Firestone Polymers, L.L.C., Bridgestone Americas Tire Operations, L.L.C., Bridgestone Americas, Inc. v. The Louisiana Department of Environmental Quality, CITGO Petroleum Corporation, Occidental Chemical Corporation, and OXY USA, Inc. ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0308
FIRESTONE POLYMERS, L.L.C., BRIDGESTONE AMERICAS TIRE
OPERATIONS, L.L.C., AND BRIDGESTONE AMERICAS, INC.
VERSUS
THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, CITGO
PETROLEUM CORPORATION, OCCIDENTAL CHEMICAL CORPORATION
AND Oxy USA, INC.
JUDGMENT RENDERED: MAY 2 8 207n
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge • State of Louisiana
Docket No. C664790 • Section 25
The Honorable Wilson E. Fields, Judge Presiding
Anne Jordan Crochet ATTORNEYS FOR APPELLANTS
Timothy J. Poche PLAINTIFFS— Firestone Polymers, L.L. C.,
Baton Rouge, Louisiana Bridgestone Americas Tire Operations,
L.L. C., and Bridgestone Americas, Inc.
Perry M. Theriot ATTORNEYS FOR APPELLEE
Amber Litchfield DEFENDANT— The Louisiana Department
Ted R. Briyles of Environmental Quality
Oscar Magee
Baton Rouge, Louisiana
Patrick B. Reagin ATTORNEYS FOR APPELLEES
David W. Leefe DEFENDANTS— Citgo Petroleum
Louis E. Buatt Corporation, Occidental Chemical
Charles B. Wilmore Corporation, and Oxy USA, Inc.
Court C. VanTassell
New Orleans, Louisiana
ICI i j
J
1
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
1 Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana Supreme
Court.
2
WELCH, J.
The plaintiffs, Firestone Polymers, L.L.C. (" Firestone") and Bridgestone
Americas Tire Operations, L.L. C. (" BATO"),' and Bridgestone Americas, Inc.
Bridgestone"), appeal a trial court judgment sustaining the dilatory exceptions
raising the objections of prematurity filed by the defendants, Louisiana Department
of Environmental Quality (" DEQ"), CITGO Petroleum Corporation (" CITGO"),
and Occidental Chemical Corporation and Oxy USA, Inc. (" OXY") and dismissing
Firestone, BATO, and Bridgestone' s petition for declaratory judgment regarding
an administrative order for remedial action issued by DEQ to Firestone, BATO,
CITGO, and OXY. Because we find the issues raised in this proceeding are
rendered moot by our recent decision in Firestone Polymers, LLC and
Bridgestone Americas Tire Operations, LLC v. The Louisiana Department of
Environmental Quality, et al., 2019- 0283 ( La. App. 1St Cir. 11/ 15/ 19), _ So. 3d
writ denied, 2020- 0131 ( La. 3/ 9/ 20), So. 3d (" Firestone ( I)"), we
dismiss this appeal.
LEGAL BACKGROUND
Under the Louisiana Environmental Quality Act (" LEQA"), La. R.S.
30: 2001, et seq., DEQ is the primary agency in this state concerned with
environmental protection and regulation. La. R. S. 30: 2011( A)( 1). The Secretary
of DEQ has the power to issue such orders or determinations as may be necessary
to effectuate the purpose of the LEQA.' La. R. S. 30: 201 l( D)( 6). In Chapter 12 of
the LEQA ( i.e., La. R. S. 30: 2271- 2290), which is entitled " Liability for Hazardous
Substance Remedial Action," the legislature gave DEQ the power to identify
2 BATO was formerly known as Bridgestone Firestone North American Tire, L.L.C., which was
formerly known as Bridgestone/Firestone North American Tire, L.L.C. BATO is the successor
by merger to Bridgestone/ Firestone, Inc., which was formerly known as The Firestone Tire &
Rubber Co.
3 Under La. R.S. 30: 2025, the Secretary of the DEQ also has the authority to institute "[ a] ny civil
action" necessary to carry out the provisions of the LEQA.
3
locations where past hazardous substance discharges may have occurred, to
provide DEQ a mechanism to insure that the costs of remedial actions are borne by
those who contributed to the discharge, and to allow DEQ to respond as quickly as
possible to such discharges while retaining the right to institute legal actions
against those responsible for remedial costs. See La. R. S. 30: 2271( B); Firestone
I), 2019- 0283 at p. 6, So. 3d at citing Margone, L.L.C. v. Addison
Resources, Inc., 2004- 70 ( La. App. 3rd Cir. 12/ 15/ 04), 896 So.2d 113, 116- 117,
writ denied, 2005- 0139 ( La. 3/ 24/ 05), 896 So. 2d 1039.
When the Secretary of DEQ determines that a hazardous substance
discharge has occurred or is about to occur, which may present an imminent and
substantial danger to health or the environment, he shall make a written demand on
every responsible person who has participated in the discharge to undertake
remedial actions at the site or to pay the Secretary of DEQ for remedial action
costs. See La. R.S. 30: 2275( A); Firestone ( I), 2019- 0283 at p. 6, So. 3d at ,
citing Margone, L.L.C., 896 So. 2d at 117. The order for remedial action shall
prescribe a reasonable time for reply. If, after that time, the Secretary of DEQ
receives no reply or a refusal to comply with the demand, he shall institute a suit in
the district court of proper venue demanding that the defendants bear the remedial
costs at the site, or asking the court to issue an order that the site be closed, or any
other order necessary to abate, contain, or remove the hazard. La. R.S.
30: 2275( B)( 1). 4 An action filed under Chapter 12 of the LEQA must be
commenced within ten years from the date of the discovery of the discharge for
which remedial action must be undertaken, or three years from the date the
Secretary of DEQ issues the remediation order, whichever comes later. La. R.S.
30: 2276( H)( 1). In response to the Secretary of DEQ' s suit under Chapter 12 of
4 If a person fails to respond to a demand to undertake remedial action, the Secretary of DEQ
may take all actions authorized by the LEQA prior to filing suit for recovery. La. R.S.
30: 2275( C).
M
LEQA, a defendant may assert defenses to liability for hazardous substance
discharges, including the defenses set forth in La. R.S. 30: 2277. Firestone ( I),
2019- 0283 at pp. 7- 8 and 9, So. 3d at In addition, under certain
conditions, a person who has incurred remedial costs in responding to a discharge
or disposal of a substance covered by Chapter 12, without the need for an initial
demand by the Secretary of DEQ, may sue and recover remedial costs from any
person found by a court to be liable provided such person makes written demand
on the defendant prior to initiation of suit. See La. R.S. 30: 2276( G).
Separate from DEQ' s authority to issue remediation orders under Chapter 12
of the LEQA, DEQ can also take " enforcement actions" under Chapter 2- A of the
LEQA ( La. R.S. 30: 2050. 1- 2050. 31), which is entitled " Enforcement Procedure
and Judicial Review." Chapter 2- A of the LEQA does not define the term
enforcement action," but enforcement actions include compliance orders, penalty
assessments, permit suspensions, cease and desist orders, and settlements or
compromises. See La. R.S. 30: 2050. 1( C), 30: 2050. 2, 30: 2050. 3, 30: 2050. 7, and
30: 2050. 8. Enforcement actions do not include remediation orders. See Firestone
5
I), 2019- 0283 at pp. 8- 9, So. 3d at . Furthermore, under Chapter 2- A of
LEQA, a person having a real and actual interest in a matter may petition the
Secretary of DEQ for a declaratory ruling. See La. R. S. 30: 2050. 10. An aggrieved
person may appeal ( or seek judicial review of) a final permit action, a final
enforcement action, or a declaratory ruling to the 19" Judicial District Court under
La. R.S. 30: 2050. 21. However, since there exists a specific procedure in Chapter
12 of LEQA to challenge a remediation order, the appellate provisions of Chapter
2- A of LEQA ( i.e., the provisions for judicial review of final enforcement actions,
5 However, the failure to respond to a remediation order could result in an enforcement action.
See La. R. S. 30: 2275( C).
5
declaratory rulings, and final permit actions), do not apply to remediation orders.
See Firestone (I), 2019- 0283 at pp. 8- 9, So. 3d at
FACTUAL AND PROCEDURAL BACKGROUND
Firestone is the current owner and operator of a synthetic rubber
manufacturing facility located near Sulphur, Louisiana (" the Firestone facility").
BATO was the owner and operator of the Firestone facility from approximately
1955 through November 2001. The Firestone facility and industrial facilities
owned and operated by CITGO and OXY are located on ( or in the vicinity of)
Bayou d' Inde and a ditch or channel and associated wetlands ( the " common
channel"); they each discharge water into the common channel and/ or Bayou
d' Inde.
In 2003, a United States Environmental Protection Agency contractor issued
a report indicating that Bayou d' Inde was being impacted by hazardous releases.
Although CITGO and OXY agreed to participate in remediation efforts, Firestone
claimed that its discharge into Bayou d' Inde was minimal and refused to join a
collective remediation venture. In a September 22, 2004 letter, DEQ demanded
that BAT06 participate in the remediation of Bayou d' Inde or pay the cost of the
remedial action and that it reimburse DEQ for the costs it incurred. After
discussions with DEQ, Firestone responded by denying liability for the
contamination.
In a November 28, 2006 letter, DEQ again demanded that Firestone
participate in the remediation of Bayou d' Inde and the common channel or pay the
cost of remedial action. DEQ' s 2006 demand was based on samplings taken in
2005 showing that polychlorinated biphenyls ( PCBs) were present in the common
channel. After discussions with DEQ, Firestone responded by denying liability for
6 The 2004 DEQ demand was issued to Bridgestone/ Firestone North America Tire, L.L.C. See
footnote 2.
contamination of Bayou d' Inde or the common channel. Notably, both DEQ' s
2004 and 2006 demands were made pursuant to Chapter 12 of the LEQA, i.e., La.
R.S. 30: 2275. Further, there is no dispute that DEQ did not file suit under La. R.S.
30: 2275( B) after its 2004 or 2006 demands for Firestone/BATO to participate in
the remediation of Bayou d' Inde and the common channel.
Almost ten years later, in a July 14, 2016 letter, DEQ again demanded,
pursuant to La. R.S. 30: 2275, that Firestone, CITGO, and OXY participate in the
remediation of Bayou d' Inde and the common channel or pay the cost of
remediation. Firestone again denied liability. Thereafter, on November 29, 2017,
DEQ issued an Administrative Order for Remedial Action (" Remediation Order")
to Firestone, CITGO, and OXY addressing the " final investigation and
remediation" of Bayou d' Inde and the common channel. The Remediation Order
deemed Firestone, CITGO, and OXY to be responsible parties and contributing
sources to the contamination in Bayou d' Inde and ordered them to participate in its
remediation. Specifically, as to Firestone, whom DEQ noted was the only non-
participating responsible party, the Remediation Order stated that "[ t] o the extent
that the discharge of PCBs from Firestone' s facility has contributed to the
contamination of Bayou d' Inde Area A, [ Firestone] is ordered to participate in its
remediation." The Remediation Order stated: that it was issued under the authority
of La. R.S. 30: 2001, et seq., particularly La. R.S. 30: 2011( D)( 6) and ( 14), La. R.S.
30: 2273, and 30: 2275; that the Remediation Order " shall serve as an enforceable
document"; that unauthorized noncompliance with the Remediation Order' s terms
constitute[ d] [ a] violation of La. R.S. 30: Chapter 12"; and that such violation
would be considered " grounds for enforcement actions, including, but not limited
to, [ c] ompliance [ o] rders and [ p] enalties." Thereafter, on December 22, 2017,
7
CITGO/ OXY made written demand on Firestone, BATO, and Bridgestone' for
remedial costs pursuant to La. R.S 30: 2276( G).
In response to DEQ' s Remediation Order, Firestone/ BATO ( as the current
and former owners and operators of the Firestone facility), filed three separate
actions in the 19th Judicial District Court: ( 1) a petition for declaratory judgment,
the instant proceeding, which is the subject of this appeal and discussed
hereinafter);' ( 2) a petition seeking judicial review of the Remediation Order
under LEQA and/ or the Louisiana Administrative Procedure Act (" LAPA"), La.
R.S. 49: 950, et seq. ( the proceedings in Firestone ( I), which are also discussed
hereinafter)9; and ( 3) a petition for de novo review under the LEQA, which
Firestone/ BATO filed after DEQ denied its request for an administrative hearing to
address the Remediation Order."
In the instant petition for declaratory judgment, Firestone, BATO, and
Bridgestone sought a declaration that the Remediation Order was issued in
violation of and was barred, prescribed, and/ or prohibited under La. R. S.
30: 2276( H)" because the disposal or discharge for which remedial action was
demanded was discovered more than ten years prior to the Remediation Order and
CITGO/ OXY' s La. R.S. 30: 2276( G) demand. Thus, they contend DEQ, CITGO,
7 Bridgestone alleged it never owned or operated the Firestone facility, but it alleged that
CITGO/ OXY' s demand for payment of a portion of their remediation costs was directed to it.
8 Bridgestone is plaintiff in the instant action, but was not a party to Firestone (I).
9 Firestone/ BATO filed a supervisory writ application seeking a stay of the Remediation Order
during the pendency of the appeal in Firestone ( I), which this court denied. See Firestone
Polymers, LLC Tire Operations, LLC v. The Louisiana
and Bridgestone Americas
Department of Environmental Quality, 2018- 1791 ( La. App. 1St Cir. 2111/ 19)( unpublished
writ action).
to Neither the record nor the appellate briefs herein disclose the status of Firestone/ BATO' s
petition for de novo review.
As previously set forth, La. R.S. 30: 2276( H)( 1) provides that no action shall be commenced
under Chapter 12 of LEQA unless it is commenced within ten years from the date of the
discovery of the disposal or discharge for which remedial action must be undertaken or three
years from the date that the Secretary of DEQ issues an order requiring remedial action be
undertaken, whichever comes later.
E
and OXY should be barred from instituting any action against Firestone, BATO,
and Bridgestone to enforce potential obligations and responsibilities under La. R. S.
30: 2275 for matters that were the subject of the Remediation Order. Alternatively,
Firestone, BATO, and Bridgestone sought a declaration that DEQ was prohibited
from issuing and enforcing the Remediation Order as a means to enforce potential
obligations and responsibilities under La. R.S. 30: 2271, et seq. and could only do
so through the procedures set forth in La. R. S. 30: 2275, and that the Remediation
Order was made by DEQ in excess of its statutory authority. And, in the further
alternative, Firestone, BATO, and Bridgestone sought a declaration that the
Remediation Order violated Firestone, BATO, and Bridgestone' s constitutional
right to due process because it was issued without notice and an opportunity for a
hearing.
In response to the petition for declaratory judgment, CITGO/ OXY filed a
dilatory exception raising the objection of prematurity and a peremptory exception
raising the objection of no right of action. Therein, CITGO/ OXY maintained that
Firestone, BATO, and Bridgestone had no right to declaratory relief relating to the
Remediation Order because LAPA and LEQA, i.e., Chapter 2- A, provided a
procedure for both declaratory relief and judicial review of an agency action to the
187212
exclusion of La. C. C. P. arts. 1871 and and Firestone, BATO, and
12 Louisiana Code of Civil Procedure article 1871 provides:
Courts of record within their respective jurisdictions may declare rights, status,
and other legal relations whether or not further relief is or could be claimed. No
action or proceeding shall be open to objection on the ground that a declaratory
judgment or decree is prayed for; and the existence of another adequate remedy
does not preclude a judgment for declaratory relief in cases where it is
appropriate. The declaration shall have the force and effect of a final judgment or
decree.
In addition, La. C. C. P. art. 1872 provides:
A person interested under a deed, will, written contract or other writing
constituting a contract, or whose rights, status, or other legal relations are affected
by a statute, municipal ordinance, contract or franchise, may have determined any
question of construction or validity arising under the instrument, statute,
M
Bridgestone had failed to exhaust those administrative remedies. 13 In addition,
CITGO/ OXY maintained that Firestone, BATO, and Bridgestone had no valid
constitutional claim or claim of ultra vires action by DEQ because the
Remediation Order itself neither infringed on constitutional rights nor constituted
an ultra vires act because it was issued pursuant to DEQ' s statutory authority, i.e.,
La. R.S. 30: 2011( D)( 5), and it was neither a compliance order nor a penalty
assessment.
In addition, DEQ filed a dilatory exception raising the objection of
prematurity, maintaining that Firestone, BATO, and Bridgestone' s action was
premature because DEQ had not filed an action to enforce the Remediation Order
pursuant to La. R.S. 30: 2275.
Firestone, BATO, and Bridgestone opposed the exceptions, and after a
hearing, the trial court sustained the objections of prematurity on the basis that: ( 1)
Firestone, BATO, and Bridgestone were required to obtain a declaratory ruling
exclusively from DEQ and/ or were required to first obtain a declaratory ruling
from DEQ before seeking a judicial declaration, and ( 2) there was no justiciable
controversy. On December 3, 2018, the trial court signed a judgment that
sustained the objections of prematurity filed by DEQ and CITGO/ OXY and
dismissed Firestone, BATO, and Bridgestone' s petition for declaratory judgment,
and it is from this judgment that Firestone, BATO, and Bridgestone have appealed.
While this appeal was pending, in April 2019, DEQ filed suit under La. R.S.
30: 2275( B) in the Fourteenth Judicial District Court for the Parish of Calcasieu,
pursuant to its July 2016 demand and the Remediation Order ( the " 10 JDC suit").
See Firestone ( I), 2019- 0283 at p. 8 n. 8.
ordinance, contract, or franchise and obtain a declaration of rights, status, or other
legal relations thereunder.
13 But c. f. Firestone ( I), 2019- 0283 at p. 4 and pp.8- 9 ( wherein CITGO/ OXY argued that the
Remediation Order was merely an administrative preliminary step and did not constitute a LEQA
final enforcement action nor a LAPA final decision order that was subject to judicial review, as
well as this Court' s determination that the Remediation Order was not appealable under or
otherwise subject to the enforcement and judicial review provisions of Chapter 2- A of LEQA.
10
JURISDICTION AND MOOTNESS
An appellate court has a duty to examine subject matter jurisdiction sua
sponte, even when the issue is not raised by the litigants. Swanson v. Department
of Public Safety and Corrections, 2001- 1066 ( La. App. 1St Cir. 6/ 21/ 02), 837
So. 2d 634, 636. A court' s subject matter jurisdiction cannot be waived or
conferred by consent of the parties. Williams v. International Offshore Services,
L.L.C., 2011- 1240, 2011- 1318, 2011- 1369 ( La. App. 1St Cir. 12/ 7/ 12), 106 So. 3d
212, 217, writ denied, 2013- 0259 ( La. 3/ 8/ 13), 109 So. 3d 367.
It is well settled that courts will not decide abstract, hypothetical, or moot
controversies, or render advisory opinions with respect to controversies. Joseph v.
Ratcliff, 2010- 1342 ( La. App. 1St Cir. 3/ 25/ 11), 63 So. 3d 220, 225. Cases
submitted for adjudication must be justiciable, ripe for decision, and not brought
prematurely. A "justiciable controversy" is one presenting an existing actual and
substantial dispute involving the legal relations of parties who have real adverse
interests and upon whom the judgment of the court may effectively operate
through a decree of conclusive character. A " justiciable controversy" is thus
distinguished from one that is hypothetical or abstract, academic, or moot. City of
Hammond v. Parish of Tangipahoa, 2007- 0574 ( La. App. 1St Cir. 3/ 26/ 08), 985
So. 2d 171, 178.
An issue is moot when a judgment or decree on that issue has been
deprived of practical significance" or " made abstract or purely academic." Thus,
a case is moot when a rendered judgment or decree can serve no useful purpose
and give no practical relief or effect. City of Hammond, 985 So. 2d at 178. If the
case is moot, there is no subject matter on which the judgment of the court can
operate. Joseph, 63 So. 3d at 225. Thus, jurisdiction, once established, may abate
if the case becomes moot, as the controversy must normally exist at every stage of
the proceeding, including appellate stages. City of Hammond, 985 So. 2d at 178,
11
citing Cat' s Meow, Inc. v. City of New Orleans, Department of Finance, 98-
0601 ( La. 10/ 20/ 98), 720 So. 2d 1186, 1193. In other words, even though the
requirements of justiciability are satisfied when the suit is initially filed, when the
fulfillment of these requirements lapses at some point during the course of
litigation before the moment of final disposition, mootness occurs. In such a case,
there may no longer be an actual controversy for the court to address, and any
judicial pronouncement on the matter would be an impermissible advisory opinion.
See City of Hammond, 985 So. 2d at 178, citing Cat' s Meow, Inc., 720 So. 2d at
1193- 1194.
A court must refuse to entertain an action for a declaration of rights if the
issue presented is academic, theoretical, or based on a contingency that may or
may not arise. American Waste & Pollution Control Company v. St. Martin
Parish Police Jury, 627 So. 2d 158, 162 ( La. 1993). Nor is a court required to
decide moot questions or abstract propositions, or to declare, for the government of
future cases, principles or rules of law that cannot affect the result as to the thing in
issue in the case before it. Council of City of New Orleans v. Sewerage and
Water Board of New Orleans, 2006- 1989 ( La. 4/ 11/ 07), 953 So. 2d 798, 802 (per
curiam).
As previously set forth, in the petition for declaratory judgment, Firestone,
BATO, and Bridgestone sought a declaration that the Remediation Order was
issued in violation of and was barred, prescribed, and/ or prohibited under La. R.S.
30: 2276( H), 14 because the disposal or discharge for which remedial action was
demanded was discovered more than ten years prior to the Remediation Order and
CITGO/ OXY' s La. R. S. 30: 2276( G) demand. Thus, they contended DEQ,
CITGO, and OXY should be barred from instituting any action against Firestone,
BATO, and Bridgestone to enforce potential obligations and responsibilities under
14 See footnote 11.
12
La. R. S. 30: 2275 for matters that were the subject of the Remediation Order. In
the alternative, Firestone, BATO, and Bridgestone sought a declaration that DEQ
was prohibited from issuing and enforcing the Remediation Order as a means to
enforce potential obligations and responsibilities under La. R.S. 30: 2271, et seq.
and could only do so through the procedures set forth in La. R.S. 30: 2275 and that
the Remediation Order was made by DEQ in excess of its statutory authority. And
in the further alternative, Firestone, BATO, and Bridgestone sought a declaration
that the Remediation Order violated Firestone, BATO, Bridgestone' s constitutional
right to due process because it was issued without notice and an opportunity for a
hearing.
In Firestone ( I), this Court addressed Firestone/ BATO' s petition seeking
judicial review of the Remediation Order under LEQA and/ or LAPA. Therein, in
response to the petition, both DEQ and CITGO/ OXY filed declinatory exceptions
raising the objection of lack of subject matter jurisdiction, claiming that the
Remediation Order was merely an administrative " preliminary step" and did not
constitute a LEQA final enforcement action or a LAPA final decision or order.
The trial court sustained the objections and on appeal, this Court held that the trial
court correctly determined that it lacked subject matter jurisdiction. In doing so,
this Court found that:
the specific statutory procedure provided in [ Chapter 12 of LEQA]
implies a legislative intent that the suit filed under La. R.S.
30: 2275[( B)]
is the appropriate means by which Firestone/ BATO is to
challenge the DEQ Remediation Order. Thus, although the DEQ
Remediation Order states that it is " an enforceable document," its
terms are indeed not enforceable against Firestone/ BATO until after
DEQ files the suit required in La. R.S. 30: 2275[( B)], and that suit has
been tried. Further, despite the Remediation Order' s extensive
Findings of Fact" and ominous statement that unauthorized non-
compliance with its terms would constitute a violation of [Chapter 12
of LEQA], none of DEQ' s characterizations or factual assertions are
binding on Firestone/ BATO nor are they due deference by the district
court at the trial held under La. R.S. 30: 2276.
Rather, in the La. R.S. 30: 2276 trial, as an exercise of its
13
original jurisdiction, the district court will be the tribunal where the
initial adjudication is made regarding: ( 1) whether Firestone/ BATO is
liable to the State for remedial action ( La. R.S. 30: 2276[( A)]); and,
only if so, ( 2) the proportionate contribution of remedial costs and/ or
penalties for which Firestone/ BATO is liable based on evidence
presented to the court ( La. R.S. 30: 2276[( C)] through 30: 2276[( F)]).
Before the district court can decide these factual matters, DEQ will
have the opportunity to present evidence that Firestone/BATO is liable
under La. R.S. 30: 2276, and Firestone/ BATO will have the
opportunity to present defenses to the suit as provided in La. R.S.
30: 2277.
As to Firestone/ BATO' s claim that the Remediation Order deprives
Firestone/ BATO of constitutionally protected property interests],
a] s discussed above, the DEQ Remediation Order is not binding on
Firestone/ BATO, because the district court has not made a
determination under La. R.S. 30: 2276 that Firestone/ BATO is liable
for remediation costs. Thus, the non-binding DEQ Remediation Order
cannot deprive Firestone/ BATO of any constitutionally protected
property interest ....
Firestone (I), 2019- 0283 at p. 8, So. 3d at ( footnote omitted).
In this action, regardless of the propriety of the trial court' s ruling sustaining
the objection of prematurity, given this Court' s pronouncements in Firestone ( I),
we find the petition for declaratory judgment is moot because the relief requested
by Firestone, BATO, and Bridgestone was either addressed in Firestone ( I) or a
judgment in these proceedings would have no practical relief or effect for the
parties, and thus, would be an impermissible advisory opinion. More specifically,
as to Firestone, BATO, Bridgestone' s request for a declaration that the
Remediation Order was barred, prescribed, and/ or prohibited because the disposal
or discharge for which remedial action was demanded was discovered more than
ten years prior to the Remediation Order and CITGO/ OXY' s demand, we find this
raises the issue or the defense of prescription to a suit brought under La. R.S.
30: 2275( B). See La. R.S. 30: 2276( H)( 1). As this Court stated in Firestone ( I),
2019- 0283 at p. 9, So. 3d at , the trial court presiding over the La. R.S.
30: 2276 suit, i.e,. the Fourteenth Judicial District Court suit, will be the tribunal
14
where initial adjudications will be made regarding liability, including any defenses
to the suit which Firestone, BATO, and Bridgestone will have. Any defense to the
suit would include the defense of prescription. Thus, we find that any declaration
or judgment in these proceedings as to the issue or defense of prescription would
have no practical effect, because the trial court in the Fourteenth Judicial District
Court suit is entitled to adjudicate that issue anew and a judgment in these
proceedings would not be owed any deference, be binding, or constitute law of the
WIR - a
Next, insofar as Firestone, BATO, and Bridgestone sought, in the alternative,
a declaration that DEQ was prohibited from issuing and enforcing the Remediation
Order, that it could only do so through the procedures set forth in La. R.S. 30: 2275,
and that the Remediation Order was made by DEQ in excess of its statutory
authority, this Court specifically held in Firestone ( I) that the Remediation Order
was not enforceable against Firestone/ BATO until after DEQ has filed the suit
required by La. R.S. 30: 2275( B) and was successful in the trial of that suit.
Firestone ( I), 2019- 0283 at p.9, So. 3d at . Lastly, to the extent Firestone,
BATO, and Bridgestone sought a declaration that the Remediation Order violated
Firestone, BATO, and Bridgestone' s constitutional right to due process because it
was issued without notice and an opportunity for a hearing, in Firestone ( I), 2019-
0283 at p. 9, this Court determined that the non-binding Remediation Order could
not deprive Firestone/ BATO of any constitutionally protected interest because
there had been no determination that Firestone/ BATO was liable for remediation
costs. Accordingly, we find the issues raised in this proceeding are moot.
Therefore, we dismiss this appeal for lack of jurisdiction.
CONCLUSION
For all of the above and foregoing reasons, the appeal of the December 3,
2018 judgment of the trial court sustaining the dilatory exceptions raising the
15
objection of prematurity and dismissing the petition for declaratory judgment filed
by Firestone Polymers, L.L.C., Bridgestone Americas Tire Operations, L.L.C., and
Bridgestone Americas, Inc., is dismissed as moot.
All costs of this appeal in the amount of $ 1, 686. 50 are assessed equally
between the defendants, Louisiana Department of Environmental Quality, CITGO
Petroleum Corporation, Occidental Chemical Corporation, and Oxy USA, Inc.
APPEAL DISMISSED AS MOOT.
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