19TH JUDICIAL DISTRICT COURT

PARISH OF EAST BATON ROUGE

STATE OF LOUISIANA

CENTRAL LOUISIANA COALITION | NUMBER ____________

FOR A CLEAN & HEALTHY ENVIRONMENT |
|
v. |
| DIV. _________________
LOUISIANA DEPARTMENT OF |
ENVIRONMENTAL QUALITY |
|
In re: Hazardous Waste Permit for |
Clean Harbors Colfax, LLC, |
LAD 981 055 791-OP-RN-2 |

PETITION FOR JUDICIAL REVIEW

Pursuant to La. R.S. § 30:2050.21(A), Central Louisiana Coalition for a Clean & Healthy

Environment (“Community Group”) hereby seeks review of provisions in hazardous waste

permit LAD 981 055 791-OP-RN-2 (“the permit”) for the “contained burn chamber system” to

be built at Clean Harbors Colfax because the Louisiana Department of Environmental Quality

(“LDEQ”) failed to classify the system as a hazardous waste incinerator, as required by law, and

ensure compliance with even the minimum requirements necessary to protect communities in

and near Colfax from the system’s toxic pollution. Community Group presents the following:

NATURE OF THE CASE

1. The permit authorizes Clean Harbors to operate a new “contained burn chamber system” to

burn hazardous wastes in Colfax, Louisiana. The system is a hazardous waste incinerator, as

defined by law, but LDEQ called it a “miscellaneous unit” instead. In doing so, LDEQ

claimed undue discretion to issue a permit that lacks conditions ensuring compliance with

mandatory hazardous waste incinerator requirements and allows Clean Harbors to evade

protections needed to safeguard human health and the environment. LDEQ’s failure to

classify the “contained burn chamber system” as a hazardous waste incinerator is unlawful

and arbitrary.

2. Community Group requests that this Court remand section V.A. of the permit concerning the

“contained burn chamber system,” with specific instructions to LDEQ to classify the system

as a hazardous waste incinerator, not a “miscellaneous unit,” and include conditions

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 necessary to ensure compliance with requirements for hazardous waste incinerators, specified

in 40 C.F.R. pt. 63, subpt. EEE and 40 C.F.R. pt. 264, subpt. O, and protect human health and

the environment.

3. Community Group seeks review of the permit section concerning the “contained burn

chamber system” only. Community Group does not seek review of LDEQ’s concurrent denial

of open burning/open detonation operations or permit provisions related to that action, which

are contained in the same permit and severable from any other permit provisions held to be

invalid. See Permit Section I.C.

JURISDICTION

4. This Court has jurisdiction and venue is proper pursuant to La. R.S. § 30:2050.21(A).

5. LDEQ’s decision to issue the permit is a final permit action.

6. LDEQ gave Community Group notice of the permit action on July 12, 2023. Community

Group files this appeal within thirty days of the notice pursuant to La. R.S. § 30:2050.21(A).

PARTIES

7. Central Louisiana Coalition for a Clean & Healthy Environment is a community organization

comprised of citizens who reside near the Clean Harbors Colfax hazardous waste facility,

including in Colfax and The Rock where the population is predominantly Black and low-

income. Community Group has long advocated for an end to the open burning/open

detonation of hazardous wastes at Clean Harbors Colfax and the associated risks and

environmental injustice Clean Harbors’ hazardous waste operations impose on the

surrounding communities.

8. Community Group is an aggrieved person who may appeal LDEQ’s final permitting action

pursuant to La. R.S. § 30:2050.21(A).

9. LDEQ is the primary agency of the State of Louisiana concerned with environmental

protection and regulation. La. R.S. § 30:2011(A)(1). LDEQ operates a hazardous waste

program delegated to it by the United States Environmental Protection Agency (“U.S. EPA”)

that must, at all times, maintain consistency with the minimum requirements of the Resource

Conservation and Recovery Act (“RCRA”). 42 U.S.C. § 6926(b). LDEQ has the power to sue

and be sued and is the agency that made the final permit decision at issue in this matter.

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 REVIEW STANDARD

10. The standard of review under the Louisiana Administrative Procedure Act applies to the

judicial review of LDEQ permit actions. La. R.S. § 30:2050.21(F) (applying the standard of

review under La. R.S. § 49:978.1(F)–(G)). That provision provides: “The court may reverse

or modify the 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 evidence as

determined by the reviewing court.” La. R.S. § 49:978.1(G).

LEGAL FRAMEWORK

11. While hazardous waste permits are issued pursuant to RCRA, both RCRA and the Clean Air

Act establish the regulatory framework and minimum requirements for hazardous waste

incinerators.

12. Section 112 of the Clean Air Act requires emissions standards for hazardous air pollutants to

be based on the performance of the “maximum achievable control technology” (“MACT”).

42 U.S.C. § 7412(g)(2)(A)–(B). Pursuant to that requirement, U.S. EPA promulgated MACT

standards for hazardous waste combustors, including hazardous waste incinerators. See 40

C.F.R. pt. 63, subpt. EEE (the “MACT EEE standards”).

13. The MACT EEE standards were also promulgated to satisfy U.S. EPA’s obligation under

RCRA “to ensure that hazardous waste combustion is conducted in a manner adequately

protective of human health and the environment." NESHAPS: Final Standards for Hazardous

Air Pollutants for Hazardous Waste Combustors, 64 Fed. Reg. 52,828, 52,832 (Sept. 30,

1999). In establishing these standards, U.S. EPA recognized they may not be sufficiently

protective in all instances and provided for a site-specific risk assessment to “determine

whether additional controls are necessary to ensure protection of human health and the

environment.” 40 C.F.R. § 270.10(l).

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14. In addition to the MACT EEE standards, RCRA includes requirements for hazardous waste

incinerators under 40 C.F.R. pt. 264, subpt. O.

15. All hazardous waste incinerators therefore must comply with the MACT EEE standards and

Subpart O requirements.

16. Louisiana has incorporated, by reference, the MACT EEE standards and operates a U.S.

EPA-delegated hazardous waste program that must maintain consistency with the minimum

requirements of RCRA, including those for hazardous waste incinerators. LAC

33:III.5311(A); LAC 33:III.5122(A); 40 C.F.R. §§ 272.951 (final authorization for

Louisiana-administered program); 42 U.S.C. § 6926(b). In administering the hazardous waste

program, LDEQ may not set requirements that are less stringent than the federal

requirements. 42 U.S.C. § 6929.

17. A hazardous waste incinerator is a “device defined as an incinerator in [40 C.F.R.]

260.10 . . . and that burns hazardous waste at any time.” 40 C.F.R. § 63.1201.

18. 40 C.F.R. § 260.10 states that an “incinerator means any enclosed device that . . . [u]ses

controlled flame combustion and neither meets the criteria for classification as a boiler,

sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace.”

19. The term hazardous waste incinerator is not limited to the combustion unit only; it includes

the system as a whole. As defined, “hazardous waste incinerator” explicitly “includes all

associated firing systems and air pollution control devices, as well as the combustion

chamber equipment.” 40 C.F.R. § 63.1201. In defining hazardous waste incinerator this way,

U.S. EPA recognized the need to include air pollution control devices as they “affect[]

emissions of [hazardous air pollutants], e.g., dioxin/furan formation, toxic metals capture,

acid gas removal” and are “integral to the treatment process, and, therefore, to the source as a

whole.” NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste

Combustors; Final Rule—Interpretive Clarification; Technical Correction, 65 Fed. Reg.

67,268, 67,269 (Nov. 9, 2000). U.S. EPA explained that air pollution control devices “of

course, are also enclosed and so are part of the device preventing release of [hazardous air

pollutants] until the end of the combustion process.” Id. “These gases continue to be

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 regulated, as is the [air pollution control device] itself” under the hazardous waste incinerator

requirements. Id.

20. RCRA Subpart X governs “miscellaneous units,” which are units that are not covered by

facility-specific standards such as those for hazardous waste incinerators. See 40 C.F.R. pt.

264, subpt. X. Instead, they are subject to general “environmental performance standards”

that are established by the permitting agency on a case-by-case basis. 40 C.F.R. § 264.601.

“Permits for miscellaneous units are to contain such terms and provisions as necessary to

protect human health and the environment, including, but not limited to, as appropriate,

design and operating requirements, detection and monitoring requirements, and requirements

for responses to releases of hazardous waste or hazardous constituents from the unit.” Id.

While “miscellaneous units” are not directly subject to facility-specific standards, “[p]ermit

terms and provisions must include those requirements of subparts I through O and subparts

AA through CC of this part, part 270, part 63 subpart EEE, and part 146 of this chapter that

are appropriate for the miscellaneous unit being permitted.” Id.

21. All RCRA permits must include terms and conditions necessary to ensure protection of

human health and the environment. 42 U.S.C. § 6925(c)(3). Each RCRA permit must include

permit conditions necessary to “achieve compliance with the Act and regulations.” 40 C.F.R.

§ 270.32(b)(1).

GENERAL BACKGROUND

22. Clean Harbors Colfax is a commercial facility in Grant Parish, Louisiana that open burns and

open detonates hazardous wastes from private facilities and U.S. government sites

throughout the country. Clean Harbors’ open burning/open detonation operation has been

permitted by LDEQ as a “miscellaneous unit” under RCRA Subpart X since 1993.

23. During the course of its operations, Clean Harbors has repeatedly violated the terms of its

RCRA and other environmental permits, releasing significant amounts of harmful pollutants

into the air, waters, and land in and around Colfax.

24. According to U.S. EPA, Clean Harbors has been out of compliance with RCRA requirements

for the last twelve quarters and is considered a “significant noncomplier,” a designation

reserved for the most serious violators of the hazardous waste requirements.

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25. In March 2017, Clean Harbors submitted an application to renew its RCRA permit for open

burning/open detonation operations for another decade. LDEQ issued a notice of intent to

deny the application on January 3, 2020.

26. In March 2020, Clean Harbors submitted a revised permit application, including a proposal

to operate a new hazardous waste system it called a “contained burn chamber system” to

burn hazardous wastes.

27. The “contained burn chamber system” is comprised of various components, including a

contained burn chamber, thermal oxidizer/afterburner, and deactivation furnace. The enclosed

system burns hazardous wastes using controlled-flame combustion and the resulting pollution

emissions are released from the stack at the end of the system.

28. On October 27, 2022, LDEQ released for public notice and comment a draft hazardous waste

operating renewal permit pursuant to RCRA Subpart X for Clean Harbors, allowing limited

continuation of the open burning/open detonation operations and authorizing operation of the

proposed “contained burn chamber system.” The draft permit incorporated emissions limits

from the MACT EEE standards for certain pollutants, but for toxic metals, the draft permit

allowed Clean Harbors to propose “alternative standards” if the MACT EEE standards were

“not technically feasible.” Community Group submitted timely comments during the

comment period.

29. On March 16, 2023, LDEQ issued a revised draft hazardous waste permit that proposed to

deny open burning/open detonation operations and allow operation of the “contained burn

chamber system.” Again, Community Group submitted timely comments during the

comment period.

30. In its comments, Community Group explained, among other things, that the revised draft

permit’s provisions for the “contained burn chamber system” were unlawful and arbitrary

because the system is a hazardous waste incinerator, as defined by law, not a “miscellaneous

unit.” Thus, the system must meet the minimum standards and requirements for hazardous

waste incinerators, without exception. Community Group explained that the draft permit

terms allowing Clean Harbors to claim that MACT EEE standards are not “technically

feasible” and to seek alternative standards after the “contained burn chamber system” is

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 constructed is unlawful and arbitrary. Community Group also explained that additional

requirements, such as limits for other harmful pollutants and additional continuous emissions

monitoring systems, were necessary to protect human health and environment.

31. On June 30, 2023, LDEQ issued the final permit, which denies Clean Harbors’ request to

continue its open burning/open detonation operations. The final permit also authorizes

operation of the new “contained burn chamber system” at issue here— calling it a

“miscellaneous unit” under RCRA Subpart X, rather than a hazardous waste incinerator.

32. As permitted, the “contained burn chamber system” may burn up to 410 pounds of explosive

hazardous waste per hour and up to 561,700 pounds per calendar year. Permit Condition

IV.A; Permit Condition V.A.2.b. The permit allows Clean Harbors Colfax to subject

surrounding communities to these operations twenty-four hours a day, seven days a week.

Permit Condition V.A.2.b.

33. The hazardous wastes permitted to be burned in the “contained burn chamber system”

include chloroform, lead, arsenic, chromium, and nitroglycerine, as well as black powder,

ammonium perchlorate, RDX, and TNT. Permit Table 2. The burning of these hazardous

wastes presents serious risks to human health and the environment, including for example,

neurological, reproductive, and cardiovascular issues, as well as various types of cancers.

Continued burning of these hazardous wastes under this “miscellaneous unit” permit

indefinitely perpetuates toxic pollution threats and the environmental injustices faced by

Community Group, and deprives surrounding communities of protections promised by law.

34. In responding to comments, LDEQ dismissed Community Group’s arguments that the system

meets the legal definition of a hazardous waste incinerator, citing reasons that are

inconsistent with the law, unsupported, and illogical.

35. Despite its claims that the system is not a hazardous waste incinerator, LDEQ recognized that

the MACT EEE standards for new hazardous waste incinerators are “appropriate” for the

system and incorporated them into the permit pursuant to 40 C.F.R. § 264.601. See Permit

Condition V.A.10. But LDEQ then claimed discretion to include an explicit and significant

loophole excusing Clean Harbors from the MACT EEE standards by allowing it to propose

different emissions standards if, after it completes design and construction of the “contained

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 burn chamber system,” Clean Harbors can show that compliance with the MACT EEE

standards is simply “not technically feasible.” See Permit Condition V.A.8.c.i.

36. This loophole allows (and incentivizes) Clean Harbors to design and build the system to

evade MACT EEE standards and protections necessary to safeguard human health and the

environment. Had LDEQ correctly classified the “contained burn chamber system” as a

hazardous waste incinerator rather than a “miscellaneous unit,” as required by law, LDEQ

would not have discretion to make any such allowance. As a hazardous waste incinerator, the

system would be subject to all hazardous waste incinerator requirements as minimum

requirements that cannot be weakened at LDEQ’s discretion to provide lesser protections to

communities surrounding Clean Harbors.

37. The “contained burn chamber system” meets the legal definition of hazardous waste

incinerator. In claiming the “contained burn chamber system” is not a hazardous waste

incinerator, LDEQ improperly circumvented the definition and associated requirements by

segmenting its review of the system to its individual components. LDEQ was required to

consider the system as a whole to include its complete process of burning hazardous waste.

LDEQ’s piecemeal assessment of the system is contrary to law and arbitrary.

38. Even if the components of the system are considered separately rather than together, LDEQ’s

assertions that the contained burn chamber, thermal oxidizer/afterburner, and deactivation

furnace each do not meet the definition of hazardous waste incinerator are contrary to law

and arbitrary.

39. LDEQ also claimed that the permit provisions for the “contained burn chamber system” are

protective of human health and the environment. LDEQ’s claim is contrary to law and

arbitrary.

ASSIGNMENTS OF ERROR

40. LDEQ’s failure to classify the “contained burn chamber system” as a hazardous waste

incinerator is in violation of RCRA and Clean Air Act requirements, in excess of LDEQ’s

statutory authority, made upon unlawful procedure, affected by other error of law, arbitrary or

capricious or characterized by an abuse of discretion or clearly unwarranted exercise of

8
 discretion, and not supported and sustainable by a preponderance of evidence as determined

by the reviewing court.

41. LDEQ’s failure to ensure the permit provisions for the “contained burn chamber system”

protect human health and the environment is in violation of RCRA requirements, in excess of

LDEQ’s statutory authority, made upon unlawful procedure, affected by other error or law,

arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted

exercise of discretion, and not supported and sustainable by a preponderance of evidence as

determined by the reviewing court.

DESIGNATION OF RECORD FOR JUDICIAL REVIEW

Community Group designates as the administrative record all information produced by,

considered by, and submitted to LDEQ in connection with the permit, or such shortened version

of the record upon which the parties may agree.

PRAYER FOR RELIEF

WHEREFORE, Community Group respectfully requests that this Court:

a. Remand permit section V.A. concerning the “contained burn chamber system” to LDEQ,

with specific instructions to classify the system as a hazardous waste incinerator, not a

“miscellaneous unit,” and include conditions necessary to ensure compliance with

requirements for hazardous waste incinerators at 40 C.F.R. pt. 63, subpt. EEE and 40

C.F.R. pt. 264, subpt. O and protect human health and the environment; and

b. Award all other relief that the Court finds proper.

Respectfully submitted this 11th day of August 2023,

/s/ Corinne Van Dalen .

Corinne Van Dalen, LA Bar #21175
Earthjustice
900 Camp St., Unit 303
New Orleans, LA 70130
504-910-1776
cvandalen@earthjustice.org
Counsel for Petitioner

SHERIFF PLEASE SERVE:

Roger W. Gingles, Secretary
Louisiana Department of Environmental Quality
602 North Fifth Street
Baton Rouge, LA 70802

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 19TH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA

CENTRAL LOUISIANA COALITION | NUMBER ____________

FOR A CLEAN & HEALTHY ENVIRONMENT |
|
v. |
| DIV. _________________
LOUISIANA DEPARTMENT OF |
ENVIRONMENTAL QUALITY |
|
In re: Hazardous Waste Permit for |
Clean Harbors Colfax, LLC, |
LAD 981 055 791-OP-RN-2 |

ORDER

On August 11th, 2023, the Court received the Petition for Judicial Review seeking review

of provisions in final permit (LAD 981 055 791-OP-RN-2) issued by the Louisiana Department

of Environmental Quality for the “contained burn chamber system” to be built at Clean Harbors

Colfax, LLC.

LDEQ shall compile the record of the permit decision and transmit it to the Nineteenth

Judicial District Court within 60 days after service of the petition on this action on LDEQ in

accordance with La. R.S. 30:2050.21(D).

Baton Rouge, Louisiana, this ______ day of _____________, 2023.

_______________________________________
DISTRICT JUDGE
NINETEENTH JUDICIAL DISTRICT COURT

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