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In re In re BASF Corp.

Citation: 19 ELR 20708
No. No. CA-87-0625, 538 So. 2d 635/(La. Ct. App., 12/20/1988) Civil penalty vacated & remanded to State Dep't of Envtl. Quality

The court vacates the Louisiana Department of Environmental Quality's (DEQ's) settlement with BASF Corporation concerning chemical releases in violation of state air quality regulations, since the DEQ failed to obtain the concurrence of the attorney general and failed to adequately support its decision. The court initially holds that the DEQ's procedural rules do not require it to hold an adjudicatory hearing every time it determines that there has been a violation of the Louisiana Environmental Quality Act. These rules permit the DEQ to settle claims informally and allow the alleged violator to waive a hearing. The court holds that the meetings between the DEQ and BASF in an attempt to settle the suit were not hearings requiring public notice and an opportunity for public comment. The court holds that the DEQ is required to grant intervention under its rules only when an adjudicative hearing is held. The court holds that the attorney general's approval is required when the DEQ assesses a civil penalty without instituting a civil suit. The court holds that the DEQ failed to provide any explanation for the $ 66,700 civil penalty assessed against BASF or to provide factual findings.

[A previous decision in this litigation appears at 18 ELR 21506. Pleadings and briefs in the case are digested at ELR PEND. LIT. 65983, 66009, and 66032.]

Counsel for Appellant
Daria Burgess
Hurley & Hoffman
909 Poydras St., Ste. 1700, New Orleans LA 70112
(504) 522-0807

Counsel for Appellee
Rowland T. Huson III, General Counsel
Department of Environmental Quality
425 N. Fourth St., Baton Rouge LA 70808
(504) 295-8900

Counsel for BASF
William D'Armond
Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman
P.O. Box 3513, Baton Rouge LA 70821
(504) 387-0999