Louisiana Environmental Action Network, Inc. v. Chuck Carr Brown, as Secretary of the Louisiana Department of Environmental Quality ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0607
LOUISIANA ENVIRONMENTAL ACTION NETWORK, INC.
VERSUS
CHUCK CARR BROWN, AS SECRETARY OF THE
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY
Decision Rendered: JAN 0 9 2020
0 APPEALED FROM THE 19th JUDICIAL DISTRICT COURT
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 677, 599, SECTION 23
HONORABLE WILLIAM A. MORVANT, JUDGE
Herman Robinson Attorneys for Defendant/ Appellant
Courtney J. Burdette Louisiana Department of Environmental
Ashley K. Plunkett Quality
Charlotte M. Goudeau
Jill R. Carter
Baton Rouge, Louisiana
Clay Garside Attorneys for Plaintiff/ Appellee
Joel R. Waltzer Louisiana Environmental Action Network
New Orleans, Louisiana
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDONALD, J.
The district court granted the Louisiana Environmental Action Network, Inc.' s
petition for mandamus against the Louisiana Department of Environmental Quality
DEQ). The district court's judgment directed DEQ to issue a deficiency notice to
Thermaldyne, LLC, a wastewater permit applicant, requiring Thermaldyne to provide
certain information with its application as mandated by DEQ regulations. The district
court's judgment also denied DEQ' s exceptions of no right of action and no cause of
action. DEQ appeals the adverse judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2018, Thermaldyne filed a LPDES ( Louisiana Pollutant
Discharge Elimination System) Application to Discharge Wastewater from Minor
Industrial Facilities with DEQ seeking to discharge wastewater into the Intracoastal
Waterway from a proposed new oil reclamation facility in Port Allen, Louisiana. In its
application, Thermaldyne sought a waiver from reporting requirements for certain
discharge pollutants, justifying its waiver request with the phrase " Proposed facility."
By letter dated January 23, 2018, DEQ' s Office of Environmental Services notified
Thermaldyne that its application was deemed administratively complete, had been
assigned to the Water Permits Municipal Permits division, and that DEQ may require
additional information if technical deficiencies were found.
On May 3, 2018, DEQ published a public notice in the West Side Journal
stating that it was accepting written comments through June 7, 2018, on a draft
LPDES water discharge permit prepared for Thermaldyne' s Port Allen facility. TD* X
Associates LP, a Texas entity operating a facility similar to that proposed by
Thermaldyne, submitted the sole comment on the draft permit. In a detailed, 11 -
page comment, TD* X indicated, among other issues, that the oil reclamation process
Thermaldyne proposed to use at its new facility generated " acutely and chronically
toxic" wastewater, containing significant levels of pollutants. Due to computer
issues, DEQ published a second notice extending the public comment period through
July 23, 2018. DEQ received no further comments.
2
In August 2018, the Louisiana Environmental Action Network, Inc. ( LEAN)
asked DEQ to re -open the public comment period and to hold a public hearing on
Thermaldyne' s application. DEQ denied the request. Thus, on December 20, 2018,
LEAN filed a petition for mandamus and injunctive relief against Chuck Carr Brown,
as DEQ Secretary, asking that DEQ be ordered to: ( 1) obtain further, legally required
information on Thermaldyne' s permit application; ( 2) provide the public with
sufficient notice; and ( 3) re -open the public comment period on the draft permit. In
response, DEQ filed exceptions pleading the objections of no right of action, no
cause or action, and improper cumulation of actions.
After a hearing, the district court signed a judgment on March 20, 2019,
denying DEQ' s exceptions of no right of action and no cause of action, granting
LEAN' s petition for mandamus, and ordering the 19th JDC' s clerk of court to issue a
writ of mandamus to DEQ Secretary Brown.' On March 25, 2019, the clerk signed a
mandamus order stating:
To the Honorable Chuck Carr Brown, Secretary of [ DEQ]: You are
hereby directed by the 19th Judicial District Court to issue a notice of
deficiency to [ Thermaldyne] ... regarding the application for proposed
LPDES Permit Number LA0127307 ... . The notice of deficiency that
you issue shall direct [ Thermaldyne] to provide all applicable
information that is legally required to be contained in its application for
proposed Permit Number LA0127307, including a full listing of
pollutants Thermaldyne expects to be contained in the effluent it
proposes to release into Louisiana waters as a result of its industrial
processes, in accordance with La. Admin. Code tit. 33. Pt IX, §§
2501. x.5. Any public notice of a proposed permit action shall include a
reasonable description summarizing the proposed industrial activity, the
water pollutants that will emanate therefrom, including hazardous and
toxic pollutants, the receiving and connecting water bodies, and any
other applicable information required by La. Admin. Code tit. 33, Pt IX,
3113. D.
DEQ suspensively appeals the adverse judgment, contending the district court
erred in denying its exceptions and in exercising its mandamus power before DEQ
reached a final decision on Thermaldyne' s permit application.
1 The judgment contains no ruling on LEAN' s request for injunctive relief or on DEQ's improper
cumulation exception.
3
MANDAMUS CAUSE OF ACTION UNDER LA. R.S. 30: 2050. 29
Except for situations not pertinent here, whenever Chapter 2 of the Louisiana
Environmental Quality Act ( LEQA) specifies a deadline within which DEQ must act on
a particular matter, and DEQ fails to act by such deadline, any adversely affected
party has the right to a writ of mandamus from the 19th Judicial District Court,
directing DEQ to act within a period of time specified by the court, and if the
adversely affected party prevails, the court shall award court costs and attorney fees.
La. R. S. 30: 2050. 29. In its first assignment of error, DEQ contends the district court
erred in denying its exception of no cause of action, because LEAN has failed to
identify any deadline that DEQ failed to meet.
The peremptory exception of no cause of action questions whether the law
affords the plaintiff any remedy under the allegations of its petition. Rhodus v.
Lewis, 15- 1454 ( La. App. 1 Cir. 4/ 15/ 16), 193 So. 3d 215, 218. The exception is
triable solely on the face of the petition and any attached documents. Id. at 219;
see La. C. C. P. art. 931. The court must presume all well -pleaded facts are true,
must make all reasonable inferences in favor of the non- moving party, and must
resolve any doubts in favor of the petition' s sufficiency. Rhodus, 193 So. 3d at 219.
The exceptor bears the burden of showing that the plaintiff has not stated a cause of
action. Id. The appellate court performs a de novo review of a trial court's ruling on
an exception of no cause of action. Id.The LEQA designates DEQ as the primary agency in the state concerned with
environmental protection and regulation. La. R. S. 30: 2011A( 1). The DEQ Secretary
has the power to grant or deny permits as provided by the LEQA and must
promulgate rules establishing procedures for the processing and review of permit
applications. La. R. S. 30: 2011D( 2); 30: 20226. As relevant here, DEQ has adopted
rules specifying the application requirements for new facilities seeking LPDES
permits, as well as rules applicable to DEQ' s review of such applications, including
LAC 33: IX: 2501. K and LAC 33: I: 1505.
z
Under LAC 33: IX: 2501. K. 5, a new facility seeking a LPDES permit, such as
Thermaldyne, must provide information in its application regarding the expected
presence of certain pollutants. Although DEQ may waive the reporting requirements
for some pollutants, DEQ may not waive the reporting requirements for other
pollutants. See LAC 33: IX: 2501K. 5( a)-( e). After receipt of a permit application for a
new facility, DEQ must perform an administrative completeness review to determine
whether the application contains the information required to substantively review the
application. See La. R. S. 30: 20226( 1); LAC 33: I: 1505A( 1) and ( 2). If applicable,
DEQ must notify the applicant in writing of specific administrative deficiencies, or
additional information needed to process the application, and the time period within
which the applicant must respond. See LAC 33: I: 1505A( 1) and ( 2). Within 60 days
from the date a permit application is submitted, DEQ must issue a letter of
administrative completeness or notify the applicant that its application has been
suspended because required administrative information has not been timely received.
See La. R. S. 30: 20226( 1); LAC 33: 1: 1505A( 3). An application is complete when DEQ
receives either a complete application or the information listed in a notice of
deficiency. LAC 33: IX: 2501. E.
At the hearing on the mandamus and exceptions, the district court determined
that, under LAC 33: IX: 2501. K, DEQ should have required Thermaldyne to provide
more information regarding what it was potentially going to discharge into the
Intracoastal Waterway, and Thermaldyne' s mere use of the term " Proposed facility"
was insufficient evidence to show that DEQ granted Thermaldyne a waiver from
reporting requirements for certain pollutants. The district court also noted that
DEQ' s May 3, 2018 public notice of the draft permit it proposed to issue to
Thermaldyne was one of the " most nebulous" it had seen and contained insufficient
information to alert LEAN, or anyone in the community, to make further inquiry into
the nature of Thermaldyne' s wastewater discharge.
5
After a de novo review of LEAN' s mandamus petition and attached documents,
we find LEAN has stated a cause of action against DEQ under La. R. S. 30: 2050. 29.
We agree with the district court that DEQ failed to adequately and timely perform the
administrative review required to substantively review Thermaldyne's application, as
required by La. R. S. 30: 2022B( 1); LAC 33: I: 1505A( 1) and ( 2); and LAC
33: IX: 2501. K. 5. LEAN' s mandamus petition alleges that Thermalydyne' s proposed oil
reclamation process is a type that produces significant levels of pollutants.
Thermaldyne' s application did not contain required information regarding the
expected presence of certain pollutants. See LAC 33: IX. 2501. K. 5. DEQ had a
mandated, ministerial duty to identify this missing information, to notify Thermaldyne
of this " specific administrative deficiency," and to specify a prescribed time within
which Thermaldyne should respond to the notice of deficiency. See LAC
33: I: 1505A( 1) and ( 2); LAC 33: IX: 2501. E. DEQ had 60 days from the application' s
submission date to complete this administrative completeness review. See La. R. S.
30: 2022B( 1); LAC 33: I: 1505A( 3). Further, as noted by the district court, DEQ
provided no evidence that it granted Thermaldyne a waiver from required reporting
requirements. See LAC 33: IX: 2501. K. 5( a). Rather, DEQ improperly accepted the
application as administratively complete and issued a public notice giving public
access to an incomplete application that listed none of the potential pollutants
Thermaldyne' s proposed new facility was expected to discharge into the Intracoastal
Waterway. We specifically reject DEQ' s argument that its duty to require
Thermaldyne to provide information required by LAC: IX: 2501. K was part of its
technical review" under LAC 33: I: 1505. B.
Thus, presuming LEAN' s factual allegations are true, and resolving reasonable
inferences and doubts in LEAN' s favor, we conclude a mandamus cause of action
against DEQ exists under La. R. S. 30: 2050. 29, because DEQ failed to act as
mandated by La. R. S. 30: 2022B( 1), LAC 33: I: 1505A( 1) and ( 2), and LAC
33: IX: 2501. K. 5. Having found a cause of action, we now address whether LEAN
had a right of action to assert such against DEQ.
6
RIGHT TO ASSERT AN LEQA MANDAMUS ACTION
In its second assignment of error, DEQ contends the district court erred in
denying its exception of no right of action, because LEAN is not an " adversely
affected party" entitled to assert a mandamus action under La. R. S. 30: 2050. 29. 2
Generally, an action can be brought only by a person having a real and actual
interest which he asserts. La. C. C. P. art. 681. The exception of no right of action is
designed to test whether the plaintiff belongs to the class of persons to whom the
law grants the cause of action asserted in the suit. La. C. C. P. art. 927( 6); Indus
Companies, Inc. v. Durbin, 02- 0665 ( La. 1/ 28/ 03), 837 So. 2d 1207, 1216. The party
raising the exception has the burden of proving the plaintiff has no right of action to
proceed with its claim. On review of an exception of no right of action, unlike the
review of the exception of no cause of action, this court reviews the pleadings as
well as any evidence submitted in support of or in opposition to the exception. See
La. C. C. P. art. 931. Whether a plaintiff has a right of action is a question of law that
is reviewed de novo on appeal. Where doubt exists as to the appropriateness of an
exception of no right of action, this court must resolve that doubt in favor of finding
a right of action. See Rebel Distributors Corp., Inc. v. LUBA Workers' Comp., 13-
0749 ( La. 10/ 15/ 13), 144 So. 3d 825, 833.
Under LAC 33. IX. 3113, DEQ must give public notice when it has prepared a
draft permit, must allow time for public comment, and must include certain content
in the public notice. See LAC 33. IX. 3113. A- D. During the public comment period,
any interested party may submit written comments on a draft permit and may
request a public hearing. See LAC 33. IX. 3115. All persons who believe DEQ' s
tentative decision to prepare a draft permit is inappropriate must raise all reasonably
ascertainable issues and submit their reasonably available arguments by the close of
z We note that the requirements applicable to a person seeking a mandamus under the Louisiana
Code of Civil Procedure may be different, but we need not address such because the more specific
LEQA mandamus statute applies here. See Jazz Casino Co., LLC v. Bridges, 16- 1663 ( La. 5/ 3/ 17),
223 So. 3d 488, 496- 97.
7
the public comment period. LAC 33: IX: 3119. DEQ must consider all comments in
making a final decision and must answer comments if it issues a final permit. LAC
33: IX. 3125.
In its mandamus petition, LEAN alleges that it was " improperly denied the
ability to participate in the permitting process" by DEQ's acceptance of
Thermaldyne' s incomplete permit application and DEQ' s issuance of an inadequate
public notice on the draft permit. LEAN also argues that it " could not understand
what Thermaldyne intends to do, let alone appreciate the risks this facility may pose
to health and the environment, by reading [ DEQ' s] inadequate notice." In
opposition, DEQ argues that its public notice of the draft permit to Thermaldyne
along with the public comment period ' provided a full opportunity for public
participation," because the public notice referenced and provided a direct link to
Thermaldyne' s permit application, the draft permit, and DEQ' s statement of basis for
the draft permit.
After a de novo review of the pleadings, TD* X Associates' comment on the
draft permit, and the above applicable rules, we resolve all doubt in favor of a right
of action and conclude that LEAN is an " adversely affected party" entitled to
mandamus under La. R. S. 30: 2050. 29. DEQ' s improper acceptance of Thermaldyne' s
incomplete permit application resulted in its issuance of a public notice referencing a
faulty application that listed none of the potential pollutants Thermaldyne' s proposed
new facility expected to discharge. Consequently, LEAN, an interested party, was
unable to assess the potential risk of Thermaldyne' s expected wastewater discharge
and was unable to comment on DEQ' s issuance of the draft permit as inappropriate
before the close of the public comment period. See LAC 33: IX: 3115; 33: IX: 3119.
And, although LEAN requested that DEQ re -open the comment period, DEQ declined
to do so. Thus, LEAN was " adversely affected," because it was precluded from
raising reasonably ascertainable issues and submitting reasonably available
arguments regarding DEQ' s alleged inappropriate decision to issue Thermaldyne a
draft permit. See LAC 33: IX: 3115; 33: IX: 3119. The district court correctly denied
DEQ' s exception of no right of action.
We note that La. R. S. 30: 2050. 29 mandates an award of court costs and
attorney fees when an adversely affected party prevails in a mandamus action. The
judgment in this case does not contain the mandated award; but, because LEAN
neither independently appealed nor answered LEAN' s appeal to challenge this error,
this court will not consider the issue. La. C. C. P. art. 2133 ( requiring that an appellee
answer the appeal if he desires to have the judgment modified, revised, or
reversed); Pinn v. Pennison, 16- 0614 ( La. App. 1 Cir. 12/ 22/ 18), 209 So. 3d 844, 847
n. 1.
CONCLUSION
For the above reasons, the district court properly found LEAN was an
adversely affected party who had a cause of action and a right of action for
mandamus against DEQ under La. R. S. 30: 3050. 29 for DEQ' s failure to adequately
and timely perform the administrative review required to substantively review
Thermaldyne' s permit application. We affirm the district court's March 20, 2019
judgment and assess costs of this appeal in the amount of $ 1, 021, to the Louisiana
Department of Environmental Quality.
AFFIRMED.
9