041719 Thermaldyne plant North Line

State environmental regulators must require an oil refinery waste reclamation company in Port Allen to identify the pollutants it wants to dump into the Intracoastal Waterway in West Baton Rouge Parish, a state appeals court ruled.

A unanimous three-judge panel of the Louisiana 1st Circuit Court of Appeal upheld a lower-court ruling that regulators must require the company, Thermaldyne LLC, to provide a "full listing of pollutants" expected to be discharged into the waterway that reaches the Atchafalaya Basin and Lake Palourde.

In Thermaldyne's permit request, made before the plant started operations, the company had sought a waiver from having to identify the contents of the water releases, which would be treated to safety standards, because the company said the new plant was a "proposed facility."

In December 2018, the Louisiana Environmental Action Network sued Chuck Carr Brown, secretary of the state Department of Environmental Quality, in 19th Judicial District Court over the wastewater permit process for Thermaldyne.

The Baton Rouge environmental group was trying to force DEQ to make the company disclose its planned discharges, arguing the failure to provide the information deprives the public of a meaningful chance of participating in the regulatory process. 

"This is a victory for common sense," Clay Garside, LEAN's attorney, said in a statement Thursday. "For DEQ to regulate industry in a way that protects the public, at the very least it has to know what pollutants that industry may emit. And if the public is to have meaningful input, DEQ must provide real information that alerts us about possible concerns."

LEAN is also separately challenging the recycling plant's air permit and a variance to state and federal hazardous waste rules, both of which DEQ has already granted. Though Thermaldyne is located in West Baton Rouge Parish, state litigation brought against DEQ must be filed in East Baton Rouge Parish. 

Greg Langley, DEQ spokesman, said Thursday the agency doesn't comment on active legal matters.

Despite the court fights over Thermaldyne, the complex opened for business in April at its 28-acre site off North Line Road. A company spokesman said Thursday the 1st Circuit ruling doesn't "have an impact on current day-to-day operations."

In the appellate ruling written by Judge J. Michael McDonald, the court found the wastewater permit application lacked required pollution information and that DEQ never issued Thermaldyne any waiver of that requirement. 

The ruling upholds what's known as a "writ of mandamus" ordered in March by Judge William Morvant. The writ is a type of court order that directs public agencies to take actions. 

Issued Jan. 9, the appellate ruling also cites a Texas competitor of Thermaldyne's, TD*X Associates LP, which told DEQ in written comments filed in mid-2018 that the then-proposed plant would generate "'acutely and chronically toxic' wastewater, containing significant levels of pollutants."

On July 26, 2018, TD*X Associates' president, chief executive officer, investors and others met with top agency officials about Thermaldyne, including Elliott Vega, the assistant secretary of environmental services who plays a key role in permit reviews, DEQ online records show.

The permit is one of several for which Thermaldyne got an expedited review, a DEQ program in which the agency allows applicants to pay for the overtime of permit writers. Some critics see this practice as a conflict of interest for an agency charged with protecting the environment.

It's not clear how Thermaldyne is operating and dealing with its wastewater without a discharge permit, but its permit applications lend some insight.

According to those applications, Thermaldyne draws out as much a 1,000 barrels per day in oil equivalent from what's known as "oil bearing hazardous secondary materials" that refiners ship to the company. 

This toxic material is the leftovers from refineries, including what's in tank bottoms, sludge and metal-bearing catalyst. Thermaldyne uses centrifuges and a thermal process to recover the oil, which is then shipped back to refiners, but wastes still remain.

The solid waste, some of which is hazardous, is disposed of separately. Leftover wastewater is handled in one of three ways: recycled on-site, treated and discharged into the waterway, or shipped to a disposal facility, the company's applications say.

The company also says that some of its treated wastewater may be used to cool hot solid wastes that have been treated and are coming out of the complex's operations.

The other appellate judges affirming the lower court ruling were Judges Mitchell Theriot and Wayne Ray Chutz.

The judges also ordered DEQ to pay LEAN's appellate court costs.

Email David J. Mitchell at dmitchell@theadvocate.com

Follow David J. Mitchell on Twitter, @NewsieDave.