
    RIVER/ROAD CONSTRUCTION, INC. v. CITY OF NEW ORLEANS.
    No. 95-C-1782.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1996.
    Writ Granted March 15, 1996.
    
      Rainer Lorenz, Covington, for Relator.
    Avis Marie Russell, City Attorney, Michael E. Botnick, Deputy City Attorney, New Orleans, for Respondent.
    Before KLEES, CIACCIO, LOBRANO, ARMSTRONG and LANDRIEU, JJ.
   JiCIACCIO, Judge.

WRIT GRANTED

We granted certiorari in this case to consider the propriety of the trial court’s denial of relator’s petition for preliminary injunction. For the reasons stated more fully herein, we reverse the judgment of the trial court and remand this ease to the trial court with instructions.

STATEMENT OF THE FACTS

On April 4, 1995, the City of New Orleans issued a proposal which invited sealed, competitive bids from parties interested in contracting for the collection, shredding and disposal of approximately 700,000 waste tires located in Orleans Parish. Bidders were asked to bid a single unit price per tire to cover all costs to shred each tire and haul and dispose of the shreds.

Pursuant to this invitation for bids, over 20 companies attended a mandatory pre-bid conference held on April 25,1995. However, only two companies actually submitted bids for the project: River Road Construction, Inc., relator herein, and Merrick Construction, Inc. At the bid opening on May 18, 1995, River Road submitted the lowest bid of $1.0989 per tire and Merrick submitted a higher bid of $1.38 per tire. On its face, the River Road bid was twenty percent lower than the Merrick bid. Relator alleged that the price differential was approximately $200,000.00.

Following the submission of bids, the City notified River Road by letter dated July 18, 1995 that it proposed to disqualify River Road’s bid because the 1 2City had received a bid from a higher ranking bidder. River Road requested a hearing to protest its proposed disqualification, and this hearing was held on July 26,1995. On July 27, 1995, the City Attorney’s office found River Road’s protest to be without merit and recommended the contract be awarded to Merrick Construction, Inc.

On July 28, 1995, River Road filed a Petition for Preliminary and Permanent Injunction and for Writ of Mandamus seeking to enjoin the City from awarding the contract to any other bidder other than River Road. In its petition, River Road contended that the disqualification of their bid was in violation of the Public Bid Law, LSA-R.S. 38:2212. River Road also filed a Motion for Temporary Restraining Order on this date which was denied by the trial court. The matter was set for hearing on the preliminary injunction on August 7, 1995. On July 31, 1995, the trial court issued an order that the application for the preliminary injunction was to be heard upon the verified pleadings and supporting affidavits alone. No objection was made by the parties to this procedure, and there was no request for an evidentiary hearing.

Accordingly, the matter was submitted to the court for consideration on the basis of pleadings, affidavits and exhibits. On August 7, 1995 the trial court rendered judgment with written reasons denying River Road’s petition for preliminary injunction.

River Road now seeks supervisory review from this Court, arguing that the disqualification of its bid by the City constitutes a violation of the Public Bid Law, more particularly LSA-R.S. 38:2212.A.(1)(a), which requires that all contracts be awarded to the “lowest responsible bidder.” Plaintiff seeks to enjoin the disqualification of its bid and alternatively to annul the contract to Merrick if it has been awarded. River Road also seeks a writ of mandamus requiring the City to award the contract to River Road.

J¿DISCUSSION

The combined provisions of the City Public Bid Law found in Section 6-307(5) of the Home Rule Charter for the City of New Orleans and the State Public Bid Law in LSA-R.S. 38:2211, et seq., require that contracts for any services, other than “professional” services, be let out by public bid. The Public Bid Law requires that the contract for public work be awarded to the “lowest responsible bidder who has bid according to the contract, plans and specifications, as advertised, ...” LSA-R.S. 38:2212(A)(1)(a).

River Road argues that their bid constitutes the lowest responsible bid, and the City is therefore required to award the contract to River Road. They argue that their bid complies with the contract and specifications, and that River Road has proven experience and capabilities sufficient to perform the work.

The City’s decision to disqualify River Road’s bid was based on a section contained in the general specifications of the bid proposal in which the City establishes a ranking system as follows:

Because the City desires to promote the recycling of resources as opposed to land disposal, the City will give the highest priority to the lowest responsible bid that conforms to the following order of processing/disposal techniques:
Priority 1. Processor/Recyeler
Priority 2. Processor/Monofill (Temporary Storage for Recycling)
Priority 3. Processor/Beneficial Reuse
Priority 4. Processor/Landfill Disposal

The City found that River Road’s bid should be ranked as a Priority 4 because River Road proposed to dispose of the tire shreds at a landfill which was authorized by the City’s bid specifications. The City ranked Merrick as a Priority 1 because Merrick proposed to dispose of the tire shreds at a monofill. The City thus concluded that regardless of the lower monetary bid submitted by |4River Road, Merrick should be awarded the contract because of its higher priority ranking.

In response to this determination, River Road contends that the City’s use of this priority system is not authorized by the legislative statute or the departmental regulations and is therefore impermissible. We agree.

LEGISLATIVE HISTORY

The City contends that this priority ranking system incorporated in its bid proposal was mandated by the legislature in the statute governing the disposal of waste tires, LSA-R.S. 30:2418. This statute is incorporated in the Solid Waste Recycling and Reduction Law, LSA-R.S. 30:2411-2423. R.S. 2418, effective September 1, 1989, provides for the establishment of waste tire collection centers and renders it unlawful for any person to dispose of tires unless they are disposed of for processing at a permitted solid waste disposal facility. Section C of this statute provides that waste tires which have been prepared for disposal by cutting, separating, shredding or other means in accordance with the rules or standards of the department may be disposed of in a landfill.

Section H of that statute provides as follows:

H. On or before January 1, 1993 the secretary shall promulgate regulations and guidelines for the administration and enforcement of the waste tire program provided for in this Chapter which shall be subject to legislative review and approval by the Senate Committee on Environmental Quality and the House Committee on Natural Resources. The regulations and guidelines shall provide for but not be limited to:
(1) Establishing standards, requirements, and permitting procedures for waste tire transporters, collection sites, and processors. Requirements shall include proof of liability insurance in a sufficient amount and other evidence of financial responsibility as determined by the secretary.
| s(2) Encouraging local governing authorities to establish advisory councils to advise the secretary regarding waste tire clean up.
(3) Providing technical assistance and incentives to encourage market research and development projects, and public education concerning waste tires.
(4) Providing incentives and assistance for those persons who collect and remit the fee imposed on the sale of new tires.
(5) Providing incentives and assistance for collection and transportation of waste tires including, but not limited to, incentives and assistance for local governing authorities which shall be given the highest priority. Subject to Paragraph (7) of this Subsection, this paragraph shall not prohibit local governing authorities from splitting, slicing, shredding, or baling tires as part of the disposal process or other beneficial use.
(6) Establishing a priority system for the clean up of existing waste tires.
(7) Providing incentives and assistance to waste tire processing facilities, but only if such facilities use, consume, or process the tires so that they may be reused as a raw material, product or fuel source.
(8) Remediating environmental and public health problems caused by such waste tires.
(9) Establishing a procedure and criteria for local governing authorities to apply for and receive funds to remediate waste tire problems in their respective jurisdictions. Payment of funds to local governing authorities for waste remediation tire problems shall commence May 1,1993.

(Emphasis ours.)

LSA-R.S. 30:2413(A)(8) provides for the levying of fees to administer the statute, and R.S. 30:2418(1) states that the fee on tires authorized to be levied shall not exceed two dollars per tire. There are no provisions in the statute requiring that waste tire collectors or processors recycle or reuse the waste tires; rather, the statute permits the storage of these tires in landfills.

Pursuant to this statute, regulations and standards on the disposal of waste |6tires were promulgated by the Louisiana Department of Environmental Quality (DEQ). These regulations are attached hereto as Exhibit A. Section 10517(D) governs the long term storage of waste tires and provides:

D. Long Term Storage/Monofills
1. Tire processors may, if markets for their tire materials are not available, store waste tire material in chipped, shredded or other non-tire forms for extended periods but not to exceed five years.
2. Tire processors may store waste tire material in above ground piles or in mono-fills if:
a. the processor has no immediate market for the tire material but has reasonable belief that such markets will develop;
⅜ ⅜ ⅜ ⅜ * ⅜
3. Permitted solid waste landfills may accept chipped, shredded, cut or sliced tire material.

There are no provisions in the regulations which require the placement of the tires in a monofill rather than in a landfill. Rather, the regulations authorize processors to place the waste tire material in permitted landfills.

The City argues that LSA-R.S. 2418(H)(6) mandates the local governing authority to establish a priority system for the disposal of the tires. However, our reading of this statute, including sections (H)(5) and (6) which refer to a “priority” system, fails to indicate a mandate for the ranking system incorporated in the City’s request for bid proposals in- this case. We note first that the statute specifically authorizes in R;S. 30:2418(0 the disposal of waste tire material in a landfill. There is no provision in the statute which requires a ranking of the methods of disposal. Secondly, although the statute authorizes the department to adopt rules and regulations to encourage reduction and recycling, the regulations as promulgated by the Department of Environmental Quality do not address any type of ranking of the methods of disposal of the 17waste tire material. Rather, the regulations provide that the tire processor may store the waste tire material in above ground piles or in monofills, without reference to any type of ranking. We find nothing in the regulations to require or authorize the priority of disposal in a monofill over a landfill.

In opposition to the preliminary injunction, the City offered the affidavit of Nannette Jolivette, the Director of the Department of Sanitation who stated that during the pre-bid conference, it was explained that the bid included a priority system mandated by the Louisiana Department of Environmental Quality. She stated that the bids would be ranked first by priority and the prices compared, and then the lowest responsible bidder in the highest priority would be awarded the contract. Ms. Jolivette admitted that River Road was the “apparent low bidder,” but was rejected because it was not a Priority 1 reeycler. She stated that because the City awarded the contract to a Priority 1 reeycler, the City will receive approximately $1,400,000.00 for reimbursement of costs incurred by the City in recycling tires.

In support of this contention, the City submitted a Tire Site Cleanup Agreement whereby the DEQ agreed to funding in the amount of $1,400,000.00 for remediation of waste tire sites to be performed in compliance with DEQ regulations. There is nothing in this agreement, however, which requires the City to accept processors of waste tires who qualify as Priority 1 recyclers in order to receive the state funding. Further, there is no requirement in the regulations promulgated by the DEQ that the waste tire material be recycled rather than placed in a landfill.

Although the City cites to a letter dated December 23, 1994 from the Secretary of DEQ to the Administrator of the Solid Waste Division concerning the prioritization policy to promote the recycling of resources as opposed to land disposal, we find that the DEQ was without authority to establish such a | apriority system. The priority ranking was not contained in the statute passed by the legislature, nor was it included in the regulations promulgated by the Department after hearings and public comment. Further, we find that the Department’s implementation of the prioritization policy is in conflict with the express terms of both the statute and the promulgated regulations which permit the use of approved landfills for the disposal of waste tire materials.

Under the circumstances presented here, we find that the letting of the contract in this case by the City was improper and illegal. There is no dispute in this case that River Road’s proposal included the lowest responsible bid. The burden is on the City in this case to show just cause for the rejection of River Road’s proposal. See New Orleans Rosenbush v. New Orleans, 653 So.2d 538 (La.1995).

The City’s reliance on the prioritization policy implemented by the Secretary of DEQ is without a basis in law. The policy is not included in the regulations promulgated by the Department, and, in effect, is in conflict with those regulations. The policy, as implemented by the City, requires the rejection of any bidder who proposes disposal in an approved landfill if another bidder proposes a higher-ranked disposal method, regardless of the monetary amount of the proposal. We conclude that these specifications in the City’s request for proposal are in circumvention of not only the Public Bid Law requiring the contract to be awarded to the lowest responsible bidder, but also are in conflict with the state statute and departmental regulations authorizing the contract.

In reaching this conclusion, we are persuaded by the reasoning of our Supreme Court in Louisiana Associated General Contractors v. Calcasieu Parish School Board, 586 So.2d 1354 (La.1991), wherein the court ordered a permanent injunction prohibiting the School Board from including in its construction | gcontracts a requirement that contractors must pay prevailing wages. The Court found that including a prevailing wage rate requirement violated the Public Bid Law because the requirement was not a proper factor to consider in determining bidder responsibility and such a requirement would operate to restrict competition. The Court found that the prevailing wage requirement was a form of forbidden qualification, stating:

Absent statutory law authorizing the pre-qualification of bidders, we refuse to allow a public entity to engage in a process which eliminates certain bidders from competing before the bidding process ever begins.
Id., 586 So.2d at 1364.

In the present case, the ranking system operates to cause rejection of any bidder who does not qualify as the highest ranking bidder without regard to the monetary cost of the proposals submitted, and without a basis in the statute or the departmental regulations. The City has offered no evidence, either scientific, environmental or fiscal, to justify the implementation of the ranking system. The City has cited no provision in the statute or the DEQ regulations which authorizes the inclusion of the system in the bid specifications for this public work. The City had the burden to defend the use of its ranking system as the grounds for rejecting the apparent low bid — the City failed to do so.

We find that the City failed to show just cause for the rejection of the bid proposal submitted by River Road Construction, Inc. There is no valid basis upon which River Road’s bid was disqualified, and we find that the trial court erred in denying the preliminary injunction in this case. See Haughton Elevator Division v. State, Etc., 367 So.2d 1161, 1170 (La.1979).

CONCLUSION

For the reasons stated herein, the judgment of the trial court denying the | ipplaintiff a preliminary injunction is reversed, and the case is remanded to the district court with instructions that it issue a preliminary injunction restraining, enjoining and prohibiting the defendant, the City of New Orleans or any person acting on its behalf, from awarding the waste tire disposal contract at issue or any extensions thereto to any person, firm, or corporation other than the plaintiff, River Road Construction, Inc., the low bidder on the bid proposal, and enjoining and prohibiting the City of New Orleans from taking any further action or expending any funds in furtherance of any contract or any extensions thereof which may have been granted to any person, firm or corporation other than River Road Construction, Inc. In addition, we remand this case to the trial court for a hearing on plaintiffs application for writ of mandamus seeking a directive to the City of New Orleans to award the contract to River Road Construction, Inc.

WRIT GRANTED; JUDGMENT REVERSED; CASE REMANDED.

ARMSTRONG, J., dissents.

LANDRIEU, J., dissents with reasons.

liARMSTRONG, Judge,

dissents:

I would deny the writ on the showing made.

liLANDRIEU, Judge,

dissents with reasons.

I do not find that the priority ranking system used by the City in awarding the contract violated the State Public Bid Law or the Charter of the City of New Orleans.

In addition, the only matter before us is the denial of a preliminary prohibitory injunction by the trial court to enjoin the City from awarding the contract to Merrick Construction, Inc., which, by order of the trial court, was heard on verified pleadings and affidavits alone. The majority, however, in addition to reversing the trial court and ordering the trial court to issue a preliminary injunction prohibiting the City from awarding the contract to any bidder other than River Road Construction, Inc., also orders the trial court to suspend the contract if one has been let.

From a procedural standpoint, it is appropriate for the majority to order the trial court to issue a preliminary injunction as prayed for by River Road Construction, Inc. since the majority finds that a preliminary injunction should have been issued. It is inappropriate, however, for this court to expand the injunction beyond that which was prayed for without a hearing. Surely, the City, as well as the contractor, has a right to a hearing at the trial court level before the injunction prayed for is expanded to include a suspension of a contract already let and under which work is being performed.

If the plaintiff wishes to have the injunction broadened, it can petition the | atrial court to do so. There the rights of the respective parties can be considered and the prudence of suspending the contract measured. The supervisory powers of this court, as well as the right to an appeal, will still be available to an aggrieved party.

hAPPENDIX “A”

Cost of equipment $1,000,000

x .20

$ 200,000

Less other Louisiana credit on purchase $ 100,000

Maximum credit for all taxable periods $ 100,000

B. One-fifth (20 percent) of the maximum total credit related to a purchase of qualified recycling equipment is earned each taxable period in which the equipment continues to be in use exclusively in Louisiana to a maximum of five periods. Example:

Maximum credit for all taxable periods $ 100,000

x.20

Credit earned for this taxable period $ 20,000

ample: C. The maximum credit which may be claimed for all purchases of qualified recycling equipment, including carryover of previously earned but unused credits, in any taxable period shall not exceed 50 percent of the tax which would be otherwise due. Ex-

Tax otherwise due: Income tax Franchise tax 00 to oo o o o o

Total $ 30,000

x 150

Maximum credit to be claimed on return $ 15,000

D. Any unused credit for a taxable period in which a credit is earned may be carried forward to subsequent years until the credit is exhausted.

E. If the qualified recycling equipment is sold or exchanged before the entire credit is claimed, any unearned portion of the credit shall be canceled for all periods following the period of sale.

AUTHORITY NOTE: Promulgated in accordance with R.S. 47:6005.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of the Secretary, LR 18:842 (August 1992).

Chapter 105. Waste Tires

§ 10501. Purpose

The legislature finds that removal of certain materials from the solid waste stream going into landfills currently being utilized for the disposal of solid waste in Louisiana is necessary to protect our environment, prevent nuisances, protect the public health, safety, and welfare, extend the usable life of the facilities, aid in the conservation and recovery of valuable resources, and to conserve energy by efficient reuse of these products, thereby benefiting all citizens of the state.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:37 (January 1992).

§ 10503. Administration

This program shall be administered by the Solid Waste Division, Office of Solid and Hazardous Waste, Department of Environmental Quality.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:37 (January 1992).

§ 10505. Definitions

The following words, terms and phrases, when used in conjunction with the Solid Waste Rules and Regulations, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

Disease Vector — animals such as rodents, fleas, flies, mosquitoes and other arthropods that are capable of transmitting diseases to humans.

Disease Vector Control Plan — a plan developed to control the growth and spread of disease vectors. Such a plan shall conform to the appropriate guidelines and standards established by the Louisiana Department of Agriculture and the Department of Health and Hospitals.

End User — the purchaser of a new tire who will use the tire on a motor vehicle.

Facility — any land and appurtenances thereto used for storage, processing, recycling, and/or disposal of solid waste or tire material, but possibly consisting of one or more units. (Any earthen ditches leading to or from a facility that receive waste are considered part of the facility to which they connect; except ditches which are lined with materials which are capable of preventing groundwater contamination.)

Fleet Operator — any person, business or governmental entity that owns or operates fleets of trucks, taxicabs, buses, farm implements or other vehicles and who purchased tires to service all, or a portion, of his own tire needs and who in the |2course of his normal business activities generates 100 or more waste tires per calendar year.

Motor Vehicle — an automobile, motorcycle, truck, trailer, semi-trailer, truck-tractor and semi-trailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power; but the term does not include bicycles and mopeds.

Premises — a unit of land and/or buildings, or any portion thereof. Property shall be considered as contiguous parcels even if separated by a utility easement or road or railroad right of way.

Permit — a written authorization issued by the administrative authority to a person for the construction, installation, modification, operation, closure of facilities used or intended to be used to process, collect or transport waste tires in accordance with the Act, these regulations, and specified terms and conditions.

Permittee/Permit Holder — a person who is issued a permit and is responsible for meeting all conditions of the permit and these regulations at a facility.

Promiscuous Tire Pile — a pile of 10 or more waste tires that has resulted from disposal activities by anyone other than the landowner and whose operations are not permitted by the administrative authority.

Storage of Tire Material — the accumulation of tire material for recycling or reuse.

Tire — a continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle.

Tire Dealer — any person, business or firm that engages in the sale of new tires for use on motor vehicles.

Tire Disposal — to deposit and/or bury waste tires whole, sliced, cut, chipped, shredded, etc., as a method of ultimate disposal in a permitted solid waste disposal facility.

Tire Material — waste tires after processing; such as: chipped, shredded, cut or sliced tires, crumb rubber, steel cord, fiberglass, oil, carbon black, etc.

Tire Monofill Facility — a facility for the storage of tire material.

Tire Re-treading Facility — a facility that converts waste tires into useable tires.

Unauthorized Waste Tire Pile — a pile of 10 or more waste tires whose storage and/or disposal is not authorized by the administrative authority.

Waste Tire — a whole tire that is no longer suitable for its original purpose because of wear, damage, or defect.

Waste Tire Collection Center — a site where waste tires are collected from the public prior to being offered for recycling.

Waste Tire Collection Facility — a location where waste tires can be stored or collected for transport to a recycling facility or processor. A tire dealer shall not be considered a collection facility unless the dealer accepts tires from other dealers, or municipalities, and exceeds 1,500 tires collected on site at any one time.

Waste Tire Processing Facility — a site where equipment is used to cut, burn, or otherwise alter whole waste tires so that they are no longer whole.

Waste Tire Transporter — a person or company that transports waste tires.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:37 (January 1992).

§ 10507. Exemptions

The persons, facilities, or facility operations listed below are exempt from the requirements of these regulations. Any persons, facilities, or other entities subject to these regulations may petition the department for exemption from these regulations or certain portions thereof in accordance with LAC 33:VII.Subpart 1.

A. The collection or transportation of tires from individual residences as part of a collection contract is exempt if the tires are not commingled with other solid waste and delivered to a processing facility. The contract must be in place on the effective date of this Chapter in order to comply with this exemption. This exemption is in effect for the term of said contract and any extension authorized under this contract.

B. Vehicles that transport waste tires, need not be permitted as a “waste tire transporter”, if:

1. the vehicle contains five or less waste tires; or

2. the department determines that the person engaged in the transportation did not know such waste tire had been mixed or commingled with the solid waste, or determines that it is not economically and environmentally feasible to remove and recover the tires; or

3. the vehicle originated outside the boundaries of Louisiana and is destined for a point also outside the boundaries of Louisiana, provided no tires are loaded or unloaded within the boundaries of Louisiana.

C. Requirements for Other Exemptions:

1. written justification must be provided to the administrative authority for the type of exemption sought;

2. it must be demonstrated that because of the uniqueness of the particular situation, compliance with the identified provision would tend to impose an unreasonable economic or technical burden on the person or on the public safety; and

133. it must be demonstrated that the proposed exemption to the regulated activity will not adversely affect the environment, public health, safety, or welfare.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:38 (January 1992).

§ 10509. Prohibitions

A. After January 1, 1991, no person may knowingly or intentionally dispose of waste tires in a landfill within the boundaries of Louisiana.

B. After January 1, 1990, no person may store waste tires unless they are:

1. collected and stored at a tire dealer for the purpose of collecting a quantity large enough to economically transport to a collection or processing facility. If the quantity stored exceeds 1,500 tires the dealer must obtain a permit as a collection facility; or

2. collected and stored at a permitted waste tire collection facility; or

3. collected and stored at a permitted waste tire processing facility.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:38 (January 1992).

§ 10511. Permit System

A. Permit Requirements

1. Scope. Persons or businesses that collect, process, and/or transport waste tires must secure a permit and are subject to the requirements detailed in these regulations.'

2. Types of Permits

a.Temporary Permit. A permit that allows continued operation of an existing facility or transporter, in accordance with an approved interim operational plan; but does not allow the expansion or modification of the facility. The administrative authority may issue a temporary permit in the following situations:

i. to allow operations to continue at an existing facility while a standard permit application is being processed;

ii. to allow operations to continue at an existing facility while a closure plan is being processed or while a facility ⅛ being closed in accordance with a closure plan; or

iii.to allow an applicant for a permit for a proposed facility to begin construction and/or operation on a limited basis for good cause shown.

b.Standard Permit. A permit issued by the administrative authority to applicants of processing and/or collection facilities that have successfully completed the standard permit application process.

3.General Permit Provisions

a. Permit Duration. A standard permit issued under this Section shall be valid for five years (subject to renewal) from the date of issuance unless revoked. Applications for renewals shall be submitted at least 180 days prior to the date of expiration.

b. Transfer of Permit. Permits and decals issued pursuant to these regulations are assigned only to the permittee and cannot be transferred, sublet, leased, or assigned, without prior approval of the administrative authority.

c. Changes. It shall be the duty of each permittee to notify the department in writing within five working days of any significant change regarding the information in the permit.

B. Suspension or Revocation of Permit. The administrative authority may review a permit at any time. After review of a permit, the administrative authority may suspend or revoke a permit, in whole or in part, for cause in accordance with the law.

C. Permit Application Process

1. Notification Form. Collectors, Processors, and/or Transporters of waste tires shall, within 30 days after promulgation of these regulations, notify the department in writing of such activity. The notification form shall be obtained from the department. (See Appendix, Forms 1 and 2)

2. Permit Application. Within 180 days after receipt of the notification form, the department will perform an on-site investigation to verify facility classification. Based on the findings of the classification inspection, the facility will be issued either a temporary permit or an Order to Close. The issuance of a temporary permit requires that the fácility complete and submit to the department a formal permit application accompanied by the appropriate application fee. The temporary permit will allow the facility to operate under an approved operational plan until the standard permit application is either approved or denied. In no case will a temporary permit be issued for more than one year.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:38 (January 1992).

§ 10513. Standard Permit Application Form

A. Application for Permit

1. Each applicant requesting a permit pursuant to these regulations shall complete the standard application form |4designed for that classification, including, but not limited to the following information: (See Appendix)

a. the name of such person, business or organization;

b. the legal and business address and telephone number of the permittee and contact person, associated with the permittee;

c. the location of the business by Section, Township and Range;

d. a description of each vehicle which will be used by such applicant for the transport of waste tires including the make, model, year, license number and name of registered owner if different from that of the transporter.

2. Certification. The applicant must provide and sign legal certification that all information provided in the application is true and correct with the possibilities of punishment under the law for false information.

B. Supplementary Information for Collectors and Processors. The following information is required for all facilities that collect and/or process waste tires, and includes, but is not limited to, the following:

1. the type of processing the facility will perform, e.g., cutting, slicing, shredding, crumb rubber, pyrolysis, etc.;

2. the end use of the processed tire material, e.g., rubber, crumb rubber, steel, fiberglass, oil, carbon black, etc., will be used for tire derived fuel (TDF) to manufacture asphalt rubber, rubber mats, bumper guards, etc.;

3. an operational plan outlining facility access, security, operational contingency planning, safety, and disease vector control;

4. a closure plan outlining the closure of all waste tire storage areas, and the method of disposal of any waste tires or tire material on site;

5. evidence of general liability insurance in the amount of $1,000,000, proof of which must be submitted with the appropriate section of the standard application form. Evidence of this coverage shall be updated annually and provided to the department; and

6. a bond, bank letter of credit, or money security made payable upon default to the department into the Environmental Trust Fund. The bond amount will be an amount equal to $1 per whole tire and/or $1 per cubic yard of processed tire material on the site at the license renewal date. To ensure sufficient assets to cover facility closure, the minimum amount of the bond, bank letter of credit or money security shall be $5,000.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:39 (January 1992).

§ 10515. Waste Tire Fee System

Each licensed applicant shall submit a nonrefundable application fee in the amount specified, according to the categories listed below. The appropriate fee must accompany the permit application.

A. Permit Application Fee

1. Transporter — $100;

2. Collection Facility — $500; and

3. Processing Facility — $500 fee;

4. Modifications — $50.

B. Annual Monitor and Maintenance Fee

1. Transporters — $25/vehiele/year

2. Collection Facility — $100/year

3. Processing Facility — $100/year

C. Waste Tire Fee. A waste tire fee is hereby imposed on each new tire sold in Louisiana, to be collected by the tire dealer at the time of retail sale from the end user. The fee shall be $2 per tire.

1. The disposition of the fee shall be as follows:

a. $1 dollar shall be retained by the tire dealer to cover the costs of collection, transportation, processing and disposition of waste tires.

b. the remaining $1 will be forwarded to the department by the tire dealer and will be deposited in the Environmental Trust Fund. The money shall be designated for the administration of the waste tire recycling regulations and the cleanup of promiscuous tire piles.

2. Nothing herein shall prohibit a tire dealer from including disposal costs within the retail sales price of any tire.

AUTHORITY NOTE: Promulgated in accordance with R.S. 80:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:39 (January 1992).

§ 10517. Waste Tire Facility Standards

The following operational standards will govern all facilities that collect and/or process waste tires.

A.General Requirements

1. All waste tire facilities must have controlled access to the site through the use of fences, gates, or other means approved by the administrative authority.

2. Waste tires may be stored at a collection or processing facility using outside or inside storage or a combination of both methods.

153. All facilities shall control disease vectors through the use of a disease vector control plan and shall keep the site free of excessive grass, underbrush, or other harbor-age.

B. Outdoor Storage Requirements

1. Waste tire pile dimensions should not exceed: height-10 feet, width-20 feet, length-50 feet.

2. Fire Lanes

a. waste tire or tire material piles shall be separated by a minimum of 50 feet wide lanes to allow access by emergency vehicles and equipment.

b. Access lanes must be all-weather roads.

c. All facilities shall provide for on site fire control. Arrangements must also be made for site fire protection through immediate notification of local fire protection authorities and documentation of these arrangements must be included in the operational plan.

3. All storage sites shall maintain proper drainage away from the storage site.

C. Special Storage Requirements for Collecting/Processing Facilities

1. A waste tire facility may not accept any waste tires for collection or processing if it has reached its designated storage limit. The storage limit for a waste tire processing facility is 365 times the daily processing capacity of the processing facility. Records of a facility’s storage limit and the amount of tires in storage shall be maintained as documentation of the relevant amounts of waste tires and available to the department upon request.

2. The storage limit for a waste tire collection facility shall be as specified in the standard permit. At a minimum, 75 percent of the waste tires received annually by a waste tire collecting facility must be removed from the facility during that year’s operation.

3. If a facility fails to meet the requirements of LAC 33:VII.10517.C.2 for 24 months, it will be subject to the provisions of LAC 33:VII.10517.D.

D.Long Term Storage/Monofills

1. Tire processors may, if markets for their tire materials are not available, store waste tire material in chipped, shredded or other non-tire forms for extended periods but not to exceed five years.

2. Tire processors may store waste tire material in above ground piles or in monofills if:

a. the processor has no immediate market for the tire material but has reasonable belief that such markets will develop;

b. the processor shall provide the following:

i. a plan to control run-on/run-off of storm water;

ii. a disease vector control program, and;

iii. an emergency plan to prevent and/or respond to any fire or other event which may release pollutants or contaminants from such site.

c. the ultimate goal of the processor is to reclaim the tire material at a future date for processing of the rubber, steel and fiberglass, or of the original components of the tires; and

d. the processor submits within 24 months of the initiating of the storage an assessment plan to address the need for additional operational conditions, including but not limited to, the potential need for the permittee to provide a storage area liner system and leachate collection system.

e. the processor shows financial responsibility as defined in LAC 3S:VIL10513.B for ultimate cleanup, disposal and closing of the site, should no market develop within five years of receipt of the documented volume of material.

3. Permitted solid waste landfills may accept chipped, shredded, cut or sliced tire material.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:39 (January 1992).

§ 10519. Manifest and Reporting Requirements

A. A manifest showing the number of tires, the name of the tire dealer, transporter, transporter number and the name and number of the collection or processing facility shall accompany each shipment of waste tires. The manifest shall be a four part form in numerical sequence to be signed by all parties with designated copies for each tire dealer transporter and facility. (See Appendix, Form 3)

B. The tire dealer shall retain the tire dealer’s copy of the manifest; the transporter shall retain the transporter’s copy of the manifest; the collecting or processing facility shall retain the facility’s copy of the manifest and return the fourth copy of the manifest to the originating tire dealer within 30 days of the facility’s receipt of the waste tires.

C. No person or facility may accept waste tires for processing without a properly completed manifest as specified herein.

D. If waste tires are transported from a collection center, a new manifest must be originated until the waste tires reach a processing facility. In this event the processing facility shall return the fourth copy of the manifest to the collection facility.

E. Manifests shall be maintained by all parties for three years.

F. The manifest shall be maintained for audit by all parties who are required to sign it and shall be available for review during the regular business hours of the persons required to keep such records.

|;;G- No manifest is required for waste tires being transported to a tire retreading facility. Waste tire shipment of this nature must be accompanied by an invoice used in the normal course of business.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:40 (January 1992).

§ 10521. Specific Requirements and Responsibilities

A Responsibilities of Tire Dealers

1. All tire dealers must notify the department of their existence within 90 days of promulgation of these regulations and obtain a DEQ Identification Number. Notification shall be on forms provided by the department. (See Appendix, Form 4)

2. Tire dealers must accept one waste tire for every new tire sold, from the purchaser of the new tire, at the time of purchase, unless the purchaser requests permission to retain the waste tire.

3. Each tire dealer doing business in the State of Louisiana shall be responsible for the collection of the waste tire fee. Each tire dealer shall retain $1 of the $2 fee to assist in defraying costs of disposition. The tire dealer shall remit $1 of the fee to the department on a quarterly basis. (See Appendix, Form 5)

4. Tire dealers must provide notification to the public sector via signs, made available by the department, indicating that:

a. “It is unlawful for any person to dispose, discard, burn or otherwise release waste tires to the environment in a manner in contravention to the Louisiana Solid Waste Regulations. A fine of up to $25,000 per day per violation shall be imposed on any company, or individual, who violates these rules and regulations;”

b. “All Louisiana tire dealers are required to collect a waste tire cleanup and recycling fee of $2 per tire upon sale of each new tire;”

e. “This fee must be collected whether the purchaser retains the waste tires or leaves the waste tires with the dealer.”

d. “Tire dealers must accept one waste tire for every new tire sold, from the purchaser of the new tire, at the time of purchase, unless the purchaser elects to retain the waste tire.”

5. The waste tire fee shall be listed on a separate line of the retail sales invoice.

6. No tire dealer shall remove or allow to be removed waste tires from his property or business without a completed manifest.

7. Tire dealers must provide a cover adequate to exclude water from within the waste tires when stored outdoors, and provide for rodent control.

B. Responsibilities of Waste lire Transporters

1. Manifest Requirements

a. No transporter shall receive waste tires without a properly completed and signed waste tire manifest.

b. No transporter shall deliver tires to a collection or processing facility, without also delivering to the operator of the facility, the facility’s copy of the completed and signed manifest. The transporter shall obtain the signature of the agent for the collection and/or processing facility on the manifest and shall retain the transporter’s copy.

e. The transporter shall retain the transporter copy of the manifest for a period of three years. Transporters shall make these records available to the department upon request.

d. A transporter shall not transport any waste tires without having at all times, in the vehicle transporting such tires, a copy of the manifest for the tires.

e. Any waste tires manifested, but not delivered to a collection or processing facility, but delivered instead to a business for resale, must be noted on the manifest by the transporter or tire dealer.

2. Interstate Transport Manifest Requirements. Any person who engages in the transportation of waste tires from Louisiana to other states or countries or from other states to Louisiana, or persons who collect or transport waste tires in Louisiana but have their place of business in another state, shall comply with all of the requirements for transporters contained in LAC 33:VII.Chap-ter 7 of the Solid Waste Rules and Regulations.

3. Approved Disposition of Waste Tires. Transporters of waste tires shall deliver waste tires in Louisiana only to a permitted collection or processing facility unless the waste tires are delivered out of state.

4. Waste Tire Transporter Vehicle Standards. The type and size of vehicles shall comply with the regulations and licensing of the Department of Transportation and Development and with applicable local ordinances governing weight and size for the streets that must be traveled.

5. All transporters are subject to inspections by the department.

6. In addition to the state transporter’s permit, the department shall issue to the transporter, one decal for each truck, to be attached to the driver’s door of the truck.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:40 (January 1992).

_|t§ 10523. Responsibilities of Property Owners of Promiscuous Waste Tire Pile

A. Notification. The property owner of any promiscuous waste tire piles shall within 90 days after the effective date of these regulations provide the department with information concerning the location and the quantity of waste tires accumulated on the property. The form for reporting this information shall be secured from the department. (See Appendix, Form 6)

B. Cleanup of Promiscuous Waste Tire Pile. Property owners of promiscuous waste tire piles are responsible for the cleanup of all waste tires located on their property.

C. Disease Vector Control for Promiscuous Waste Tire Piles. Property owners of promiscuous waste tire piles are responsible for providing disease vector control measures adequate to protect the health and safety of the public.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:41 (January 1992).

§ 10525. Reports

A. All tire dealers shall submit, on forms available from the department, a quarterly report containing the number of new tires sold and remittance of $1 per tire sold. Reports are due within 30 days of the end of each quarter. (See Appendix, Form 5)

B. All collection and processing facilities shall submit an annual report on forms available from the department. The annual reports are due within 30 days of the end of each calendar year. (See Appendix, Form 7)

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:41 (January 1992).

§ 10527. Enforcement

A. Failure to Comply. Failure of any person to comply with any of the provisions of these regulations, or of the terms and conditions of any permit granted, or order issued, pursuant to law and hereunder, constitutes a violation of the Act.

B. Investigations: Purposes, Notice. Investigations shall be undertaken to determine whether a violation has occurred or is about to occur, the scope and nature of the violation, and the identity of the persons or parties involved. Upon written request, the results of an investigation shall be given to any complainant who provided the information prompting the investigation, and, if advisable, to the person(s) under investigation, if the identity of such person(s) is known.

C. Development of Facts, Reports. The administrative authority may conduct inquiries and develop facts through staff investigatory procedures, or formal investigations, and may conduct inspections and examinations of facilities and records. The administrative authority may hold public hearings and/or issue subpoenas pursuant to R.S. 30:2025.1 requiring attendance of witnesses and production of documents, or take such other action as may be necessary and authorized by the Act or rules promulgated by the administrative authority. At the conclusion of the investigation, all facts and information that have been developed concerning any cited violation shall be compiled by the staff of the department. A report of the investigation shall be presented to the administrative authority for use in possible enforcement proceedings.

D. Enforcement Action. When the administrative authority determines that a violation of the Act or these regulations, or the terms and conditions of any permit issued hereunder, has occurred or is about to occur, he or she shall initiate one or more of the actions set forth in R.S. 30:2025, or as otherwise provided by appropriate rules or statutes.

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2411-2422.

HISTORICAL NOTE: Promulgated by the Department of Environmental Quality, Office of Solid and Hazardous Waste, Solid Waste Division, LR 18:41 (January 1992).  