Louisiana’s Toothless Tiger, the DEQ, Once Again Fails a Battered Waterfront Community


When government fails to work on your behalf, the consequences are all too real. And for many years, the main governmental agency tasked with protecting the fragile environment here in the Bayou State — the Louisiana Department of Environmental Quality, or DEQ — has been the epitome of government failure. The other day, I told you about DEQ’s inadequate or in some cases non-existent response to significant chemical spills in Louisiana, a state that has a higher concentration of oil and chemical plants than virtually anywhere else in the world. I endorsed a proposal by a praiseworthy group of citizens who call themselves the Louisiana Bucket Brigade, who want the federal Environmental Protection Agency to acknowledge the crisis-like condition in the state and take over the DEQ’s responsibilities. Otherwise, the potential impact of such a toothless tiger regulating the environment — an agency that too often resides deeply in the back pocket of the industries that it regulates — can be very severe for the everyday citizens of Louisiana.

Just ask residents of the waterfront suburb of Slidell, and specifically the folks who live in neighborhoods such as Lakeshore Estates, Pirate’s Harbor, Treasure Isle, Rigolets Estate and Salt Bayou, all on or near the shoreline of Lake Pontchartrain.  These folks have been victimized by Hurricane Katrina — not once but twice. After the 2005 storm and its brutal aftermath, officials decided to abandon the nearby I-10 twin causeway and open a new one. Now, workers are tearing down the old twin spans, under a plan to crush the concrete into mattress-shaped platforms that will eventually be used to protect Lake Borgne from storm surges. But that concrete crushing operation — taking part on a leased tract of land just across a canal from Lakeshore Estates and the other residential neighborhoods — has been an environmental nightmare for the people who live closest to the job.

Noisy barges with their bright flickering lights drive by their homes at all hours of the night, waking up residents and causing some to take refuge elsewhere on the weekends. The thin white dust, or fly ash, from the non-stop concrete-crushing operation covered houses and lawns of residents who believe they’re breathing in toxic substances. Our testing has shown the dust isn not only toxic but radioactive; we’ve also found significant amounts of hexavalent chromium, the cancer causing chemical in the “Erin Brockovich” movie. The runoff from the crushing site posed a threat to marine life in nearby fishing camps.

Earlier this year, a group of some 250 residents who retained my law firm in New Orleans went to court, demanding a halt to the significant air and water pollution that was coming from the Tammany Holding Company site as well as the contractors who worked there. In March, we presented the homeowners’ case before a judge; we offered testimony from industrial health experts that the dust in the air could lead to respiratory tract, lung cancer, emphysema and tuberculosis, among other ailments, and that noise from the project often exceeded not only local standards but even more stringent federal occupational health standards.

Two months ago, the residents won a major victory in court. Orleans Parish Civil District Court Judge Christopher J. Bruno ruled that the concrete-crushing operation must seriously restrict its hours of operation and take significant steps to reduce both airborne dust as well as runoff from the site. The judge also ordered the contractors to obtain all necessary environmental permits. But today residents say the steps taken by Tammany Holding and the two prime contractors, NASDI and Bertucci Contracting Co., do not go nearly far enough. They also want regulators from the state DEQ to do their jobs and clamp down on illegal air pollution and polluted runoff from the operation.

Remarkably, neither DEQ nor the contractors will even carry out the tests needed to establish the baseline for requiring these permits. The state of Louisiana has no idea what’s going on at the site, and it doesn’t know what’s been discharged so far.  In early March, when the matter was still in court, the contractors actually submitted an application for an air permit; this was reviewed for our side by a top expert, engineer William Auberle, who told DEQ that the application was inadequate in a number of areas — for example, failing to detail mobile sources of pollution.

Incredibly — although perhaps not surprising if you’ve followed the sorry history of the Louisiana DEQ — the state came back and still insisted that air and water permits aren’t needed. On April 17 — less than three weeks after the judge’s ruling — DEQ Secretary Peggy Hatch wrote residents and my office arguing that a contractor spewing fly ash into a Louisiana neighborhood doesn’t need a permit. Instead, the residents have been forced to work with my firm to conduct private testing in the Slidell neighborhoods, and the results are alarming, to say the least.

This is the update I received last week from engineer and environmental scientist Marco Kaltofen, who has been conducting widespread tests throughout the area:

To date our science group has collected more 150 samples of dusts from homes affected by the concrete crushing operations in Slidell, LA.  Concrete contains crystalline silica from cement, and toxic metals from fly ash used in the concrete mix.  These materials are hazardous when inhaled, especially by children.  The industrial metals cadmium, zinc, copper and chromium are all found in fly ash.  These same metals are in the Slidell homes contaminated by concrete dusts.

Needless to say, residents who thought they’d won a big victory in court are distraught by the lack of action by the DEQ. Here’s what Shirley Wagner, one of the residents and a plaintiff in the lawsuit, told us last week, referencing some of the other problems at the state agency. “Just like the Bucket Brigade, we’ve done our homework in documenting  that we have been exposed to toxic chemicals, and DEQ’s actions not only fail to protect us but fail to address the public’s right to know,” she said. “Let me add my voice to the chorus of those complaining about DEQ. This sportsman’s paradise has been dumped on for too long.”

These problems have been have been going on for far too long. In 2002, Louisiana’s legislative auditor carried out an in-depth investigation of the permitting process at DEQ and uncovered wholesale problems, including lack of fundamental information about what or whom it regulates and failures to enforce violations or collect fines. The 10-year anniversary of that report just came and went, and nothing has been done. In the case of the Slidell concrete operation and beleaguered residents like Shirley Wagner, we’ll be going back into court to require DEQ to follow the law. But this is just one of many cases where a state agency has failed the residents of Louisiana. That is why I and others continue to call for a federal takeover of the woeful DEQ.

Read my recent post on the Louisiana Bucket Brigade and its request for an EPA takeover of DEQ: https://www.stuarthsmith.com/louisiana-isnt-protecting-its-residents-from-hazardous-chemical-spills-so-its-time-for-feds-to-step-in

Find out more about expert health testimony on the effects of the pollution in Slidell at: http://www.nola.com/politics/index.ssf/2012/03/concrete-crushing_operation_ne.html

Read more about the judge’s order that the Slidell concrete operation receive proper permits: http://www.thesttammanynews.com/news/article_6b3c828c-7de3-11e1-9d91-0019bb2963f4.html

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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