In re Cytec Industries, Inc.

Louisiana Court of Appeal

In re Cytec Industries, Inc.

672 So. 2d 179, 94 La.App. 1 Cir. 1693, 1996 La. App. LEXIS 453, 1996 WL 77111

CourtLouisiana Court of Appeal

DecidedFebruary 23, 1996

DocketNo. 94 CA 1693

StatusPublished

Cited by1 cases

This text of 672 So. 2d 179 (In re Cytec Industries, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Cytec Industries, Inc., 672 So. 2d 179, 94 La.App. 1 Cir. 1693, 1996 La. App. LEXIS 453, 1996 WL 77111 (La. Ct. App. 1996).

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Opinions

IüLOTTINGER, Chief Judge.

CYTEC Industries, Inc. (CYTEC), operates its Fortier Plant integrated chemical manufacturing facility near Westwego, Louisiana. CYTEC disposes of certain hazardous wastes from its manufacturing activities into five deep injection wells located on the plant site.

APPLICABLE LAW AND FACTS

In 1984, the Louisiana Legislature enacted La.R.S. 30:2193, formerly La.R.S. 30.1141.1. The legislature determined that Louisiana is particularly ill-suited for land disposal of hazardous waste and that past land disposal methods have been inadequate to insure the health of the citizens of the state and the integrity of the environment and to maintain the water resources. The purpose of La.R.S. 30:2193 is to encourage alternative methods of hazardous waste disposal; to lessen the possibility.of hazardous waste releases from existing sites; and to provide for the eventual prohibition of land disposal of hazardous waste. Effective June 1, 1992, La.R.S. 30:2193(E) prohibits land disposal of hazardous wastes, except under certain limited circumstances. An applicant for an exemption from the land ban statute bears the burden of proving the six statutory factors that would qualify it for consideration for an exemption. La.R.S. SOáigSCE).¹

In May of 1990, CYTEC submitted a petition for exemption from the land ban statute for the five injection wells located at its Fortier Plant. The Louisiana Department of Environmental Quality (DEQ), approved CY-TEC’s petition for exemption in a letter dated May 6, 1994. Attached to the letter were seven conditions Cytec was required to meet and the DEQ’s brief responses to eight issues raised during the public comment period.

Delta Greens, Gulf Coast Tenants Organization, Jefferson Parish Civic League, Louisiana Coalition for Tax Justice, Louisiana Environmental Action Network and Southern Christian Leadership Conference (Citizens), appeal the DEQ’s decision to grant CYTEC an |8exemption from the land ban statute. Citizens raised six specific assignments of error.²

[181]*181ADEQUACY OF DEQ’S DECISION

Although the adequacy of DEQ’s final decision was not raised as a specific assignment of error we may address this issue when necessary to fuifiU our constitutional duty to protect the environment. In the Matter of Rubicon, 95-0108, p. 9 (La.App. 1st Cir. 2/14/96); 670 So.2d 475. To fulfill this duty, we must review final decisions of the DEQ to ensure that they comport with applicable constitutional, statutory and regulatory requirements. Id.

The Louisiana Supreme Court mandates that when reaching a final decision, the DEQ “is required to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the order issued.” In the Matter of American Waste and Pollution Control Company, 93-3163, p. 18-19 (La. 9/15/94); 642 So.2d 1258, 1266 (quoting Save Ourselves); Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1159 (La.1984). It is only by detailing its reasoning that the DEQ upholds its position as public trustee and justifies the discretion with which it is entrusted by constitutional and statutory authority in a contested environmental matter. American Waste, 642 So.2d at 1266.

In Rubicon, this court concluded, in an en banc decision, that the DEQ’s letter granting an exemption petition to Rubicon with attached conditions and responses to public comments was insufficient to satisfy the requirements of Save Ourselves and American Waste. Just as the letter and its attachments were insufficient in Rubicon, the May 6, 1994 letter notifying Cytec that its permit had been granted with the attached conditions and responses to public comments also falls far short of what Save Ourselves and American Waste call for. See Rubicon, 95-0108 at p. 11, 670 So.2d at 482. The DEQ’s letter granting Cytec its exemption is an inadequate final decision because it does not contain basic findings supported by evidence and ultimate findings |4which flow rationally from the basic findings nor does it articulate a rational connection between the facts found and the exemption issued.

CONCLUSION

Accordingly, the May 6, 1994 approval of Cytec’s petition for an exemption from the land disposal restrictions is vacated and set aside; this action is remanded to the DEQ for issuance of a final decision consistent with the standard enunciated by this court in Rubicon.

VACATED AND REMANDED.

FITZSIMMONS, J., concurs and assigns reasons.

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IüLOTTINGER, Chief Judge.

CYTEC Industries, Inc. (CYTEC), operates its Fortier Plant integrated chemical manufacturing facility near Westwego, Louisiana. CYTEC disposes of certain hazardous wastes from its manufacturing activities into five deep injection wells located on the plant site.

APPLICABLE LAW AND FACTS

In 1984, the Louisiana Legislature enacted La.R.S. 30:2193, formerly La.R.S. 30.1141.1. The legislature determined that Louisiana is particularly ill-suited for land disposal of hazardous waste and that past land disposal methods have been inadequate to insure the health of the citizens of the state and the integrity of the environment and to maintain the water resources. The purpose of La.R.S. 30:2193 is to encourage alternative methods of hazardous waste disposal; to lessen the possibility.of hazardous waste releases from existing sites; and to provide for the eventual prohibition of land disposal of hazardous waste. Effective June 1, 1992, La.R.S. 30:2193(E) prohibits land disposal of hazardous wastes, except under certain limited circumstances. An applicant for an exemption from the land ban statute bears the burden of proving the six statutory factors that would qualify it for consideration for an exemption. La.R.S. SOáigSCE).¹

In May of 1990, CYTEC submitted a petition for exemption from the land ban statute for the five injection wells located at its Fortier Plant. The Louisiana Department of Environmental Quality (DEQ), approved CY-TEC’s petition for exemption in a letter dated May 6, 1994. Attached to the letter were seven conditions Cytec was required to meet and the DEQ’s brief responses to eight issues raised during the public comment period.

Delta Greens, Gulf Coast Tenants Organization, Jefferson Parish Civic League, Louisiana Coalition for Tax Justice, Louisiana Environmental Action Network and Southern Christian Leadership Conference (Citizens), appeal the DEQ’s decision to grant CYTEC an |8exemption from the land ban statute. Citizens raised six specific assignments of error.²

[181]*181ADEQUACY OF DEQ’S DECISION

Although the adequacy of DEQ’s final decision was not raised as a specific assignment of error we may address this issue when necessary to fuifiU our constitutional duty to protect the environment. In the Matter of Rubicon, 95-0108, p. 9 (La.App. 1st Cir. 2/14/96); 670 So.2d 475. To fulfill this duty, we must review final decisions of the DEQ to ensure that they comport with applicable constitutional, statutory and regulatory requirements. Id.

The Louisiana Supreme Court mandates that when reaching a final decision, the DEQ “is required to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the order issued.” In the Matter of American Waste and Pollution Control Company, 93-3163, p. 18-19 (La. 9/15/94); 642 So.2d 1258, 1266 (quoting Save Ourselves); Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1159 (La.1984). It is only by detailing its reasoning that the DEQ upholds its position as public trustee and justifies the discretion with which it is entrusted by constitutional and statutory authority in a contested environmental matter. American Waste, 642 So.2d at 1266.

In Rubicon, this court concluded, in an en banc decision, that the DEQ’s letter granting an exemption petition to Rubicon with attached conditions and responses to public comments was insufficient to satisfy the requirements of Save Ourselves and American Waste. Just as the letter and its attachments were insufficient in Rubicon, the May 6, 1994 letter notifying Cytec that its permit had been granted with the attached conditions and responses to public comments also falls far short of what Save Ourselves and American Waste call for. See Rubicon, 95-0108 at p. 11, 670 So.2d at 482. The DEQ’s letter granting Cytec its exemption is an inadequate final decision because it does not contain basic findings supported by evidence and ultimate findings |4which flow rationally from the basic findings nor does it articulate a rational connection between the facts found and the exemption issued.

CONCLUSION

Accordingly, the May 6, 1994 approval of Cytec’s petition for an exemption from the land disposal restrictions is vacated and set aside; this action is remanded to the DEQ for issuance of a final decision consistent with the standard enunciated by this court in Rubicon.

VACATED AND REMANDED.

FITZSIMMONS, J., concurs and assigns reasons.

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672 So. 2d 179, 94 La.App. 1 Cir. 1693, 1996 La. App. LEXIS 453, 1996 WL 77111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cytec-industries-inc-lactapp-1996.

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