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Legislature Changes Permit Process at the Louisiana Department of Environmental Quality

By Tokesha M. Collins

During the 2010 Session, the Louisiana Legislature enacted Act 986 to amend La. R.S. 30:2022, the state law concerning the Louisiana Department of Environmental Quality's (LDEQ) permit process. The legislation began as House Bill 1169 and was authored by Representative Karen St. Germain. Governor Bobby Jindal signed the legislation on July 7, 2010, as Act 986. The Act became effective that same day.

The Act enacted La. R.S. 30:2022(D), which requires greater transparency from LDEQ regarding changes made to permits, renewals, extensions, and modifications. First, Act 986 requires that, if requested by a permit applicant, LDEQ provide the applicant with a written summary of the specific changes to the existing permit whenever LDEQ prepares a draft database permit for the renewal, extension, or substantial permit modification of an existing hazardous waste permit, solid waste permit, Louisiana Pollutant Discharge Elimination System (LPDES) permit, or air quality permit. The database is LDEQ's Tools for Environmental Management and Protection Organization (TEMPO) database system. Previously, LDEQ was under no obligation to inform a permit applicant of each and every change that had been made in the renewal, extension, or substantial modification of an existing permit.
 

Secondly, Act 986 requires LDEQ, if requested by the permit applicant, to provide the applicant with a 'reasonable opportunity' to review a draft hazardous waste permit, solid waste permit, LPDES permit, or air quality permit before the draft permit is publicly noticed. Further, if the draft permit includes any revisions to an existing permit, each change must be clearly identified. The term 'reasonable opportunity' is not defined in the Act or anywhere in the Louisiana Environmental Quality Act (LEQA), La. R.S. 30:2001-2588. However, LDEQ is directed to adopt rules in accordance with the Louisiana Administrative Procedure Act, La. R.S. 49:950-972, so this issue should be addressed in the rules.

Finally, for those minor permit modifications or revisions that do not require a draft permit and public notice, if requested by the permit applicant, Act 986 requires that LDEQ provide the applicant with a 'reasonable opportunity' to review the proposed language of the modification or revision prior to the issuance of the final modification or revision. If the minor permit modifications or revisions were not requested by the permit applicant, then LDEQ either shall provide the applicant with a 'reasonable opportunity' to review the proposed language of the permit modification or revision prior to issuance of the final modification or revision or shall reopen the permit, in accordance with applicable law.

While Act 986 became effective on July 7, 2010, it is unclear as to how the Act will impact the way in which LDEQ handles the permits, renewals, extensions, and modifications that were already underway at the time the Act was enacted. The LDEQ could follow the terms of this Act for those permit actions before it develops regulations to implement this legislation. Regardless, it is our understanding that the LDEQ is currently preparing a draft regulation to implement the Act.

For further information, contact Maureen N. Harbourt, M. Dwayne Johnson, Kyle B. Beall, or Tokesha M. Collins.
 

Full post as published by Louisiana Law Blog on August 23, 2010 (boomark / email).