uncer- like Exxon. However, the fact that tainty and concerns regarding the “IT these concerns were raised, and made Failing to properly consider pub- Decision” and its progeny. These are public by the citizens groups them- lic reaction to a proposed project once certainly some of the biggest lessons selves, underscores how critical pub- it has already progressed significantly to be learned from the “IT Decision.” can pose significant problems. First,
11 Louisiana Environmental Lawyer • Summer 2004 1 The organization was actually named Times Picayune, Section I, Page 1, (March Deputy Secretary “issued statements say- Save Ourselves, Inc. “because no one else 1, 1981). ing that the Environmental Protection would save us” and was commonly re- 14 When the facility was first announced Agency had recommended I.T. Corpora- ferred to by its acronym, SOS. Old Planta- in October 1979 it was estimated to cost tion—statements he later had to withdraw. tion, Where Sugar Cane Grew, Would Sprout $85 million. At the time the project was See Brookhardt, supra note 21. Toxic Waste Disposal Plant, New York Times abandoned in June 1989, it was estimated 29 Save Ourselves, Inc., Docket No. 243,970 (December 14, 1980). to be a $135 million project. Division “F”, Nineteenth Judicial District 2 452 So.2d 1152 (La. 1984). 15 See Pitts, supra note 13. Court (1982) 3 The facility was announced at a press 16 See Pitts, supra note 13. 30 Id. at 2. conference by then Governor Edwards as 17 “Natural Resources Deputy Secretary . . 31 Save Ourselves, Inc., Docket No. 243,970, the “Largest Hazardous Waste Plant in the . brought IT to Louisiana.” See Bookhardt, Page 2, Division “F”, Nineteenth Judicial World.” IT Corp. later began calling the infra note 21. District Court (1982) facility the “Largest of its kind in the 18 Rollins Environmental Services of Louisi- 32 Id. United States.” ana, Inc. v. Iberville Parish Police Jury, 371 33 Bob Odom was acting Commissioner 4 My parents, especially my mother, were So.2d 1127, 1127 (La. 1979) at the time and also became a subject of instrumental in fighting IT Corp.’s plans 19 “Ascension Parish already contains three controversy because he accepted campaign to construct this facility. At the time the of the most serious known abandoned loans from the property owner who sold plans were announced, I was four years waste disposal sites in Louisiana.” See IT Corp. the land for its proposed facility. old. In a fight that lasted almost ten years, Pitts, supra note 13. Odom Got Loans from IT Site Owner, Morn- many, many hours of my childhood were 20 Save Ourselves, Inc. v. La. Environmental ing Advocate (October 2, 1980). spent in meetings, public hearings, and Control Commn,, Docket No. 243,970 Di- 34 Save Ourselves, Inc., Docket No. 243,970, courtrooms as my parents fought to pro- vision “F”, Nineteenth Judicial District Page 2, Division “F”, Nineteenth Judicial tect my family’s home and my father’s res- Court, East Baton Rouge Parish, LA District Court (1982) taurant, which bordered opposite corners (1982). 35 IT Corp. v. Commn. on Ethics for Public of the proposed site. My mother largely 21 In an interview extolling “the wonders Employees, 464 So.2d 284, 286 (La. 1985). preserved the information used to develop of I.T.” then-Secretary of DNR, Jim 36 IT Corp., 464 So.2d at 286. this paper. I am forever gracious for her Hutchinson spoke candidly regarding his 37 Id. at 287. relentless efforts. role in bringing IT Corp. to Louisiana. “In 38 Id. 5 452 So.2d at 1160. the characteristically offhand manner of 39 “The study was criticized . . . because 6 “The basic principle underlying the pub- the Edwards administration, he cheerfully the thick 280-page volume actually con- lic trust doctrine is that ‘[t]here are things acknowledges his role in selecting I.T. as tained much less relevant information which belong to no one, and the use of the builder of the waste disposal plant. He than might appear at first glance. It is which is common to all.’ Thus the gov- says it all goes back to a conference on haz- printed on one side of the page only, triple ernment should act as a trustee, holding ardous waste management he attended in spaced, and about half the material ap- and preserving the land for the benefit of San Francisco shortly after taking office. pears to be a rundown of various industry the public both today and for generations That was when he “found” the I.T. Corpo- techniques for waste disposal that could to come.” Greg Johnson, Constitutional ration, on a guided tour of one of its haz- have come right from a textbook. Section Environmental Protection In Louisiana: Los- ardous waste handling facilities.” D. Eric V, page 74, for instance, talks about the ing the Reason in the Rule of Reasonableness, Bookhardt, A Magnet For Toxic Wastes, use of electrodialysis to produce drinking 42 Loy. L. Rev. 97, 98 (1996). Figaro Newsmagazine, Page 5-6 (March water from sea water, a method which, the 7 Warren Byrd, Environmental Law, 43 La. 17, 1980). study concludes, would be particularly B.J. 484 (1996). 22 Supra note 3. useful ‘in Japan.’” See Brookhardt, supra 8 Lee Hargrave, The Public Trust Doctrine: A 23 Shaw Environmental and Infrastructure, note 21. Plea for Precision, 53 La. L. Rev. 1535 Inc., The IT Group: A Commitment Built on 40 IT Corp., 464 So.2d 284. (1993). Years,
12 Louisiana Environmental Lawyer • Summer 2004 48 Sonny Albarado, Waste Unit set on site argument failed because the record indi- (4) Affected by other error of law; for Airport, Morning Advocate (October 18, cated that four of the commissioners were (5) Arbitrary or capricious or char- 1979). present for the duration of the hearings— acterized by abuse of discretion; 49 “[Citizens] fear the size of the proposed constituting the quorum required for the or complex site—1000 acres—and its acces- ECC to make a valid decision under the (6) Manifestly erroneous in view of sibility to water, rail, and highway traffic applicable guidelines. The four commis- the reliable, probative, and sub- will eventually make the rural Burnside sioners present voted 3-1 to issue the per- stantial evidence on the whole area the nation’s hazardous waste dump- mits. See Save Ourselves, Inc., Docket No. record. In the application of the ing ground.” See Albarado, supra note 42. 243,970, Page 2, Division “F”, Nineteenth rule, where the agency has the 50 A contingent of local citizens, includ- Judicial District Court (1982) Written Ba- opportunity to judge the cred- ing political officials, visited IT Corp.’s Cali- sis for Decision, pgs. 6-7. ibility of witnesses by firsthand fornia facilities to learn more about the IT 58 See State Times, supra note 54. observation of demeanor on the Corp. operations. Sonny Albarado, Area 59 Sonny Albarado, IT Battling Nov. 19 witness stand and the reviewing Group Still Opposes Waste Facility, Morning Deadline for Permit, Morning Advocate court does not, due regard shall Advocate (June 7, 1980). (October 30, 1980). be given to the agency’s deter- 51 May 19, 1980. Respondent’s Supreme 60 The ECC’s ability to issue the ‘interim mination of credibility issues. Court Brief, Page 36. permit’ was constrained by law (accord- 69 Save Ourselves, Inc. v. La. Environmental. 52 Sonny Albarado, Opponents of Waste ing to opinion of State Attorney General), Control Commn., 430 So.2d 1114, 1121 (La. Plant Pit Emotions Against Rules, Morning but it nonetheless decided to issue the ‘pre- App. 1 Cir. 1983) (Ponder, J., concurring). Advocate (August 1, 1980). construction’ permit in an effort to help 70 Save Ourselves, Inc., 452 So.2d at 1159 53 Interestingly, the permit hearing tapes IT Corp. in its efforts with EPA. Steven (emphasis added). were lost, never transcribed and never re- Wheeler, IT Receives OK to Begin ‘Pre-Con- 71 Id. at 1160. covered. Sonny Albarado, IT Permit Hear- struction’ Activity, Morning Advocate (No- 72 The 1983 Louisiana Legislature passed ing Tapes Still Missing After 4 Days, Sunday vember 19, 1980). Act 97, which divided responsibilities be- Advocate (August 10, 1980). 61 Guy Coates, Fischer Says Some Questions tween DNR and a new DEQ and trans- 54 Save Ourselves, Inc. appealed several Still Unanswered About IT Site, State Times ferred the responsibilities of the ECC from rulings of the ECC and sought recusal of (December 18, 1980). DNR to DEQ. Accordingly, DEQ assumed various individuals involved in the ECC 62 May 19, 1980. Respondent’s Supreme the ECC’s functions to accept, review and Hearings. After one of the suits was dis- Court Brief, Page 19. act upon permit applications. Id. missed, Judge Roberts of the 19th Judicial 63 See Save Ourselves, Inc., Docket No. 73 Tim Talley, Hearings on Plant May Re- District Court noted “Frankly, this Court 243,970, Page 2, Division “F”, Nineteenth open, Morning Advocate (May 17, 1984). is a little disturbed by the almost continu- Judicial District Court (1982) Written Ba- 74 Tim Talley, ‘New Game’ Expected for IT ous, or universal, accusations leveled at sis for Decision, pgs. 6-7. Hearing, Morning Advocate, 3-B (April 22, any elected or public official if a decision 64 Id., pages 15-17. 1986). is not rendered in accordance with that 65 Emphasis added. 75 Tim Talley, Environmentalists Cry Foul at particular person’s belief or desires; and, 66 Although the slurry wall was not made Waste Facility Hearing, State Times, 6-C suggestions that elected officials would a condition of the permit. (April 23, 1986). violate the functions of their office or the 67 Conflicting expert testimony was pro- 76 Tim Talley, Permits Need to be Combined, duties that they may have undertaken vided regarding whether the site was natu- Official Says, Morning Advocate (May 16, should not be made lightly and they are rally isolated from the aquifers and the 1986). not taken by this Court lightly.” See Save Mississippi River. See Save Ourselves, Inc., 77 Tim Talley, New IT Permit Process May Ourselves, Inc., Docket No. 243,970, Page Docket No. 243,970, Page 2, Division “F”, Take 9 Months, Morning Advocate (May 17, 2, Division “F”, Nineteenth Judicial Dis- Nineteenth Judicial District Court (1982) 1986). trict Court (1982) Oral Reasons for Judg- Written Basis for Decision. 78 Not to be confused with Part II of the ment, pg. 2. Save Our Selves was not the 68 Specifically, La. R.S. 49:964 G, which present day DEQ hazardous waste permit only side seeking removal of Commission provided the following: application process. members, IT Corp. also sought to have a The court may affirm the decision of 79 Tim Talley, Cramer Named IT Hearing commissioner removed. Waste Plant Of- the agency or remand the case for further Officer, Morning Advocate (April 28, ficial Questioned on European Incinerator proceedings. The court may reverse or 1987). Blast, State Times, 9-B (October 10, 1980). modify the decision if substantial rights 80 The Attorney General’s Office who origi- 55 Save Ourselves, Inc., Docket No. 243,970, of the appellant have been prejudiced be- nally defended issuance of the permits to Page 2, Division “F”, Nineteenth Judicial cause the administrative findings, infer- IT Corp. in the judicial proceedings later District Court (1982) Written Basis for De- ences, conclusions, or decisions are: intervened in its capacity as a public trustee cision, pg. 1. (1) In violation of constitutional or in the remand hearings. See Tim Talley, 56 May 19, 1980. Respondent’s Supreme statutory provisions; Guste Intervenes in IT Hearing, Morning Court Brief, Page 8. (2) In excess of the statutory author- Advocate, 1-B (September 9, 1998). 57 This was a due process argument raised ity of the agency; 81 Vicki Ferstel, IT Site Foes Cheered by Find- by Save Ourselves in the lower courts. The (3) Made upon lawful procedure; ing, Morning Advocate, Page 8A (Febru- ary 23, 1989).
13 Louisiana Environmental Lawyer • Summer 2004 82 Over $19,000,000 on land and engi- “adverse environmental impacts have 124 See Hargrave, supra note 8 at 1551. neering costs, not including legal fees had been minimized or avoided as much as 125 “The regulatory scheme provided by been spent to date. Tim Talley, IT Corp. possible consistently with the public wel- constitution and state mandates a particu- Permit Being Revoked by DEQ, Morning Ad- fare (emphasis in original). lar sort of careful and informed decision- vocate, 1-B (May 10, 1989). 99 506 So.2d 749 (La. App. 1 Cir. 1987). making process and creates judicially en- 83 IT Corp. v. Commn. on Ethics for Public 100 Save Ourselves, Inc., 452 So.2d 1152 forceable duties.” Save Ourselves, Inc. 452 Employees, 453 So.2d 251, 257 (La. App. 1 101 In re Cadence Environmental Energy, Inc., So.2d at 1159. Cir. 1984) (emphasis in original). 714 So.2d 936 (La. App. 1 Cir. 1998). 126 See Hargrave, supra note 8 at 1552. 84 This case was also litigated extensively 102 Blacket, 506 So.2d 749. 127 See Save Ourselves, Inc., 452 So.2d at and was eventually denied review by the 103 In re Dravo Basic Materials Co., 604 1161: ‘The administrative process will best Louisiana Supreme Court. So.2d 630 (La. App. 1 Cir. 1992). be vindicated by clarity in its exercise.’ 85 See Shaw Video, supra note 23. 104 In re Marine Shale Processors, Inc., 566 Phelps Dodge Corp. v. National Labor Rela- 86 Save Ourselves, Inc., 452 So.2d at 1152. So.2d 994 (La. App. 1 Cir. 1990). tions Bd., 313 U.S. 177, 197. “ What was 87 La. R.S. 30:1051 et seq. 105 Id. said in that case is equally applicable here: 88 Save Ourselves, Inc., 452 So.2d at 1155 106 In re Rubicon, Inc., 670 So.2d 475 (La. ‘We do not intend to enter the province (emphasis in original). App. 1 Cir. 1996). that belongs to the board, nor do we do 89 42 U.S.C. §§ 4321-4370a. 107 In re Recovery I, Inc., 635 So.2d 690 (La. so. All we ask of the board is to give clear 90 Thanks are offered to Dr. Lieux, of DEQ, App. 1 Cir. 1994). indication that it has exercised the discre- for highlighting this connection. See Fed- 108 In a case challenging the issuance of a tion with which congress has empowered eral Judicial Center, Judges of the United license to remove naturally occurring ra- it. This is to affirm most emphatically the States Courts,
14 Louisiana Environmental Lawyer • Summer 2004 industry they didn’t like.” 158 Docket No. 492, 277 Division “I”, 163 Although siting facilities such as land- 153 See Lieux, supra note 95. Nineteenth Judicial District Court, East fills and hazardous waste treatment facili- 154 805 So.2d 255 (La. App. 1 Cir. 2001). Baton Rouge Parish, LA (2002). ties will always encounter public opposi- 155 Id. at 263. 159 Mike Dunne, Waste Management Loses tion, these methods can still be used to 156 The attorney for Exxon indicated that Permit, The Advocate (August 20, 2002). minimize public opposition and to stra- substantial information regarding Exxon’s 160 Id. tegically consider plans for dealing with community activities were submitted into 161 Bob Anderson, EPA Investigates the opposition. the administrative record to support Livingston Landfill, The Advocate (May 15, 164 Business Law Today (November/Decem- DEQ’s “IT Analysis.” 2001). ber 2002). 157 This allowance was permitted because 162 Marsha Shuler, Ethics Board Fines 3 DEQ 165 Id.at 1152. it was characterized as a “technical delay.” Employees, The Advocate (August 14, North Baton Rouge Environmental Associa- 2002). tion, 805 So.2d at 262.
LDEQ Regulatory Additions and Amendments (October 2003 to March 2004)
Site Specific Criteria Adjustment for ment and Finance, Financial Services fected by a release that poses a signifi- Bayou Chinchuba and Tchefuncte Division, on or before the twentieth cant risk of adverse health effects. River Wetlands (LAC 33:IX.1123) (20th) day of each month for the pre- LDEQ shall issue notice of a release vious month’s activity (including that poses a significant risk of adverse This final rule will establish a site- months in which no fees were col- health effects to persons whom the specific criteria for wetlands in the lected). Department reasonably determines Bayou Chinchuba and Tchefuncte are likely to be adversely affected by River watersheds, which are identified Radioactive Material (LAC 33:XV.212, the release. The notification require- as naturally dystrophic water seg- 320, 545, 590, 2504 and 2506) ments apply to releases that occur on ments. These changes are based on a or after October 20, 2003, and exceed Use Attainability Analysis (UAA) The main purpose of this rule is the applicable federal and state health which was conducted according to to add a notification requirement to and safety standards and pose a sig- state and federal water quality regula- the licensing of radioactive material. nificant risk of adverse human health tions. The following criteria will ap- A licensee shall notify the Office of effects. The regulation defines “appli- ply: no more that 20% reduction in Environmental Services, Permit Divi- cable federal or state health standard” the total above–ground wetland pro- sion in writing before making any as those health and/or safety standards ductivity as measured by the tree shrub change that would render the infor- promulgated under federal or state and/or marsh grass productivity. mation for the license no longer ac- health or safety laws or other univer- curate. sally accepted health or safety stan- Minerals Criteria Revision for Ver- dards that the Department, based on million River, Bayou Teche, Bayou Building Enclosure Definition its knowledge and expertise, reason- Courtableau and West Atchafalaya (LAC 33:III.2156) ably determines are applicable to a Borrow Pit Canal (LAC 33:IX.1123) particular release and release site. The purpose of this final rule is Public notice will be provided in two This final rule focuses on setting to correct a federal reference cited in circumstances: (1) the LDEQ becomes site-specific chlorides, sulfates and to- the definition of building enclosure aware of information and determines tal dissolved solids criteria for Bayou (BE), as it is used in the air regulations, that a release is likely to have signifi- Courtableau, West Atchafalaya Borrow at LAC 33:III.2156. The corrected rule cant off-site impact or (2) the LDEQ Pit Canal, Bayou Teche and the Ver- states, “(1) if a BE is to serve as a PTE confirms off-site impact that exceeds million River. or TTE, the appropriate requirements applicable standards. The notice of given in 40 CFR, Part 51, Appendix M, release will contain the address of the Waste Tires Fee Reporting (LAC Method 204 must be met.” release, description of the contami- 33:VII.10519) nant, corrective action efforts, any Public Notification of Contamina- potential adverse health effects and The final rule clarifies the stan- tion (LAC 33:I.101, 103, 105, 107 contact names and numbers. The dards and responsibilities of waste tire and 109) public notice shall be distributed by generators. Each dealer of passenger/ means reasonably calculated to reach light truck tires, medium truck tires or This final rule establishes proce- those members of the public directly off-road tires will remit the fees re- dures for notifying those members of affected by the release. ceived and fill out and submit the new the public whom the LDEQ deter- form WTO2 to the Office of Manage- mines are likely to be adversely af-
15 Louisiana Environmental Lawyer • Summer 2004 Risk Evaluation/Corrective Action Emissions Inventory, Toxics Emis- ineligible tires, but can only be re- Program (LAC 33:I.1305 and 1307 sions Reporting and Related Fee imbursed from the Waste Tire Man- and RECAP regulations) Methodology (LAC 33:III.211, 918, agement Fund for eligible tires. 919 and 5107) The final rule promulgates LPDES Water Quality Regulations changes to the applicability of RECAP The final rule affects the air qual- Renumbered (LAC 33:Part IX) standards found in Title I of the Loui- ity fee system, emissions record keep- siana Administrative Code, as well as ing and annual reporting and emis- This final rule does not change amends the document entitled “Loui- sions inventory requirements. Air any of the text in the water quality siana Department of Environmental toxic annual emissions fees will be regulations. The amendments renum- Quality Risk Evaluation/Corrective based on actual annual emissions that ber the Louisiana Pollutant Discharge Action Program (“RECAP”),” dated occurred during the previous calendar Elimination System Provisions. The October 20, 2003. The new RECAP year for major stationary sources. Fur- new 2004 edition of the regulations documents are available for purchase thermore, changes have been made to will contain the new numbering sys- from LDEQ’s Office of Environmen- Section 919, Emissions Inventory, in tem. tal Assessment, Environmental Plan- order to correlate with recently pro- ning Division. mulgated federal consolidated Emis- Penalty Determination Methodol- sions Reporting Rule (67 FR 39602- ogy (LAC 33:I.705.G) Removal of Interim Fee Amounts 39616, No. 111, 6/10/02). Addition- for Fiscal Year 2002 - Fiscal Year ally, PM 2.5 and ammonia are now The final rule requires that a cash 2003 (LAC 33:I.1409, 4707; III.223; required inventory pollutants. The fi- penalty be collected as part of a pen- V.5111, 5119, 5120, 5123, 5125, 5123 nal rule also requires additional inven- alty assessment, unless it can be dem- 5137, 5139, 5141, 5143, 5145; tory information on emissions, stack onstrated and documented that the VII.525, 527, 529; IX.1309, 1507; parameters, operating information, violator cannot pay the cash penalty. XI.3017, 1305; and XV.579 and and process rate data. All reporting Chapter 24, Appendix A) requirements for emissions inventory Waste Tire Amendments (LAC are due March 31. 33:VII.10505, 10519, 10525, 10527 The final rule removes obsolete and 10533) language from the environmental fee Technical amendments clarify tables throughout Title 33 of the Loui- that in Section 919.A.1 and 2 the This emergency rule was deemed siana Administrative Code. These “nonattainment parishes” being refer- necessary by LDEQ in order to changes reflect previous rulemaking enced are “1-hour ozone nonattainment strengthen the regulations governing and legislative changes, which were parishes.” Furthermore, within the ap- the proper disposal of waste tires pro- effective July 1, 2003. plicable parishes specified above a fa- cessed in Louisiana. Improperly pro- cility will be required to report the cessed tires often create environmen- Cooling Water Intake Structures for emission or the potential to emit 5 tpy tal and health related problems and New Facilities (LAC 33:IX.2522, of lead rather that 10 tpy. pose a significant threat to the safety 2523 and 2524) of the community, i.e., breeds mosqui- Waste Tire Regulations (LAC 33:VII, toes. The emergency rule added In response to changes made at 10505, 10519, 10525, 10527 and recordkeeping and reporting require- the federal level, LDEQ has made regu- 10533) ments, new definitions and limited latory changes to delete the definition the acceptance of un-manifested tires. of “minimum ambient source water The final rule adds the following The rule was effective on September surface elevation,” and to add lan- definitions to the solid waste recycling 12, 2003, and remained in effect un- guage clarifying that decisions con- regulations: adjustment tire, recall tire, til January 12, 2004. cerning various stressors and other used tire and used tire dealer. Further- adverse impacts on species passing more, the standard fees also shall be Unauthorized Emissions Reporting through the hydraulic zone of influ- collected upon replacement of all re- Procedures (LAC 33:I.3931) ence will be based on information call and adjustment tires. Generators, submitted by any fishery management waste tire processors, waste tire collec- This emergency rule was renewed. agency(ies) or other relevant informa- tors and collection centers all have The effective date was December 10, tion. additional record keeping require- 2003, and the rule remained in effect ments added by the new regulatory for a maximum of 120 days, expiring provisions. A technical amendment on March 10, 2004. In order to col- removed the proposed definition for lect additional information on the eligible tire and reworded Section ozone conditions in the Baton Rouge 10525.A.1. to clarify that processors nonattainment area, LDEQ is propos- can accept both program eligible and ing a study similar to one conducted
16 Louisiana Environmental Lawyer • Summer 2004 in the Houston/Galveston areas. Fa- site remediation of contaminated cilities are to continue to follow the media. The definition of hazardous Expedited Penalty Agreement (LAC LAC 33:I Chapter 39 reporting proto- waste was amended and environmen- 33:I.801, 803, 805 and 807) cols and, whenever possible, to utilize tal media was not considered to con- the new notification procedures. Re- tain a hazardous waste when concen- In order to meet legislative man- portable quantities for the following trations remaining in the media are dates established in Act 1196 of the pollutants have been modified for below RECAP screening standards and 2003 Regular Session, LDEQ has pub- specified parishes: acetaldehyde, the media no longer exhibited any of lished an emergency rule creating an butanes (all isomers except 1,3 buta- the characteristics of hazardous waste expedited penalty agreement pro- diene), ethylene, propylene, toluene identified in LAC 33:V.903. gram. This is a voluntary program and selected highly reactive volatile or- under which the Department, at its ganic compounds. New or Revised Emissions Estimation discretion, may propose entering into (New notification forms at http:// Methodologies (LAC 33:III.501.C.11) an expedited penalty agreement with www.deq.state.la.us/surveillance/irf/ a regulated entity when one of the forms). This emergency rule was effective specific violations has been identified. on December 24, 2003, and expired The proposed regulations list the types Remediation of Sites with Contami- on March 24, 2004. The emergency of violations and expedited penalty nated Media (LAC 33:V.109. Haz- rule added C.11, which clarified that amounts which have been selected for ardous Waste Definition) air emissions increases due solely to a the program. change in AP-42 factors did not con- This emergency rule took effect stitute violations of the air permit. on December 8, 2003 and expired on However, changes in emission factors March 8, 2004. The purpose of this other than AP-42 factors were evalu- emergency rule was to simplify the ad- ated by the Department on a case-by- ministrative requirements regarding case basis for appropriate action.
Recent Developments in Administrative Law: District Court Rules Division of Administrative Law Act Unconstitutional
The Division of Administrative The constitutionality of the view with the 19th Judicial District Law Act (La. R.S. 49:991 et. seq.) es- aforementioned provisions were suc- Court but that suit was dismissed tablished the Division of Adminis- cessfully challenged by the Louisiana based upon a peremptory exception trative Law generally empowered to Commissioner of Insurance recently of no right of action which dismissal handle all adjudications required of in the case of J. Robert Wooley in his was upheld on appeal. See, James H. any board, commission, department capacity as Commissioner of Insurance, “Jim” Brown, Commissioner of Insur- or agency of the Executive Branch of State of Louisiana v. State Farm Fire and ance v. State of Louisiana v. State Farm state government in accordance with Casualty Insurance Company, Honor- Fire and Casualty Company, 804 So.2d the State Administrative Procedure able Murphy J. Foster in his capacity as 41 (La. App. 1st Cir. 2001). Act. Decisions are rendered by Ad- Governor of Louisiana, Anne Wise, in ministrative Law Judges (“ALJ”) ap- her capacity as Director of the Division The Commissioner of Insurance pointed by the Division’s Director, of Administrative Law, and Allen thereafter filed the instant suit himself a Governor appointee. The Reynolds, in his capacity as Director of against State Farm and the Division Division is within the Department of the Department of State Civil Service, of Administrative Law’s director, State Civil Service and the ALJ’s are docket no. 502,311, Section 21, 19th Anne Wise, claiming that the Admin- in classified service. Judicial District Court, East Baton istrative Law Act was unconstitu- Rouge Parish, Louisiana. This case tional and seeking declaratory and Under the provisions of the Act, began when the Commissioner of injunctive relief. After a hearing on the ALJ issues the final decision or Insurance refused to approve a State the application for permanent in- order which the agency cannot over- Farm policy for use in Louisiana. junction and a trial on the merits of ride. Moreover, the Act expressly pre- State Farm sought review of the the declaratory action, Judge Janice cludes the state agency from seeking Commissioner’s decision with the Clark, in a written judgment signed judicial review of an ALJ decision, ef- Division of Administrative Law. The February 25, 2004, ruled that among fectively depriving the agency of any ALJ ruled in State Farm’s favor and other constitutional provisions, the right to seek review of decisions ad- ordered that the Department of In- Act violated: verse to the agency. surance approve the policy. In re- sponse, the Commissioner of Insur- ance filed a petition for judicial re-
17 Louisiana Environmental Lawyer • Summer 2004 1) Article II, separation of Judge Clark granted judgment or the Department of Insurance to powers, Judge Clark finding declaring that the Division of Admin- comply with its interpretations of that the Act impermissibly istrative Law Act, (specifically Acts law and/or public policy in that such vests judicial power in ex- 1995, no. 739 and as subsequently decisions are to be made by persons ecutive branch employees; amended by Acts 1999, no. 1332) who are accountable to the elector- was unconstitutional, null and void, ate, and in the final instance by the 2) Article V, Section 22, and that any action taken pursuant judicial department, which is the mandating an elected judi- to its provisions including the ALJ’s branch of government vested by Ar- ciary; ruling in question was likewise null ticle II of the Louisiana Constitution and void and of no effect. with the power to declare what the 3) Article V, Section 16, vest- law is.” ing original jurisdiction in The court also granted perma- state district courts; nent injunctive relief in favor of the State Farm and the Division of Commissioner of Insurance, restrain- Administrative Law have taken devo- 4) Article V, Section 1, pro- ing, enjoining and prohibiting the lutive and suspensive appeals respec- viding that the judicial defendants from “carrying out, tively with the return date currently power of the state is to be implementing, enforcing, and/or uti- scheduled for April 15, 2004. Fur- vested in the Supreme lizing the provisions of [the Act] as thermore, several bills have been in- Court, Courts of Appeal, regards matters arising from the Of- troduced in the current legislative District Courts and other fice of the Commissioner of Insur- session to address the Court’s ruling. courts as may be authorized ance and/or the Louisiana Depart- See, i.e., H.B. 256 and S.B. 332 pro- by the constitution; and ment of Insurance, insofar as the posing a constitutional amendment Division of Administrative Law is providing for the creation of a sys- 5) Article V, Section 2, pro- without authority to interpret laws tem of administrative law. viding for the supervisory governing the regulation of insur- jurisdiction of the judicial ance, and further, is without author- branch. ity to order the Commissioner and/
LOUISIANA STATE BAR ASSOCIATION Non-Profit Org. 601 St. Charles Avenue U.S. Postage New Orleans, LA 70130 PAID New Orleans, LA RETURN POSTAGE GUARANTEED Permit No. 201 If undeliverable, please return to sender