Louisiana Environmental Action Network, Inc. v. Chuck Carr Brown, as Secretary of the Louisiana Department of Environmental Quality

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 CA 0607

LOUISIANA ENVIRONMENTAL ACTION NETWORK, INC.

VERSUS

CHUCK CARR BROWN, AS SECRETARY OF THE
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY

Decision Rendered: JAN 0 9 2020

0 APPEALED FROM THE 19th JUDICIAL DISTRICT COURT
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 677, 599, SECTION 23

HONORABLE WILLIAM A. MORVANT, JUDGE

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

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

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.
2

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 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. x.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.

1 The judgment contains no ruling on LEAN' s request for injunctive relief or on DEQ's improper
cumulation exception.

3

MANDAMUS CAUSE OF ACTION UNDER LA. R.S. 30: 2050. 29

Except for situations not pertinent here, whenever Chapter 2 of the Louisiana

Environmental Quality Act ( LEQA) specifies a deadline within which DEQ must act on

a particular matter, and DEQ fails to act by such deadline, any adversely affected

party has the right to a writ of mandamus from the 19th Judicial District Court,

directing DEQ to act within a period of time specified by the court, and if the

adversely affected party prevails, the court shall award court costs and attorney fees.

La. R. S. 30: 2050. 29. In its first assignment of error, DEQ contends the district court

erred in denying its exception of no cause of action, because LEAN has failed to

identify any deadline that DEQ failed to meet.

The peremptory exception of no cause of action questions whether the law

affords the plaintiff any remedy under the allegations of its petition. Rhodus v.

Lewis, 15- 1454 ( La. App. 1 Cir. 4/ 15/ 16), 193 So. 3d 215, 218. The exception is

triable solely on the face of the petition and any attached documents. Id. at 219;

see La. C. C. P. art. 931. The court must presume all well -pleaded facts are true,

must make all reasonable inferences in favor of the non- moving party, and must

resolve any doubts in favor of the petition' s sufficiency. Rhodus, 193 So. 3d at 219.

The exceptor bears the burden of showing that the plaintiff has not stated a cause of

action. Id. The appellate court performs a de novo review of a trial court's ruling on

an exception of no cause of action. Id.

The LEQA designates DEQ as the primary agency in the state concerned with

environmental protection and regulation. La. R. S. 30: 2011A( 1). The DEQ Secretary

has the power to grant or deny permits as provided by the LEQA and must

promulgate rules establishing procedures for the processing and review of permit

applications. La. R. S. 30: 2011D( 2); 30: 20226. As relevant here, DEQ has adopted

rules specifying the application requirements for new facilities seeking LPDES

permits, as well as rules applicable to DEQ' s review of such applications, including

LAC 33: IX: 2501. K and LAC 33: I: 1505.

z

Under LAC 33: IX: 2501. K. 5, a new facility seeking a LPDES permit, such as

Thermaldyne, must provide information in its application regarding the expected

presence of certain pollutants. Although DEQ may waive the reporting requirements

for some pollutants, DEQ may not waive the reporting requirements for other

pollutants. See LAC 33: IX: 2501K. 5( a)-( e). After receipt of a permit application for a

new facility, DEQ must perform an administrative completeness review to determine

whether the application contains the information required to substantively review the

application. See La. R. S. 30: 20226( 1); LAC 33: I: 1505A( 1) and ( 2). If applicable,

DEQ must notify the applicant in writing of specific administrative deficiencies, or

additional information needed to process the application, and the time period within

which the applicant must respond. See LAC 33: I: 1505A( 1) and ( 2). Within 60 days

from the date a permit application is submitted, DEQ must issue a letter of

administrative completeness or notify the applicant that its application has been

suspended because required administrative information has not been timely received.

See La. R. S. 30: 20226( 1); LAC 33: 1: 1505A( 3). An application is complete when DEQ

receives either a complete application or the information listed in a notice of

deficiency. LAC 33: IX: 2501. E.

At the hearing on the mandamus and exceptions, the district court determined

that, under LAC 33: IX: 2501. K, DEQ should have required Thermaldyne to provide

more information regarding what it was potentially going to discharge into the

Intracoastal Waterway, and Thermaldyne' s mere use of the term " Proposed facility"

was insufficient evidence to show that DEQ granted Thermaldyne a waiver from

reporting requirements for certain pollutants. The district court also noted that

DEQ' s May 3, 2018 public notice of the draft permit it proposed to issue to

Thermaldyne was one of the " most nebulous" it had seen and contained insufficient

information to alert LEAN, or anyone in the community, to make further inquiry into

the nature of Thermaldyne' s wastewater discharge.

5

After a de novo review of LEAN' s mandamus petition and attached documents,

we find LEAN has stated a cause of action against DEQ under La. R. S. 30: 2050. 29.

We agree with the district court that DEQ failed to adequately and timely perform the

administrative review required to substantively review Thermaldyne's application, as

required by La. R. S. 30: 2022B( 1); LAC 33: I: 1505A( 1) and ( 2); and LAC

33: IX: 2501. K. 5. LEAN' s mandamus petition alleges that Thermalydyne' s proposed oil

reclamation process is a type that produces significant levels of pollutants.

Thermaldyne' s application did not contain required information regarding the

expected presence of certain pollutants. See LAC 33: IX. 2501. K. 5. DEQ had a

mandated, ministerial duty to identify this missing information, to notify Thermaldyne

of this " specific administrative deficiency," and to specify a prescribed time within

which Thermaldyne should respond to the notice of deficiency. See LAC

33: I: 1505A( 1) and ( 2); LAC 33: IX: 2501. E. DEQ had 60 days from the application' s

submission date to complete this administrative completeness review. See La. R. S.

30: 2022B( 1); LAC 33: I: 1505A( 3). Further, as noted by the district court, DEQ

provided no evidence that it granted Thermaldyne a waiver from required reporting

requirements. See LAC 33: IX: 2501. K. 5( a). Rather, DEQ improperly accepted the

application as administratively complete and issued a public notice giving public

access to an incomplete application that listed none of the potential pollutants

Thermaldyne' s proposed new facility was expected to discharge into the Intracoastal

Waterway. We specifically reject DEQ' s argument that its duty to require

Thermaldyne to provide information required by LAC: IX: 2501. K was part of its

technical review" under LAC 33: I: 1505. B.

Thus, presuming LEAN' s factual allegations are true, and resolving reasonable

inferences and doubts in LEAN' s favor, we conclude a mandamus cause of action

against DEQ exists under La. R. S. 30: 2050. 29, because DEQ failed to act as

mandated by La. R. S. 30: 2022B( 1), LAC 33: I: 1505A( 1) and ( 2), and LAC

33: IX: 2501. K. 5. Having found a cause of action, we now address whether LEAN

had a right of action to assert such against DEQ.
6

RIGHT TO ASSERT AN LEQA MANDAMUS ACTION

In its second assignment of error, DEQ contends the district court erred in

denying its exception of no right of action, because LEAN is not an " adversely

affected party" entitled to assert a mandamus action under La. R. S. 30: 2050. 29. 2

Generally, an action can be brought only by a person having a real and actual

interest which he asserts. La. C. C. P. art. 681. The exception of no right of action is

designed to test whether the plaintiff belongs to the class of persons to whom the

law grants the cause of action asserted in the suit. La. C. C. P. art. 927( 6); Indus

Companies, Inc. v. Durbin, 02- 0665 ( La. 1/ 28/ 03), 837 So. 2d 1207, 1216. The party

raising the exception has the burden of proving the plaintiff has no right of action to

proceed with its claim. On review of an exception of no right of action, unlike the

review of the exception of no cause of action, this court reviews the pleadings as

well as any evidence submitted in support of or in opposition to the exception. See

La. C. C. P. art. 931. Whether a plaintiff has a right of action is a question of law that

is reviewed de novo on appeal. Where doubt exists as to the appropriateness of an

exception of no right of action, this court must resolve that doubt in favor of finding

a right of action. See Rebel Distributors Corp., Inc. v. LUBA Workers' Comp., 13-

0749 ( La. 10/ 15/ 13), 144 So. 3d 825, 833.

Under LAC 33. IX. 3113, DEQ must give public notice when it has prepared a

draft permit, must allow time for public comment, and must include certain content

in the public notice. See LAC 33. IX. 3113. A- D. During the public comment period,

any interested party may submit written comments on a draft permit and may

request a public hearing. See LAC 33. IX. 3115. All persons who believe DEQ' s

tentative decision to prepare a draft permit is inappropriate must raise all reasonably

ascertainable issues and submit their reasonably available arguments by the close of

z We note that the requirements applicable to a person seeking a mandamus under the Louisiana
Code of Civil Procedure may be different, but we need not address such because the more specific
LEQA mandamus statute applies here. See Jazz Casino Co., LLC v. Bridges, 16- 1663 ( La. 5/ 3/ 17),
223 So. 3d 488, 496- 97.
7

the public comment period. LAC 33: IX: 3119. DEQ must consider all comments in

making a final decision and must answer comments if it issues a final permit. LAC

33: IX. 3125.

In its mandamus petition, LEAN alleges that it was " improperly denied the

ability to participate in the permitting process" by DEQ's acceptance of

Thermaldyne' s incomplete permit application and DEQ' s issuance of an inadequate

public notice on the draft permit. LEAN also argues that it " could not understand

what Thermaldyne intends to do, let alone appreciate the risks this facility may pose

to health and the environment, by reading [ DEQ' s] inadequate notice." In

opposition, DEQ argues that its public notice of the draft permit to Thermaldyne

along with the public comment period ' provided a full opportunity for public

participation," because the public notice referenced and provided a direct link to

Thermaldyne' s permit application, the draft permit, and DEQ' s statement of basis for

the draft permit.

After a de novo review of the pleadings, TD* X Associates' comment on the

draft permit, and the above applicable rules, we resolve all doubt in favor of a right

of action and conclude that LEAN is an " adversely affected party" entitled to

mandamus under La. R. S. 30: 2050. 29. DEQ' s improper acceptance of Thermaldyne' s

incomplete permit application resulted in its issuance of a public notice referencing a

faulty application that listed none of the potential pollutants Thermaldyne' s proposed

new facility expected to discharge. Consequently, LEAN, an interested party, was

unable to assess the potential risk of Thermaldyne' s expected wastewater discharge

and was unable to comment on DEQ' s issuance of the draft permit as inappropriate

before the close of the public comment period. See LAC 33: IX: 3115; 33: IX: 3119.

And, although LEAN requested that DEQ re -open the comment period, DEQ declined

to do so. Thus, LEAN was " adversely affected," because it was precluded from

raising reasonably ascertainable issues and submitting reasonably available

arguments regarding DEQ' s alleged inappropriate decision to issue Thermaldyne a

draft permit. See LAC 33: IX: 3115; 33: IX: 3119. The district court correctly denied

DEQ' s exception of no right of action.

We note that La. R. S. 30: 2050. 29 mandates an award of court costs and

attorney fees when an adversely affected party prevails in a mandamus action. The

judgment in this case does not contain the mandated award; but, because LEAN

neither independently appealed nor answered LEAN' s appeal to challenge this error,

this court will not consider the issue. La. C. C. P. art. 2133 ( requiring that an appellee

answer the appeal if he desires to have the judgment modified, revised, or

reversed); Pinn v. Pennison, 16- 0614 ( La. App. 1 Cir. 12/ 22/ 18), 209 So. 3d 844, 847

n. 1.

CONCLUSION

For the above reasons, the district court properly found LEAN was an

adversely affected party who had a cause of action and a right of action for

mandamus against DEQ under La. R. S. 30: 3050. 29 for DEQ' s failure to adequately

and timely perform the administrative review required to substantively review

Thermaldyne' s permit application. We affirm the district court's March 20, 2019

judgment and assess costs of this appeal in the amount of $ 1, 021, to the Louisiana

Department of Environmental Quality.

AFFIRMED.

9