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Louisiana Environmental Lawyer, Vol 8, No 1, Spring 2004

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Louisiana Environmental Lawyer, Vol 8, No 1, Spring 2004 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.
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