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Firestone Polymers, LLC v. Louisiana Department of Environmental Quality

Court of Appeals of Louisiana, First Circuit

November 15, 2019

FIRESTONE POLYMERS, LLC, AND BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC
v.
THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, ET AL.

          APPEALED FROM THE / 19th JUDICIAL DISTRICT COURT (J EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 664, 874, SECTION 25 HONORABLE WILSON E. FIELDS, JUDGE

          Anne J. Crochet Timothy J. Poche Baton Rouge, Louisiana Attorneys for Plaintiffs/ Appellants Firestone Polymers, LLC, and Bridgestone Americas Tire Operations, LLC

          David W. Leefe Louis E. Buatt Charles B. Wilmore Court C. VanTassell New Orleans, Louisiana Attorneys for Defendants/ Appellees CITGO Petroleum Corporation, Occidental Chemical Corporation, and OXY USA, Inc.

          Herman Robinson Perry M. Theriot Rodney Barnes Oscar Magee Baton Rouge, Louisiana Attorneys for Defendant/ Appellee Louisiana Department of Environmental Quality

          BEFORE: MCDONALD, THERIOT, and CHUTZ, JJ.

          Mcdonald, j.

         The former and current owners of a rubber manufacturing facility filed a petition for judicial review in the district court challenging a Department of Environmental Quality remediation order finding, among other things, that the owners were partially responsible for remediation of a bayou near their facility and ordering them to take specified action. The district court determined it had no subject matter jurisdiction to review the remediation order and dismissed the owners' petition. The owners appealed the adverse judgment. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Firestone Polymers, LLC, CITGO Petroleum Corporation, Occidental Chemical Corporation, and OXY USA, Inc. own and/or operate facilities that discharge water into Bayou d'Inde, a nine-mile long bayou located west of Lake Charles, Louisiana. 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, Occidental, and Oxy (CTTGO/Oxy), as well as other entities not involved here, apparently agreed to participate in remediation efforts, Firestone claimed its discharge into Bayou d'Inde was minimal and refused to join a collective remediation venture. In a September 22, 2004 letter citing La. R.S. 30:2275, DEQ demanded that Firestone participate in the remediation of Bayou d'Inde and reimburse DEQ for costs incurred. After discussions with DEQ, Firestone responded by denying liability for the contamination.

         In a November 28, 2006 letter citing La. R.S. 30:2275, DEQ again demanded that Firestone[1] participate in the Bayou d'Inde remediation, as well as the remediation of a ditch by which Firestone's discharge traveled to Bayou d'Inde (Firestone ditch), and again sought reimbursement of costs. DEQ's 2006 demand was apparently based on samplings taken in 2005 showing that polychlorinated biphenyls (PCBs) were present in the Firestone ditch. After discussions with DEQ, Firestone responded by denying liability for contamination of Bayou d'Inde or the Firestone ditch.

         Almost ten years after its 2006 demand, DEQ again demanded, in a July 14, 2016 letter citing La. R.S. 30:2275, that Firestone and CITGO/Oxy participate in the remediation of Bayou d'Inde and the Firestone ditch and again sought reimbursement for costs. Firestone again denied liability.

         On November 29, 2017, DEQ issued an Administrative Order for Remedial Action (DEQ Remediation Order) to Firestone and CITGO/Oxy addressing "final investigation and remediation" of Bayou d'Inde and the Firestone ditch. The DEQ Remediation Order stated that it "shall serve as an enforceable document"; made extensive purported "Findings of Fact" and then deemed Firestone and CITGO/Oxy to be responsible parties and contributing sources to the contamination in Bayou d'Inde; and "compel[led]" Firestone to participate in the bayou's remediation. The DEQ Remediation Order stated that unauthorized noncompliance with its terms would constitute a violation of La. R.S. Title 30, Chapter 12: Liability for Hazardous Substance Remedial Action; and, such violation would be considered grounds for enforcement actions, including, but not limited to, compliance orders and penalties.

         In response to the DEQ Remediation Order, Firestone and Bridgestone Americas Tire Operations, LLC (Firestone/BATO), as current and former owners of the Firestone facility, filed three actions in the 19th Judicial District Court: (1) a petition for declaratory judgment essentially seeking a declaration that the DEQ Remediation Order violated the Louisiana Environmental Quality Act (LEQA), La. R.S. 30:2001, et seq.; (2) a petition seeking judicial review of DEQ's Remediation Order, under the LEQA and/or the Louisiana Administrative Procedure Act (LAPA), La. R.S. 49:950, et seq.; 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.[2]

         The subject of this appeal is Firestone/BATO's petition for judicial review of the DEQ Remediation Order. DEQ and CITGO/Oxy both filed declinatory exceptions objecting to the trial court's subject matter jurisdiction to review the DEQ Remediation Order. Firestone/BATO opposed the exceptions, and after a hearing, the district court signed a judgment on December 3, 2018, granting the exceptions and dismissing Firestone/BATO's petition for judicial review. Firestone/BATO filed a writ application seeking a stay of the DEQ Remediation Order pending this appeal, which this court denied. Firestone Polymers, LLCand ...


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