Firestone Polymers, LLC and Bridgestone Americas Tire Operations, LLC. v. The Louisiana Department of Environmental Quality

• Court: Louisiana Court of Appeal
• Decided: November 15, 2019
• Docket: 2019CA0283
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2019 CA 0283

FIRESTONE POLYMERS, LLC, AND BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC

VERSUS

THE LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, ET AL.

Decision Rendered: NOV 1 5 2019

APPEALED FROM THE 19th JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER 664, 874, SECTION 25

HONORABLE WILSON E. FIELDS, JUDGE

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

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

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

BEFORE: McDONALD, THERIOT, and CHUTZ, 31. 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

CITGO/ 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' 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

I Both the 2004 and 2006 DEQ demands referenced above were issued to Bridgestone/ Firestone North American Tire Company, LLC.

K 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

z Firestone/ BATO asserts that the trial court granted DEQ and CITGO/ Oxy' s exceptions of prematurity in the declaratory judgment action, dismissed its petition, and that its appeal from that judgment is currently pending before this court under our docket number 2019 CA 0308. The status of Firestone/ BATO' s petition for de novo review is unknown. Although we conclude here that the trial court correctly found it did not have appellate subject matter jurisdiction under La. R. S. 30: 2050. 21, we do not address whether the trial court had original subject matter jurisdiction in Firestone/ BATO' s declaratory judgment suit or its suit seeking de novo review.

3 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, LLC

and Bridgestone Americas Tire Operations, LLC v. The Louisiana Department of

Environmental Quality, 18- 1791 ( La. App. 1 Cir. 2/ 11/ 19), 2019 WL 519883 ( unpublished writ

action).

On appeal, Firestone/ BATO contends the district court erred in granting the exceptions

of lack of subject matter jurisdiction. 3 It claims the district court had appellate jurisdiction to

review the DEQ Remediation Order: ( 1) as a DEQ ""final enforcement action" under the LEQA,

and, alternatively, ( 2) as a DEQ ""final decision or order" under the LAPA. In opposition, DEQ

and CITGO/ Oxy both contend the district court properly granted the exceptions, because the

DEQ Remediation Order is merely an administrative ' preliminary step" and does not

constitute a LEQA final enforcement action nor a LAPA final decision or order, subject to

judicial review.

SUBJECT MATTER JURISDICTION AND STANDARD OF REVIEW

Subject matter jurisdiction is the legal power and authority of a court to hear and

determine a particular class of actions or proceedings, based upon the object of the demand,

the amount in dispute, or the value of the right asserted. La. C. C. P. art. 2. Subject matter

jurisdiction is created by the constitution or by legislative enactment; the parties cannot

confer or waive it. See La. C. C. P. art. 3; McCann v. McCann, 11- 2434 ( La. 5/ 8/ 12), 93 So. 3d

544, 547. Generally, a district court shall have original jurisdiction over all civil and criminal

matters and shall have appellate jurisdiction as provided by law. La. Const. art. V, § 16. The

grant of original jurisdiction refers to judicial adjudications in the first instance and designates

the adjudicative tribunal in which the initial adjudication is made. Louisiana Environmental

Action Network v. Louisiana Department of Environmental Quality, 11- 1935 ( La. App. 1 Cir.

7/ 25/ 12), 97 So. 3d 1148, 1150. Conversely, the grant of appellate jurisdiction is limited, and

district courts have appellate jurisdiction only as expressly provided by the constitution or a

3 CITGO/ Oxy also filed a dilatory exception of prematurity in the instant suit, which the trial court granted in the December 3, 2018 judgment. On appeal, Firestone/ BATO challenges the judgment insofar as it grants both exceptions. Based on our affirmance of the district court' s judgment based on a lack of subject matter jurisdiction, we need not address the prematurity exception. 4 statute. See Id., 97 So. 3d at 1151. Further, the existence of a specific statutory procedure

generally implies a legislative intent that the special statutory procedure be the exclusive

means of obtaining judicial review in the situations to which it applies. Id., 97 So. 3d at 1151;

see also Quatrevingt v. State through Landry, 17- 0884 ( La. App. 1 Cir. 2/ 8/ 18), 242 So. 3d

625, 636, writ denied, 18- 0391 ( La. 4/ 27/ 18), 239 So. 3d 837.

An objection of no subject matter jurisdiction is raised by a declinatory exception. La.

C. C. P. art. 925A( 6). At the hearing on the declinatory exception, evidence may be

introduced to support or controvert the objection, when the grounds thereof do not appear

from the petition. See La. C. C. P. art. 930. Here, Firestone/ BATO introduced evidence at the

exception hearing. Neither DEQ nor CITGO/ Oxy introduced evidence at the exception

hearing. Thus, on review, we consider the factual allegations of Firestone/ BATO' s petition

and the four exhibits Firestone/ BATO introduced. 4 We do not consider attachments to any

party' s memoranda, because evidence not properly introduced shall not be considered, even

if it is physically placed in the record. See Beasley v. Nezi, LLC, 16- 1080 ( La. App. 1 Cir.

9/ 8/ 17), 227 So. 3d 308, 312 n. 1; Park W. Children' s Fund, Inc. v. Trinity Broad. Network,

Inc., 13- 444 ( La. App. 3 Cir. 10/ 16/ 13), 156 So. 3d 682, 686. When evidence is introduced at

the hearing on an objection of no subject matter jurisdiction, relevant factual findings are

governed by the manifest error standard of review. Barringer v. Robertson, 15- 0698 ( La.

App. 1 Cir. 12/ 2/ 15), 216 So. 3d 919, 924. However, no deference is due to conclusory

factual allegations or allegations of law. See Beasley, 227 So. 3d at 312.

INTERPRETATION OF THE LEQA

Firestone/ BATO first argues the district court erred in determining it did not have

appellate subject matter jurisdiction to review the DEQ Remediation Order. According to

Firestone/ BATO, the DEQ Remediation Order, issued under LEQA Chapter 12, is appealable

as a " final enforcement action" under LEQA Chapter 2- A.

The interpretation of any statutory provision starts with the language of the statute

4 The exceptions hearing concerned exceptions filed in this suit as well as exceptions filed in Firestone/ BATO' s declaratory judgment suit, appealed to this court under our docket number 2019 CA 0308. The evidence introduced at the hearing is included in the 2019 CA 0308 appellate record but was not included in the instant record. Under La. C. C. P. art. 2132, and with no objection from the parties, we correct this omission of a material part of the trial record.

5 itself. Caldwell Parish School Bd. v. La. Machinery Co., LLC, 12- 1383 ( La. 1/ 29/ 13), 110

So. 3d 993, 996; Louisiana Environmental Action Network, 97 So. 3d at 1152. Words and

phrases shall be read with their context. La. R. S. 1: 3. Every provision in a law is presumed

to serve a useful purpose and to have some effect; it is also presumed that the legislature

used no unnecessary words or provisions. See Louisiana Environmental Action Network, 97

So. 3d at 1152. Consequently, courts are bound to give effect to all parts of a statute, if

possible, and to construe no sentence, clause, or word as meaningless or surplusage, if a

construction giving force to and preserving all words can legitimately be found. Id. Further,

laws on the same subject matter must be interpreted in reference to each other. La. C. C.

art. 13.

Under the LEQA, DEQ is the primary agency in the state concerned with environmental

protection and regulation. La. R. S. 30: 2011A( 1). The DEQ Secretary has the power to issue

such orders or determinations as may be necessary to effectuate the purpose of the LEQA.

La. R. S. 30: 2011D( 6). In LEQA Chapter 12, the " Liability for Hazardous Substance Remedial

Action" chapter ( La. R. S. 30: 2271- 2290), the legislature has given DEQ the power to identify

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: 22716; Margone, LLC v. Addison Resources, Inc., 04- 70 ( La. App. 3 Cir.

12/ 15/ 04), 896 So. 2d 113, 116- 17.

When the DEQ Secretary 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 persons

who has participated in the discharge to undertake remedial actions at the site, according to

an approved plan, or to pay the DEQ Secretary for remedial action costs. See La. R. S.

30: 2275A; Margone, LLC, 896 So. 2d at 117. The order for remedial action shall prescribe a

reasonable time for reply. If, after that time, the DEQ Secretary receives no reply or a

5 Persons who must comply with the requirements of LEQA Chapter 12 are listed in La. R. S. 30: 2273.

0 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. See La. R. S. 30: 2275B. An action filed under LEQA Chapter 12 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 DEQ Secretary issues

the remediation order, whichever comes later. La. R. S. 30: 2276H( 1). In response to the DEQ

Secretary' s suit under LEQA Chapter 12, a defendant may assert numerous defenses to

liability for hazardous substance discharge. See La. R. S. 30: 2277.

Separate from its authority to issue remediation orders under LEQA Chapter 12, DEQ

can also take " enforcement actions" under LEQA Chapter 2- A, " Enforcement Procedure and

Judicial Review," La. R. S. 30: 2050. 1- 2050. 31. 6 LEQA Chapter 2- A does not define the term

enforcement action," but it appears to at least include compliance orders, penalty

assessments, permit suspensions, cease and desist orders, and settlements or compromises.

See La. R. S. 30: 2050. 1C; 30: 2050. 2; 30: 2050. 3; 30: 2050. 41- 1; 30: 2050. 7; and 30: 2050. 8.

Before any enforcement action can be appealed to the 19th JDC under La. R. S. 30: 2050. 21A,

it must be a " final enforcement action." 7 Chapter 2- A specifically states when a compliance

order and a penalty assessment become final enforcement actions, but it does not clearly

state when other types of enforcement actions become final, and as such, appealable. See

La. R. S. 30: 2050. 2C, 2050. 31), and 2050. 4H. Notably, LEQA Chapter 2- A does not mention

remediation orders.

After reviewing the above statutory provisions, the DEQ Remediation Order, and

mindful that a district court only has appellate jurisdiction as expressly provided by

constitution or a statute, we decline to find that the DEQ Remediation Order in this case is a

final enforcement action" appealable under La. R. S. 30: 2050. 21. Rather, under applicable

rules of statutory interpretation, we conclude that, for purposes of this appeal, the specific

6 Under La. R.S. 30: 2025, the DEQ also has the authority to institute "[ a] ny civil action" necessary to carry out the provisions of the LEQA.

An aggrieved person may also appeal a final permit action and a declaratory ruling to the 19th JDC under La. R. S. 30: 2050. 21. See City of Baton Rouge v. La. Dept. of Environmental Quality, 14- 1485 ( La. App. 1 Cir. 4/ 28/ 15), 172 So. 3d 13, 18. On appeal, Firestone/ BATO does not contend the DEQ Remediation Order is a final permit action or a declaratory ruling. 7 statutory procedure set forth in LEQA Chapter 12 provides the means by which

Firestone/ BATO can challenge the DEQ Remediation Order.

We are bound to give effect to all parts of the LEQA and to presume that each part of

the statute has purpose and effect. Louisiana Environmental Action Network, 97 So. 3d at

1152. The existence of a specific procedure in LEQA Chapter 12 to challenge a remediation

order implies that the appellate provisions of LEQA Chapter 2- A do not apply. See Louisiana

Land Acquisition, LLC v, La. Dept, of Environmental Quality, 11- 2037 ( La. App. 1 Cir.

7/ 18/ 12), 97 So. 3d 1144, 1148 ( finding a more specific LDEQ provision applicable over a

more general LEQA provision). If the legislature intended that a remediation order issued

under LEQA Chapter 12 be appealable under LEQA Chapter 2- A, the legislature could have

expressly provided that the term " final enforcement action" in LEQA Chapter 2- A includes a

remediation order. The existence of a district court's appellate jurisdiction must be expressly

provided, and LEQA Chapter 2- A does not provide such in this case.

Rather, when read in context and construing the LEQA to give effect to all parts, we

conclude that the specific statutory procedure provided in LEQA Chapter 12 implies a

legislative intent that the suit filed under La. R. S. 30: 2275B 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 by La. R. S.

30: 22756, 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 LEQA Chapter 12, 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 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: 2276A); and, only if so,

8 It is undisputed that DEQ did not file suit after issuing the 2004 or the 2006 letters, wherein it demanded under La. R. S. 30: 2275 that Firestone/ BATO participate in the remediation of Bayou d' Inde and the Firestone ditch. It is also undisputed that, after issuing the similar 2016 demand letter and the 2017 DEQ Remediation Order, DEQ filed suit against Firestone/ BATO in April 2019 in the 14th Judicial District Court. 8 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: 2276C

through 30: 2276F). 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.

INTERPRETATION OF THE LAPA

Alternatively, Firestone/ BATO contends the DEQ Remediation Order is appealable as a

final decision or order" under the LAPA, because the DEQ Remediation Order deprives

Firestone/ BATO of constitutionally protected property interests, including the payment of

oversight costs to DEQ. As 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, and the district court did not have appellate jurisdiction to review it under the LAPA.

CONCLUSION

For the above reasons, we conclude the district court properly determined it had no

subject matter jurisdiction to consider the petition for judicial review filed by Firestone

Polymers, LLC, and Bridgestone. Americas Tire Operations, LLC, in this matter. We affirm the

December 3, 2018 judgment, which dismissed the petition. All costs are assessed to

Firestone Polymers, LLC and Bridgestone Americas Tire Operations, LLC.

AFFIRMED.