American Waste and Pollution Control Co., Matter of

• Decision Date: 15 September 1994
• Citation: 642 So.2d 1258
• Parties: 93-3163 La
• Court: Louisiana Supreme Court

Page 1258

642 So.2d 1258

93-3163 La. 9/15/94

In the Matter of AMERICAN WASTE AND POLLUTION CONTROL COMPANY.

No. 93-C-3163.

Supreme Court of Louisiana.

Sept. 15, 1994.

Rehearing Denied Dec. 9, 1994.

Gerald L. Walter, Jr., James C. Percy, Brent Barber Boxill, Schwab & Walter, for applicant.

Jackie M. Scott Marve, William V. Redmann, Bob Boese, P. Charles Calahan, Maureen N. Harbourt, Esteban Herrera, Jr., for respondent.

Richard P. Ieyoub, Atty. Gen., David C. Kimmel, John B. Sheppard, Jr., for amicus curiae State.

Daria L. Burgess, Richard C. Ellis, for amicus curiae La. Citizen Action, Gulf Coast Tenant Organization, La. Environment Action Network, Southern Christian Leadership Conference, Ass'n Community Organization Reform, St. John Citizen Environmental Justice, North Baton Rouge Environmental Ass'n, Concerned Citizen of Northeast La., Concerned Citizen of CENLA, Delta Greens, La. League of Women Voters, Orleans Audubon Society, Sierra Club-Delta Chapter, Calcasieu League of Environmental Act, Secure Environment of Everyone.

Emile C. Rolfs, III, William F. Ridlon, II, for amicus curiae City of Baton Rouge, East Baton Rouge Par.

William F. Ridlon, II, Hon. Michael E. Ponder, Larry D. Book, Counsel amicus curiae for East Baton Rouge Par.

Maureen N. Harbourt, Esteban Herrera, Jr., Robert N. Aguiluz, amicus curiae for La. Chemical Ass'n.

[93-3163 La. 1] WATSON, Justice. ¹

The issue is whether an action taken by the Louisiana Department of Environmental Quality (DEQ) on a solid waste disposal permit application without an adjudicatory hearing is a "final decision or order" under LSA-R.S. 30:2024(C) which affords judicial review to persons aggrieved by the action.

[93-3163 La. 2] FACTS

In the early 1980's, solid waste disposal posed a serious problem for the governmental entities of St. Martin, Iberia, and Lafayette Parishes. American Waste and Pollution Control Company (American Waste) proposed a site outside St. Martinville near Cade, Louisiana, for construction of a solid waste disposal facility (Cade I). On February 26, 1987, DEQ Secretary Martha Madden denied a construction permit based on the site's geologic conditions and the proposed facility's proximity to the Chicot Aquifer. DEQ's Environmental Regulatory Code (1992) defines aquifer as "a formation, group of formations, or part of a formation that contains sufficient saturated permeable materials to yield significant quantities of water to wells and springs." Title 33:VII.501. The Chicot Aquifer is a major source of drinking water for southwest Louisiana.

In November of 1987, American Waste submitted a site selection study for a second facility in the Cade area (Cade II), approximately 1.5 miles from the Cade I proposed site, on the east side of La. Hwy. 182, almost one mile north of the highway's intersection with Duchamp Road.

Under DEQ rules, an application is first reviewed by DEQ staff to determine whether the format, technical engineering, geochemical, and [93-3163 La. 3] environmental aspects of the application are consistent with DEQ regulations. If deficiencies are noted, the applicant is allowed an opportunity to correct them. When the application is deemed complete, the law requires a public hearing, followed by a thirty-day delay for public comment. After the thirty day period, DEQ staff again reviews the matter to determine whether additional information should be considered. DEQ department heads then make recommendations and the completed application is sent to the DEQ Secretary for a decision.

A public hearing was held December 15, 1987. No transcript or recording of this hearing exists. Despite local opposition to the site selection, DEQ informed American Waste that its permit application was deemed acceptable for public review. American Waste submitted its permit application to DEQ in February of 1988.

By letter dated December 2, 1988, attorney Robert L. Boese wrote to DEQ on behalf of the Episcopal School of Acadiana "and other concerned citizens of St. Martin and Lafayette Parishes" requesting both a fact-finding hearing and an adjudicatory hearing based on issues of technical merit and legal sufficiency.

[93-3163 La. 4] In March of 1989, DEQ wrote the Headmaster of the Episcopal School of Acadiana, stating a final decision had not been made and would not be made "until the appropriate time, which is after public hearings and any additional hearings that may follow, such as adjudicatory and court hearings."

A public hearing on American Waste's permit application was held April 3, 1989. Public interest was intense with approximately 1500 people in attendance and over 120 people commenting on the permit application.

On motion of American Waste, then-DEQ Secretary Paul Templet was recused July 5, 1990, from acting on American Waste's permit application. See Matter of American Waste and Pollution Control Company, 581 So.2d 738 (La.App. 1 Cir.1991). Retired Judge William V. Redmann was appointed Secretary pro tempore of DEQ to render a decision on American Waste's Cade II application.

On July 12, 1991, the president of War on Waste (WOW), a non-profit unincorporated association, wrote DEQ and requested an updated public hearing because American Waste's permit application was four years old. The environmental group pointed out that DEQ policy requirements had changed, that new solid waste regulations were about to be issued, that current DEQ staff had not studied this application and that citizens advisory committees had [93-3163 La. 5] not had the opportunity to comment on the application. The letter included the following notation: "At one time, early in the process, a request was made for an adjudicatory hearing. Please determine and advise us on the status of that request." DEQ failed to respond to this request; no adjudicatory hearing was held.

On January 9, 1992, Judge Redmann, acting as DEQ Secretary pro tempore, granted American Waste a standard permit for the construction, installation, and operation of a solid waste facility at Cade II.

WOW, joined with the Acadiana Chapter of the National Audubon Society, a non-profit corporation (collectively referred to as WOW herein), filed an appeal with the First Circuit Court of Appeal. A copy of the appeal was filed with DEQ. The First Circuit considered the simultaneous filing and ordered that the appeal be transferred to DEQ for treatment as a motion and order for appeal. A DEQ hearing officer ordered that an appeal to the court of appeal be granted.

American Waste filed a motion to dismiss the appeal, arguing that the appellants were untimely, had incorrectly taken an appeal to the court of appeal rather than to DEQ and lacked standing under LSA-R.S. 30:2024(C) in that they were not "aggrieved parties." The motion to dismiss was denied; [93-3163 La. 6] the appeal was deemed timely and in the proper forum. The appellate court found WOW had standing as an "aggrieved party" due to its claim that constitutionally protected rights of liberty and property would be violated by the facility.

On the merits, the court of appeal found DEQ erroneously issued the permit without proper evaluation of alternative sites, without a balancing of benefits versus the risk to the environment, without listing basic findings or ultimate findings, without articulating a rational connection between factual findings and the resulting order, and by misstating the test to be used. The court of appeal vacated the Secretary pro tempore's order and remanded to DEQ for further proceedings. 633 So.2d 188 (La.App. 1 Cir.1993). A writ was granted to review the matter. 93-3163 (La. 3/11/94), 634 So.2d 837. ²

[93-3163 La. 7] LAW AND ANALYSIS

Article IX, Section 1 of the Louisiana Constitution provides:

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. The legislature shall enact laws to implement this policy.

This article continues the Public Trust Doctrine in environmental matters first recognized in the 1921 Constitution's Article VI, § 1 and "imposes a duty of environmental protection on all state agencies and officials, establishes a standard of environmental protection, and mandates the legislature to enact laws to implement fully this policy." Save Ourselves v. La. Environ. Cont. Com'n, 452 So.2d 1152, 1156 (La.1984); McCowan, Charles S. The Evolution of Environmental Law in Louisiana, 52 La.L.Rev. 907 (1992). This constitutional standard has been interpreted as a "rule of reasonableness" which "requires a balancing process in which environmental costs and benefits must be given full and careful consideration along with economic, social and other factors." Save Ourselves, 452 So.2d at 1157.

The Constitution also ensures basic due process protections. See La. Const. art. I, § 2 (no deprivation of life, liberty or property without due process), La. Const. art. I, § 19 (no forfeiture of rights or property without the [93-3163 La. 8] right of judicial review of the record), and La. Const. art. I, § 22 (right of access to courts).

Sweeping legislation implements the constitutional environmental mandate. LSA-R.S. 30:2002 provides "the maintenance of a healthful and safe environment for the people of Louisiana is a matter of critical state concern." In order to protect the state's resources, the Legislature created the DEQ and designated it the primary state agency concerned with environmental protection and regulation. DEQ has specific jurisdiction over solid waste disposal regulation. LSA-R.S. 30:2011(A)(1).

The Legislature has reposed the power to issue environmental permits in DEQ and has authorized the agency to exercise quasi-judicial authority. Matter of American Waste & Poll. Control, 588 So.2d 367 (La.1991). The Secretary of DEQ is empowered, inter alia, to grant...