LOUISIANA ENVIRONMENTAL ACTION NETWORK, INC.
CHUCK CARR BROWN, AS SECRETARY OF THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY
APPEALED FROM THE 19th JUDICIAL DISTRICT COURT
EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 677, 599,
SECTION 23 HONORABLE WILLIAM A. MORVANT, JUDGE
Robinson Courtney J. Burdette Ashley K. Plunkett Charlotte M.
Goudeau Jill R. Carter Baton Rouge, Louisiana Attorneys for
Defendant/ Appellant Louisiana Department of Environmental
Garside Joel R. Waltzer New Orleans, Louisiana Attorneys for
Plaintiff/Appellee Louisiana Environmental Action Network
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.K.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.
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.
CAUSE OF ACTION UNDER ...