By Tokesha Collins-Wright

On September 1, 2017, the Louisiana Department of Environmental Quality (“LDEQ”) updated the emergency order that was issued by the Governor of Louisiana on Thursday, August 24, 2017. That earlier emergency order put the entire State of Louisiana under a declaration of emergency and was to remain in place until Friday, September 22, 2017, unless terminated sooner. On September 1, 2017, the Governor issued an amended declaration of emergency that now applies only to the parishes that have been declared federal disaster areas (the “Order”). At the time of the signing of the Order, these federal disaster areas were Acadia, Allen, Beauregard, Calcasieu, Cameron, Iberia, Jefferson Davis, Natchitoches, Rapides, Sabine, Vernon, and Vermilion. If at any point additional parishes are also declared as federal disaster areas, then those parishes will also be included in the Order.

Among the matters covered in the Order:

  • Permittees with Louisiana Pollutant Discharge Elimination System (“LPDES”) permits should consider activating the upset provisions in their permits. LAC 33:IX.2701. An upset constitutes an affirmative defense to an action brought for non-compliance with such technology-based permit effluent limitations if the requirements of LAC 33:IX.2701.N.3 are met. This Order extends upset provisions to include water quality based effluent limitations. For upsets caused by Hurricane Harvey, the 24-hour oral notification is waived unless the non-compliance may endanger human health.
  • New emergency discharges, which are eligible for coverage under the LPDES General Permit LAG420000 (Short-Term and Emergency Discharges General Permit), and are located in an area that has been included in this Order are considered provisionally covered under the terms and conditions of the permit immediately and fully covered 72 hours after the postmark date or upon hand-delivery of a complete and correct Notice of Intent. The Notice of Intent shall be submitted no later than 10 business days after commencing discharge.
  • When handling and managing wastes generated as a result of Hurricane Harvey, owners and operators of solid waste management facilities and local governments shall adhere to the State of Louisiana “Comprehensive Plan for Disaster Clean-up and Debris Management” (the “Debris Management Plan”), except where the Debris Management Plan may be in conflict with the provisions of this Order, in which case the provisions of this Order shall prevail. The Debris Management Plan contains provisions and instructions for handling various types of waste material and for locating and receiving authorization for Emergency Debris Sites, which are sites that local governments and state agencies may “activate” upon the declaration of an emergency by LDEQ and the issuance of this Order.
  • LDEQ will consider, on an individual basis, requests for approval for open burning, by persons other than local governments or their agents, of storm-generated trees, leaves, vines, twigs, branches, grass, and other vegetative debris. Any such burning approved by the LDEQ must be conducted in compliance with the requirements of the Debris Management Plan and LAC 33:III.1109.D.6. Local governments and their agents shall follow the provisions of the Debris Management Plan.
  • Owners and operators of solid waste management facilities permitted by the LDEQ before Hurricane Harvey are authorized to make all necessary repairs to restore essential services and the functionality of storm water management and leachate collection systems damaged by Hurricane Harvey, without prior notice to the LDEQ. Within thirty (30) days of commencing the work of such repair or replacement, however, the permittee shall notify the LDEQ in writing, describing the nature of the work, giving its location, and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • The LDEQ authorizes the minor repair of any previously permitted stationary source of air pollution that was damaged by the Hurricane to restore it to its previously permitted condition without prior notice to the LDEQ. Within thirty (30) days of commencing such repairs, however, the permittee shall notify the LDEQ in writing, stating the location and nature of the work and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • LDEQ will consider, on an individual basis, requests for approval for, but not limited to, the following sources of air pollution:
    1. temporary air pollution control devices, such as portable flares, used for vessel and pipeline segment purging and the limited operation of facilities with damaged vapor control equipment;
    2. portable storage tanks, used for interim storage while damaged equipment is being repaired; and
    3. repairs, other than the minor repairs discussed above, of permitted stationary sources that have been damaged by the Hurricane, provided that the sources are restored or replaced with equipment that is identical or functionally.

All activities authorized under this Order must be commenced before the expiration of this Order unless otherwise provided in an authorization or permit. The deadline for commencement under any authorization or permit issued under this Order may be extended on a showing that contractors or supplies are not available to commence the work, or if additional time is needed to obtain any required authorization from the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, or other local, state, or federal agencies.

The Order is set to expire on October 26, 2017, unless modified or extended by further order. For more information, click here.