Opinion
No. 2009 CA 1244.
February 8, 2010.
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 571, 466, DIVISION O (8), PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA HONORABLE WILSON FIELDS, JUDGE.
Lisa W. Jordan, New Orleans, Louisiana, Counsel for Petitioners-Appellants Louisiana Environmental Action Network, et al.
Herman Robinson, Ann B. Hill, Jackie Marve, Baton Rouge, Louisiana, Counsel for Defendant-Appellee Louisiana Department of Environmental Quality.
Timothy J. Poche, Anne J. Crochet, Gerald L. Walter, Jr., Baton Rouge, Louisiana, Counsel for Intervenor-Appellee Waste Management of Louisiana, L.L.C.
BEFORE: PARRO, KUHN, AND McDONALD, JJ.
Petitioners-appellants, Louisiana Environmental Action Network ("LEAN"), Citizens for a Strong New Orleans East, Father Van Lukenguyen, and the Sierra Club, Delta Chapter, appeal the district court's judgment affirming the issuance of a Louisiana Pollutant Discharge Elimination System ("LPDES") permit by the Louisiana Department of Environmental Quality ("LDEQ") to Waste Management of Louisiana, L.L.C. ("Waste Management"). The permit authorizes the discharge of waters from the Chef Menteur CD Landfill ("the Chef Landfill") into state waters. Finding LDEQ's action to be supported by a preponderance of the evidence and not arbitrary, capricious, or characterized by an abuse of discretion, we affirm the judgment of the district court.
I. PROCEDURAL AND FACTUAL BACKGROUND
On August 29, 2005, Hurricane Katrina struck Louisiana, causing widespread damage throughout the state, including Orleans Parish. At that time, then Governor Kathleen Blanco had declared that a state of emergency existed in Louisiana, and on August 30, 2005, Mike D. McDaniel, Ph.D., the Secretary of LDEQ, issued a Declaration of Emergency and Administrative Order, mandating that certain measures be undertaken to prevent irreparable harm to the environment. Pursuant to its statutory responsibilities for the regulation of solid waste, LDEQ identified and approved sites for the handling and disposal of debris and provided oversight for its handling and disposal. LDEQ further worked extensively with the United States Army Corps of Engineers ("the Corps"), providing assistance for their debris mission activities. An LDEQ November 2, 2005 Second Amended Declaration of Emergency and Administrative Order authorized the disposal of hurricane-generated debris in a permitted Type III landfill or a non-permitted site that had been authorized by LDEQ for such disposal. Pursuant to this order, hurricane-generated debris allowed at a permitted construction and demolition ("CD") landfill or a LDEQ-authorized site included: a) nonhazardous waste generally considered not water-soluble, including but not limited to metal, concrete, brick, asphalt, roofing materials, sheetrock, plaster, lumber from a construction or demolition project, and other building or structural materials; b) furniture, carpet, and painted or stained lumber contained in the demolished buildings; c) the incidental admixture of CD debris with asbestos-contaminated waste; and d) yard waste and other vegetative matter.
The emergency order was revised and reissued every sixty days based on additional information and changing conditions.
This order expanded the scope of Louisiana's definition of CD debris to include items such as asbestos-contaminated waste, furniture, and treated lumber previously excluded from the definition of "Construction/Demolition Debris." See LAC 33:VII.115.
To expedite the removal and disposal of hurricane-generated CD debris associated with demolition activities in the area in and around Orleans Parish and particularly in the Ninth Ward area, the LDEQ authorized the construction and operation of the Chef Landfill. The Chef Landfill is located at 16600 Chef Menteur Highway, in New Orleans, Louisiana, approximately two miles east of Interstate Highway 510 on U.S. Highway 90. In February 2006, Waste Management leased the site from Expedition Enterprises, L.L.C., and submitted an interim operation plan to LDEQ.
The site previously used as a borrow pit for clay materials, contains two waste cell areas: the primary cell area (approximately 58 acres) and a smaller secondary cell area (approximately 15 acres), which was never utilized for CD waste disposal. Before any waste disposal operations, the site was a series of impoundments filled with water that flowed by gravity during storm events directly to the Maxent Canal via storm water culverts. The Maxent Canal drains south to the Intracoastal Waterway via a pump station maintained by the New Orleans Sewerage and Water Board and then into Lake Borgne.
A solid waste permit application for the site was submitted in 1994 by a previous property owner but was inactive in March 2006, when Waste Management submitted its request to LDEQ to operate as an emergency disaster cleanup site.
Prior to Hurricane Katrina, the Chef Landfill facility had undergone full LDEQ permit review for a Type III CD disposal facility. LDEQ had not granted a permit, however, because the conditional use permit required by LDEQ regulations was denied by the New Orleans City Council on March 20, 1997. On February 14, 2006, Mayor Ray Nagin executed an "Emergency Disaster Cleanup Site Request," and the City of New Orleans and Waste Management entered into an agreement, whereby the city, under its emergency powers, approved Waste Management's proposed Chef Landfill site as an emergency CD disposal site. In Dr. McDaniel's written testimony to the United States Senate Committee on Environment and Public Works during a February 26, 2007 hearing in New Orleans ("Dr. McDaniel's testimony"), he testified that "[a]fter a careful examination of scientific and/or engineering considerations, sound reasoning, and a proper evaluation of practical alternatives, including the information gathered in the site assessment . . ., the LDEQ issued site authorization to commence activities on April 13, 2006, and a decisional document on April 26, 2006, supporting its authorization." Pursuant thereto, the Chef Landfill was authorized to operate as an "Enhanced" CD Landfill to receive hurricane generated CD debris. LDEQ required the Chef Landfill to meet all technical and substantive requirements for a permitted facility. The only deviation from the normal permitting process for this site was that public notice and the opportunity to comment were provided after the fact rather than before LDEQ's decision. On April 14, 2006, the Corps issued an emergency authorization to Waste Management to commence operation of the Chef Landfill.
In its decisional document, LDEQ found that protection of human health and the environment, as well as public safety issues, warranted authorization of the Chef Landfill, which was in close proximity to the major sources of hurricane generated CD debris, to receive such debris.
An "Enhanced" CD Landfill is a CD landfill allowed to accept asbestos-containing waste material under requirements set forth by the LDEQ Declaration of Emergency and Administrative Order, which has been found by the United States Environmental Protection Agency ("EPA") to be consistent with the National Emission Standards for Hazardous Air Pollutants for asbestos.
Pursuant to the authorizations issued by LDEQ and the Corps, the Chef Landfill conducted disposal operations from April 2006 to August 2006., Waste was accepted at the landfill in accordance with written guidelines that dictated a record-keeping system for tabulating information regarding the entry of waste and the quantity, sources, and types of incoming waste. When disposal operations ceased, the landfill disposal area occupied only 11 acres of the site. At that time, all of the water being held in the unfilled portion of the disposal cell and other impoundments on the site constituted landfill wastewater. After testing and limited treatment, Waste Management commenced discharging landfill wastewater from the Chef Landfill on August 19, 2006.
The Chef Landfill was temporarily closed at the request of the City of New Orleans from May 12 through May 20, 2006. During this temporary closure, LEAN representatives and their consultants viewed the landfill's working face and took photographs.
On July 13, 2006, Mayor Nagin signed an affidavit providing that the executive order that authorized disposal at the Chef Landfill would expire on August 14, 2006. LDEQ requested that the landfill be allowed to continue its operation, but Mayor Nagin did not renew or extend the order.
LDEQ's Fourth and Fifth Amended Declaration of Emergency and Administrative Orders, effective January 13, 2006, and March 31, 2006, respectively, allowed for the initial dewatering of ponds/impoundments intended for disposal of CD wastes and authorized discharges of landfill wastewater (contact water) and non-contaminated storm water (non-contact water) from authorized hurricane debris landfills. Pursuant to that authorization, water discharges from the Chef Landfill were required to comply with effluent limitations based on effluent guidelines for non-hazardous landfills.
The effluent guidelines define different standards for landfill wastewater and non-contaminated storm water.
In order to commence final closure and post-closure activities at the site, Waste Management filed with LDEQ its LPDES permit application in February 2007, seeking authority to continue discharging water accumulated at the site, including contact and non-contact water. After disposal operations ceased, an interim cover of more than two feet of low permeability soil was placed over the waste. On September 24, 2007, LDEQ collected water samples from various locations within the Chef Landfill's site, and on September 25, 2007, LDEQ issued a state water quality certification.
Prior to LDEQ's issuance of the permit to Waste Management, it withdrew the general discharge authorization pending closure for authorized hurricane debris sites that had been in the emergency declarations and orders since January 2006. See LDEQ's Eleventh Amended Declaration of Emergency and Administrative Order dated July 13, 2007.
A water quality certificate is an approval by LDEQ that any activity which may result in any discharge into or potential change of the waters of the state will comply with state water quality standards.
LDEQ issued a draft LPDES permit on March 13, 2008, which included various discharge limitations and monitoring requirements. A public hearing and public comment period followed. LDEQ issued the final LPDES permit, which became effective on August 28, 2008, and authorized discharges in accordance with the permit terms for a period of five years. Along with the final permit, LDEQ issued its "Basis for Decision."
Petitioners sought judicial review of LDEQ's decision in the district court. Therein, they prayed that the court remand the matter to LDEQ for further proceedings "to include the addition of further appropriate permit limitations, monitoring requirements and safeguards consistent with the environmental threat posed by the discharges. . . ." To protect its interests, Waste Management intervened in the proceedings. By judgment signed March 25, 2009, the district court affirmed LDEQ's issuance of the permit.
Petitioners appeal the district court's judgment, seeking a remand to LDEQ for the imposition of additional monitoring requirements on the permit. Petitioners submit the district court erred in failing to find that: 1) LDEQ's action of issuing the water discharge permit violated its constitutional duties under La.Const. Art. IX, § 1; and 2) LDEQ's decision not to include monitoring requirements in the permit and its failure to conduct groundwater monitoring was arbitrary, capricious, and not supported by a preponderance of the evidence.
II. ANALYSIS
Petitioners claim that even after the closure of the Chef Landfill, Waste Management continues to regularly discharge polluted water from its site, including groundwater that seeps out of the landfill. Petitioners contend that pursuant to the emergency orders, LDEQ waived regulatory restrictions, which had previously prohibited CD landfills from accepting materials such as arsenic-treated lumber, furniture, carpet, and household hazardous wastes. Because the Chef Landfill, a CD landfill, has no synthetic liners underlying its waste disposal area, no leachate collection system, and no groundwater monitoring, petitioners contend that leachate from the waste can pollute groundwater that is being discharged into surface waters. Because "treated lumber has been shown to leach substantial amounts of arsenic, among other contaminants," petitioners urge that LDEQ should have considered the potential for arsenic contamination and imposed monitoring requirements to protect the surface waters and groundwater from this risk.
During the regulatory proceedings below, petitioners submitted for LDEQ's consideration, amongst other affidavits, reports and testimony, a report by Dr. G. Fred Lee, a solid-waste management expert, which concluded that LDEQ's emergency orders allowing CD landfills to accept arsenic-treated lumber "significantly increase[d] the risk of contamination of groundwater and surface waters with dangerous chemicals. . . ." Additionally, petitioners submitted an affidavit by Dr. Paul Kemp, a sedimentary geologist and hydrologist, who examined soil borings from the Chef Landfill to assess whether storm water and leachate from the site would contaminate groundwater and who concluded that "the soils [beneath and around the Chef Landfill] are permeable and cannot adequately protect the shallow water table from mixing with contaminated storm water or leachate." Petitioners urge that the water sampling conducted by LDEQ and Waste Management reveals that arsenic is present and rising in the landfill, and without monitoring requirements imposed on the permit, groundwater is at risk of contamination.
Waste Management contends that LDEQ properly concluded based on multiple samples of landfill wastewater accumulated within the disposal cell that the discharge of landfill wastewater would not violate applicable water quality standards. Further, Waste Management asserts that LDEQ concluded that after application of a final cover to the disposal cell, the disposed debris would be effectively isolated from the surrounding environment and the high plasticity clay of the Chef Landfill, which exceeded the permeability standards for recompacted clay liners required of Class I and II solid waste landfills, would prevent the potential migration or leaching of contaminants from the debris into the groundwater or surface water. After final closure, the stormwater would not come into contact with the debris and would contain even less of the constituents than the landfill wastewater. Thus, it asserts LDEQ properly concluded that the discharges would have no adverse impact on the receiving water bodies.
Louisiana Constitution Article IX, Section 1 sets forth our state's public policy of protecting our natural resources and environment:
The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.
In the "IT Decision," Save Ourselves, Inc. v. La. Envtl. Control Comm'n , 452 So.2d 1152, 1157 (La. 1984), the Louisiana Supreme Court interpreted this constitutional mandate to impose a "rule of reasonableness," requiring LDEQ to determine, before granting approval of any proposed action affecting the environment, that adverse environmental impacts have been minimized or avoided as much as possible, consistently with the public welfare. The court also set forth a number of factors to be considered by LDEQ when conducting an IT cost-benefit analysis to determine whether to grant or deny a permit. Id. In Matter of Rubicon, Inc. , 95-0108, p. 12 (La. App. 1st Cir. 2/14/96), 670 So.2d 475, 483, this court condensed the Save Ourselves IT considerations into three categories:
The reference is to the IT Corporation, the applicant for a major hazardous waste disposal facility.
Title 33, Part IX, Section 303F(1)-(5) of the Louisiana Administrative Code also requires that these questions be addressed by the applicant in a permit application.
[A]ny written finding of facts and reasons for decision [by LDEQ] must satisfy the issues of whether: 1) the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible; 2) a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former; and 3) there are alternative projects or alternative sites or mitigating measures which would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable.
When LDEQ makes permit decisions, the Save Ourselves decision and subsequent case law, the laws interpreting those decisions, and the rules and regulations adopted by LDEQ in accordance with those decisions may be used to implement the public trustee issues. La.R.S. 30:2014.3A. Pursuant to the Louisiana Solid Waste Management and Resource Recovery Law, La.R.S. 30:2151 et seq., the legislature has recognized that "the disposal and utilization of solid waste is a matter of vital concern to all citizens of this state, and that the safety and welfare of the people of Louisiana require efficient and reasonable regulation of solid waste disposal practices. . . ." La.R.S. 30:2152. LDEQ is the primary agency in the state concerned with environmental protection and regulation and has jurisdiction over the regulation of solid waste disposal, water pollution control, and the protection and preservation of the scenic rivers and streams of the state. La.R.S. 30:2011 A.
A. Standard of Review
In Oakville Cmty. Action Group v. La. Dep't of Envtl. Quality , 05-1365, p. 15 (La. App. 1st Cir. 5/5/06), 935 So.2d 175, 183, this court set forth the applicable standard for our appellate review:
Louisiana Revised Statutes 30:2050.21 sets forth the procedure for judicial review of a final permit decision of the [LDEQ]. Judicial review provisions of the Administrative Procedure Act and its standard of review are applicable to [LDEQ] proceedings. La.R.S. 30:2050.21(F). . . .
When reviewing an administrative final decision in adjudication proceeding, the district court functions as an appellate court. The Nineteenth Judicial District Court is vested with exclusive jurisdiction to review final permit actions, final enforcement actions, or declaratory rulings made by the [LDEQ]. La.R.S. 30:2050.21(A). Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review to this court. La.R.S. 30:2050.31.
A reviewing court may affirm the decision of the agency or remand the case for further proceedings. La.R.S. 49:964(G). The court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of the evidence as determined by the reviewing court.
On review, an appellate court should not reverse a substantive decision of LDEQ on its merits, unless it can be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. Dow Chem. Co. La. Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission v. Reduction Credits , 03-2278, p. 8 (La. App. 1st Cir. 9/17/04), 885 So.2d 5, 10, writ denied , 04-3005 (La. 2/18/05), 896 So.2d 34. However, if the decision was reached procedurally, without individualized consideration and balancing of environmental factors conducted fairly and in good faith, it is the court's responsibility to reverse. Save Ourselves , 452 So.2d at 1159. The test for determining whether an action was arbitrary or capricious is whether the action taken was "without reason." Dow Chem. Co. La. Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission , 03-2278 at p. 8, 885 So.2d at 10.
B. The Nature of the Waste Disposed at the Chef Landfill
Petitioners complain that LDEQ's waiver of certain regulatory restrictions pursuant to the emergency orders issued post-Katrina, allowed CD landfills to accept a broader scope of waste, including treated lumber, which is shown to leach arsenic and other contaminants, and because CD facilities do not have safeguards to protect the waste from leaching into groundwater, the arsenic and other contaminants are likely to enter surrounding water bodies through either storm-water runoff or seepage from the unlined landfill. Petitioners' concern regarding the expanded category of waste considered as CD debris was addressed generally in Dr. McDaniel's testimony. He explained LDEQ's role in post-Katrina debris disposal and the need for regulatory flexibility to the extent that state regulations differed from federal regulations to accommodate the extensive volume of waste:
Under ordinary circumstances, LDEQ regulations (unlike federal requirements) prohibit the disposal of [furniture, carpet, and painted or stained lumber contained in demolished buildings, and yard waste and other vegetative matter] in landfills that are permitted only for CD debris. The rationale for the LDEQ regulations' prohibition is that furniture, carpet, yard waste, etc., under ordinary circumstances, are frequently mixed with household garbage containing putrescible waste, for which CD landfills are not designed. In the aftermath of the hurricanes, in contrast, the [hurricane-generated debris to be considered as CD debris] are usually mixed with non-putrescible CD debris, and segregation of the waste types is simply not practical. A determination was made by LDEQ, in consultation with EPA, that these items could be disposed of in a CD landfill with no threat to the environment or human health. . . . [F]lexibility extended to the difference between state and federal regulations. No federal regulation or standard was violated by granting this flexibility.
. . .
Although the emergency orders expanded the scope of CD debris for hurricane generated debris, the material otherwise included is not considered to be a threat to the environment and is consistent with minimum federal requirements.
In its "Response to Comments" supporting the LPDES permit, LDEQ responded to petitioners' concern that due to the exceptions in the emergency order, waste not normally allowed for disposal at CD landfills was accepted at the Chef Landfill:
[T]he materials approved for disposal under the Emergency Order are included in EPA's definition [of construction and demolition landfill found at 40 CFR Part 445.2]. The types of material disposed of at the facility pose no increased risk to human health or the environment based on the design of the landfill, the operational procedures, and the nature of waste. . . .
All hurricane debris underwent a thorough, multi-level screening process from the point-of-generation to the point-of-disposal to ensure that any unauthorized items were removed prior to disposal. At the point of generation, trained crews inspected the debris and oversaw the loading of debris to identify and remove unauthorized items. Upon arrival at the landfill site, incoming loads of debris were inspected by spotters on inspection towers. Spotters on the ground and heavy equipment operators at the working face also inspected incoming debris as it was unloaded at the landfill and moved into the working face for final disposal. . . . [The Chef Landfill] was also subject to numerous inspections by both LDEQ and EPA. (Almost weekly inspections were conducted by LDEQ from May, 2006 through
August, 2006.) White goods and putrescible waste were segregated for disposal and/or recycling at a permitted Type II Landfill. EPA and LDEQ personnel were on-site almost daily during the time the site was open to receive waste. Several inspection reports detailed the separation of unauthorized waste at the site demonstrating that this separation was an established practice.
Thus, LDEQ concluded that the state's expanded definition of CD debris remained consistent with federal solid waste regulations and because the proposed screening methods were effectively employed at the Chef Landfill, the disposed debris did not present a threat to the environment.
C. No Monitoring Requirements for Arsenic and Other
Toxins
Petitioners generally assert that LDEQ violated its public trustee duties under La.Const. Art. IX, § 1, by failing to adequately consider monitoring for arsenic and other hazardous pollutants; petitioners contend that LDEQ's Save Ourselves analysis should have considered monitoring under the issues of "avoidance of the potential and real adverse effects of the project" or "mitigating measures which would offer more protection to the environment." With respect to the applicable standard of review, petitioners allege that LDEQ's decision not to include monitoring requirements for arsenic and other toxic pollutants in the permit and its failure to conduct groundwater monitoring was arbitrary and capricious, characterized by abuse of discretion, or not supported by a preponderance of evidence.
To support their concerns regarding LDEQ's failure to require ground water and surface water monitoring requirements, petitioners reference a study authored by John H. Pardue, entitled Anticipating Environmental Problems Facing Hurricane Debris Landfills in New Orleans East dated July 17, 2006. This study concluded that household hazardous waste, such as batteries, electronic waste, solvents, and unlabeled containers, was present in the debris disposed at the Chef Landfill. The study generally concluded that leachate from the debris would be discharged into the surrounding wetlands and groundwater due to migration through the permeable soil materials beneath the landfills. Because of this leaching issue, Pardue recommended that arsenic should be monitored in contaminated storm water and groundwater.
This concern regarding leachate from the debris was also generally addressed in Dr. McDaniePs testimony, as follows:
Environmental concerns have been raised concerning disposal of treated wood containing chromate copper arsenate (CCA) in CD debris landfills. Federal and state environmental regulations define CCA treated wood materials as a non-hazardous waste. . . . Assertions that CCA treated lumber poses a threat to groundwater when disposed of in a C D landfill are usually based upon studies that show some CCA treated lumber exceeds the Toxicity Characteristic Leaching Procedure (TCLP) regulatory limit of 5 mg/L for arsenic. Leachate from CCA treated wood has been shown to range from 3.0 mg/L up to 7.5 mg/L. . . . TCLP regulatory levels are based upon a model that assumes wastes in an open dump will be surrounded and layered with decaying municipal trash, which will produce a harshly acidic environment, thus encouraging constituent chemicals to dissolve from the waste and migrate to groundwater. The TCLP regulatory level is the predicted leachate concentration that would be protective for a hypothetical drinking water well located 500 feet from the disposal site.
Conditions at the New Orleans CD landfills are drastically different from the assumptions that were used in the TCLP model. There are no drinking water wells within miles of the landfill or potable aquifers anywhere in Orleans parish, for that matter. The nearest Point of Exposure (POE) at the landfill is not a nearby drinking water well, but surface water bodies located at least four times further away than the hypothetical drinking water well used in the TCPL model. Additionally, drinking water standards are not applicable or appropriate for the protection of a surface water body that is not used as a source of drinking water. A more appropriate measure of environmental protection is the Louisiana Surface Water Quality Criteria. The Surface Water Quality Criterion for arsenic is
According to Dr. McDaniel's testimony at a May 8, 2008 public hearing on the LPDES draft water discharge permit for the Chef Landfill, "Louisiana Water Resources office records indicate only seven wells within a three-mile radius of the facility. But these are not drinking water wells. The elevated chlorides or salts in this area [make] the water nonpotable or not drinkable."
5 times higher than the drinking water standard. This criterion for arsenic is protective of primary and secondary contact recreation, as well as fish and wildlife propagation.
Based upon these factors, leachate concentrations reported for both new and weathered CCA treated wood materials are not expected to result in any unacceptable impact to groundwater or surface water at or near south Louisiana CD landfills. This conclusion is supported by the model used to develop the TCLP regulatory standards . . . and confirmed by site specific evaluations. . . . (Footnote added.)
Based on site-specific sampling data, LDEQ concluded that the evidence did not demonstrate a need for permit effluent limitations or monitoring requirements for arsenic or other toxic pollutants. Based on the water sampling that was performed by both LDEQ and Waste Management, LDEQ concluded that a limitation for arsenic in the permit was unwarranted. Because there was no reasonable potential that arsenic, lead, or other toxic pollutants would exceed applicable water quality standards, LDEQ concluded there was no basis for placing either a limitation or a corresponding monitoring requirement in the permit for these toxins. In LDEQ's Response to Comments Number 5, LDEQ responded to concerns about arsenic leaching into the water, as follows:
The LPDES permit authorized the discharge of landfill wastewaters from this facility. Landfill wastewaters include leachate generated at the site. In accordance with the EPA promulgated Effluent Guidelines, . . . the discharge of landfill leachate is authorized under the terms and conditions of this permit.
The water in the waste cell has been sampled on three (3) separate occasions for priority pollutants. DEQ samples were collected several yards from the shore of the pond. It has been determined that no pollutants, including arsenic, were present in concentrations that required the application of additional effluent parameters. Arsenic was sampled in March, 2007 and September, 2007 by Waste Management and on September 25, 2007 by the LDEQ. The sample taken by Waste Management in September, 2007 indicated arsenic was present. The concentration was 19 ug/L. No arsenic was found in the other samples. A water quality screen using water quality data representing the receiving stream was used to determine if a water quality based effluent limit was needed for Arsenic. It was determined that no effluent limit was needed for Arsenic.
The unit "ug/1" represents micrograms per liter.
The water currently in the waste cell has had greater opportunity for contact with the waste and leaching potential than stormwater runoff that will result after closure of the landfill is completed. The water in the waste cell does not contain significant concentrations of priority pollutants. Therefore, it is extremely unlikely that such pollutants would be present in sufficient concentrations to warrant testing once closure of the landfill is completed. (Footnote added.)
A state agency is charged with interpreting its own rules and regulations and great deference must be given to the agency's interpretation. Oakville Cmty. Action Group , 05-1365 at pp. 20-21, 935 So.2d at 186. LDEQ determined that all parameters analyzed were well below levels that may pose a potential threat to human health or the aquatic environment in the area, and thus, limitations and corresponding monitoring requirements for arsenic and other toxins in question were not imposed. We conclude LDEQ's interpretation in this instance was not arbitrary and capricious.
D. Permeability of the Soil at the Chef Landfill
In response to comments alleging that the site had a relatively high permeability and posed a threat of contamination to surrounding areas, LDEQ responded, referencing Louisiana solid waste regulations that require Type III facilities to have naturally stable soils of low permeability for the area occupied by the solid waste facility to prevent penetration of surface spills into groundwater aquifers. See LAC 33:VII.719D. LDEQ relied on reports and memorandum from Victor R. Donald, P.E., of Aquaterra Engineering, an expert in landfill design, construction, and hydrogeology, in reaching its conclusion that the site not only met the permeability requirements for Type III landfill, but it also met the higher permeability standards for a Type I and II solid waste landfills.
Mr. Donald addressed the Chef Landfill site's ability to isolate the constituents of the hurricane debris from the groundwater and the surface water environment. Mr. Donald's technical memorandum dated July 31, 2006, addresses the site characterization and site construction, as follows: Site Characterization
The site specific data indicate that the site is located within, and underlain by, low permeability clay. Permeability testing indicates that the clay which forms the base and [side] slopes of the facility exceed the requirements of LDEQ Solid Waste Regulations for a recompacted clay liner that would be required beneath Class I and II solid waste landfills. . . . Areas of clayey silt and sandy silt layering that may be encountered along the cell side slopes have been plated with this clay . . . to minimize the potential for fluid movement into or out of the CD facility.
The predominant clay soils that form the base and side slopes of the facility are natural, stable soils of low permeability. . . .Site Construction
Observations of existing site conditions, combined with communications with operations personnel, indicate that the CD facility construction has taken advantage of the predominant clay matrix to render a site that isolates the CD debris from the subsurface environment. The conversion of the borrow pit for use as a CD disposal facility was facilitated by shaping the side slopes of the facility and by grading the base grades with specific attention to the minimization of fluid movement into or out of the facility. . . . The process of grading the slopes within the predominant clay profile included the construction of a veneer of clayey soils over the side slopes. This clay veneer would serve to seal off the more permeable silty and sandy strata which are present within the upper 30 feet and which may outcrop on the side slopes. The hand auger borings indicate that the clay [veneer] was effectively accomplished. . . . [A] predominant clay matrix is present lining the excavation, and no areas of predominant sand layering were encountered.
Although Dr. Kemp opined, in his affidavit, that the walls and base of the disposal cell are permeable and will not adequately isolate the disposed debris from the surrounding environment, his opinion was contradicted by Mr. Donald's testimony, on which the LDEQ ultimately relied. See LDEQ's discussion of Mr. Donald's technical memorandum in its Response to Comments Number 3, which addressed the comment that the "[u]nderlying clays at the site do not form an impermeable layer." Generally, a regulatory body may use its own judgment in evaluating evidence as a matter within its expertise; it is not bound by even uncontradicted testimony of experts which amount to mere opinions on their part. Baton Rouge Water Works Co. v. LPSC , 342 So.2d 609, 611 (La. 1977), cert. denied , 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 86 (1977). We find no abuse in LDEQ's action of placing greater weight on the testimony of Mr. Donald as opposed to Dr. Kemp, Dr. Lee, or other experts that addressed the issue of permeability of the landfill soils.
Dr. Kemp's affidavit states that: 1) the site plans indicate that the Chef Landfill will be excavated to approximately 30 feet below grade; 2) the boring logs revealed that the sandy clay relied on for containment of the debris varies in thickness from two to twenty feet; 3) below the possibly discontinuous sandy clay layer is an extensive, highly permeable sand body; 4) there is a large amount of sand on the side walls of the landfill; 5) the soils both beneath and around the landfill can be characterized as relatively permeable natural levee deposits overlying a more permeable sand body; and 6) this sandy clay layer should not be relied on to act as a barrier to contain contaminated storm water and leachate generated in the landfill.
We further note that the requirements for a CD landfill are part of the solid waste permitting process involving facility geology and subsurface characterization rather than part of the water discharge permitting process.See LAC 33:VII.101 et seq.
E. Adequacy of LDEQ's Responses to the Public Comments
Petitioners additionally assert that LDEQ failed to respond to all reasonable public comments. Title 33, Part IX, Section 3125 of the Louisiana Administrative Code requires LDEQ to "briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing." See Matter of Rubicon, Inc. , 95-0108, p. 11-12 (La. App. 1st Cir. 2/14/96), 670 So.2d 475, 483, stating that a decision should include "a response to all reasonable public comments," wherein this court vacated and remanded LDEQ's action of granting an exemption that allowed for the disposal of hazardous wastes in underground injection wells, where LDEQ had not provided "any findings" in granting the exemption.
In the instant case, petitioners' argument regarding the degree of commentary necessary by LDEQ is hypertechnical. We have reviewed the comments and LDEQ's responses and find LDEQ satisfied its constitutional mandate. Although LDEQ consolidated some of the related issues in its responses, it provided detailed reasons to support each of the major issues or categories of concerns raised in the comments.
III. CONCLUSION
Our examination of the administrative record establishes that LDEQ's permit decision is supported by a preponderance of the evidence, is based on sound factual conclusions, and is not arbitrary, capricious, or characterized by an abuse of discretion. We find no error in LDEQ's application of applicable statutes and regulations. Thus, we find no basis to support a remand of this matter. The district court properly affirmed LDEQ's issuance of the permit, and we affirm the district court's judgment. Appeal costs are assessed against petitioners-appellants.