Louisiana Department of Environmental Quality VS Shamrock Demolition Waste Haulers of Louisiana, L.L.C.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0089 LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY VERSUS SHAMROCK DEMOLITION WASTE HAULERS OF LOUISIANA LLC Judgment Rendered June l 1 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number 580 287 Honorable R Michael Caldwell Judge G Allen Kirkpatrick Counsel for April Snellgrove Carolyn O Bryant Roger K Ward Baton Rouge LA PlaintiffAppellee Louisiana Department of Environmental Quality R David Brown Counsel for Rebecca E MayRicks Appellant Defendant Baton Rouge LA Shamrock Demolition Waste Haulers of Louisiana LLC BEFORE CARTER C GUIDRY AND PETTIGREW JJ J GUIDRY J Shamrock Demolition Waste Haulers of Louisiana LLC Shamrock appeals an exparte judgment making a penalty assessment by the Louisiana Department of Environmental Quality LDEQ executory For the following reasons we remand this matter to the district court On July 14 2009 the LDEQ filed an ex parse petition wherein it sought to have a penalty assessment that it issued on May 3 2007 made an executory judgment See La R 30 In support of its petition the LDEQ S 2025 a 2 G attached a copy of the penalty assessment issued to Shamrock and a copy of the mail receipt showing that the penalty assessment was delivered to Shamrock by certified mail on May 8 2007 The district court signed a judgment making the penalty assessment executory on July 16 2009 Shamrock devolutively appeals the July 16 2009 judgment asserting that the underlying penalty assessment was issued in violation of its due process rights In its brief to this court Shamrock contends that the LDEQ unfairly sought the executory judgment after falsely misleading the company to believe that it had been granted an adjudicatory hearing before the agency regarding the penalty assessment According to La R 30 a penalty assessment becomes a final S 2050 D 3 enforcement action when the period of time for filing a request for an adjudicatory hearing lapses without a request being filed The requirements of an adjudicatory hearing are provided in La R 30 which states that the respondent to S 2050 A 4 an enforcement action has the right to an adjudicatory hearing on a disputed issue of material fact or of law arising from a compliance order or a penalty assessment This right may be exercised by filing a written request with the secretary A request for an adjudicatory hearing must be filed within thirty days after notice of 2 the penalty assessment La R 30 It is undisputed that Shamrock S 2050 E 4 timely filed a request for an adjudicatory hearing Although the statute states that a respondent has a right to an adjudicatory hearing the statute further provides that the secretary of the LDEQ may deny a request for an adjudicatory hearing either expressly or by simply failing to act on the request within thirty days of it being filed La R 30 G and S 2050 2 E 4 3 In the event a request for adjudicatory hearing is denied either expressly or by inaction the statute provides that the applicant seeking de novo review of the s secretary decision shall within thirty days after the expiration of the time period provided in Subsection E for the secretary of the LDEQ response file an s application for de novo review of the secretary denial in the Nineteenth Judicial s District Court for the parish of East Baton Rouge La R 30 S 2050 3 G 4 The LDEQ in its brief to this court asserts that the secretary neither granted nor denied the request for adjudicatory hearing within the 30 days as provided in the statute and thus according to the provisions of the La R S 3 G 4 2050 s 30 Shamrock recourse was to timely file an application for de novo review of the denial in the Nineteenth Judicial District Court Shamrock however asserts in its brief that LDEQ employees communicated to it that an adjudicatory hearing had been granted by the secretary It is observed that La R 30states that the secretary shall notify S 2050 E 4 the person requesting an adjudicatory hearing that the request has been granted or denied Emphasis added The statute does not state in what manner a person is to be notified other than to state that if a person is not notified within thirty days that the request has been granted or denied the request shall be deemed denied As this matter comes before us pursuant to an ex parte judgment wherein the district court was required to grant the relief prayed for and issue a judgment without a trial de novo of the facts supporting the order see La R S 3 c 2 G 2025 30 the record before us does not contain any information regarding communications between the parties other than the allegations of the LDEQ ex s parte petition and the exhibits attached thereto Pursuant to this court authority s under La C art 2164 we believe justice requires that we remand this matter P to the district court to hold an evidentiary hearing on whether LDEQ employees communicated to Shamrock that it had been granted an adjudicatory hearing If the district court determines that such communications were made to Shamrock and that Shamrock reasonably relied on such communications then the district court is ordered to set aside the July 16 2009 judgment and remand the matter to the LDEQ to hold an adjudicatory hearing on the penalty assessment REMANDED WITH INSTRUCTIONS 11 LOUISIANA DEPARTMENT OF ENVIRONMENTAL NUMBER 2010 CA 0089 QUALITY COURT OF APPEAL SHAMROCK DEMOLITION WASTE HAULERS FIRST CIRCUIT OF LOUISIANA LLC STATE OF LOUISIANA BEFORE CARTER C GUIDRY AND PETTIGREW JJ J ETTIGREW J AGREES AND ASSIGNS ADDITIONAL REASONS I agree with the majority I acknowledge and am aware of La Civ Code arts 9 13 on the interpretation of laws It is my humble opinion that La R 30 is S 2050 4 very poorly written and appears to be a trap for the unwary It contradicts itself in several areas Subparagraph A appears to grant the respondent the right to an adjudicatory hearing while in subparagraph E the secretary is given the discretion to either grant or deny the hearing In subparagraph E the statute provides the secretary shall notify the person requesting an adjudicatory hearing that the request has been granted or denied The word shall in legal terms is generally mandatory La R 1 La Code S 3 Civ P art 5053 Then in subparagraph G it states that if the secretary does not comply with subparagraph E the applicant shall within 30 days thereafter be entitled to file an application for a de novo review of the secretary saction in the 19th Judicial District Court for the Parish of East Baton Rouge Apparently when the statute mandates that the secretary do something or when it grants a right to a citizen it does not really mean it I find the statute obtuse should be rewritten or amended I am of the humble opinion that Art 1 It 2 and 22 of the Constitution of the State of Louisiana of 1974 require this remand to the district court

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