The Salvation Army, Barry J. Sallinger and Cypress Street Properties, LLC v. Union Pacific Railroad Company, Consolidated Companies, Inc., and Southern Pacific Motor Trucking Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-247

THE SALVATION ARMY, BARRY J. SALLINGER
AND CYPRESS STREET PROPERTIES, LLC

VERSUS

UNION PACIFIC RAILROAD COMPANY,
CONSOLIDATED COMPANIES, INC., AND
SOUTHERN PACIFIC MOTOR TRUCKING COMPANY

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20160548
HONORABLE MICHELE S. BILLEAUD, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, Van H. Kyzar, and Charles G. Fitzgerald,
Judges.

REVERSED.

Elizabeth Roche
Roche Law Firm
P.O. Box 959
Jennings, LA 70546
(337) 246-5179
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Cypress Street Properties, LLC
Frank’s House LLC
The Salvation Army
Barry J. Sallinger
Edward P. Mouton

William W. Goodell, Jr.
The Goodell Law Firm
Post Office Box 52663
Lafayette, LA 70505
(337) 412-2724
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Cypress Street Properties, LLC
Frank’s House LLC
The Salvation Army
Barry J. Sallinger
Edward P. Mouton

Amanda K. Klevorn
Korey A. Nelson
Natalie R. Earles
Lydia A. Wright
Patrick D. Murphree
Leila M. Abu-Orf
Burns Charest, LLP
365 Canal Street, Suite 1170
New Orleans, LA 70130
(504) 799-2845
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Frank’s House LLC
Barry J. Sallinger
Cypress Street Properties, LLC
Edward P. Mouton
The Salvation Army

Joseph R. Joy, III
Joseph Joy & Assoc.
P. O. Box 4929
Lafayette, LA 70502
(337) 232-8123
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Frank’s House LLC
The Salvation Army

Edward P. Mouton
Cypress Street Properties, LLC
Barry J. Sallinger

Gordon J. Schoeffler
Attorney at Law
730 Jefferson Street
Lafayette, LA 70501
(337) 232-8123
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Edward P. Mouton
Barry J. Sallinger
Cypress Street Properties, LLC
The Salvation Army
Frank's House LLC

Mildred E. Methvin
Mildred E. Methvin L.L.C.
7414 Sardonyx Street
New Orleans, LA 70124
(337) 501-1055
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Edward P. Mouton
Cypress Street Properties, LLC
Barry J. Sallinger
The Salvation Army
Frank's House LLC

Steven J. Levine
David J. Topping
A. Paul LeBlanc, Jr.
Sophie Gray
Benjamin M. Anderson
Phelps Dunbar, LLP
400 Convention Street, Suite 1100
Baton Rouge, LA 70802-5618
(225) 346-0285
COUNSEL FOR DEFENDANTS/APPELLEES:
Union Pacific Railroad Company
Southern Pacific Motor TruckingCompany
Centurylink Communications, LLC

John B. Shortess
Phelps Dunbar, LLP
400 Convention Street, Suite 1100
Baton Rouge, LA 70802-5618
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLEE:
Centurylink Communications, LLC

Jeffrey K. Coreil
Cliff A. Lacour
Neuner Pate
1001 West Pinhook, Suite 200
Lafayette, LA 70503
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLEES:
Consolidated Companies, Inc.

David J. Topping
Phelps Dunbar, LLP
Post Office Box 4412
Baton Rouge, LA 70821
(225) 346-0285
COUNSEL FOR DEFENDANTS/APPELLEES:
Southern Pacific Motor Trucking Company
Union Pacific Railroad Company
Centurylink Communications, LLC

GREMILLION, Judge.

Plaintiffs, the Salvation Army, Barry J. Sallinger, Cypress Street Properties,

LLC, Edward P. Mouton, and Frank’s House LLC, appeal the exception of no cause

of action granted in favor of Defendants, Union Pacific Railroad Company, Southern

Pacific Motor Trucking Company, and Centurylink Communications, LLC, relating

to their claims under the Louisiana Environmental Quality Act (LEQA). For the

following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs filed suit against Union Pacific and others in 2016 alleging damages

related to water supply contamination. Parties were dismissed and added as the

litigation proceeded, and the matter was remanded to state court in August 2017.

Plaintiffs amended their petitions five times over the course of the litigation.

Defendants filed an exception of no cause of action on October 23, 2017.

Following an August 15, 2022 hearing, the trial court granted Defendants’ exception

of no cause of action and dismissed Plaintiffs’ suit on September 7, 2022. The trial

court did not provide any oral or written reasons for judgment. Plaintiffs assign two

errors:

1. The judgment granting the exception of no cause of action is
contrary to law because, taking the Petition allegations as true,
Defendants are in violation of Louisiana Water Control Law,
L.R.S. 30:2076 and 2077.

2. The judgment granting the exception of no cause of action is
contrary to law because none of the grounds in La.R.S. 30:2026
that limit a citizens’s right to bring a Louisiana Environmental
Quality Act citizen suit enforcement action are applicable.

DISCUSSION

Peremptory Exception of No Cause of Action

As used in the context of the peremptory exception, a “cause of action”
refers to the operative facts which give rise to the plaintiff’s right to
judicially assert the action against the defendant. Ramey v. DeCaire, 03-
1299, p. 7 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels
Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993).
The purpose of the peremptory exception of no cause of action is to test
the legal sufficiency of the petition by determining whether the law
affords a remedy on the facts alleged in the petition. Ramey, at 7, 869
So.2d at 118; Everything on Wheels Subaru, Inc., 616 So.2d at 1235.
No evidence may be introduced to support or controvert the exception
of no cause of action. LSA–C.C.P. art. 931. The exception is triable on
the face of the pleadings, and, for purposes of resolving the issues raised
by the exception, the well-pleaded facts in the petition must be accepted
as true. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349;
City of New Orleans v. Board of Commissioners of Orleans Levee
District, 93–0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. The issue at
the trial of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought. Ramey, at 7, 869 So.2d
at 118.

Louisiana retains a system of fact pleading, and mere conclusions of
the plaintiff unsupported by facts will not set forth a cause or right of
action. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127,
131. The burden of demonstrating that a petition fails to state a cause
of action is upon the mover. Ramey, at 7, 869 So.2d at 119; City of New
Orleans, at 28, 640 So.2d at 253. Because the exception of no cause of
action raises a question of law and the district court’s decision is based
solely on the sufficiency of the petition, review of the district court’s
ruling on an exception of no cause of action is de novo. Fink, at 4, 801
So.2d at 349; City of New Orleans, at 28, 640 So.2d at 253. The
pertinent inquiry is whether, in the light most favorable to the plaintiff,
and with every doubt resolved in the plaintiff’s favor, the petition states
any valid cause of action for relief. Ramey, at 8, 869 So.2d at 119.

Scheffler v. Adams and Reese, LLP, 06-1774, pp. 4-5 (La. 2/22/07), 950 So.2d 641,

646-647.

Recently, in State ex rel. Tureau v. BEPCO, L.P., 20-856 (La. 10/21/22), 351

So.3d 297, the supreme court analyzed a similar citizen suit authorized by statute in

La.R.S. 30:16 if the Commissioner of Conservation fails to pursue violations of law

relating to the conservation of oil or gas, or both. See La.R.S. 30:14. In Tureau, the

2

defendants filed an exception of no cause of action arguing that La.R.S. 30:14 and

La.R.S. 30:16 apply only to violations involving “present, ongoing, or continuous

conduct,” and that they had ceased operations on the plaintiff’s property years ago.

The supreme court stated (emphasis added):

The exception of no cause of action tests the legal sufficiency of
the petition by determining whether the law affords a remedy on the
facts alleged in the pleading. Kunath v. Gafford, 20-1266 (La. 9/30/21),
330 So.3d 161, 166; Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04),
869 So.2d 114, 118-19. A court’s decision on an exception of no cause
of action is based solely on the sufficiency of the petition; no evidence
may be introduced to support or controvert the exception. LSA-C.C.P.
art. 931; Ramey, 03-1299 at p. 7, 869 So.2d at 118. Consequently, for
the purpose of determining the issues raised by the exception, the well-
pleaded facts of the petition must be accepted as true. Cleco Corp. v.
Johnson, 01-0175, p. 3 (La. 9/18/01), 795 So.2d 302, 304; Fink v.
Bryant, 01-0987, p. 3 (La. 11/28/01), 801 So.2d 346, 348. The pertinent
question is whether, in the light most favorable to the plaintiff, and with
every doubt resolved in the plaintiff's favor, the petition states any valid
cause of action for relief. Id. Every reasonable interpretation must be
accorded the language used in the petition in favor of maintaining its
sufficiency and affording the plaintiff the opportunity of presenting
evidence at trial. Badeaux v. Sw. Comput. Bureau, 05-0612, p. 7 (La.
3/17/06), 929 So.2d 1211, 1217. The burden of demonstrating that a
petition fails to state a cause of action is on the mover, and a petition
should be dismissed for failure to state a cause of action only when it
appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief. Fink, 01-0987
at p. 4, 801 So.2d at 349.

Tureau’s original petition alleged that his property has been
contaminated as a result of the oil and gas exploration and production
activities of the defendants and/or their predecessors in interest.
Specifically, the petition alleges that defendants violated various
applicable conservation laws and regulations by failing to close and/or
properly close unlined earthen pits. The petition further alleges that
defendants “are violating Statewide Order 29-B and other regulations
and orders of the Louisiana Department of Natural Resources and the
Office of Conservation,” by failing to remediate the property and
contamination therein to the minimum standards required under the law.
Specifically, the petition alleges that, “such violations are deemed
ongoing violations until the law has been complied with,” and that
Tureau is entitled to injunctive relief under LSA-R.S. 30:16 “for any
and all past or present violations ... no matter when such violations
occurred.” Further, the first supplemental and amending petition states
that:

3

Petitioner alleges that the parties made defendants in this
petition are currently violating Statewide Order 29-B and
other regulations and orders of the Louisiana Department
of Natural Resources and Office of Conservation by
allowing contaminant exceedences to remain on the
Tureau property and by failing to remediate the Tureau
property to the standards set forth [in] Statewide Order 29-
B and other applicable regulations and orders. Petitioner
herein seeks the following mandatory and prohibitive
injunctions: (1) ordering that the defendants named in this
petition remediate the environmental damages to the
Tureau property caused by oil and gas exploration and
production activities to a level that complies with
applicable regulations and orders, including, but not
limited to, Statewide Order 29-B; and (2) restraining the
defendants named in this petition from further violating,
or threatening to violate, applicable regulations and orders,
including, but not limited to, Statewide Order 29-B.

Under the legal principles and standards of review applicable at this
stage of the proceedings, wherein the narrow issue before this court is
whether the petition states a cause of action, and taking the allegations
of the petition as true, as we must, we are constrained to overrule the
exception. See Global Mktg. Sols., LLC v. Blue Mill Farms, Inc, 18-
0093 (La. App. 1 Cir. 11/6/18), 267 So.3d 96 (reversing the district
court’s dismissal of a LSA-R.S. 30:16 suit for injunctive relief for
failure to state a cause of action, finding that, insofar as the plaintiff
alleged that “defendants ... are violating Statewide Order 29-B ... by
failing to remediate the property,” and that said failure to remediate
was ongoing, the plaintiff made allegations sufficient to state a cause of
action for injunctive relief under LSA-R.S. 30:16); see also Rich Land
Seed Co. v. BLSW Pleasure Corp., 2022 WL 2163824, at *17-20 (W.D.
La. 5/31/22) (denying an exception of no cause of action when the
petition alleged that unplugged or improperly plugged wells and “open”
production storage pits remained on plaintiff’s property and represented
continuing violations of the conservation laws and regulations for
which the plaintiff enjoyed a right to relief under LSA-R.S. 30:16.)

Moreover, insofar as defendants argue that their failure to
remediate soil and/or groundwater contamination to the minimum
required standards does not, in and of itself, constitute a violation of a
conservation law, rule, regulation, or order, we emphasize that this
argument goes to the merits of plaintiff’s claims. Specifically, whether
defendants’ actions or inactions constitute a violation of conservation
laws, rules, regulations, or orders, is a matter of proof, which the
plaintiff is not required to present at the trial of an exception of no
cause of action. See PennEnvironment and Sierra Club v. PPG
Industries, Inc., 964 F.Supp.2d 429 (W.D. Penn. 2013); see also City of
Toledo v. Beazer Materials and Servs., Inc., 833 F.Supp. 646 (N.D.

4

Ohio 1993). Likewise, whether plaintiff can successfully prove that
defendants are liable under the applicable laws in this case is a matter
of proof that goes to the merits of plaintiff’s claims. The merits of a
claim are to be determined after findings of fact, upon a motion for
summary judgment or a trial on the merits, and whether a plaintiff will
prevail on the merits is not an appropriate consideration on an
exception raising the objection of no cause of action. Terrebonne Par.
Consol. Gov’t. v. Louisiana Dep’t. of Nat. Res., 21-0486 (La. App. 1
Cir. 12/30/21), 340 So.3d 940, 945; Bergen Brunswig Drug Co. v.
Poulin, 93-1945 (La. App. 1 Cir. 6/24/94), 639 So.2d 453, 458.

As such, in light of plaintiff's allegations that defendants “are violating”
conservation laws, rules, regulations, and/or orders, the exception of no
cause of action must be denied.

Id. at 309-11.

The supreme court concluded:

As previously noted, environmental regulatory statutes are
unique and rely heavily on self-reporting and the willingness of the
regulated industry to voluntarily comply with the applicable laws and
regulations. It is for precisely this reason that citizen suits are a
necessary and integral component of environmental regulatory statutes
in particular.

Pursuant to LSA-R.S. 30:16, upon providing the requisite notice,
any person in interest adversely affected by a violation of conservation
laws, rules, regulations, or orders, may file suit for injunctive relief. The
petition at issue herein alleges that the defendants have violated
conservation laws and/or regulations by failing to close and/or properly
close unlined earthen pits, and further, that the defendants are violating
applicable rules and regulations by failing to remediate the property.
Taking these allegations as true, as we are required to do, the petition
alleges facts sufficient to state a cause of action for injunctive relief
pursuant to LSA-R.S. 30:16.

Id. at 316.

In this case, Plaintiffs alleged violations under the Louisiana Water Control

law, among many other claims. The legislature permits a “citizen suit” to address

environmental concerns. The Louisiana Environmental Quality Act (LEQA)

authorizes concerned citizens to enforce the act when the Louisiana Department of

5

Environmental Quality (LDEQ) fails to do so or does an inadequate job. The citizen

suit for violations of the law is authorized by La.R.S. 30:2026, which states:

A. (1) Except as provided in Subsection B of this Section, any
person having an interest, which is or may be adversely affected, may
commence a civil action on his own behalf against any person whom
he alleges to be in violation of this Subtitle or of the regulations
promulgated hereunder. The action must be brought either in the district
court in the parish in which the violation or alleged violation occurs or
in the district court of the domicile of the alleged violator, and shall be
afforded preferential hearing by the court.

(2) If, at the hearing on the order, it appears to the satisfaction of
the court that a violation has occurred, or is occurring, the court may,
in order to enforce the provisions of this Subtitle, assess a civil penalty
not to exceed ten thousand dollars for each day of the continued
noncompliance and the court may, if appropriate, issue a temporary or
permanent injunction.

(3) The court in issuing any final order in any action brought
pursuant to this Section, may award costs of court including reasonable
attorneys and expert witness fees to the prevailing party. The court may
also award actual damages to the prevailing plaintiff. The judgment of
the court at the hearing, or subsequently on a petition for fixing the
penalty if the violation is a continuing one, shall fix the total amount of
penalty due, which shall be collectible under the same procedures as
now fixed by law for the collection of money judgments and shall be
awarded to and collected by the state of Louisiana and deposited into
the state treasury.

B. No action under this Section shall be commenced under
Subsection A of this Section:

(1) Prior to thirty days after the plaintiff has given written notice
of the violation to the secretary and to any alleged violator by certified
mail, return receipt requested.

(2) If the secretary or his legal counsel has commenced and is
diligently prosecuting a civil or criminal action in a court of this state
to require compliance with any standard, limitation, or order; however,
in any such action any person having an interest which is or may be
adversely affected may intervene as a matter of right.

(3) If the alleged violator is operating under a variance and is in
compliance with the terms of such variance.

(4) Against any person while such person, with respect to the
same violation is:

6

(a) Under any order issued pursuant to this Subtitle to enforce
any provision of this Subtitle.

(b) A defendant in any civil suit brought under the provisions of
R.S. 30:2025.

(c) The subject of an action to assess and collect a civil penalty
pursuant to R.S. 30:2025(E).

C. Provided, however, that nothing herein shall be construed to
limit or deny any person’s right to injunctive or other extraordinary and
ordinary relief under the Code of Civil Procedure or otherwise under
Louisiana law, other than this Section.

D. The enforcement, procedures, and remedies herein provided
for shall be in addition to any such procedures and remedies authorized
under the laws of this state.

The claims in this case relate to the drinking water supply of Lafayette citizens.

The legislature set forth the purpose of the Water Control Law in La.R.S. 30:2072,

which states:

The legislature finds and declares that the waters of the state of
Louisiana are among the state’s most important natural resources and
their continued protection and safeguard is of vital concern to the
citizens of this state. To insure the proper protections and maintenance
of the state’s waters, it is necessary to adopt a system to control and
regulate the discharge of waste materials, pollutants, and other
substances into the waters of the state.

Louisiana Revised Statutes 30:2076(A)(1)(a) provides:

A. (1) No person shall discharge or allow to be discharged into
any waters of the state:

(a) Any waste or any other substance of any kind that will tend
to cause water pollution in violation of any rule, order, or regulation[.]

Louisiana Revised Statutes 30:2004(7) defines discharge as:

[T]he placing, releasing, spilling, percolating, draining, pumping,
leaking, seeping, emitting, or other escaping of pollutants into the air,
waters, subsurface water, or ground as the result of a prior act or
omission; or the placing of pollutants into pits, drums, barrels, or
similar containers under conditions and circumstances that leaking,
seeping, draining, or escaping of the pollutants can be reasonably
anticipated.

7

Plaintiffs further claimed violations under La.R.S. 30:2077 relating to

remediation of pollution:

Any person who allows, suffers, permits, or causes the
unpermitted pollution of the waters of the state in contravention of any
provision of this Subtitle, any regulations adopted hereunder, or the
terms and conditions of any permit, license, or order issued hereunder
upon obtaining knowledge of such shall notify the secretary and if
necessary take prompt remedial action pursuant to appropriate
regulations adopted under this Subtitle or as ordered by the secretary or
by an authorized assistant secretary. The goal of such regulations or
orders, to the extent economically and technologically reasonable, is to
eliminate those releases that may reasonably pose a threat to human
health or the environment and to remediate contaminated media, taking
into consideration current and expected uses.

Do Plaintiffs’ Petitions State a Cause of Action?

Plaintiffs filed their initial petition in February 2016 and, thereafter, filed five

amending and supplemental petitions with the most recent being in March 2022.

Plaintiffs’ initial 2016 petition set forth in pertinent part (emphasis added):

1. Plaintiffs bring this action to address long known, yet still
ignored, environmental damage in the heart of historic downtown
Lafayette that has impacted and is threatening to further impact
Lafayette’s drinking water supply, the Chicot Aquifer. Defendants are
legally and morally responsible for this damage.

2. Despite an Environmental Impact Statement, two prior lawsuits,
piecemeal testing, and decades of environmental regulatory agency
“oversight,” no meaningful action has been ordered, much less taken,
to require a comprehensive assessment of the environmental impact at
the approximately 40 acre former Southern Pacific Railroad/Union
Pacific Railroad Lafayette rail yard operations area (“Facility).

3. Soil and shallow groundwater testing on file with the Louisiana
Department of Environmental Quality (“LDEQ”) confirms the
presence of a toxic stew of “Superfund” hazardous substances
perilously perched atop the Chicot Aquifer. Yet diligent review of the
available LDEQ records reveals that no testing in the Chicot has ever
been ordered or performed.

4. Documented contamination at the Facility constitutes an illegal,
imminent, and substantial endangerment to Plaintiffs’ and the entire
Lafayette community’s health and safety.

8

5. Comprehensive site-wide assessment of the Facility is necessary
to design a meaningful contaminant cleanup of the Facility and adjacent
areas-to eliminate the threat it poses to the Chicot, to prevent further
contaminant migration, and to protect the entire Lafayette community.

6. Plaintiffs challenge Defendants to come forward in response to
this Petition and meet with Plaintiffs’ attorneys and experts and LDEQ
to promptly:

a. Accept responsibility for this environmental damage;
b. Develop and adopt a mutually agreeable comprehensive
assessment plan that will identify and characterize all contaminants
throughout the entire Facility;
c. Define the horizontal and vertical extent of that contamination
both on and off site; and
d. Adopt a timeline to properly and expeditiously clean up
Defendants’ toxic legacy to the Lafayette community.

....

12. The Plaintiffs seek to recover all other general and equitable relief
to which they are entitled under state law, including but not limited to,
mandatory injunctions supported strict liability, negligence, nuisance,
trespass, violation of state environmental regulatory laws, and punitive
damages. Plaintiffs seek a declaratory judgment finding the Defendants
liable for the contamination and the remediation of the Facility and the
property owned by the Plaintiffs. The Plaintiffs also seek to recover
evaluation, remediation, attorneys’ fees and costs pursuant to the
Louisiana Groundwater Act, La.R.S. 30:2015, et seq.

In paragraphs 28–34 of the petition, Plaintiffs state that Defendants have

confirmed the presence of PSH (Phase Separated Hydrocarbons) but failed to

implement measures “to prevent the PSH and related toxic pollutants from leaching

into and migrating to the Chicot Aquifer and the properties of Plaintiffs.” They

allege that the pollutants, at the very least, threatened to contaminate the usable water

supply. Plaintiffs claim that because Defendants did not create a monitoring system

of the Facility, the flow of the groundwater is difficult to determine “but it has been

documented as moving in virtually all directions at one time or another from discrete

areas within the Facility.” Plaintiffs claim further investigation is needed relating to

the conduits for migration and that, “the continuing presence of hazardous

9

substances, toxic wastes, contaminants and pollutants in the groundwater and

subsurface of the Facility is and/or may be migrating offsite to the soils and

groundwater beneath the Plaintiffs’ properties.” Section G of the petition under the

subheading “Louisiana Groundwater Act Liability” provides:

85. Defendants’ prior assessment activities demonstrated that the
contaminants present at the Facility migrate through pathways to
shallow groundwater that poses a real threat to and/or has impacted the
usable groundwater of the Chicot Aquifer.

86. The Defendants’ actions and omissions contributed to the threat
and/or impact to the usable groundwater of the Chicot Aquifer.

87. Under La.R.S. 30:2015.1, the Groundwater Act, the party
responsible for threatening or contaminating usable groundwater must
pay for evaluation and remediation of any contamination that threatens
or impacts the usable groundwater.

88. As the responsible parties for the contamination that threatens
and/or impacts the usable groundwater of the Chicot Aquifer, the
Defendants are strictly liable for the evaluation and remediation of the
contamination.

Plaintiff’s First Amended Petition for Damages filed in March 2016 added

additional Plaintiffs and amended certain factual allegations.

Third Supplemental and Amending Petition for Damages-April 2018

This petition added a significant number of factual bases for Plaintiffs’ claims

amounting to eight legal pages. Plaintiffs detailed a previous lawsuit relating to the

same facility, Consolidated Companies, Inc. v. Union Pacific Railroad Co., 499

F.Supp. 382 (5th Cir. 2007), in which the appellate court upheld the district court’s

ruling maintaining the plaintiff’s LEQA claims and finding the “facility” as defined

by the LEQA included the entire former railroad tract and not just the portion that

the plaintiffs had purchased. The court also noted in a footnote:

Union pacific also contends that Conco cannot bring suit under LEQA
30:2026 because it does not have an “interest which is or may be
adversely affected.” Clearly, the evidence in the record demonstrates

10

(at a minimum) that Conco’s interest in the Conco tract and its interest
in the safety of its employees’ drinking water may be adversely affected
by the contamination located throughout the former railroad site.
Accordingly, Union Pacific’s argument on this issue fails.

However, the plaintiff settled with Defendants shortly thereafter preventing,

in Plaintiffs’ words, “any further efforts to secure assessment and cleanup of the

entire Facility[.]” This petition further alleged in part:

59.5 Today, almost eleven years after the District Court’s clear and
unequivocal Order, Union Pacific/Southern Pacific have never begun-
much less completed-the process of developing the Facility-wide
evaluation and environmental assessment. Accordingly, the Facility
and Union Pacific remain in violation of the Louisiana Environmental
Quality Act as noticed and plead herein.

59.6 The Facility is an environmental hazard in fact and in law,
continuously discharging pollutants, contaminants toxins, hazardous
wastes, hazardous substances, and other deleterious material into the
waters of the state-including both surface water and groundwater.

....

59.10 Historic reports of environmental sampling and laboratory
analysis on file with the LDEQ prove that these overlying strata within
and adjacent to the Facility have allowed pollutants, contaminants,
toxins, hazardous wastes, hazardous substances, and other deleterious
materials to migrate from the surface into the Chicot Aquifer at
numerous locations in relatively short times.. . . .

....

59.12 The Georgia Pacific site where defendant Union Pacific operated
is the only location where groundwater in the Chicot Aquifer beneath
the Facility was ever tested. At that site, the organic compounds,
Benzene, Toluene, Ethylbenzene, and Xylene (“BTEX”)-which are
included on the USEPA Hazardous Substances and/or Toxic Pollutant
List-were found in the Chicot Aquifer groundwater sample, SB-1D.
Benzene, a known human carcinogen, was detected at an order of
magnitude above Safe Drinking Water Act Maximum Contaminant
Levels (“MCL”)-an indisputable violation of LEQA and other state
laws at the Facility.

59.13 The Facility is the source of the BTEX found in the Chicot
Aquifer at SB-1D.

11

59.14 Contamination remains throughout the Facility today, resulting
in an ongoing threat to the Chicot Aquifer and the surrounding
community.

59.15 Past, present, and future discharge and migration of pollutants,
contaminants, toxins, hazardous wastes, hazardous substances, and
other deleterious materials into the Chicot Aquifer from the Facility
constitutes irreparable harm to the Chicot Aquifer, citizens of Lafayette,
and Plaintiffs that will further degrade the Chicot Aquifer’s
groundwater quality and the City of Lafayette’s water supply. This
situation constitutes an impermissible infringement of Plaintiffs’
property rights-including but not limited to their right to an
uncontaminated source of drinking water.

....

59.26 Remediations performed to date within the Facility have been
spotty, minimal, and woefully inadequate to protect the First
Groundwater Zone and the Chicot Aquifer beneath the Facility.
Amazingly, no remediation of the First Groundwater Zone or the Chicot
Aquifer beneath the Facility has ever taken place.

59.27 Defendants’ past and continued failure to comprehensively assess
and cleanup constitutes a violation of LEQA.

This petition added section H entitled, “The Migration of UPRC

Contaminants at the Facility is Ongoing, Damaging to The Public’s and Plaintiffs’

Property interests, and Patently Illegal.” It essentially states that facility pollution,

contamination, toxins, hazardous waste, and hazardous substances are migrating and

discharging into the Chicot Aquifer and private property “which is prohibited under

RECAP and which further has never been consented to or regulatorily approved.”

To this petition, Plaintiffs added Exhibit N to support the facts plead in the first,

second, and third amending and supplemental petitions. These exhibits were

comprised of over fifty reports and results of scientific studies, public records, and

other materials.

12

Fourth Supplemental and Amending Petition for Damages and Injunctive Relief-
January 2022

This petition amended the factual basis for claims following samples retrieved

from the area due to a study conducted by DOTD. Plaintiffs’ experts and

Defendants’ experts each received “split” samples taken by DOTD. Plaintiffs

alleged (emphasis added):

59.37 This 2020 assessment data further supports that Defendants, by
their actions and inactions, have been and continue to be in violation
of the Louisiana Environmental Quality Act (“LEQA”) Louisiana
Water Control Law provisions and requirements regarding discharges
to groundwater.

59.38 The 2020 assessment data shows that Defendants’ LEQA Water
Control Law violations include past and ongoing discharging, seeping,
leaking, emitting and escaping of pollutants into subsurface water and
the ground as a result of Defendants’ prior acts and omissions under
conditions and circumstances that leaking, seeping, draining, or
escaping of Defendants’ pollutants could have been reasonably
anticipated and resulting in contamination of the Chicot Aquifer
beneath the Facility.

The petition then detailed pollutants found “after over 20 years of Facility

investigation and LDEQ Risk Corrective Action Program (“RECAP”) closures.”

59.40 All shallow groundwater monitoring wells sampled during the
2020 assessment that were analyzed for RECAP Total Petroleum
Hydrocarbon (“TPH”) exceeded the RECAP TPH screening standard
for groundwater beneath the Facility. Each exceedance is a RECAP
violation.

59.41 Specifically, and by way of example, samples from TW-1
revealed the continued presence of phase separated hydrocarbon
(“PSH”), i.e. oil floating or “free” oil in the soil and groundwater that
was previously identified in assessments completed in the early 1990s,
confirming that the source of soil and groundwater contamination is
still present and sourcing new and additional discharges into Facility
soil and groundwater.

Plaintiffs plead that “PSH is an ongoing and continuing source of pollutant

discharging, seeping, leaking, migrating spreading, emitting, and dissolving in the

shallow groundwater (a GW-2, i.e. capable of being used for human consumption)

13

that is hydrologically connected to the Chicot Aquifer.” It also supplemented the

exhibits with a March 2021 expert report.

Fifth Supplemental and Amending Petition for Damages and Injunctive Relief-
March 2022

This petition further amended the factual basis of section VI for claims with

new data from 2022 that the pollutants were migrating and contaminating the soil:

59.50 The 2022 sampling event revealed the presence of PSH in
groundwater beneath soil that was visually clean (free of oil) and the
migration of PSH into boreholes showing that the PSH is highly mobile
and moving both vertically down and laterally across the site and
throughout the Facility. The 2022 sampling data further confirms that
there is a large source area of contaminant/hydrocarbon discharge to the
groundwater at the Facility.

59.51 Moreover, the 2022 documentation of PSH in soil and
groundwater confirms . . . PSH is present within the UPRC Facility.
These 18 PSH areas are an ongoing source of contaminant/pollutant
discharges to groundwater underlying the UPRC Facility and, pursuant
to LDEQ RECAP, regulations require an urgent, comprehensive
investigation.

....

59.54 All sampling done since this lawsuit was filed confirms that the
Facility is severely impacted by UPRC’s operations, actions, and
omissions and presents an imminent and substantial endangerment to
the Chicot Aquifer, the drinking water supply of Lafayette’s citizens, and
requires an immediate, comprehensive assessment.

It also added a supplemental report of its expert in support of the pleading.

Defendants point out in their brief that Plaintiffs have failed to set forth the

separate “rule, order, or regulation” required in La.R.S. 30:2076(A)(1)(a). It is true

that Plaintiffs’ petitions initially seemed speculative about violations of the law.

However, in reading all of the subsequent amending and supplemental petitions, we

find Plaintiffs have stated a cause of action under La.R.S. 30:2076 (a)(1) and La.R.S.

30:2077 such that they can pursue a citizen suit under La.R.S. 30:2026.

14

The regulations applicable to water pollution are found in Title 33, Part IX,

Subpart 1 of the Louisiana Administrative Code and consist of nearly 400 pages of

detailed regulations regarding the State’s waterways and water sources. Since

Defendants have already been found to be in violation of the standards such that

LDEQ ordered remediation, it is a given that a regulation has been violated.

Defendants also argue that La.R.S. 30:2076 “by its terms” does not apply to an owner

of previously impacted immovable property who is not currently engaged in

activities that result in the release of pollutants. That suggestion is debatable but not

relevant to our determination. Moreover, whether Defendants are currently releasing

pollutants is a fact determination. Despite Defendants’ strenuous assertions, the fact

that LDEQ issued NFA (no further action needed at this time) letters at Defendants’

request, is not a guarantee that a party will never pollute the water for the rest of

time. Plaintiffs’ pleadings set forth that Defendants’ remediation efforts have been

piecemeal and resulted in an inability to monitor the migration of pollution into the

drinking water.

In a varying number of detailed ways as set forth in part above in our review

of the petitions, Plaintiffs have alleged numerous times that Defendants are in

violation of La.R.S. 30:2076(a)(1). That is, Defendant’s facility is polluting the

drinking water of the Chicot Aquifer because of the release and migration of

pollutants beyond those areas that were formerly allegedly remediated. Plaintiffs

have further alleged numerous times that Defendants have failed to properly

remediate the area to prevent the migration of these pollutants in violation of La.R.S.

30:2077.

15

Clearly, as time progressed and studies were conducted, the allegations

became more definitive. As this is merely an examination of the pleadings, it is

beyond the scope of this ruling to determine the merits of the scientific

underpinnings of the alleged pollution. Plaintiffs have provided a significant amount

of scientific material and expert depositions to support their pleadings. The supreme

court instructs that we must view the petitions in the light most favorable to the

plaintiff and resolve any doubts in their favor. State ex rel. Tureau, 351 So.3d 297.

Every reasonable interpretation must be accorded the language
used in the petition in favor maintaining its sufficiency and affording
the plaintiff the opportunity of presenting evidence at trial. . . . a petition
should be dismissed for failure to state a cause of action only when it
appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief.

Id. at 310.

Plaintiffs have set forth sufficient facts in their petitions to meet this criterion.

We find the deference due the plaintiffs further supported by the allegations that, if

true, affect the drinking water supply of Lafayette citizens. Accordingly, Plaintiffs’

pleadings have set forth a cause of action, and we reverse the decision of the trial

court granting the Defendants’ exception of no cause of action.

Exceptions Barring Suit Under La.R.S. 30:2026(B)(4)(a)

Defendants strenuously argue that La.R.S. 30:2026(B)(4)(a), which provides

that a citizen suit is prohibited when a party is, “with respect to the same violation[]

[u]nder any order issued pursuant to this Subtitle to enforce any provision of this

Subtitle[,]” applies to bar Plaintiffs’ citizen suit. Defendants argue that three NFA

letters issued by LDEQ are “orders” within the meaning of the exception. Plaintiffs

strenuously argue that NFA letters are not “orders.” Plaintiffs did not attach the

NFA letters to their petitions, and they are, therefore, not subject to review regarding

16

this exception of no cause of action. Accordingly, this question is not properly

before us on appeal.

Sufficiency of Notice Letter to LDEQ

Another argument advanced by Defendants is that Plaintiffs failed to provide

a citizen’s suit notice letter to LDEQ after every amending petition with the

allegation of new facts in order to allow LDEQ to take appropriate action. Again,

whether Plaintiffs’ notice to LDEQ is deficient is a factual determination

inappropriate for an exception of no cause of action.

DEQ Purview and Legislative Intent

Defendants argue that “a LEQA citizen’s suit cannot be used be used to

collaterally attack the order of DEQ, and a district court has no original jurisdiction

to review or set aside determinations which the legislature had determined fall within

DEQ’s administrative purview.”1 The clear language of La.R.S. 30:2026 indicates

that a district court does have jurisdiction to hear citizen suits. This argument

completely negates the purpose of a citizen suit, which is “universally recognized”

and acts as an “additional enforcement ‘safety net’ that is authorized, necessary, and

integral to the protection of public health and resources.” State ex rel. Tureau, 351

So.3d at 301. Even if the LDEQ has determined no violation whatsoever by a party,

a citizen suit can still be filed. The court in Giauque v. Arbuthnot, M.D. La.

8/10/2005, 2005 WL 8155988 (Not reported), reviewed the purpose of the citizen’s

suit authorized by La.R.S 30:2026 (emphasis added):

The Court agrees that, even though the LDEQ determined that
Mr. Arbuthnot did not violate LEQA, the plaintiffs nevertheless have a
right to bring a citizen suit against him under LEQA because the only
limitations placed on such citizen suits are listed in La. R.S. 30:2026(B)

1
We agree that if an existing “order” has been levied by LEDQ, then no citizen suit can be
filed pursuant to the exception in La.R.S. 30:2026(B)(4)(a).

17

and because of the legislative purpose underlying the act. Nowhere in
La. R.S. 30:2026(B) is it stated that a citizen suit may not be
commenced by an interested person who is or may be adversely
affected because the LDEQ has previously determined that the person
alleged to be in violation of LEQA has not violated, and is not currently
in violation of the act, and that no enforcement action or compliance
order as to that person is necessary. In fact, LEQA is intended to
provide legislatively authorized participation by the public in
environmental disputes which is aimed at achieving two goals: public
input in substantive environmental matters and a “safeguard against
abuses in the administrative process.” Morris & Dickson Co., Inc. v.
Jones Brothers Co., 29,379 (La. App. 2 Cir. 1997), 691 So.2d 882,
citing Matter of American Waste and Pollution Control Co., 93-3163
(La. 9/15/94), 642 So.2d 1258.

In other words, the purpose of the citizen suit provision is to
encourage citizens or citizen groups to seek judicial enforcement of the
LDEQ regulations where the LDEQ has either failed to act or where
the sufficiency of the LDEQ’s actions in protecting the public can be
questioned. Morris & Dickson Co., 691 So.2d at 894. The Court finds
that, through the present suit, plaintiffs are seeking to judicially enforce
the LDEQ regulations where they allege that the LDEQ has failed to
act or where its actions were not sufficiently protective of the public.
Thus, the plaintiffs are not precluded from bringing suit against Mr.
Arbuthnot simply because of the LDEQ’s previous findings with regard
to him, as this citizen suit is designed to safeguard against any abuses
which may have occurred in the LDEQ’s determination.

While exceptions do apply to bar suit, such as when a compliance order is in

place, there would be no safeguard against administrative abuses without the citizen

suit. If the legislature wished to give the LDEQ unfettered and infinite control of

every environmental matter affecting the state of Louisiana, it would not have

enacted the citizen suit legislation.

CONCLUSION

Plaintiffs/Appellants, the Salvation Army, Barry J. Sallinger, Cypress Street

Properties, LLC, Edward P. Mouton, and Frank’s House LLC, have alleged

sufficient facts to state a cause of action under La.R.S. 30:2076(A)(1)(a) and La.R.S.

30:2077. Accordingly, we reverse the trial court’s grant of Defendants’ exception

of no cause of action and remand for proceedings consistent with this opinion. All

18

costs of this appeal are assessed against the Defendants/Appellees, Union Pacific

Railroad Company, Southern Pacific Motor Trucking Company, and Centurylink

Communications, LLC.

REVERSED.

19