In re: Harrelson Materials Management, Inc., 2010-1950 (La. App. 1 Cir. 6/10/11)
The First Circuit upheld a permit to an existing solid waste facility.
Harrelson Materials Management, Inc. operated a Type III solid waste landfill near the City of Shreveport. The facility had operated in that location since the later 1980s and received an initial Order to Upgrade in 1994. Its original permit application, submitted in 1995, stated that the total area of the facility was 29.86 acres. The local zoning authority confirmed in 1998 that the facility had a non-conforming use under local zoning ordinances, allowing it to operate within that acreage as a solid waste landfill.
In 2004, a revised application was submitted in which the total acres for which the permit was requested was increased to about 75 acres. LDEQ issued a series of notices of deficiencies, essentially requesting that Harrelson provide proof that the entire 75 acres had been approved by the local zoning authority. When Harrelson did not, or could not, LDEQ denied the revised application and rescinded the Order to Upgrade. Thereafter, in 2007, Harrelson submitted another application limiting the scope of the permit request to the original 29.86 acres (which had received non-conforming use approval in 1998).
LDEQ, after public notice and a comment period, issued a standard permit to Harrelson. LEAN filed a petition for review of the permit.
- LEAN argued that the LDEQ violated its own regulations and the standing executive order (Order No. BJ-2009-7, which requires proof of conformance with local zoning and land use requirements) by issuing the permit with proof of the facility’s current compliance with local zoning requirements. The regulations required that the applicant submit proof that the proposed use does not violate zoning or other land-use regulations at the time of the submittal of the application. LAC 33:VII.509(G)(3). Here, the record reflected that LDEQ considered the original permit application (submitted in 1995 for the 29.86 acres) and the 1998 approval of the non-conforming use by the local zoning authority. Nothing in the record suggested that the local zoning authority contested the 1998 approval and LDEQ limited its approval to just the 29.86 acres.
- LEAN argued that LDEQ did not properly consider alternative sites. Generally, however, it has been LDEQ’s long-standing and consistent interpretation and practice to apply the traditional alternative sites analysis to new facilities that have not yet begun construction or operation. Harrelson, at p. 16, citing LDEQ’s 2001 guidance document and detailing the purpose of the alternative sites analysis as an opportunity to evaluate the location “before the applicant begins construction and operation.” After the facility is constructed and operated, the need for such an intensive analysis or evaluation is eliminated or substantially diminished.
Here, the facility had operated since the late 1980s. As a result, the facility met the definition of existing facility in the solid waste rules.
In its Basis for Decision, LDEQ noted that “because this is a permit issued to an existing facility, the concept of alternative sites is not directly attributable.” Harrelson, at p. 15. Further, the facility was “protective of the environment.” The First Circuit clearly stated that LDEQ’s conclusion is “entitled to considerable weight and deference.” Id., at p. 16. Thus, the Court approvingly referenced LDEQ’s position “relating to the inapplicability of the traditional alternative sites analysis to an ‘existing facility’ that does not otherwise pose an environmental impact outweighing social and economic benefits.” Id., at p. 17.
- LEAN also argued that LDEQ did not properly consider alternative projects. The basis for this assertion is the existence and close proximity of the Mikeebo Type III solid waste landfill. However, the record showed that LDEQ was aware of the Mikeebo facility, even though it may not have expressly mentioned the facility by name. Comments by LEAN included references to Mikeebo and Mikeebo itself provided comments on Harrelson’s application, to which LDEQ provided responses. Further, the record showed that Mikeebo was not in existence when Harrelson submitted its original application. The First Circuit concludes that LDEQ “obviously concluded that another C&D landfill was necessary and appropriate to serve the” area. Harrelson, at p. 18.
- LEAN also made several arguments that the First Circuit almost summarily rejects. No regulation mandated that the denial of the revised application for the 75 acres barred LDEQ’s permitting as it pertained to the original 29.86 acres. There was no error in LDEQ considering the 2007 application as a continuation of the original 1995 application. Finally, LDEQ responded to all reasonable public comments.
The First Circuit concludes that LDEQ complied with its constitutional mandate in considering the permit application. It affirmed the issuance of the standard permit.
- This decision highlights the competition between the Harrelson and Mikeebo facilities. Harrelson had previously objected to the Mikeebo permit, taking its objections to the Mikeebo permit to the First Circuit several years ago. Mikeebo, in turn, commented on the Harrelson permit application and frequently cited portions of the First Circuit’s decision regarding the Mikeebo permit. However, both now have standard solid waste permits and it seems that the use of the LDEQ permit process as a competitive tool was not productive.
- The alternative sites analysis for existing facilities is extremely useful in the context of renewals or major modifications. However, note that the First Circuit does not say that the label ‘existing’ renders the alternative sites analysis inapplicable. The traditional alternative sites analysis is not applicable if the facility is “protective of the environment” and facility “does not otherwise pose an environmental impact outweighing social and economic benefits.” Thus, an existing facility must demonstrate in its EAS that it is protective and that the benefits of the facility outweigh the risks.
John B. King's principal areas of practice include environmental and oil and gas regulatory permitting and defense, compliance assistance, toxic tort defense, and litigation.