Save Ourselves, Inc. v. Louisiana Environmental Control Com'n
| Decision Date | 14 May 1984 |
| Docket Number | No. 83-C-1480,83-C-1480 |
| Parties | , 14 Envtl. L. Rep. 20,790 SAVE OURSELVES, INC., et al. v. The LOUISIANA ENVIRONMENTAL CONTROL COMMISSION and The Louisiana Department of Natural Resources. |
| Court | Louisiana Supreme Court |
Stephen M. Irving, Baton Rouge, Atty. at Law, for plaintiff-applicant.
William J. Guste, Jr., Atty. Gen., Ian Douglas Lindsey, Asst. Atty. Gen., R. Gordon
Kean, Jr., Charles S. McCowan, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-respondent.
We granted certiorari to review the lower courts' approval of permits issued by the Environmental Control Commission to IT Corporation for a major hazardous waste disposal facility on the Mississippi River. 430 So.2d 1114 (La.App.1983). This case raises issues intersecting the State Constitution's Natural Resource Article and the Louisiana Hazardous Waste Control Law; which is part of the Environmental Affairs Act of 1979. From the record presented for our review we cannot determine whether the agency followed correct interpretations of its constitutional and statutory duties, or whether its determinations are arbitrary, capricious or unreasonable. The judgments below are therefore vacated and the case is remanded to the court of appeal with directions to remand to the Environmental Control Commission for further proceedings consistent with this opinion.
It is the well settled law of this country that a state holds title to land under navigable waters within its limits and that the title is held in trust for the people of the state that they may enjoy and use the waters free from obstruction or interference. Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). A public trust for the protection, conservation and replenishment of all natural resources of the state was recognized by art. VI Sec. 1 of the 1921 Louisiana Constitution. 1 The public trust doctrine was continued by the 1974 Louisiana Constitution, which specifically lists air and water as natural resources, commands protection, conservation and replenishment of them insofar as possible and consistent with health, safety and welfare of the people, and mandates the legislature to enact laws to implement this policy. 2 La. Const. art. IX Sec. 1; Cf. Id. art. IX Sec. 3; Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 580 (1975) (on rehearing).
In implementation of the public trust mandate, the legislature enacted the Louisiana Environmental Affairs Act. 3 La.R.S. 30:1051 et seq. The stated purpose of the act is to maintain, protect and enhance a healthful and safe environment through regulation of water control, air quality, solid and hazardous waste, scenic rivers and streams, and radiation, 4 as well as to provide for comprehensive policies on a statewide basis to unify, coordinate, and implement programs for these purposes and for the most advantageous use of the resources of the state. La.R.S. 30:1053.
The Act establishes the Environmental Control Commission (ECC), within the Department of Natural Resources, 5 composed of seven cabinet level executive branch officials. La.R.S. 30:1062. The ECC is authorized to review on appeal the granting or denial by the secretary of the Department of Natural Resources of a permit for a hazardous waste facility, or to grant or deny a permit referred to it by the secretary. La.R.S. 30:1066. Any person aggrieved by a final decision or order of the commission may appeal to the proper court. 6
Part VII of the Act is designated the Hazardous Waste Control Law. La.R.S. 30:1131-1149.1. The indicated purpose of the law is to assure that necessary safeguards and practices are adhered to on a continuing basis in matters pertaining to the transportation, treatment, storage and disposal of hazardous wastes, and thereby to prevent "substantial abuse of the environment," by establishing a framework for the regulation, monitoring, and control of generators, transportation, treatment, storage and disposal of hazardous waste. La.R.S. 30:1132. Hazardous waste is defined, in essence, as waste which significantly contributes to an increase in mortality or serious irreversible or incapacitating reversible illness, or as waste which poses a "substantial present or potential hazard to human health or the environment" when improperly treated, stored, transported, disposed of or managed. La.R.S. 30:1133(2). See also, Environmental Law, 39 La.L.Rev. 246, 251 (1978). The secretary, with the advice and cooperation of the Department of Health and Human Resources and the Department of Wildlife and Fisheries, is mandated to promulgate regulations for the identification and regulation of all hazardous waste treatment, storage and disposal facilities, "at a minimum" providing for: (1) Licensing or permit procedures for every facility; (2) Design, construction and operational standards which "will assure safe treatment, storage and disposal without substantial risk to the environment, water supplies, air and human health," including the submission of plans, designs, engineering reports, geological, hydrological, and other relevant data incidental to the determination of the suitability of an existing or a proposed facility; (3) Adequate record keeping of hazardous wastes managed; (4) Financial responsibility of regulated persons; (5) A Hazardous Waste Protection Fund; (6) Classification of Facilities; (7) Any other regulation necessary to administer or comply with federal or state law. La.R.S. 30:1141. (emphasis added)
Pursuant to legislative mandate, the Department of Natural Resources promulgated a body of regulations, entitled the Hazardous Waste Management Plan. (HWMP) 7 The two parts which concern us most in this case are those pertaining to the permit process and the standards for facilities which treat, store or dispose of hazardous waste. 8
Permits must be secured by operators of facilities which treat, store, and/or dispose of hazardous wastes. HWMP, Rule 5.2.1. Generally, no facility may be used to treat, store or dispose of hazardous waste without a permit for the specific activities, procedures and classification of waste handled as outlined in its permit. HWMP, Rule 5.2.2 B. No new facilities, or major modifications in existing facilities may be constructed without a permit, HWMP, Rule 5.2.2 C, or placed into operation until the facility is complete and (1) certified by the operator and an engineer as complete in accordance with the permit; and (2) inspected by the Department following a request to make final inspection by the operator. HWMP, Rule 5.2.2 D. A standard permit is issued for the projected life of the site. HWMP, Rule 5.2.4.
Upon acceptance of an application for review, copies are distributed for review and optional comment to: the public, a bulletin, a local newspaper, La. Water Pollution Control Division, La. Air Control Division, Department of Health and Human Resources, Department of Wildlife and Fisheries, Department of Transportation and Development, and local governing bodies. HWMP, Rule 5.3.1 A(7).
The Department evaluation will consider: (a) Purpose and use of facilities; (b) Operation and monitoring plan; (c) Capacity; (d) Closure; (e) Site Suitability; (f) Financial responsibility; (g) Legal Considerations; (h) Special considerations on a site specific basis; (i) Local zoning ordinances. 5.3.1 A(8).
A public hearing will be held for a permit for a commercial site and for any other facility if the Secretary determines it necessary. 5.3.1 A(10)-(11). Public hearings shall be conducted in accordance with the Administrative Procedure Act (La.R.S. 49:951 et seq.); HWMP, Rule 5.3.1 A(14). 9
The permit application must include professionally exact and complete studies of (1) the site layout and facility design, showing all improvements and excavation; (2) Site geology; (3) Site hydrology, including surface flow, water wells, drainage, flood hazards, and climate factors; (4) Environmental factors; (5) Geographical factors; (6) Operations plan; (7) Closure plans; (8) Financial responsibility. HWMP, Rule 5.3.4.
All facilities which treat, store or dispose of hazardous waste must be constructed and operated to comply with the standards outlined in these regulations. HWMP, Rule 8.2.1. Site requirements include those pertaining to: geology--for example, soils of low permeability over an entire area or other means providing a barrier to penetration of surface spills or erosion; geography--no facility in an overflow zone subject to hurricane or flood waters without site protection measures; hydrology--natural or artificial hydrological isolation required. HWMP, Rules 8.3.1 through 8.3.4.
In summary, the Natural Resources article of the 1974 Louisiana Constitution 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. La. Const. art. IX Sec. 1. In 1978 the legislature directed the Secretary of the Department of Natural Resources to promulgate regulations to prevent the transportation, treatment or disposal of hazardous wastes except by permit issued upon a showing that the particular project or facility to be licensed does not involve a substantial risk to the environment. 10
The Environmental Affairs Act of 1979 expanded the 1978 statute and created the Environmental Control Commission and charged it with the responsibility of reviewing each application for a permit to determine whether the proposed project or facility complies with the constitutional and legislative standards. La.R.S. 30:1062, 1066.
The Constitutional standard requires environmental protection "insofar as possible and consistent with the health, safety, and...
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