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.

• Court: Louisiana Court of Appeal
• Decided: May 28, 2020
• Docket: 2019CA0308
• Status: Unknown

Opinion

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

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.