In The Matter of the Belle Company, L.L.C. Type I and II Solid Waste Landfill Proceedings Under the Louisiana Environmental Quality Act La. R.S. 30:2001 Et Seq. (2006CA1077 Consolidated With 2006CA1078)
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STATE Of LOUISIANA COURT Of APPEAL fIRST CIRCUIT 2006 CA 1077 IN THE MATTER OF BELLE COMPANY LLC TYPE I AND II SOLID WASTE LANDfIll PROCEEDINGS UNDER THE LOUISIANA ENVIRONMENTAL ACT LA R S 30 2001 ET QUALITY SEQ CONSOLIDATED WITH 2006 CA 1078 BEllE COMPANY llC VERSUS DR MICHAEL McDANIEL SECRETARY OF THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY AND f DR CHUCK CARR BROWN ASSISTANT SECRETARY Of THE LOUISIANA DEPARTMENT Of ENVIRONMENTAL QUALITY On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket Nos 442 943 and 536 648 Division Honorable Janice G Clark Judge 0 Section 21 Presiding Edwin W Fleshman Porter Brooks Taylor Baton Rouge Phillips LA Jackie M Marve for Appellee Department of Environmental Quality Attorneys Donald Trahan Louisiana Meredith H lieux Roger K Ward Baton Rouge LA Adam Babich Attorneys for Appellee Assumption Parish People s Environmental Action league Corrinne Van Dalen New Orleans LA James p Dore Alan J Kean Baton Attorneys Berteau Miller Hawthorne McCowan Jarman Rouge BEfORE Attorney for Appellant Belle Company 11C for Assumption D Armond Appellee Parish Police Jury lLP LA PARR O KUHN GUIDRY DOWNING AND HUGHES JJ lEe 2 8 2007 Judgment rendered cL Ae Yt d PARRO J applicant for An district court reversed petition for a writ of mandamus The Department of Environmental Quality render For the pending application disposal permit appeals from the portion of its judgment that denied to have the Louisiana sought its solid waste a following that reasons a a applicant decision on portion of the judgment is judgment is rendered in favor of the applicant and this matter is remanded to the district court with instructions factual Backaround and Procedural History In 1994 Belle Company L L c Belle Department of Environmental Quality non hazardous solid waste DEQ issued non a as a primarily League defendant On APPEAL In its permit to construct and operate filed at the issue of whether in APPEAL s August 15 1997 On a Type I and Type petition for a September 30 1997 nine assignments of DEQ had satisfied its duty in the district court petition for review and 12A requirements of LSA to include the Certifications II a R S as proceeding September following required under 30 2157 s review with the district court 4 public error trustee in In response to 1997 letter Engineering Environmental Consultants concerning Belle s preparations emergency response a September 26 1997 Assumption Parish People petition APPEAL raised issuing Belle s permit Belle intervened allegations a application with the Louisiana permit to Belle for the construction and operation of Environmental Action aimed DEQ for an disposal facility in Assumption Parish hazardous solid waste landfill naming DEQ filed by G E to meet the DEQ modified the permit on two additional conditions LA 30 2157 from the local fire 5 R department emergency medical services and hospital shall be obtained or the closest fire department emergency medical service and hospital that required services shall commencement of operation of the facility or provide can B To 2157 After the permit without identified prior to comply with Section 472 of the Life Safety Code of the NFPA 9 D considering the administrative record concluded be that DEQ had satisfied its duties however it determined that prior compliance with LSA 5 R briefs as and the arguments the district public trustee in issuing Belle s DEQ had erred in granting 30 2157 2 court a permit to Belle By judgment dated September 14 1998 DEQ s decision to issue was reversed DEQ for further proceedings matter was remanded to LSA permit a on the issue of appealed to this court contending that the district court had erred in rejecting its claim that environment was DEQ had violated its constitutional duty 1 prior insufficient to the issuance of the permit and an answer to Belle filed 3 Belle L L c 00 0504 appeal challenging the district the App 1st Cir 6 27 01 La This court concluded that and its articulation of In this issued a decision was assignments of s court s In re 809 So 2d 225 243 supported by its factual findings performed its duty error were as protector of the to lack merit found permit In re Belle L L c 809 So 2d at 239 and 242 whether the a permit for a Therefore s B and C DEQ in or was whether the required in determining to decide whether the applicant had shown that as a condition of the it had the See LSA requirements necessary response requiring that this court concluded answer applicant disposal facility had satisfied the requirements of LSA solid waste to meet the own Belle permit should be issued DEQ 30 2157 A the s found to have was respect DEQ In connection with its DEQ study 5 R 30 2157 rational connection between the facts found and the and APPEAL environment protector of the alternative site s finding that it had failed to comply with the requirements of LSA Belle Co as DEQ had failed to make the capacity determination required by LSA 2 30 2179 5 R for compliance with 5 R 30 2157 APPEAL Co and the court by the district 5 R ability R S on 30 2157 D permit that Belle merely comply with requirements of Section 2157 before the landfill became operational violated the Since the record revealed that these statutory requirements provisions of this statute were not complied with prior district court s Section 2157 further reversal of DEQ s We further found proceedings In re Belle Co to the issuance of the on decision to no error in the issue of permit we no error in found grant the permit prior to the compliance with the district court s remand of this matter for compliance with the emergency response statute L L c 809 SO 2d at 245 1 APPEAL also contended that the district court erred in record with DEQ s Supplement To the Basis for Decision 3 allowing Belle to supplement the administrative Pursuant to before our affirmance of the district court s judgment Belle proceeded back DEQ presumably to show compliance with Section 2157 Belle submitted an In December 2001 update of its revised emergency response plan a comprehensive contingency plan for hazardous materials emergencies that had been submitted on 2 March 2 2000 Public hearings were subsequently held plan for hazardous materials emergencies update and supplement some which contained determination On June 29 2005 to request for Belle a pursuant to LAC pursuant to LAC 33 VII 521 A 1 if f 1 notice of ii e a and applicable proposed landfill did not violate existing land application that contingency was deficiency things among other provide 33 VII 521 A a the revised DEQ DEQ requested that Belle Meanwhile of the data contained in its to the emergency response issue on to wetlands unrelated was a issued wetlands demonstration documentation that the requirements pursuant to LAC use 33 VII 519 N Upon inquiry from Belle DEQ informed Belle by letter dated September 20 2005 that the Water and Waste Permits Division had discontinued review of its application pending receipt by DEQ of the wetlands determination demonstration that the if use did not violate existing land use With requirements DEQ having on the basis of formally refused to continue its review of Belle s permit application incompleteness Belle filed it a remand In DEQ went permit Belle This fact is conceded 3 Belle also filed 4 July In a its a petition for permit application 2007 by DEQ was in its answer was 3 deemed 30 2157 DEQ should have complete for purposes of the not related to the emergency response issue to the to Belle s These matters petition were DEQ amended Title 33 Part I Chapter 15 inapplicable to Belle s permit application are 4 entire permit application applicable version of LAC 33 lawsuit Docket No 536 648 not proper writ of mandamus a Upon its submission of the completed required by LSA R S urged that pursuant separate lawsuit amendments as information making additional requests 2 existing September 22 2005 beyond the scope of the remand and reopened the for review the on petition Belle alleged the following emergency response granted the wetlands applicable and proper documentation from the local governing body proposed In its permit for a 1 1505 C 4 writ of mandamus in the event filing of a petition for mandamus in consolidated of the Louisiana Administrative Code See LAC 33 1 1501 2007 The 2007 the secretary of DEQ had disapprove or approve deadline for a a mandatory discretionary duty to review and ultimately non permit application within 410 days of its submittal final decision may not be extended for a in enumerated circumstances Considering that since Belle had fulfilled its emergency response Belle sought ministerial issued to Belle DEQ s actions 5 no incomplete due it DEQ s failure to a writ perform a of mandamus or to show cause to the contrary raising the objections of lack of subject matter of action nonjoinder of cause to the party and improper cumulation of a for the to be application reviewed anew particularly existing regulatory deficiencies in the Belle permit application inappropriate for the that DEQ urged answer writ of mandamus due to the a connection with its decision on the issuance of Assumption Parish Police Jury filed a a matter before the Therefore it sought In its court was discretionary nature of its duty in permit petition of intervention urging that DEQ permitted to complete its review and determination with regard permit application or resulting change of circumstances passage of time and the necessary subsequently filed should be due to exception an was because of the The requirements under LSA R S 30 2157 exception DEQ alleged that Belle s application had become stale and In its therefore days had elapsed secretary and assistant secretary directing them to immediately grant DEQ filed jurisdiction days and then only Specifically Belle sought to have request for a solid waste disposal permit s than 45 than 1 600 more to have a writ of mandamus issued duty required by law more The to have Belle s to Belle s petition for a writ of mandamus dismissed In connection with the hearing discretion to determine when the begin to run of all parties the 3784 5 by deciding when At the In this an on these matters was complete by summary trial Pursuant to the See LSA C C P hearing Belle urged that the permit application pleading DEQ conceded that in March 2000 Belle 30 2157 and in December 2001 information a to DEQ public hearing was held submitted by Belle in April 2002 and again in November 2004 5 on was arts stipulation 3781 and complete in 1997 had information pursuant to LSA R S According it had the statutory time periods under LSA R S 30 2022 B application matter was tried DEQ asserted that submitted emergency response Belle submitted an update of this the emergency response information when it On review granted was court found one Belle submitted that this problem In December 2001 pursuant to APPEAL s petition for review the district light of the district court s reversal of corrected was by Belle by DEQ s issuance of the permit application and make to review Belle s entire DEQ urged that it was free problem an independent determination At the conclusion of the district court a was have light of this discretion the district act on its Accordingly on of mandamus and documentation proposed use permit in a December 15 DEQ a did was within application permit petition for s writ of mandamus the a timely recognized that Belle manner once Belle five days its of if wetlands demonstration existing land not violate a permit decision from receipt was complied with DEQ 2005 the district court denied Belle ordered to issue to issue court found that a writ of mandamus Nonetheless the district court inappropriate DEQ Belle on recognized the discretion afforded to DEQ in determining whether In permit hearing s request petition for s on entitled to Belle Belle of s a writ solid waste wetlands a applicable and documentation that the use requirements maintained that the district court allowed DEQ to extend 6 In its Belle holding so review beyond the parameters authorized by the remand On December 28 2005 discretionary grounds seeking Belle filed a motion for new to offer evidence to refute trial DEQ s on position that Belle s technically complete and urging that the district application was not erred in its interpretation of LSA regulations dictate that technically complete a 5 R 30 2022 B permit application At the hearing on DEQ has discretion in deciding whether In its motion not be Belle court had urged that DEQ s new trial 5 R submitted to the 6 On the the 30 2022 B that is permit should be granted However 410 Belle imposed days from the time the application is Although the district court did not feel that it needed witness testimony completeness of Belle same exceptions within it is Belle conceded that maintained that such discretion must be exercised within the time constraints by LSA legally put out for public comment until the motion for a peremptory and date the court in filed a s it allowed Belle the application separate judgment granted by DEQ 6 Belle s opportunity to as proffer motion to consolidate and denied such evidence at the introduced denied on its motion for trial a new 7 2001 the basis that peremptory no Subsequently Belle filed a or submitted the motion appeal from the district court denying its petition for mandamus and denying its request for the was was discretionary grounds existed motion for Belle urges that the district court erred in DEQ and to plan that it had submitted being taken under advisement After supposedly Belle also contingency plan for hazardous materials emergencies that DEQ in December to on copy of the emergency response a the revised hearing denying a new petition for a its judgments s trial On appeal writ of mandamus in following respects by 1 not to make ordering DEQ a decision on Belle s permit application allowing Belle to present evidence to show that DEQ had previously concluded that Belle s permit application was technically complete and that DEQ was satisfied with the revised emergency response plan and 2 by 3 by not ordering DEQ to not re issue a permit to Belle since the remand of this that agency was limited to correction of subsequently remedied to DEQ s satisfaction case to single deficiency which a was Mandamus mandamus ministerial this LSA C C P general In may ordinary duty required by law means injustice or an a provides public officer to However where the as The denied 97 0599 when there is It performed a La 4 18 97 clear and never matters in which in La 12 7 01 La 1st Cir 2 14 97 App slight Allen 690 So 2d 692 So 2d 455 specific legal right App 1st Cir 6 29 01 This evidence is not included in the no use of relief by cause discretion and evaluation however appellate Further Wiginton 790 So 2d 160 record 7 v St of 150 Tammany 153 mandamus is to be used to be enforced or a cases 803 So 2d 971 7 provides a remedy is not available to command the performance issues in doubtful 00 1319 compel the performance of indicated in LSA C C P art 3862 act that contains any element of discretion Jury 96 0938 writ of a delay involved in obtaining ordinary relief may Mandamus will not lie Parish Police pertinent part that in is limited to situations where the law evidence must be exercised of to be directed extraordinary remedy 3863 art v 163 writ only duty that ought to be Tangipahoa Parish Council writ denied 01 2541 La Belle does not dispute that DEQ had discretion in determining whether should be issued to it time Nonetheless Belle contends that LSA R S 30 2022 B delays during which DEQ must perform its duties delays have expired in connection with the remand discretion concerning whether mandamus is examine the in appropriate to make a decision See LSA Belle urged s petition for a provides that these time and thus the issuance of In light of Belle s a was no writ of argument applicable law to determine whether the district court s action denying Belle permit DEQ and that DEQ had to 5 R 30 2050 29 a we proper writ of mandamus Time Limitations of lSA R S 30 2022 8 The time constraints for application are DEQ s administrative completeness review of found in LSA R S 30 2022 B which at all a permit pertinent times provided 8 April 20 1991 the secretary shall promulgate rules and regulations establishing procedures for the processing and review of permit applications for new facilities and applications for substantial including but not limited to administrative permit modifications completeness reviews checklists of required information and maximum processing times and which shall specify No later than completeness review to determine whether an application contains the information required to substantively review the application The completeness review procedure shall not extend hundred ten days from the date the application is submitted beyond one 1 Procedures for beyond four hundred ten days from the date the application is submitted except where additional time is required for the applicant to revise or supplement technical deficiencies in the application or for adjudicatory or judicial proceedings under R 30 2024 or for consideration of comments received at a public 5 hearing in the case of an extraordinary public response however in no case shall the extension exceed forty five days 2 The final decision shall not extend Applications undergoing technical review shall not be subject to rule changes which occur during the technical review unless such changes are made in accordance with R S 49 953 B 1 or are required by federal law or regulation to be incorporated prior to permit issuance However such a rule change made prior to the issuance of the permit may constitute grounds for a modification of the final permit 3 by this Section may be extended upon mutual agreement of the secretary and the applicant 4 The 8 The deadlines established applicable version of Subsection B After the district court amended by 2006 La s hearing Acts on No 117 Belle 91 s petition was for hearing writ of mandamus effective June 2 2006 to this section will be to the version in effect when the the a adopted by the legislature in this matter 8 LSA R S 30 2022 B Unless otherwise stated application was filed by in 1990 by was all references Belle and at the time of La Acts No 686 connection with specifically 1 DEQ 9 Act 686 consideration of s expressly enacted to provide for deadlines in was a The permit application legislature chose to delay during which DEQ had to perform its administrative set forth a time completeness review and to render its final decision rather than allowing such matters to be determined Based on solely by regulatory guidelines the language of Subsection B of the applicable version of Section 2022 urged that DEQ had Belle no more grant deny its pending permit application or at most a 45 total of 410 As of day extension decision in the remanded matter affording DEQ unlimited application remand DEQ had 110 days render final decision a R S 30 2022 B DEQ s DEQ was bound for the for This by law DEQ applicant adjudicatory or days 9 10 its in was 4 relate to the 2 not authorized a no case was so 5 R 30 2024 in the case of in the an the was required application 2 3 for consideration or extraordinary public day period to exceed 45 by DEQ s secretary and Belle governed consent of day period for rendering when additional time the extension of the 410 5 R 30 1070 by LSA completeness review within 110 days supplement technical deficiencies public hearing to Thus absent mutual consent to extend the 410 procedure pertaining to See LSA 5 R permit applications and notification The purpose of this review is to determine if the substantively day period only authorized to do otherwise consented to requests and 1 completeness review10 and 410 days See LSA R S 30 2022 B Prior to that time former LSA variance perform judicial proceedings under LSA However unless 30 2022 B in complete period could be extended only with the mutual to revise or at is permit application 5 R not made a DEQ still had Clearly from the date of submission after the submitted to 2005 urged that the district court erred Belle to make its administrative was of comments received response Therefore Although DEQ had authority final decision 1 1 September 20 An extension of the 110 secretary and Belle of submission a was to According to Belle the statute allowed for imposed by LSA date the technically complete to the remand was time to decide when a The time limitations December 2001 days from the December 2001 submission date and had a to decide whether its days application pursuant submission of its revised than at most 110 review the application LSA R S application 30 2022 B 9 1 contains the information required to 30 2022 B of these and 2 4 deadlines deficiencies appeal DEQ argued that Belle acquiesced in the extension On by its August 22 and 26 Under the facts of this the consent necessary for statutory guidelines case we responses to the do not find that Belle s ll permit application is complete 11 A day period request decision is for an was 12 contingent not relating LAC 33 I 1505 E determination on a which to the to decide if a the commencement of the Furthermore extension of deadlines governed by of actions constituted Clearly this statute did not afford DEQ unlimited time during which the 410 notice consent relative to the extension of these finding of mutual a 2005 completeness running of by DEQ that the application review technical review and final provides Any deadline established by this Section may be extended A request for an extension of any deadline shall be submitted in writing by the permit applicant or by the The request shall specify the reasons and any special secretary or his designee conditions that support a shall be submitted to the deadline extension requestor The record is devoid of any such request 12 DEQ s duty 33 I 1505 A to by within 10 Belle or Written responses to all extension days of receipt of the request requests DEQ perform an administrative review for completeness prior to the July 2007 amendments provided was further governed by which Completeness Review Within 60 permit application for new facilities or the department shall perform a an application for substantial permit notification to the applicant that lists the completeness review and submit written application s specific deficiencies Permit application forms and checklists of required information in the permit application review process shall be provided to the applicant 1 days after submittal of a modifications upon request applicant shall respond to the notice of deficiency within 30 days after receipt of the notice of deficiency This response shall contain all of the information required by the department to proceed with processing the application unless otherwise provided for under LAC 33 I1505 E 2 The 3 Within 110 department days from the date a is submitted permit application the shall a issue b issue a letter of a completeness notice of intent to or deny the permit based on an incomplete application days after receipt of a letter of completeness the applicant shall publish a notice provided by the department of the completeness determination in a major local newspaper of general circulation and submit proof of publication to the 4 Within 30 Office of Environmental Services Air Permits Division or Water and Waste Permits Division waived for requirement for publication applications for air quality permits for 33 III504 509 5 6 The or sources completeness not defined as may major be in LAC 5103 requirement for publication of notice of completeness may be quality permits for sources defined as minor by the administrative The waived for water of notice of authority 10 LAC technically complete was making the ultimate permit decision completeness the Accordingly statute to had DEQ at On remand to action in this regard the remand on deciding administrative permit application Obviously to days perform its administrative to render a final decision relative to Belle s compliance with LSA resubmission of its R S 30 2157 Belle DEQ would have only had 110 days from the date in which the revised plan emergency response was presented completeness of the application and at most 455 days from that date to render a final decision rendering a s application for purposes of determine the deadline for permit DEQ Belle admittedly submitted revised data in December was tantamount to a Afterwards December 2001 110 to the issue of its pertinent was for protect applicants from endless delays most completeness review and 455 days 2001 that like the deadline from the date of submission of the runs legislature enacted this application We agree with Belle that the deadline for urged by DEQ as its on permit application final decision on 13 We thus conclude that remand would have to same DEQ s long since passed by September 20 2005 when DEQ notified Belle that it had discontinued review of the permit application Since forth DEQ s in LSA R S mandamus Belle s secretary failed to render 30 2022 B Belle acted See LSA R S 30 2050 29 petition for a writ of mandamus a final decision within the deadline set properly in filing a petition for a writ Furthermore the district court erred in Under LSA 5 R 30 2050 29 Belle was of denying entitled to the issuance of a writ of mandamus from the Nineteenth Judicial District Court for the parish of East Baton Rouge directing the secretary to act within a found one of APPEAL by the district s many deficiency alone In so stating secretary court in the was we petition for In no opinion as to the re L L c 809 So 2d at 234 Co Belle s applicability case 11 were review to have merit that is the lack of the basis for the district court render under the facts of this DEQ oppositions to DEQ s issuance of Belle s permit prior compliance with LSA R S 30 2157 13 authorized assistant specified period of time Action bv Only or reversal of This DEQ s decision to issue of the conditions for a 45 day extension the permit and for this court district court has the LSA this authority to remand s R 30 2050 21 F directed case further It did not authorize Accordingly its on the one Southern for which the Railway Co 621 60 S Ct 298 Inc 499 So 776 La 2d 289 1987 193 La 291 DEQ did trustee of the 277 519 La DEQ for further proceedings See In of Belle s of Belle the issue on Belle Co entire s L L c 809 So 2d permit application environment14 to consider issues other than See City of Shreveport 405 404 1939 cert MTU of North America App 1st Cir 1986 The district court s by the district court in authority under the guise of 190 So 1939 re See not have remanded case was 84 L Ed statute reconsideration remand of this matter duty as the primary public to proceedings be conducted compliance with the emergency response at 245 a case The order of remand and 49 964 G that The affirmance of the judgment of the district court s judgment to the writs denied Inc v Kansas denied v 308 City s U Raven Marine 501 So 2d 773 and contrary is legally incorrect Decree For the denied Belle foregoing reasons petition for s a that portion of the judgment of the district court that writ of mandamus is reversed the district court and order the court to issue directing the secretary or Environmental to render Quality authorized assistant a a writ of mandamus in favor of Belle secretary of the Louisiana Department of final decision consistent with this application within 30 days of the finality of this opinion amount of 1 362 26 are We remand this matter to assessed to the Louisiana appeal Costs of this on Department of Environmental REVERSED RENDERED AND REMANDED WITH INSTRUCTIONS See LSA 5 R 30 2014 A 4 12 s appeal in the Quality 14 Belle STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1077 IN THE MATTER OF BELLE COMPANY L L C TYPE I AND II SOLID WASTE LANDFILL PROCEEDINGS UNDER THE LOUISIANA ENVIRONMENTAL QUALITY ACT LA R S 30 2001 ET SEQ CONSOLIDATED WITH 2006 CA 1078 BELLE COMPANY L L C VERSUS DR MICHAEL McDANIEL SECRETARY OF THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY AND DR CHUCK CARR BROWN ASSISTANT SECRETARY OF THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL GUIDRY J l dissents and GUIDRY J QUALITY dissenting rfI I act on assigns reasons respectfully disagree with the majority Belle 30 2022 B s 2 ordering DEQ permit application render a final decision to on 91 The provision as amended The final decision shall the date the required a La or the was amended by La Acts 2006 beyond three hundred days from is submitted except where additional time is applicant to revise or supplement technical deficiencies in the application 1 R S permit application provides extend to writ of mandamus application for information not 2 s DEQ failed prescribed by the issuance of Belle Louisiana Revised Statute 30 2022 B No 117 determination that within the time limits and that Belle is entitled to s or for adjudicatory or judicial proceedings under La the United States consideration of required review by Protection Agency or for Environmental comments extraordinary public an R S 30 2024 received at or for public hearing a however in response extension for consideration of comments exceed According which 410 DEQ has days time to 300 to La R S to issue a 30 2022 B final decision 2 provision permits information or deficiencies in the clarifies that an extension of the time decision is limited to 45 to application period of forty five days permit application period when the applicant is required case shall the case amended the time as on a Further the amended days no in the revise or is shortened from extension of this an supplement technical the amended Finally within which within period DEQ has days only when the consideration of provision issue to comments a final from a public hearing is involved While this amendment occurred after Belle submitted its in the instant represents instant a DEQ case change in a asselis that the amendment to La permit application R S 30 2022 B procedural law and therefore applies retroactively As such permit application DEQ asserts and 30 2022 B has 2 land use expired not decision until such time as and accordingly it is Belle submits the Louisiana Civil Code article 6 legislative expression interpretative laws legislative expression to 1 Although La R S not under required that to wetlands La issue In the absence of apply prospectively only prospectively the contrary l 2 does not R S a final and contrary p Jrocedural and retroactively unless there is a 1 distinguish between substantive procedural and interpretative section of the Revised Statutes is retroactive unless it is expressly so has been limited to apply only to substantive legislation Cheron v LCS this statute laws in its directive that stated both period a to requested documentation provides substantive laws apply the time requirements the that because Belle failed supplement its application with requested documentation regarding determination to 2 no 2 Article 6 requires a regarding retrospective substantive In the instant 1101 did the legislature express its intent did legislature the case 2 and Cheron 02 1049 interpretative or 1 inquiry prospective application or procedural fold two if 11 at p is the law not 872 So 2d make any clear expreSSIOn not regarding its intent concerning the retroactive application of Act 117 in order to determine if Act 117 the law application must be classified Substantive laws establish Procedural laws ones right and relate to be can as new prescribe applied retroactively substantive lules rights method a the form of the and duties or Therefore the instant to procedural or or pennit interpretative change existing for enforcing the operation of the laws remedy proceeding at a substantive Interpretative laws merely establish the meaning the interpreted law had from the time of its enactment 2025 p 7 La method to issue by which a Act 117 case final decision an applicant 944 So 2d 668 672 673 changed and clarified the time within which on a right of the applicant Belle solid disposal facility and amended should LLC Cir 6 27 01 not to apply to the instant Type I and II Solid 809 So 2d 225 permit application a permit for after procedural in 1101 affd 04 0703 Inc RS court 30 2157 02 1049 La 1 19 05 a Type pp 10 11 La 891 So 2d 1250 3 App the I and II and therefore See In Re requires an Belle App 1st to the applicant to determined with reference which the reviewing the prior nature permit application obtain celiification from local emergency response officials Corrections Services However right Waste Landfill Permit 00 0504 La wherein this that La for change Accordingly it is clear that the law is apply retroactively Company same statute did permit application thereby delineating may enforce its substantive substantive waste 05 AmCare Health Plans of Louisiana Inc v App 1st Cir 10 25 06 In the instant DEQ has Wooley regarding their ability 1st Cir 2 23 04 872 So 2d 1094 to meet emergency Because with the law 117 is be Belle to retroactively an existing to 1 14 94 s as at a case before it in accordance the time of its decision and retroactive outlined above La R S 30 2022 B the instant appeal See Segura Frank v 2 application of Act amended should as 93 1271 pp 9 12 La 630 So 2d 714 725 is clear that Belle is not 2 entitled as to amended is applied to the instant appeal it the issuance of a mandamus Because Belle supplement its permit application with the requested technical information regarding wetlands determination and land a within which remained DEQ was required to issue a final use requirements permit decision asserts that the additional information court consideration of emergency response requirements Despite remand this separation our matter to The decision Hoag to v issue infringing was was outside presumably limited to However this argument is court s decision to upon the inherent powers of the executive State 04 0857 p 4 a 2 DEQ the judiciary is prohibited under the doctrine of of powers from See which affirmance of the district previous extended and requested by DEQ the scope of the remand from this misplaced the time limit was pending until Belle submitted the requested information Belle branch applied permit application Once La R S 30 2022 B failed to and procedural was appellate court is bound to adjudge permissible applied requirements response permit for a La 1 12 04 type I and II solid 889 So 2d 1019 waste 1022 disposal facility lies 2 Alternatively even if La R S 30 2022 B 2 as amended did not apply to the instant permit application Belle would still not be entitled to the issuance of a mandamus Mandamus as codified in La C C P art 3862 is an extraordinary remedy to be applied only where the action sought to be perfonned is purely ministerial in nature leaving nothing to discretion Hoag 04 0857 at p is that the The critical element necessary for the issuance of a mandamus official to whom the writ is directed may exercise no element of discretion 6 889 So 2d at 1023 public complying DEQ is clearly afforded discretion in granting or denying a permit and in deciding if the application is complete or requires revision or supplementation Accordingly the issuance of a mandamus is inappropriate under the circumstances of this case when 4 squarely within the province and discretion of DEQ trust doctrine in La Const Art IX mandated by the public See also Save Ourselves Inc S1 452 So 2d 1152 Environmental Control Commission R S as 30 2014 and 2018 reiterate that La v Louisiana Further La 1984 DEQ is the primary public trustee of the environment and shall consider and follow the intent and will of the Constitution of Louisiana and Louisiana statutory law in granting or scope of DEQ s and to denying of permits Therefore DEQ s review of a to the granting or statutorily permitted require Belle Therefore majority s to for the decision to act as public denying of permits to provide any any determination relative to the attempt by the judiciary to limit the permit application would impermissibly infringe constitutional mandate relative making review Belle s trustee in As such making DEQ on any determination was application in its entirety constitutionally on remand and additional documentation foregoing ordering reasons the distlict court to of Belle 5 I respectfully issue a dissent from the writ of mandamus in favor
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