Louisiana Environmental Action Network, Inc. v. Brown

          APPEALED FROM THE 19^th JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 677, 599, SECTION 23 HONORABLE WILLIAM A. MORVANT, JUDGE

          Herman Robinson Courtney J. Burdette Ashley K. Plunkett Charlotte M. Goudeau Jill R. Carter Baton Rouge, Louisiana Attorneys for Defendant/ Appellant Louisiana Department of Environmental Quality

          Clay Garside Joel R. Waltzer New Orleans, Louisiana Attorneys for Plaintiff/Appellee Louisiana Environmental Action Network

          BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

          McDonald, J.

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         On May 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.

         In 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.

         After a 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 19^th JDC's clerk of court to issue a writ of mandamus to DEQ Secretary Brown.^[1] 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 19^th 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.

         DEQ 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.

         MANDAMUS CAUSE OF ACTION UNDER ...