Two Baton Rouge Metro Councilmen want to change the zoning designation of land on River Road where a controversial barge-cleaning facility is proposed, making it impossible for the company to use the land for its intended purpose.

However, the Port of Greater Baton Rouge, which owns the property, says the concern about the proposed facility is overblown.

“There’s been a lot of misinformation about this business,” Port Director Jay Hardman said.

The port has had opportunities to lease the property in the past, Hardman said, but those other businesses would have increased traffic on area roads, something this facility will not do.

As far as a proposed rezoning, Hardman said, port officials will see how things work out.

“Our position is that we don’t think they can,” Hardman said.

The property is leased by Tubal-Cain Marine Service, which is planning a barge-cleaning operation and seeking a state permit. The land is zoned for heavy industrial uses, which is appropriate for its plan.

But opponents of the facility have argued that the state permit should be denied because the facility, which will emit pollutants into the air, isn’t compatible with the surrounding homes, a university and a public park.

Councilman John Delgado said he is co-sponsoring a measure along with Mayor Pro Tem Chandler Loupe to change the zoning to heavy commercial, which would allow for hotels or entertainment districts — uses more in line with the surrounding properties.

“The proposed use, if DEQ were to grant the permit, is clearly inconsistent with the land area,” he said. “It’s ridiculous. You would have toxic chemicals immediately next door to where children are playing.”

Delgado’s council district abuts the proposed barge-cleaning business to the north, and Loupe’s district is to the south.

The state Department of Environmental Quality, which issues the permits, looks to local zoning when deciding where a particular facility can or cannot be located.

The proposed zoning change will go before the Planning Commission for a vote on Aug. 17 and then for final approval before the East Baton Rouge Parish Metro Council on Aug. 19.

“If they rezone it, we’ll have to look at it again,” said Gregory Langley, DEQ spokesman.

Randy Cooper, operations manager at Tubal-Cain Marine, said he had no comment.

A DEQ public hearing on the proposed permit is scheduled for 6 p.m. Aug. 18 at DEQ, while the public comment period will end on Aug. 31.

Delgado said the proposed change in zoning wouldn’t open the city-parish to being sued because no permits have been issued and the property owners would retain the right to develop the land for other uses.

“We don’t want that kind of business in Baton Rouge,” Delgado said. “We don’t want any more toxic chemical companies or pollutants. We don’t want to be the toxic waste dump of the United States.”

Hardman said he believes the facility has received all of the necessary permits except for the air permit from DEQ.

Chris Odinet, a property law professor at the Southern University Law Center, said the success of a potential legal claim against the city could depend on how much Tubal-Cain has invested in the project.

“If a company has expended significant money and time on a project only possible under heavy industrial zoning, and everyone knew about it, and then the city changes the property to a lesser zoning, then the company could argue there has been a regulatory taking of its interest in the property,” Odinet said.

But, he added, the city-parish could make the case that it is not depriving the property owners of something, because it does not yet exist, and there are other possible uses for the property.

Typically, if a zoning change affects a property owner that is already using the land, then that property owner would be grandfathered in and the existing use allowed.

Tubal-Cain hasn’t broken ground yet, but it has spent at least $9,500 on permits and likely expended other funds for consultants, engineers and designers.

The property is being leased from the Port of Greater Baton Rouge, which approved a 12-month option in late 2013 to lease the 2,700 feet of property to the company for $10,000 as it worked through the necessary permits. That option was extended on Dec. 18, 2014, for 90 days, and a final 10-year lease, with two, five-year options after that, was signed in January or February this year for $10,000 a month — $120,000 a year, Hardman said.

The company applied to DEQ last year for a permit that, if approved, would allow the facility to release air pollution in amounts that would qualify it as a “minor source.” Minor source air permits don’t require public notice.

Community concerns range from not knowing what the facility will include, the closeness to residential areas and a popular BREC park, and the potential impact on a bald eagle nest located nearby.

Hardman, the port director, said the company has worked with the U.S. Fish and Wildlife Service about proximity to the eagle nest and pointed out that the eagles previously relocated their nest from Farr Park to this location, which is much closer to current barge operations, indicating the birds are not disturbed by the activity.

According to the permit, the facility will bring in barges and pump out remaining liquids into 10 storage tanks on site. Many of the vapors would be sent to an enclosed flare on the property to be burned off.

The facility expects to release 10 tons of nitrogen oxide, 49 tons of carbon monoxide and 15 tons of volatile organic compounds annually. The company has asked for flexibility from DEQ to accept the entire list of chemicals, including toxins, carcinogens and reproductive disrupters, said Wilma Subra, chemist and adviser to the Louisana Environmental Action Network.

Kevin Cope, president of the LSU faculty senate, said if a zoning change means the facility is located farther away from where people live and work, that’s good. However, it does point to a need to re-examine zoning in the parish as a whole.

Marylee Orr, executive director of the Louisiana Environmental Action Network, applauded the move by the councilmen but also agreed with the idea that there needs to be a better look at zoning around the parish.

“This type of industry is not appropriate to be in such close proximity to a residential neighborhood, the surrounding schools, churches, bikers, birders and Louisiana’s flagship university,” she said.

Zoning issues, she said, have been at the heart of almost every environmental issue the group has worked on for the past 30 years, and it points to a need to have thoughtful zoning that separates industry from residential and public spaces.

“Any effort to systematically address this by having more protective zoning near residential areas is a step in the right direction,” she wrote.

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