New law keeps some industrial pollution accidents hidden from the public

DEQ to establish regulations on confidentiality

By: - July 2, 2021 4:55 pm
Louisiana Capitol Building

The Louisiana Legislature ended its regular session Thursday. (Photo by Julie O’Donoghue)

Over the objections of an advocacy organization that says environmental self audits will leave the public more in the dark, Gov. John Bel Edwards has signed into law a program allowing industrial facilities to conduct self audits for certain pollution accidents. The new law will allow those facilities to keep the records of those accidents hidden from the public for up to two years.

House Bill 72, sponsored by Rep. Jean-Paul Coussan (R-Lafayette) passed both chambers of the Louisiana Legislature with overwhelming majorities.

The new law allows industries to self-report toxic spills and releases that wouldn’t normally qualify for mandatory reporting to state or federal authorities. During debate on the House floor in May, Coussan and other lawmakers touted the idea as a way to provide the Department of Environmental Quality with information on minor accidents that it wouldn’t normally receive. He said it would also allow industries to be good stewards of the environment by self-reporting minor incidents that pose little or no risk to the environment or community.

However, Broderick Bagert with Together Louisiana said industrial facilities have long been conducting self-disclosures. The legislation, he said, actually has more to do with hiding those self-audit records from the public.

“What was presented in committee was an inaccurate representation as it turns out,” Bagert said.

Coussan disagreed, saying the bill doesn’t expand any confidentiality statutes that don’t already exist.

“Basically the current policy right now is when DEQ is in an enforcement action, the enforcement action is not public. This bill doesn’t change that,” Coussan said. “This program falls under the enforcement authority of DEQ.”

The new law states that “information contained in a voluntary environmental self-audit authorized by R.S. 30:2044 shall be held confidential by the department and shall be withheld from public disclosure until a final decision is made, or for a period not to exceed two years, whichever occurs first.” However, DEQ is required to publish any final decision on its website once the secrecy period expires.

The law also instructs DEQ to establish regulations regarding the self-audit program, and these regulations will likely determine what information will be kept secret and what will be available to the public, Bagert said.

Bagert pointed to an accident at the Domino Sugar refinery in Chalmette last month. A contractor working there called DEQ to report an acid gas leaking into the air. The contractor did not report how much gas or for how long it had been leaking, thus the Department of Environmental Quality deemed it to be below the reportable level, according to DEQ records provided by Bagert. 

Bagert referred to records submitted to DEQ for several other accidents in which the actual levels of the pollution were either unknown or left off the record, prompting DEQ to accept it as a minor non-reportable incident. 

In one such case on May 8, the oil and gas company, Lobo Operating Inc., discovered one of its pipelines leaking into the waters of Breton Sound after someone noticed a sheen of oil on the surface. According to the document submitted to DEQ, the oil sheen was measured to be 10 feet wide by 2 miles long yet was deemed to be less than a half-gallon and below the reportable quantity. The report further indicated that the sheen escaped “beyond the incident location” and was unrecoverable.

Bagert said he is worried the public might no longer have access to these types of records if such accidents involving unknown quantities of released pollution are deemed minor events and accepted under the self-audit program. But he is optimistic after the governor’s office told him it would work with Together Louisiana on implementing the new DEQ regulations, Bagert said.

Incidents that should not qualify for environmental self-audits, according to the new law, include:

  • “Violations that result in serious actual harm to the environment.”
  • “Violations that may present an imminent or substantial endangerment to public health or the environment.”
  • “Violations discovered by the department prior to the written disclosure of the violation to the department.”
  • “Violations detected through monitoring, sampling, or auditing procedures that are required by statute, regulation, permit, judicial or administrative order, or consent agreement.”

Another significant change under the new law is that DEQ is no longer required to hold public hearings on environmental assessments of facilities that apply for pollution permits. Rather, it states, “the department may, and if requested, shall conduct a public hearing on the environmental assessment statement in the parish where the facility is located.”

Additionally, the law instructs DEQ to develop new regulations, among others, that establish financial incentives for companies in the form of reducing or eliminating civil penalties for violations disclosed in a self-audit.

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Wesley Muller
Wesley Muller

Wes Muller traces his journalism roots back to 1997 when, at age 13, he built and launched a hyper-local news website for his New Orleans neighborhood. In the following 22 years since then, he has worked as a journalist for the Times-Picayune in New Orleans, the Sun Herald in Biloxi, WAFB-9News CBS in Baton Rouge, and the Enterprise-Journal in McComb, Mississippi. Much of his work has involved reporting on First Amendment issues and watchdog coverage of municipal and state government. He has received several honors and recognitions, including McClatchy's National President's Award, the Associated Press Freedom of Information Award, and the Daniel M. Phillips Freedom of Information Award from the Mississippi Press Association, among others. Muller is a New Orleans native, a Jesuit High School alumnus, a University of New Orleans alumnus, a veteran U.S. Army paratrooper, and an adjunct English teacher at Baton Rouge Community College. He lives in Ponchatoula, Louisiana, with his teenage son and his wife, who is also a journalist.

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