In Re Natural Resources Recovery, Inc.

752 So. 2d 369, 2000 WL 210240
CourtLouisiana Court of Appeal
DecidedFebruary 18, 2000
Docket98 CA 2917
StatusPublished
Cited by17 cases

This text of 752 So. 2d 369 (In Re Natural Resources Recovery, 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.

Bluebook
In Re Natural Resources Recovery, Inc., 752 So. 2d 369, 2000 WL 210240 (La. Ct. App. 2000).

Opinion

752 So.2d 369 (2000)

In the Matter of NATURAL RESOURCES RECOVERY, INC., Type III Construction and Demolition Debris/Woodwaste Landfill and Resource Recovery and Separation Facility Permit.

No. 98 CA 2917.

Court of Appeal of Louisiana, First Circuit.

February 18, 2000.

*370 R. Katherine Long, Barry Brooks, Baton Rouge, for Appellee Plaintiff Louisiana Department of Environment Quality.

Elizabeth Teel, New Orleans, for Appellants Louisiana Environmental Action Network, North Baton Rouge Environmental Association and, Steering Committee to Stop Natural Resources Recovery, Inc.

Frank S. Craig, III, Andrew Harrison, Jr., John Barton, Baton Rouge, for Appellee Defendant Natural Resources Recovery, Inc.

Before: FOIL, WHIPPLE and GUIDRY, JJ.

FOIL, J.

This appeal challenges the trial court's dismissal of a petition for judicial review of a permit action taken by the Department of Environmental Quality (DEQ) pursuant to an exception of prescription. At issue in this appeal is whether persons who submit comments in a DEQ permit application process are entitled to legal notice of a final permit action, and whether such notice is necessary to commence the 30-day appeal delay during which an "aggrieved person" may judicially challenge a final DEQ permit decision. The trial court held that the date on which the permit applicant was notified of the DEQ decision started the running of the 30-day appeal delay. We reverse.

DISCUSSION

Appellants, the Louisiana Environmental Action Network, the North Baton Rouge Environmental Association and the Steering Committee to Stop Natural Resources Recovery, Inc., filed this appeal contesting the dismissal of their petition for judicial review that challenged the issuance *371 of a permit to construct and operate a landfill.

The facts forming the basis for this appeal are not disputed. On November 3, 1995, Natural Resources Recovery, Inc. (NRRI) filed an application with DEQ's Solid Waste Division requesting a Standard Type III Construction and Demolition Debris/Woodwaste Landfill, Resource Recovery, Recycling and Separation Facility. The proposed landfill was to be located in a heavily industrialized area near Alsen in East Baton Rouge Parish. DEQ held a public comment period and a public hearing on the proposed application. Appellants' members testified during the public hearing, opposing the permit application. They also submitted written comments to DEQ alleging numerous inadequacies with the NRRI permit application.

On December 10, 1997, DEQ issued NRRI a permit to construct and operate the landfill. DEQ ordered NRRI to publish notice of the issuance of the permit in the official journal of the state and official journal of the parish where the facility is located no later than 10 days following the issuance of the permit. It is undisputed that NRRI published a notice of the issuance of the permit in the Baton Rouge Morning Advocate on December 19, 1997.

Appellants filed a petition seeking judicial review of DEQ's permit action, asserting that the issuance of the solid waste permit to construct and operate the facility threatened the health, safety and welfare of their members. The record indicates a fax copy was filed with the 19th Judicial District Court on January 20, 1998. The original petition was filed on January 23, 1998.

In the petition, appellants raised 27 assignments of error, contending in the bulk of those allegations that DEQ violated its duty as trustee of the environment in issuing the permit. Appellants also contended DEQ violated their procedural due process rights because it failed to notify them that it was accepting and considering comments after the close of the public comment period. Additionally, they asserted the decision was arbitrary and capricious, violated various statutory and regulatory provisions, and violated the equal protection clauses of the state and federal constitutions because of the disproportionate impact the facility would have on black persons.

In the petition, appellants asked only that the trial court grant a stay of the effectiveness of the solid waste permit issuance pending resolution of the appeal. The trial judge denied the request for a stay.

NRRI intervened in the action and filed a motion to dismiss the appeal as untimely. Under La. R.S. 30:2050.21, an "aggrieved person" is given the right to appeal a final permit action to the 19th Judicial District Court. The petition for judicial review of the DEQ action must be filed "within thirty days after notice of the action or ruling being appealed has been given." NRRI argued that the determinative date for commencing the 30-day appeal delay was the date on which it received notice of the issuance of the permit. The permit was issued on December 10, 1997; NRRI claimed it was hand-delivered on that date. Thus, according to NRRI, appellants' right to appeal the permit decision prescribed on January 9, 1998, 30 days after the issuance of the permit to NRRI, making this petition, filed on January 20, 1998, untimely.

In response to the exception, appellants admitted in a memorandum they learned of NRRI's waste permit approval when notice of the DEQ action was published in the Baton Rouge Morning Advocate on December 19, 1997. Appellants contended, however, that DEQ was statutorily obligated under La. R.S. 30:2050.23 to provide them with notice of the permit decision by mail. As DEQ failed to notify them by mail of the permit action, appellants insisted, the prescriptive period did not begin to run and the suit was timely.

The trial judge granted the exception of prescription. Considering the evidence on *372 the motion, the judge ruled that the Tulane Law Clinic, which represented appellants, had notice of the issuance of the permit by DEQ through the legal publication on December 19th, 1997, and apparently believed if this were the controlling date to commence the prescriptive period, the action would have been timely filed. However, the judge concluded the action was not timely filed, stating that appellants failed to take action within 30 days of the issuance of the permit to NRRI. This appeal followed.[1]

MOOTNESS

On May 7, 1999, NRRI filed a motion to dismiss the appeal, asserting that the issues raised herein are moot due to the substantial completion of the landfill and its continued operation of the landfill facility for over one year. The motion reflects that DEQ issued an order authorizing operation of the facility on June 10, 1998, and NRRI commenced operations that month.

NRRI submits the only controversy in this proceeding, the construction and operation of the facility, is moot. Consequently, it asserts, no further justiciable controversy exists and no request for relief is pending related to the underlying appeal. NRRI also submitted that the petition is moot because appellants asked only for a stay in the trial court, which was denied, and which was never appealed by them.

Appellants contend their petition challenged not only the construction, but also the operation of the permitted facility, pointing to nine allegations of error it claims raise issues regarding operational activities at the facility. In the petition, appellants alleged that DEQ failed to adequately consider alternative projects, sites and mitigating measures which would offer more protection to the environment than the proposed landfill site. In three other relied upon assignments of error, appellants claimed that DEQ failed to consider mitigating measures that would protect the environment, including buffer zones to protect the residences around the facility.

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752 So. 2d 369, 2000 WL 210240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-natural-resources-recovery-inc-lactapp-2000.