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Appeals court voids permit for new Belle River waste facility - KATC.com | Continuous News Coverage | Acadiana-Lafayette

Appeals court voids permit for new Belle River waste facility

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Courtesy MGN Online Courtesy MGN Online
Baton Rouge -

An appeals court has reversed a state permit for a proposed replacement waste-transfer facility along the Atchafalaya Basin in lower St. Martin Parish, finding the permit allowed the facility's owners to operate both a new facility and that one that already exists more than a mile away.

The First Circuit Court of Appeal judgment issued last Wednesday voids the permit for F.A.S. Environmental Services, which sought authorization to reconstruct its existing commercial oil-and-gas-waste transfer station about 1.5 miles north of its current address near Belle River.

The Office of Conservation, under Commissioner James Welsh permitted the facility in 2015. But the appeals court found the order did not explicitly prohibit the company from keeping the old facility in operation.

"While recognizing the Commissioner's broad statutory authority to regulate, conserve and use the State's oil and gas resources, we find that the subject permit is beyond the scope of what was requested and, therefore, was issued in violation of lawful procedure," states the decision, written by Judge Will Crain.

Judges Duke Welch and Guy Holdridge were also on the appellate panel.

With the permit vacated, the matter is now back in the hands of the Office of Conservation, which oversees waste-disposal facilities and is also on the hook for more than $6,000 in court costs for the appeal.

Attorneys for the state and F.A.S. Environmental did not immediately respond to questions on whether they plan to apply for a state Supreme Court review.

One of the plaintiffs in the case is the Louisiana Environmental Action Network. Representing the group, environmental chemist Wilma Subra said they've worked with Belle River-area residents for years since they began working to bring attention to their concerns about the facility. 

"As a result of all of that work, we've gotten an outstanding decision," Subra said.

A 'quieter, safer and less polluting facility'

The company characterized that its new facility would "result in a more efficient, quieter, safer and less polluting facility," according to statements cited in the judgment. As proposed, it would consist of a truck-unloading area and above-ground tanks to temporarily store the waste — primarily from drilling and fracking — which would then be piped to the company's existing disposal facility and injected into its wells. The new facility would also transition from diesel-powered equipment in favor of attaching it directly to electric power lines.

Currently, the waste is transported via barge.

Commissioner Welsh, who's also assistant secretary of the Department of Natural Resources, argued on appeal hat the project "will unquestionably reduce the risks of environmental impacts whether the existing facility is closed or not." But the court made note that all public comment was submitted on the premise that F.A.S. Environmental would be closing its original facility, as the company represented in its permit application.

"The public was invited to comment on the application for one operating transfer station. Additional issues may have been raised by the public had they known of the possibility that the permit would allow two operating transfer stations," the court decision states.

Along with LEAN, a number of other environmental-protection groups — including Concerned Citizens of Belle River; Hazel Cavalier, a CCBR member who owns property and lives about a half-mile from the proposed facility; and Atchafalaya Basinkeeper — sued for a judicial review of the permit after its 2015 approval.

Judge Wilson Fields, in the 19th Judicial District in East Baton Rouge Parish, upheld the permit, and the group appealed. 

Council: Facility 'would unreasonably disturb the peace'

According to the original lawsuit, F.A.S. Environmental sought to relocate its facility to an area zoned for residential and woodland/flood plain conservation use. The St. Martin Parish Planning and Zoning Commission had already denied FAS's request to change the new site's zoning classification, so the company applied directly to the state DNR.

The St. Martin Parish Council also took a stance against the facility's relocation, stating in a 2014 resolution that it "would not be in the best interests of the community and would unreasonably disturb the peace and dignity of the surrounding areas." The parish has also adopted a master plan that would conflict with the property's rezoning.

Working with the Tulane Environmental Law Center, the plaintiffs argued not only that the permit effectively allowed the company to operate both the old and new facilities, but that the state could not preempt parish zoning laws and its master plan. They also pointed out that the storage facility as permitted could not withstand a 100-year flood.

Subra said area residents also were concerned about living near the facility, which would dispose of drilling muds and produced and flowback water that contain toxic chemicals like benzene and toluene and put them at an increased risk for suffering from spill hazards. It would also increase truck traffic along narrow roads near their homes.

"The emissions, as well as the transfer of this waste, would allow these chemicals to be released into the air, which would be toxic to people living in the area," Subra said.

F.A.S. Environmental's history is not flawless. In 2013, the company's operations manager pleaded guilty to making false statements and conspiring to defraud the U.S. Environmental Protection Agency and to violate the Safe Drinking Water Act. Investigators found he accepted more than $22,000 in kickbacks from a Morgan City waste firm to illegally dispose more than 380,000 gallons of industrial wastewater into the company's Belle River injection well.

The U.S. Justice Department contends the company's "ownership was unaware" of the man's scheme, cooperated fully with investigators and fired the manager upon learning of the scheme.

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