"Lessons learned include good-faith dealings with LDEQ, financing well-engineered upgrades, and treating other legal distractions very seriously pending the completion of construction upgrades, as settlement of the LDEQ case does not automatically dispose of every issue in a citizens suit."

Jones Walker attorney Judith V. Windhorst led a team that successfully defended a local government in a Louisiana Department of Environmental Quality (“LDEQ”) enforcement action and related citizen suit under the Clean Water Act filed in federal court.

A local municipal treatment plant had exceedances for its state water discharge permit into the Mississippi River for conventional pollutants, including fecal coliform. The LDEQ had issued eight compliance orders that were all administratively appealed.

Good-faith negotiations between the parties led to a phased multi-million dollar upgrade of the plant to meet permit standards. After completing the plant upgrade compliance construction ahead of schedule in 2007, the strategy was refocused on settlement avenues. The civil penalty thereafter reached through negotiation was minimal in comparison to the large water discharge penalties imposed in other recent cases, and the administrative hearing case has been settled.

In addition, during the pendency of the LDEQ proceedings, an environmental group issued a citizen suit notice letter addressing most of the same alleged violations in the LDEQ compliance orders, and the group subsequently filed suit in federal court. The local government gave the plaintiff and its counsel a tour of the plant to show them the upgrades, but the plaintiff nevertheless proceeded with the lawsuit.

In the federal litigation, the local government raised issues of standing, time bars, and separation of powers. The standing challenge addressed the fact that the environmental group had no members who lived or recreated near the plant. Eventually, after considering the plant upgrades, defense arguments, and continued compliance, the environmental group agreed to dismiss the federal lawsuit with prejudice.

Lessons learned include good-faith dealings with LDEQ, financing well-engineered upgrades, and treating other legal distractions very seriously pending the completion of construction upgrades, as settlement of the LDEQ case does not automatically dispose of every issue in a citizens suit. Judith V. Windhorst led the Jones Walker team, which included Stanley A. Millan.