Vanguard Environmental, LLC VS Terrebonne Parish Consolidated Government

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1998 VANGUARD ENVIRONMENTAL LLC VERSUS TERREBONNE PARISH CONSOLIDATED GOVERNMENT Judgment Rendered UN 1 1 2013 On Appeal from the 32 Judicial District Court In and far the Parish of Terrebonne State of Louisiana I Docket No 166 406 The Honorable George J Larke Jr Judge Presiding Courtney E Alcock Houma Louisiana Attorney for DefendantlAppellant Terrebonne Parish Consolidated Govemment Timothy Houma C Ellender 7r Louisiana Attorney for Plaintiff Appellee Vanguard Environmental LLC BEFORE PARRO WELCH AND DRAKE JJ DRAKE J This appeal arises from a final judgment of the district court that granted suinmary judgment and a permanent injunction in favor of the Plaintiff Appellee Vanguard Environmental LLC Vanguard Defendant Terrebonne Appellant Parish Consolidated Government TPCG now appeals the judgment of the district court For the reasons stated herein we affirm FACTS AND PROCEDURAL HISTORY Vanguard submitted an application to the Louisiana Office of Conservation of the Department of Natural Resources seeking a permit to locate construct and operate a saltwater injection waste disposal facility in Terrebonne Parish near Houma Louisiana Vanguard sproposed facility is a commercial non hazardous Class II Type B deep injection waste disposal facility The proposed facility well would dispose of oil and gas exploration and production waste fluids such as saltwater which are commonly known as E and P waste fluids Vanguard s proposed facility would receive and store E and P waste fluids generated from the drilling and production of oil and gas for subsurface disposal by means of deep well injection Vanguard published the appropriate notices of intention to apply to the Commissioner of Conservation for a permit to locate construct and operate its facility The Office of Conservation opened a written comment period seeking feedback concerning Vanguard permit application Public hearings were also s held in Terrebonne Parish during which participating members of the public were allowed to submit questions and voice concerns regarding Vanguard permit s A Type B facility is a commercial E and P waste disposal facility within the state that utilizes undexground in technology for the xeceipt storage treatment and disposal of only ecrion saltwater or other E and P waste fluids liquids La Admin Code tit 43 pt XIX 501 A Class II disposal well injects fluids which are brought to the surface in connection with conventional oil or natural gas production and may be commingled with waste waters from gas plants which are an integral part of production operations La Admin Code tit 43 pt XIX 403 2 application During the comment period the TPCG president sent a letter to the Office of Conservation informing it that TPCG preliminary review of s spermit application revealed that the proposed site of the facility did not Vanguard comply with a Terrebonne Parish ordinance that requires all waste disposal facilities such as Vanguard to be set back one mile from any structure used as a s residence or business The letter further indicated that Vanguard had not submitted any parish permit application for such a facility to TPCG and that TPCG would hold any permit application issued by the Commissioner to the letter of the law After the conclusion of the public hearings and written comment period the Commissioner of Conservation issued Conservation Order No ENV 2011 CFB 02 on May 25 2011 which authorized Vanguard to locate construct and operate its commercial non waste injection facility in Terrebonne Parish in hazardous accordance with the Office of Conservation permitting process Seven days s after the Commissioner issued the order granting Vanguard permit Vanguard s received a letter from TPCG informing Vanguard that its proposed facility fell under the parish jurisdiction and that the location ofthe facility would be subject s to the one set parish ardinance mile back Vanguard notified the Commissioner of Conservation that TPCG required that Vanguard comply with the parish ordinances specifically the one set mile back rule in arder to locate construct and operate its facility in Terrebonne Parish Vanguard requested in writing that the Commissioner bring suit to enjoin potential actions that TPCG may take in derogation of the Commissioner s b 1 C 4 30 and 4 La I 519 and 529 43 pt XIX See La R S Admin Code tit Admin Code tit 43 pt XIX 3 See Terrebonne Parish Code pt II ch ll art III 4 56 11 Section 11 56 See La Admin Code tit 43 pt XIX subpt 1 ch 5 Order No 29 Statewide B 3 409 La authority or actions that may potentiallylimit Vanguard rights under its permit s which was issued pursuant to Conservation Order No ENV 2011 CFB The 02 Commissioner of Conservation did not bring suit so Vanguard brought suit on the s Commissioner behalf by filing a petition for declaratory judgment and permanent injunction 6 Vanguard sought a declaration that the Terrebonne Parish ordinance regarding the siting of oilfield waste disposal sites was unconstitutional Vanguard also sought a permanent injunction to prevent TPCG from enforcing its ordinances against Vanguard permit to build its waste disposal facility s TPCG filed an answer and exceptions to Vanguard spetition specifically the declinatory exception raising the objection of lack of jurisdiction over the subject matter of the action and the dilatory exception raising the objections of vagueness or ambiguity of the petition and prematurity Thereafter Vanguard filed a motion for summary judgment and sought a permanent injunction Following a hearing on the exceptions filed by TPCG and the motion and injunction request filed by Vanguard the district court denied the exceptions of vagueness and lack of subject matter jurisdiction On August 1 2012 the district court granted summary judgment and a permanent injunction in Vanguard sfavor enjoining TPCG from applying any of its local regulatory ordinances to Vanguard or compelling Vanguard to comply with those ordinances including but not limited to Section 56 ll TPCG now appeals LAW AND DISCUSSION We note that this court has not ordered this appeal transferred to the Louisiana Supreme Court even though the judgment appealed from decreed certain Terrebonne Parish ordinances unconstitutional as applied to the appellee s See La R 30 S 14 e See La R 30 S 16 TPCG withdrew its exception of vagueness or ambiguity of the petition 4 See La Const art V D 5 The Louisiana Supreme Court has held that it lacks jurisdiction over a direct appeal when a district court finds that an ordinance has been preempted by a federal or state law See City ofBaton Rouge v Goings 95 2542 La 12 684 So 2d 396 397 Twin Parish Port Commission v Berry 96 13 Bros Inc 94 La 2 650 So 748 749 Desormeaux Enterprises 2594 95 20 2d Inc v Yillage of Mermentau 568 So 2d 213 La App 3d Cir 1990 after remand by the supreme court upon a finding of lack of subject matter jurisdiction Accordingly we proceed to consider and decide this matter I Exceptions In its first assignment of error TPCG contends that the district court lacked subject matter jurisdiction to declare that Vanguard spermit is valid It contends that the validity of the state permit was not at issue in this lawsuit which sought declaratory review of a Terrebonne Parish ordinance TPCG maintains that the validity of Vanguard permit was not disputed and that the district court lacked s jurisdiction to review and declare a Terrebonne Parish ordinance unconstitutional In its second assignment of error TPCG argues the district court erred in overruling the TPCG exception of prematurity relative to Vanguard request for s s injunctive relie TPCG contends that Vanguard action was premature because it s never applied to TPCG for a permit under the Terrebonne Parish Code of Ordinances Without applying for a permit or requesting a variance from the waste siting provision TPCG argues that Vanguard had no way of knowing whether or not a permit for its facility would be denied The district court overruled TPCG exceptions in a ruling separate from the s judgment appealed from however when an unrestricted appeal is taken from a final judgment the appellant is entitled to seek review of all adverse interlocutory rulings in addition to review of the final judgment Landry v Leonard J Chabert 5 Med Ctr 02 La App 1 Cir 5 858 So 2d 454 461 n writs 1559 03 14 4 denied 03 03 La 10 855 So 2d 761 1748 1752 03 17 A party is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and the declaratory judgment will remove the uncertainty or terminate the dispute Louisiana Dep of t Agric Forestry v Louisiana State Licensing Bd for Contractors 36 La 694 App 2 Cir 1 837 So 2d 726 731 Louisiana Code of Civil Procedure 03 29 32 article 1872 provides in pertinent part whose rights status or other legal relations are affected by a statute municipal ordinance contract or franchise may have determined any question of construction or validity arising under the A person instrument statute ordinance contract ar franchise and obtain a declaration of rights status or other legal relations thereunder Thus a suit for declaratory judgment is an appropriate means of testing the constitutionality or applicability of an ordinance over which there is an actual controversy between the parties onderhaar v I Parish of St Tammany 633 So 2d 217 225 La App lst Cir 1993 Here TPCG expressed its intention to bar Vanguard from locating constructing and operating its facility in Terrebonne Parish unless Vanguard complied with provisions of the Tenebonne Parish Code which Vanguard maintains are unconstitutional as applied to the permit issued to Vanguard by the Commissioner of Conservation Under circumstances such as these the legislature expressly gave entities such as Vanguard resort to injunctive relief to prohibit local governments from threatening their lawfully granted permit interests Specifically Louisiana Revised Statutes 30 authorizes the Commissioner to file 14 suit to restrain the violation or threat of violation of any oil and gas regulation or any rule regulation or order made thereunder Moreover any entity that is adversely affected by a violation or threat of violation such as Vanguard has the authority to bring suit in the Commissioner place and similarly seek an injunction s 6 when the Commissioner fails to bring suit La R 30 S 16 Thus Vanguard properly and timely filed a suit for declaratory and injunctive relief before it was cited or assessed civil ar criminal penalties by TPCG for acting in accordance with its permit issued by the Commissioner II Summarv Judgment In its remaining assignments of error TPCG contends the district court erred in granting Vanguard motion for summary judgment TPCG maintains that the s district court erred in holding that there were no genuine issues of material fact because the statement of uncontested facts Vanguard attached in support of its motion for summary judgment was not supported by proper documents affidavits answers to interrogatories depositions or admissions and contained unsupported legal conclusions TPCG also argues that the district court legally erred in holding that the Office of Conservation has exclusive and pervasive autharity to regulate oil and gas waste disposal facilities Finally TPCG maintains the district court erred in holding that the ordinances found in Part II Chapter 11 Article III of the Terrebonne Parish Code including but not limited to Section 11 56 are unconstitutional as applied to Vanguard proposed facility TPCG argues s the district court should have evaluated the parish ordinances on a non constitutional basis specifically whether they were arbitrary or capricious and could have upheld the ordinance as an exercise of local police power regulating land use Appellate courts review summary judgments de novo under the same criteria that govern the district court consideration of whether summary judgment is s appropriate Schroeder v Bd of Sup of Louisiana State Univ 591 So 2d 342 rs 345 La 1991 The judgment sought shall be rendered forthwith if the pleadings depositions answers to intenogatories and admissions on file together with supporting affidavits if any show that there is no genuine issue as to material fact 7 and that the mover is entitled to judgment as a matter of law La Code Civ Proc art 966 Bridges v Nat B lFin Sys Inc 06 La App 1 Cir 3 960 0957 07 23 So 2d 202 205 writ denied 07 La 11 966 So 2d 602 Because the 1600 07 2 mover has the burden of establishing that no genuine material factual issue exists inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion T Corp v Vaughn 397 Sa 2d 490 493 La 1981 ermilion A Evidence in Support of Motion for Summarv Judgment TPCG alleges that Vanguard statement of uncontested facts which s references E A B C and D attached in support of Vanguard motion for ibits s summary judgment were not properly before the district court as these e ibits were not presented by an affidavit answer to interrogatory or admission as required by Louisiana Code of Civil Procedure articles 966 and 967 Additionally TPCG contends that some of the uncontested facts were merely assertions or conclusions with no reference to supporting documents The district court ruled that the exhibits attached to Vanguard motion for s summary judgment were proper summary judgment evidence s Vanguard Exhibits A and B are comprised of official state documents of the Office of Conservation and were accompanied by verification and a certification of 8 s Vanguard Exlubit A is a certified copy of the Office of Conservation official records s applicable to Vanguard spermit application Docket No ENV 20ll Volume I of II which 02 consists of i a transcript of the public hearing regarding its permit application that was held on March 2 2011 in Houma Louisiana and ii copies of notices of intent to apply for a permit that were published in the Advocate and the Courier 9 s Vanguard Exhibit B is a certified copy of the Office of Conservation official records s applicable to Vanguard spermit application Docket No ENV 2011 Volume Il of In which 02 consists of i a letter from the Office of Conservation to Vanguard regarding the public hearing and related notice xequirements ii legal notice of the public hearing on Vanguard spermit application iii copy of notices of the public heazing that were published in the Advocate and the Courier iv a letter from TPCG president to the Office of Conservation regarding spermit application and v a letter from TPCG attorney to a TPCG council member Vanguard 8 authenticity from the official custodian of the documents Exhibits D and E were supported by the affidavit of a member of Vanguard Exhibit F In fact TPCG provided Vanguard and the court with a copy of the same letter that is sExhibit D The district court held that the documents were properly Vanguard authenticated certified copies of official state documents The district court also held that the veracity of the affidavits supporting the ewas not in question ibits We agree with the district court conclusion that the evidence submitted by s Vanguard in connection with its motion for summary judgment was properly before the court B Re of Non Oil and Gas Waste Disposal Facilities ulation Hazardous The Louisiana Constitution establishes environmental preservation as the public policy of the state It directs that the natural resources of the state are to be protected conserved and replenished legislature enact laws to implement this policy Moreover it mandates that the La Const art IX 1 Pursuant to this constitutional mandate the desire to protect the health and safety of the s State citizens the growth of the State industrial activity and the need to s coardinate environmental control regulations with the federal program have prompted the legislature to act in a number of significant ways in the field of environmental regulation at the state level See Rollins Envtl Services of Louisiana Inc v Iberville Parish Police Jury 371 So 2d 1127 1133 La 1979 The legislature has created an extensive body of law that addresses every phase of the oil and gas exploration process from the initial exploration and drilling phases to cleanup and disposal of wastes The state entity responsible for the regulation of 10 s Vanguard Exhibit D is a copy of a letter sent by TPCG to Vanguard informing Vanguard that its faciliry must comply with the parish one set hazardous waste s mile back ordinance s Vanguard Exhibit E is the letter Vanguard sent to the Commissioner requesting that the Commissioner take legal action against TPCG to prevent a violation of state law regarding spermit Vanguard 9 the oil and gas resources of the state including underground injection and disposal practices is the Office of Conservation which is directed and controlled by the Commissioner of Conservation La R 30 et seq S1 The disposal of any waste product into the subsurface by means of a disposal well and the regulation of all surface and subsurface waste facilities incidental to oil and gas e and production are virtually entirely vested in the Office of laration Conservarion See La R 30 as modified by La R 36359 La R S1 D SD S C 4 30 Hunt Oil Co v Batchelor 93 La 10 644 So 2d 191 197 3144 94 17 The Commissioner authority includes but is not limited to the power to s regulate by rules the drilling casing cementing disposal interval monitoring plugging and permitting of disposal wells which are used to inject waste products in the subsurface and to regulate all surface and storage waste facilities incidental to oil and gas exploration and production La x 3o ana to s 4 a i6 c any make reasonable rules regulations and orders that are necessary to control the offsite disposal at commercial facilities of drilling mud saltwater and other related nonhazardous wastes generated by the drilling and production of oil and gas we11s Such regulations shall at a minimum require c for the location riteria design and operation of commercial offsite disposal facilities La R 30 S 4 7 I Pursuant to this authority the Commissioner issued Statewide Order 29 B which enacted a comprehensive set of regulations establishing the criteria to be met in order to obtain a disposal well permit XIX 501 et seq See La Admin Code tit 43 pt Among these regulations are the location criteria for commercial Class II disposal wells such as Vanguard found at Title 43 Part s XIX 507 in the Louisiana Administrative Code which states in pertinent part not in be located any may facilities Class where area II disposal wells located within 500 feet of are a residential commercial or public building church school or hospital Emphasis added Commercial 10 During the permit process TPCG objected through written comments and public hearings to certain differences between the Commissioner sregulations and local ordinances specifically Section 11 Section 11 prohibits the storage or 56 56 disposal of waste in Any area within a one radius of any house mobile home mile apartment condominium commercial structure ar other structure used as a residence or business unless the structure is located and used on the site where the hazardous waste or other waste is stored or disposed o Emphasis added Other ordinances found in Part II Chapter 11 Article III of the Terrebonne Parish Code authorize TPCG to permit monitor and oversee the construction and use of all facilities designed to store or dispose of any type of waste The ordinances outline the process for applying for and receiving a permit to operate a waste disposal facility Vanguard maintains that these parish ardinances are unconstitutional as they purport to regulate the permitting location and operation of waste disposal facilities which Vanguard argues is unauthorized inconsistent with and preempted by the laws of this State that vest this authority in the Commissioner of Conservation seq La Admin See La Const Code title 43 part XIX art VI a 7 La R 30 et S 1 507 We affirm the district court grant of summary judgment agreeing with the s s court conclusion that the application of the ordinances found in Part II Chapter 11 Article III of the Terrebonne Parish Code are unconsritutional as applied to s Vanguard permit because the regulation of the disposal of non waste hazardous products into the subsurface by means of a commercial offsite disposal facility including the siting of such facilities is preempted by state law This case does not present a matter of the regulation of solid or hazardous waste but rather the regulation of non oil and gas waste specifically the autharity over the hazardous See Terrebonne Parish Code pt II ch 11 art III See Terrebonne Parish Code pt II ch I1 11 art III 53 11 58 11 61 location design and operation of commercial waste disposal facilities Local government bodies have been denied the power to adopt local ordinances independently regulating or prohibiting the disposal of oil and gas waste A governmental body such as TPCG is authorized to exercise any power and perform any function necessary for the management of its affairs unless that authority is denied by the constitution its charter or by the general law of the State La Const art VI 7 La R 33361 S As discussed above the legislature has given authority over the location design and operation of non waste disposal facilities such as hazardous s Vanguard to the Office of Conservation through the Commissioner of Conservation La R 30 We conclude that the regulation of the disposal S 4 7 I of any waste product into the subsurface by means of a disposal well including siting is within the exclusive jurisdiction of the Office of Conservation Desormeaux Enterprises Inc 568 So 2d at 215 The express terms of our pertinent statutory law and the regulations adopted pursuant thereto are peroasive and clearly manifest a legislarive intention to preempt the field in its entirety Id We therefore affirm the district court ruling that the application of the s ordinances found in Part II Chapter 11 Article III of the Terrebonne Parish Code including but not limited to Section 11 are unconstitutional as applied to 56 s Vanguard proposed facility DECREE For the foregoing reasons the judgment granting the motion for summary judgment and the permanent injunction is affirmed All costs of this appeal in the amount of 467 1 are cast to Appellant Defendant Consolidated Government AFFIRMED 12 Terrebonne Parish

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