Louisiana Environmental Action Network, Citizens for a Strong New Orleans East, The Green Zone Task Force and Father Van Lukenguyen VS Louisiana Department of Environmental Quality
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2259 LOUISIANA ENVIRONMENTAL ACTION NETWORK CITIZENS FOR A STRONG NEW ORLEANS EAST THE GREEN ZONE TASK FORCE AND FATHER VAN LUKENGUYEN VERSUS LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY Judgment Rendered JUN 2 5 2010 On Appeal from the 19th Judicial District Court In and For the Parish of East Baton Rouge Trial Court No 560 711 Honorable Timothy Kelley Judge Presiding Lisa Jordan Counsel for Plaintiff Appellant New Louisiana Orleans LA Environmental Action Network et al Ann B Hill Baton Rouge Timothy Baton LA J Poche Rouge LA Counsel for Defendant Appellee Louisiana Department of Environmental Quality Counsel for Intervenor Appellee Waste Management of Louisiana C L BEFORE WHIPPLE HUGHES AND WELCH JJ o t w r a a HUGHES J This appeal involves the issuance of a water quality certification by the Louisiana Department of Environmental Quality the LDEQ for a project known as the Chef Menteur Landfill Louisiana Environmental Action Network Citizens for a Strong New Orleans East The Green Zone Task Force and Father Van Lukenguyen hereinafter collectively referred to LEAN as Management oppose the issuance of the certification C L Waste Management the certification intervened in the lawsuit applicant Waste for the For the following reasons we affirm the LDEQ decision s FACTS AND PROCEDURAL HISTORY Following the devastation of Hurricane Katrina the New Orleans area was littered with massive amounts of debris To expedite removal and disposal efforts both the United States Army Corps of Engineers the Corps and the LDEQ issued emergency authorizations to Waste Management for the construction and operation of the Chef Menteur Landfill Chef Landfill Under these emergency authorizations the Chef Landfill was to be operated as an Enhanced Construction and Demolition D C Landfill to receive the generated hurricane D C debris associated with demolition activities in the area in and around Orleans Parish and particularly in the Ninth Ward area As part of its emergency authorization the Corps required that Waste Management complete the traditional permitting process to obtain the necessary federal permit for the site operation in accordance with Section 404 of the Clean Water s Act 33 USCA 1344 and in the interim to comply with all the requirements of a permitted facility As such the only deviation from the normal permitting process for this site was that public notice and the 2 opportunity to comment were provided for after rather than before the s LDEQ decision to issue a water quality certification which was a prerequisite to the issuance ofthe federal 404 permit The Chef Landfill conducted operations from approximately April 2006 until August 2006 During its operation the landfill generated waste water and storm water and as authorized discharged these waters off site into the Maxent Canal a man canal adjacent to the facility which made empties into the Intercoastal Waterway After disposal operations ceased an interim cover of more than two feet of low permeability soil was placed over the waste In approximately February 2007 closure of the site commenced The construction operation and closure of the Chef Landfill necessitated Waste Management applications for various authorizations s permits andlor certifications including the initial emergency authorizations a federal 404 permit a water quality certification from the LDEQ and a Louisiana Poltutant Discharge Elimination System LPDES permit from the LDEQ 1 The Emergenev Authorizations The Chef Landfill initially operated under the emergency authorizations issued by both the Corps and the LDEQ The emergency authorizations allowed for the immediate use of the Chef Landfill for disaster cleanup Two of the LEAN plaintiffs opposed the issuance of these authorizations and filed suit against the Corps in the United States District Court far the Eastem District of Louisiana asking for a declaration that the authorizations violated the Clean Water Act and the National Environmental Policy Act After a hearing the court denied the 3 injunctive relief sought by the plaintiffs Subsequently the action was dismissed per LEAN request s 2 The 404 Permit In the normal course of events in order for an operation such as the Chef Landfill to commence application must first be made for a 404 permit pursuant to 33 USCA 1344 The emergency authorizations issued by the Corps and the LDEQ maintained this requirement even though activity at the site was already underway In May of 2009 the Army Corps of Engineers issued the 404 permit 3 The LDEQ Water Oualitv Certi6cation As a prerequisite to obtaining the 404 permit pursuant to 33 USCA 1341 Waste Management was required to obtain a water quality certification from the LDEQ Z A certification is defined in Volume 14 of the Louisiana Administrative Code in Title approval Certification by 33 Part IX the 107 as follows administrative authority that any activity which may result in any discharge into or potential change of the waters of the state and as such requires application for a federal permit will comply with tbe applicable provisions of Sections 301 Effluent Limitations 303 Water Quality Standards and Implementation Plans 306 National Standards of Performance 307 and Toxic and Pretreatment Effluent 33 USCA 1344 in pertinent part provides that The Secretaty may issue permits after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit under this subsection the Secretary shall publish the notice required by this subsection z 33 USCA 1341 in pertinent part provides that 1 Any applicant for a Federal license or permit to conduct any activiry including but not limited to the construction or operation of facilities which may result in any discharge into the navigable waters shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate or if appropriate from the interstate water pollution control agency having jurisdiction over the navigable waters at Yhe poinf where the discharge originates or will originate that any such dischazge will comply with the applicable provisions of sections 13 I 1 1312 13 i 3 1316 and 1317 ofthis fitle 4 Standards of the Federal Water Pollution Control Act FWPCA as amended Public Notices ran in The Advocate and The Times on Picayune March 24 and March 25 2006 The LDEQ issued a to Response Comments after its receipt of public comments and on September 25 2007 the LDEQ issued the water quality certification including its written Rationale for Decision The water quality certification represented a finding by the LDEQ that the project as planned would not violate the s state water quality standards 4 The LPDES Permit In order to commence final closure and post activities at the closure Chef site Waste Management filed with the LDEQ a Louisiana Pollutant Discharge Elimination System LPDES permit application A permit is defined in Volume 14 of the Louisiana Administrative Code in Title 33 Part 1X Section 107 as follows written Permit administrative aufhorization issued by the authority to diseharge emit or dispose of liquid gaseous semi or solid solid waste or reusable materials or radioactive material from or at a site or facility including all conditions set forth therein After a public hearing and an opportunity far public comment the LPDES permit was issued on August 28 2008 and included discharge limitations and monitoring requirements The LEAN plaintiffs also opposed the LDEQ sdecision to issue the LPDES permit district Waste Management also intervened in that suit court affirmed the s LDEQ decision The LEAN then appeaIed arguing that the LDEQ action was in violation of its constitutional s duties and that the LDEQ decision not to include stricter monitoring s requirements or groundwater monitoring was arbitrary capricious and not 5 supported by the evidence This court affirmed the LDEQ decision s Louisiana Environmental Action Network Citizens for a Strong New Orleans East The Sierra Club Delta Chapter and Father Van Lukenguyen v The Louisiana Department of Environmental Quality 1244 2009 La App 1 Cir 2 unpublished 2010 WL 431500 10 08 LEAN 1 ASSIGNMENTS OF ERROR This appeal is a challenge only to the LDEQ sissuance of the water quality certification which decision was upheld by the 19 Judicial District Court In this appeal LEAN makes the following assignments of error 1 The trial court erred in fincling that the LDEQ decision issuing a water quality certification to Waste Management for construction operation and cIosure of the Chef landfill was not in violation of proper procedure arbitrary and capricious an abuse of discretion and unsupported by a preponderance of evidence in the record 2 The trial court erred in finding that the LDEQ decision issuing a water quality certification to Waste Management for construction operation and closure of the Chef landfill did not violat its Constitutional e duties under Article IX Section l of the Louisiana Constitution ANALYSIS The arguments urged by LEAN in this appeal are identical to those urged by LEAN in its appeal of the issuance of the LPDES permit which this court previously affirmed Tn particular LEAN again argues the possibility of leaching from the facility the failure of the LDEQ to respond to all pubiic comments and the failure of the LDEQ to impose certain monitoring requirements at the facility In LEAN I this court found no merit to LEAN arguments Specifically this court held that s 6 the LDEQ decision to issue the LPDES permit was supported by the s evidence based on sound factual conclusions and was not arbitrary capricious or characterized by an abuse of discretion We have carefully reviewed the evidence befare us in this recard Moreover we are mindful of the distinction between the LPDES permit and the water quality certification the permit autharizes an actual discharge while the certification merely stands for the proposition that the planned activity will not violate water quality standards While LEAN asserts that the Chef Landfill was used for the disposal of unauthorized items the evidence establishes that a multi screening process was in level effect to guard against this contingency At the point of generation trained crews inspected the debris and oversaw the loading of debris to identify and remove unautharized items Upon arrival at the landfill site incoming loads of debris were inspected by spotters on inspection towers Spotters on the ground and heavy equipment operators at the working face aiso inspected incoming debris as it was unloaded at the landfill and moved into the working face for final disposal White goods and putrescible wastes were segregated for disposal at a permitted Type II facility The LDEQ thus concluded that the waste disposed of at the Chef Landfill would confarm to the type of waste authorized by the LDEQ and the Corps and would not pose a threat to the environment With regards to LEAN argument that groundwater monitoring s should have been required due to the fact that the Type III Chef Landfill is unlined the record establishes that after consideration the LDEQ determined that the landfill natural clay bottom actually provided a s better barrier than a recompacted clay liner which would have been required beneath a landfill that was approved for the disposal of mare 7 hazardous wastes such as a Ctass 1 or Class II facility Water samples were taken on March 26 2006 resulting in a finding that no water quality violations had occurred Further the LDEQ determined based upon the data available that any groundwater usage in the area around the Chef Landfill was highly unlikely due to an excessive salt content The district court concluded that the decision by the LDEQ to issue the water quality certification at issue was supported by a preponderance of the evidence and was not arbitrary or capricious Based on the record before us we agree We also agree with the district court that the LDEQ satisfied its duty to respond to all reasonable public comments A review of the comments and responses indicates that although the LDEQ may have consolidated some of the related issues it provided support far each of the major issues or categories of concerns raised by the comments CONCLUSION For the reasons stated herein the district court judgment is rmed a All costs of this appeal are assessetl against the LEAN plaintiffs AFFIRMED s LOUISIANA ENVIRONMENTAL STATE OF LOUISIANA NETWORK CITIZENS FOR A STRONG NEW ORLEANS EAST THE GREEN TASK FORCE AND FATHER VAN LUKENGUYEN COURT OF APPEAL F1RST CIRCUIT VERSU5 LOUISIANA DEPARTMENT OF NUMBER 2009 CA 2259 ENVIRONMENTAL QUALITY HIPPLE A J dissenting Y i I respectfully dissent from the majority opinion herein Louisiana Constitution Article IX 1 provides as follows The natural resources of the state including air and water and the healthful scenic historic and esthetic quality of the environment shall be protected conserved and replenished insofar as possible and consistent with the health safety and welfare of the people legislature shall enact laws to implement this policy The In keeping with this constitutional mandate it is well established that the Department of Environmental Quality has the duty to act as the primary pubiic trustee of the environment and shall consider and follow the will and intent of the Louisiana Constitution and Louisiana Statutory law S A R 2014 LSA 30 4 Moreover in adopting the Louisiana Environmental Quality Act the legislature specifically determined that the maintenance of a healthful and safe environment for the people of Louisiana is a matter of critical state concern S R LSA 1 2002 30 Even assuming arguendo that the LDEQ satisfied its constitutional mandate in subsequently issuing the Louisiana Pollutant Discharge Elimination System Permit to commence final closure and post activities at the Chef closure Menteur Landfili as determined by another panel of this Court in Louisiana Environmental Action Network Citizens for a Strong New Orleans East The Sierra Club Delta Chapter and Father Van Luken v The Louisiana uven Department of Environmental Quality 1244 2009 La App l Cir 2 10 8 unpublished the record herein reflects that the LDEQ failed to fulfill its mandate in issuing the initial water quality certification at issue in tl instant e appeal which is a prerequisite to the U Army Corps of Engineers issuance of a S permit to Waste Management to commence the Chef Menteur Landfill operation pursuant to 404 of the Clean Water Act Moreover the record shows that in regard to the water quality certification issuance the LDEQ utterly failed to impose monitoring requirements necessary to ensure that the state water quality standards were not violated thereafter and also failed to project future variations in the nature of the discharge See Louisiana Administrative Code Title 33 Part IX Section 1507 Additionally upon review of the record herein I further agree with the appellants that at the time the LDEQ issued the water quality certification there was insufficient evidence to conclude that no threats were posed to water quality Indeed how can one sample be sufficient As noted in the majority sopinion the water quality certification issued by the LDEQ on September 25 2007 essentially certified the LDEQ determination s that the landfill project would not violate the state water qualiry standards s Based on the evidence set forward in the record I find the LDEQ erred in this determination Moreover in rendering its decision to issue the water quality certification the LDEQ further derogated from its mandatory duty to respond to appellants reasonable public comments herein See In re Matter of Rubicon Inc 95 La App 1 Cir 2670 So 2d 475 483 0108 96 14 Although I recogaize that due to the exigent circumstances emergency authorizations are allowed for the commencement and immediate use of the landfill project these authorizations do not relieve or discharge the LDEQ of its duty to serve as a steward of the environment To that extent the LDEQ is and should be held accountable at each and every stage ofthese proceedings As these and other recent events in Louisiana demonstrate if the courts and our justice 2 system fail to hold the LDEQ accountable who will Because I find the LDEQ s decision to issue the water quality certification was not supported and sustainable by a preponderance of evidence see LSA 49 I would reverse the SG R 964 6 decision of the district court For these reasons I must respectfully dissent 3 LOUI5IANA ENVIRONMENTAL NUMBER 2009 CA 2259 ACTION NETWORK CITIZENS FOR A STRONG NEW ORL EAST THE AAIS GREEN ZONE TASK FORCE AND FATHER VAN LUKENGUYEN FIRST CIRCUIT VERSUS COURT OF APPAL THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALTTY STATE OF LOUISIANA WELCH J CONCURRING J Based on the administrative record before us and this court recent decision s in Louisiana Environmental Action Nehvork v Louisiana Department of Environmental Quality 2009 La App l Cir 2 1244 unpublished 10 I 8 respectfully concur in the result
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