A district court decision recently overturned an LDEQ denial of our client’s request for hearing. While LDEQ has some discretion in denying hearing requests, LDEQ’s discretion is limited by the constitution and applicable statutes. Not every LDEQ denial is proper.
Background: LDEQ usually has one of three responses to a request for hearing by a permittee or a respondent: deny the request, enter into Informal Dispute Resolution (IDR), or grant the request. When it determines that the matter is easily resolvable, LDEQ usually grants the request (and the matter is transferred to the Division of Administrative Law (DAL) for handling) or enters into IDR. However, in matters that are contested, controversial, or perhaps when LDEQ knows its position may be indefensible, LDEQ has denied hearing requests. This is important for two reasons: 1) unless the permittee or respondent files an expensive application for judicial review with the 19th JDC, the permit action or compliance order/penalty assessment will become final; and 2) LDEQ can appeal from an adverse decision in the 19th JDC. On the other hand, current law prohibits LDEQ from appealing any adverse decision rendered against it in the DAL. The permittee or respondent, however, can appeal. LDEQ’s denial of the hearing request may be designed to avoid potentially contested adjudications in the DAL, from which LDEQ cannot appeal, so that the adjudication occurs in the 19th JDC, from which LDEQ can appeal. Continue reading “LDEQ’s Denial of Hearing Request Overturned”