HLS 12RS-2270 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 1180
BY REPRESENTATIVE HARRISON
MINERALS: Provides for remediation of oilfield sites and exploration and production sites
AN ACT1
To amend and reenact R.S. 30:29, relative to remediation; to provide relative to the2
remediation of oil and gas and other sites; to provide terms, conditions, procedures,3
requirements, definitions, and standards; to provide relative to duties and4
responsibilities of certain agencies; to provide relative to certain actions or claims5
involving environmental damage; to provide relative to parties, proceedings, orders,6
judgments, and awards by the court; to provide relative to remediation and cleanup7
arising from such actions or claims; to provide relative to oilfield sites and8
exploration and production sites; to provide for landowner notification of9
environmental testing; and to provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 30:29 is hereby amended and reenacted to read as follows:12
ยง29. Remediation of oilfield sites and exploration and production sites13
A. The legislature hereby finds and declares :14
(1) that Article IX, Section 1 of the Constitution of Louisiana mandates that15
the natural resources and the environment of the state, including ground water, are16
to be protected, conserved, and replenished insofar as possible and consistent with17
the health, safety, and welfare of the people and further mandates that the legislature18
enact laws to implement this policy. It is the constitutional duty of the legislature to19 HLS 12RS-2270 ORIGINAL
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set forth procedures to ensure that damage to the environment is remediated to a1
standard that protects the public interest. To this end,2
(2) The standard for remediating environmental damage to a level that3
protects the public interest is established by regulations adopted by the department4
pursuant to this Subtitle. The provisions of this Section are intended to protect the5
public interest by ensuring the evaluation or remediation of environmental damage6
to regulatory standards. Every person who causes environmental damage has an7
obligation to remediate such damage to regulatory standards. This obligation may8
be enforced by the department under the provisions of this Section or in a separate9
independent civil or administrative action.10
(3) The provisions of this Section shall not be construed to limit the right of11
private litigants to assert private claims for remediation damages based on standards12
in excess of the requirements of applicable regulations or to seek remedies other than13
damages for remediation. The provisions of this Section shall not be construed to14
create any cause of action or to impose additional implied obligations under the15
Louisiana mineral code or arising out of a mineral lease.16
(4) This this Section provides the procedure for judicial resolution of claims17
for environmental damage to property arising from activities subject to the18
jurisdiction of the Department of Natural Resources, office of conservation. The19
provisions of this Section shall be implemented upon receipt of timely notice as20
required by Paragraph (B)(1) of this Section. The provisions of this Section shall not21
be construed to prohibit or impede or limit provisions under private contracts22
imposing the evaluation or remediation obligations in excess of the requirements of23
of environmental damage by any person performed for the purpose of complying24
with an administrative order issued by the department or limit the right of a party to25
a private contract to enforce any contract provision. Nor shall anything in this26
Section preclude the department from independently responding in a court of proper27
jurisdiction. timely manner to an inquiry or request by a landowner for such28
investigation.29 HLS 12RS-2270 ORIGINAL
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B.(1) Notwithstanding any law to the contrary, immediately upon the filing1
or amendment of any litigation or pleading making a judicial demand arising from2
or alleging environmental damage, the provisions of this Section shall apply and the3
party filing same shall provide timely notice to the state of Louisiana through the4
Department of Natural Resources, commissioner of conservation, and the attorney5
general. within ten days of the filing or the amendment. The litigation shall be stayed6
with respect to any such judicial demand until thirty days after such notice is issued7
and return receipt is filed with the court.8
(2) The department or the attorney general, in accordance with their areas of9
constitutional and statutory authority and regulations adopted pursuant thereto, shall10
have the right to intervene in such litigation brought under this Section only as11
provided in Paragraph (C) of this Section. If the department does not intervene in12
accordance with the Louisiana Code of Civil Procedure. the litigation, nothing13
Nothing in this Section shall diminish the authority of the department or the attorney14
general to independently bring any civil or administrative enforcement action. Nor15
shall anything in this Section preclude the department from independently16
responding in a timely manner to an inquiry or request by a landowner for17
investigation.18
(3) Any judgment or order in any litigation to which this Section applies shall19
be without prejudice to any independent civil or administrative action by the20
department or the attorney general regarding any environmental damage alleged21
referred to therein. No such judgment or order in such litigation may bar the22
department or the attorney general pursuant to R.S. 13:4231 et seq., or otherwise23
from pursuing any independent civil or administrative action regarding24
environmental damage as alleged therein, regardless of whether provided however,25
that if the department or intervenes in litigation brought under this Section, the26
feasible plan approved or issued by the department under this Section shall constitute27
a binding stipulation by the department in any independent civil or regulatory action28 HLS 12RS-2270 ORIGINAL
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brought by the department or attorney general has intervened. concerning1
environmental damage addressed in the feasible plan.2
(4) No judgment or order shall be rendered granting any relief in such3
litigation to which this Section applies, nor shall the litigation be dismissed, until4
timely notice is received by the state of Louisiana as set forth in this Subsection.5
C.(1) If at any time during the proceeding a party admits liability for6
environmental damage or the finder of fact determines that environmental damage7
exists and determines the party or parties who caused the damage or who are8
otherwise legally responsible therefor, the court shall order the party or parties who9
admit responsibility or whom the court finds legally responsible for the damage to10
develop a plan or submittal for the evaluation or remediation to applicable standards11
of the contamination that resulted in the environmental damage. The court shall order12
that the plan be developed and submitted to the department and the court within a13
time that the court determines is reasonable and shall allow the plaintiff or any other14
party at least thirty days from the date each plan or submittal was made to the15
department and the court to review the plan or submittal and provide to the16
department and the court a plan, comment, or input in response thereto. The17
department shall consider any plan, comment, or response provided timely by any18
party. Within ninety days of being served with a complaint asserting an action under19
this Section, a defendant may request that the court conduct a preliminary hearing20
to determine whether there is good cause for maintaining said defendant as a party21
in the litigation. At the hearing, the parties may introduce evidence in affidavit or22
written form. The plaintiff shall have the initial burden to introduce evidence to23
support the allegations of environmental damage, following which the moving party24
shall have the burden to demonstrate the absence of a genuine issue of material fact25
that the moving party caused or is otherwise legally responsible for the alleged26
environmental damage. The rules governing summary judgments in the Code of27
Civil Procedure shall not apply to the preliminary hearing. A judgment of dismissal28
under this Subsection shall be without prejudice, with all parties reserving the right29 HLS 12RS-2270 ORIGINAL
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to rejoin the dismissed defendant during the litigation upon discovery of evidence1
not reasonably available at the time of the hearing on the motion for preliminary2
dismissal. If not rejoined, a party dismissed under this Subsection shall be entitled3
to a judgment of dismissal with prejudice following a final non-appealable judgment4
on the claims asserted by the party against whom the preliminary dismissal was5
granted. Any pleading rejoining any defendant previously dismissed under this6
Subsection shall relate back to the filing of the original petition or any amendment7
thereto as provided in the Code of Civil Procedure Art. 1153. This procedure for a8
preliminary dismissal shall be in addition to the pretrial rights and remedies available9
to the parties under the Code of Civil Procedure, including the right to conduct10
discovery.11
(2)(a) Within one hundred and eighty days of service of a petition asserting12
an action covered by this Section, a party may admit responsibility for remediating13
to regulatory standards the contamination resulting in environmental damage alleged14
in the petition by providing notice of such admission to all parties, the court, and the15
department. Such notice shall identify the scope of the admission and all proposed16
variances or exceptions to regulatory standards or parameters. Within sixty days of17
such an admission, the party or parties who admit responsibility shall submit to the18
department a plan for the remediation to applicable regulatory standards of the19
contamination that resulted in the environmental damage, which may include20
variances and exceptions included in the notice of admission. Any party to the21
litigation may submit comments, plans or other submittals to the department within22
sixty days of the plan offered by the admitting party. The department shall submit23
to the court a schedule of estimated costs for review of the plans or submittals of the24
parties by the department and the court shall require the party or parties admitting25
responsibility or the party found legally responsible by the court to deposit in the26
registry of the court sufficient funds to pay the cost of the department's review of the27
plans or submittals. Any plan or submittal shall include an estimation of cost to28 HLS 12RS-2270 ORIGINAL
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implement the plan. An admission under the provisions of this Paragraph may be1
limited to a portion of the property allegedly damage.2
(b) In response to an admission of regulatory responsibility, the department3
may take any and all action authorized by law to protect the public interest, including4
issuing a compliance order based on the plans and submittals of the parties without5
a public hearing or additional public comment, initiating a formal compliance6
proceeding under the provisions of R.S. 30:4, or intervening in the litigation as7
provided in Paragraph (C)(5) of this Section.8
(3)(a) An admission by a party to responsibility for remediating to regulatory9
standards shall be admissible at trial. The court shall instruct the jury as to the10
limited scope of such admission based on the notice of admission made under11
Paragraph (C)(2) of this Section.12
(b) Evidence of remediation of the property following an admission under13
Paragraph (C)(2) of this Section shall be admissible only if the admitting party is14
able to delineate the horizontal and vertical extent of the environmental damage prior15
to remediation. If evidence of pre-trial remediation by an admitting party is16
introduced at trial, damages shall be based on the condition of the property as of the17
date of filing the original petition, subject to a credit in favor of the admitting party18
for the actual expenses incurred in performing remediation prior to trial pursuant to19
this Paragraph. Ongoing evaluation or remediation of the property shall not delay the20
scheduling of the trial on the merits.21
(4) Following the delay for a party to admit responsibility under Paragraph22
(C)(2), the court shall convene a conference pursuant to the Code of Civil Procedure23
Art. 1551 to establish a scheduling order for the parties to submit to the department24
plans or comments to remediate the alleged environmental damage to applicable25
regulatory standards. A party who has admitted responsibility for remediating to26
regulatory standards may resubmit the plan submitted to the department pursuant to27
Paragraph (C)(2). The department shall be provided a copy of the scheduling order28 HLS 12RS-2270 ORIGINAL
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and shall submit to the court a schedule of estimated costs for review of the1
submittals by the department.2
(5) Within sixty days from of the last day on which any party may provide3
the department with a plan, comment, or response to a plan as provided in Paragraph4
(C)(1) of as provided by the scheduling order pursuant to Paragraph (C)(4), the5
department may intervene in the litigation. On motion of the department, for good6
cause shown, the court may grant the department additional time to intervene, not to7
exceed sixty days. If the department elects to intervene, within sixty days of such8
intervention, the department shall submit to the court a feasible plan to remediate the9
environmental damage to regulatory standards.10
(6) If the department intervenes, all submittals by the parties to the11
department and the plan issued by the department shall be admissible at trial and any12
party may issue discovery and subpoena, for purposes of deposition or trial, any13
employee, contractor, or representative of the department involved in the formulation14
of the plan issued by the department.15
(7) If the department does not intervene, the parties shall not be permitted to16
conduct discovery or introduce evidence concerning the plans and submittals to the17
department or the department's actions relating to the alleged contamination after the18
date of filing of the original petition including, but not limited to, the department's19
review of the submittals or plans of the parties and any administrative enforcement20
action taken by the department.21
D. For actions tried under this Section, the department shall conduct a public22
hearing on the plan or plans submitted. Within sixty days of the conclusion of the23
hearing, the department shall approve or structure a plan based on the evidence24
submitted trier of fact shall determine whether the plaintiff has proven by a25
preponderance of the evidence the existence of environmental damage, the party or26
parties who caused the damage or who are otherwise legally responsible therefor,27
and the cost of remediation. Separate awards shall be made for the cost to evaluate28
and remediate environmental damage to regulatory standards and the additional cost,29 HLS 12RS-2270 ORIGINAL
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if any, to remediate environmental damage to a higher standard under any applicable1
laws or contract. In all cases in which the department determines to be intervenes and2
submits a feasible plan, there shall be a rebuttable presumption that the plan3
submitted by the department is the most feasible plan to evaluate or remediate the4
environmental damage and protect the health, safety, and welfare of the people. The5
department shall issue written reasons for the plan it approves or structures. On6
motion of the department, for good cause shown, the court may grant the department7
additional time, not to exceed sixty days, within which to either conduct the hearing8
or approve a plan with reasons remediate the environmental damage to applicable9
regulatory standards. For cases tried to a jury, if requested by a party, the court shall10
instruct the jury regarding this presumption.11
(3) The department shall use and apply the applicable standards in approving12
or structuring a plan that the department determines to be the most feasible plan to13
evaluate or remediate the environmental damage.14
(4) The plan approved by the department for submission to the court shall not15
be considered to be an adjudication subject to appellate review pursuant to R.S.16
49:964 or R.S. 30:12.17
(5) The court shall adopt the plan approved by the department, unless a party18
proves by a preponderance of the evidence that another plan is a more feasible plan19
to adequately protect the environment and the public health, safety, and welfare. The20
court shall enter a judgment adopting a plan with written reasons assigned. Upon21
adoption of a plan, the court shall order the party or parties admitting responsibility22
or the party or parties found legally responsible by the court to fund the23
implementation of the plan.24
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant25
to this Section and ordering the party or parties admitting responsibility or the party26
or parties found legally responsible by the court to deposit funds for the27
implementation thereof into the registry of the court pursuant to this Section shall be28 HLS 12RS-2270 ORIGINAL
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considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et1
seq., for purposes of appeal.2
(b) Any appeal under this Section shall be a de novo review and shall be3
heard with preference and on an expedited basis.4
(c) The appellate court may affirm the trial court's adoption of a plan or may5
adopt a feasible plan in conformity with this Section and shall issue written reasons6
for its decision.7
D.(1) Whether or not the department or the attorney general intervenes, and8
except as provided in Subsection H of this Section, all damages or payments in any9
civil action, E. (1) All damages, including interest thereon, awarded by the court for10
the evaluation or remediation of environmental damage funding the feasible plan11
shall be paid exclusively into the registry of the court in an interest-bearing account12
with the interest accruing to the account for clean up. cleanup, subject to credit for13
amounts actually expended for the evaluation or remediation of the environmental14
damage.15
(2) The court may allow any funds to be paid into the registry of the court16
under this Section to be paid in increments as necessary to fund the evaluation or17
remediation and implementation of any plan or submittal adopted by the court of18
contamination to regulatory standards. In any instance in which the court allows the19
funds to be paid in increments, whether or not an appeal is taken, the court shall20
require the posting of a bond for the implementation of the plan in such amount as21
provided by and in accordance with the procedures set forth for the posting of22
suspensive appeal bonds. Any such bond shall be valid through completion of the23
remediation.24
(3) The court shall issue such orders as may be necessary to ensure that any25
such funds are actually expended in a manner consistent with the adopted plan for26
the evaluation or remediation of the environmental damage for which the award or27
payment is made. (a) If an award for remediation of environmental damage to28
regulatory standards is made by the trier of fact, the court shall allow the parties and29 HLS 12RS-2270 ORIGINAL
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the department sixty days to submit recommendations for a final feasible plan. If the1
department did not intervene pursuant to Paragraph (C)(5) of this Section, its2
recommendation to the court may be based on the submissions by the parties to the3
department under Subsection C of this Section, or the results of environmental4
testing provided to the department under R.S. 30:29.1, or any other information5
within the custody and control of the department. Following review of the6
recommendations by the parties and the department, the court shall issue a final7
feasible plan based on all of the following four factors:8
(i) The evidence introduced at trial.9
(ii) The award made by the trier of fact for evaluation and remediation to10
regulatory standards.11
(iii) The recommendations of the parties.12
(iv) The recommendations of the department.13
(b) To the extent practicable, the court shall reconcile the cost to implement14
the feasible plan adopted by the court with the awards made by the trier of fact. The15
feasible plan adopted by the court shall be incorporated into the final judgment16
rendered by the court. The court shall provide written reasons for its determination17
of the feasible plan, if requested by any party.18
(c) Appeal of the judgement rendered under Paragraph (D)(3)(a) shall be a19
de novo review and shall be heard with preference and on an expedited basis. The20
appellate court may affirm the court's adoption of a plan or may adopt a plan in21
conformity with this Section and shall issue written reasons for its decision.22
(4) The court shall retain jurisdiction over the funds deposited for23
remediation of environmental damage to regulatory standards and the party or parties24
admitting responsibility or the party or parties found legally responsible by the court25
until such time as the evaluation or and remediation is are completed. If the court26
finds the amount of the initial deposit insufficient to complete the evaluation or27
remediation, the court shall, on the motion of any party or on its own motion, order28
the party or parties admitting responsibility or found legally responsible by the court29 HLS 12RS-2270 ORIGINAL
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to deposit additional funds into the registry of the court. Upon completion of The1
court shall determine whether the evaluation or remediation, the court shall order any2
funds remaining in the registry of the court to be returned to the depositor based3
upon the feasible plan adopted by the court has been completed. The department and4
the parties shall notify the court of the completion of any evaluation or remediation5
the evaluation or remediation, and the court shall consider any evidence submitted6
by the department or any party in determining whether the evaluation or remediation7
has been completed. Following a determination of completion of the evaluation and8
remediation, any money remaining in the registry of the court shall be returned to the9
depositor.10
E F.(1) In any civil action in which a party is responsible for damages or11
payments for the evaluation or remediation of environmental damage, a party12
providing evidence, in whole or in part, upon which the judgment is based shall be13
entitled to recover from the party or parties admitting responsibility or the party or14
parties found legally responsible by the court, in addition to any other amounts to15
which the party may be entitled, all costs attributable to producing that portion of the16
evidence that directly relates to the establishment of environmental damage and the17
responsibility of a party or parties, including, but not limited to, expert witness fees,18
environmental evaluation, investigation, and testing, the cost of developing a plan19
of remediation, and reasonable attorney fees incurred in the trial court and the20
department at all stages of the proceeding.21
(2) In any civil action in which the department or the attorney general, or22
their employees, are parties or witnesses, provide evidence, or otherwise contribute23
to the determination of responsibility for evaluation or remediation, or the approval24
of a plan of remediation, the department or attorney general shall be entitled to25
recover from the party or parties admitting responsibility or the party or parties found26
legally responsible by the court all costs thereof, including but not limited to27
investigation, evaluation, and review costs; expert witness fees; and reasonable28
attorney fees. In the event no party admits or is found responsible for remediation29 HLS 12RS-2270 ORIGINAL
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of environmental damage to regulatory standards, the party or parties filing the claim1
shall be responsible for payment of all such costs incurred by the department.2
F G. The court and the department shall retain oversight to ensure compliance3
with the plan to remediate the environmental damage to regulatory standards, and to4
ensure the implementation of any feasible plan adopted or structured by the court.5
The party or parties admitting responsibility or the party or parties found legally6
responsible by the court shall file progress reports periodically as the court or the7
department may require.8
G H. The provisions of this Section are intended to ensure evaluation or9
remediation of environmental damage to regulatory standards. If the court finds that10
no environmental damage exists, the court may dismiss the department or attorney11
general from the litigation without prejudice.12
H I. This Section shall not preclude an owner of land from pursuing a judicial13
remedy or receiving a judicial award for private claims suffered as a result of14
environmental damage, except as otherwise provided in required by the procedures15
established under this Section. Nor shall it preclude a judgment ordering damages16
for or implementation of additional remediation in excess of the requirements of the17
plan adopted by the court pursuant to this Section as may be required in accordance18
with the terms of an express contractual provision by law or the obligations of a19
contract. Any award granted in connection with the judgment for additional20
remediation is not required to be paid into the registry of the court. This Section shall21
not be interpreted to create or modify any cause of action or to impose additional22
implied obligations under the mineral code or arising out of a mineral lease.23
J. i. For the purposes of this Section, the following terms shall have the24
following meanings:25
(1) "Environmental damage" shall mean any actual or potential impact,26
damage, or injury to environmental media caused by contamination resulting from27
activities associated with oilfield sites or exploration and production sites.28 HLS 12RS-2270 ORIGINAL
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Environmental media shall include but not be limited to soil, surface water, ground1
water, or sediment.2
(2) "Evaluation or remediation" shall include but not be limited to3
investigation, testing, monitoring, containment, prevention, or abatement.4
(3) "Feasible Plan" means the most reasonable plan which addresses5
environmental damage in conformity with the requirements of Louisiana6
Constitution Article IX, Section 1 to protect the environment, public health, safety7
and welfare, and is in compliance with the specific relevant and applicable standards8
and regulations promulgated by a state agency agencies in accordance with the9
Administrative Procedure Act in effect at the time of clean up to remediate10
contamination resulting from oilfield or exploration and production operations or11
waste.12
(4) "Oilfield site" or "exploration and production (E&P) site" means any13
location or any portion thereof on which oil or gas exploration, development, or14
production activities have occurred, including wells, equipment, tanks, flow lines or15
impoundments used for the purposes of the drilling, work over, production, primary16
separation, disposal, transportation or storage of E&P wastes, crude oil and natural17
gas processing, transportation or storage of a common production stream of crude18
oil, natural gas, coal seam natural gas, or geothermal energy prior to a custody19
transfer or a sales point. In general, this definition would apply to all exploration and20
production operations located on the same lease, unit or field.21
(5) "Timely notice" means written notice sent by certified mail, return receipt22
requested. Such notice shall include a copy of the petition and any other filing in23
such litigation.24
K. J.(1) In the event that any settlement is reached in a case subject to the25
provisions of this Section, the settlement shall be subject to approval by the court.26
The department and the attorney general shall be given notice once the parties have27
reached a settlement in principle. The department shall then have no less than thirty28
days to review that settlement and comment to the court before the court certifies the29 HLS 12RS-2270 ORIGINAL
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settlement. If after a contradictory hearing the court requires remediation, the court1
shall not certify or approve any settlement until an amount of money sufficient to2
fund such remediation is deposited into the registry of the court. No funding of a3
settlement shall occur until the requirements of this Section have been satisfied.4
However, the court shall have the discretion to waive the requirements of this5
Section if the settlement reached is for a minimal amount and is not dispositive of6
the entire litigation.7
(2) In the event a settlement is agreed to between the parties in a case in8
which the department or the attorney general has intervened, such agency shall be9
entitled to recover from the settling defendants all costs, including investigation,10
evaluation, and review costs; expert witness fees; and reasonable attorney fees.11
L.(1) The prescriptive periods that apply to claims covered by the provisions12
of this Section shall be suspended for a period of one year upon the mailing or13
physical delivery to the department of a notice of intent to investigate. A notice of14
intent to investigate shall include each of the following information:15
(a) A description of the property alleged to have been damaged.16
(b) A description of the alleged environmental damage.17
(c) The general location on the property of the alleged environmental18
damage.19
(d) The name and address of all known owners of the property.20
(e) The name and address of the current operator.21
(2) The party issuing the notice of intent to investigate shall serve all persons22
identified therein with a copy of the notice of intent to investigate by certified mail,23
return receipt requested. The inability to obtain a signed returned receipt shall not24
prevent the suspension of prescription as provided in this Subsection. This25
Subsection shall not be construed to impede or limit the authority of the department26
to issue any order or initiate any administrative enforcement action relating to the27
alleged environmental damage identified in the notice of intent to investigate. No28 HLS 12RS-2270 ORIGINAL
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action for declaratory relief may be filed in any court against any party during the1
suspension of the prescriptive periods under this Subsection.2
K M. The provisions of this Section are procedural and shall not apply to any3
case in which the court on or before the effective date of this Act has issued or4
signed an order setting the case for trial, regardless of whether such trial is5
continued. However, any party or parties who filed such a judicial demand may elect6
to have such litigation governed by all provisions of this Act by filing with the court7
a notice of such right within sixty days of the effective date of this Act shall not8
apply to a judicial demand that prior to the effective date of this Section has been9
resolved through compromise agreement and settlement of claims, or by judgment10
on the merits that has become final and definitive.11
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Harrison HB No. 1180
Abstract: Provides for remediation of oilfield sites and exploration and production sites.
Present law provides that the Const. of La. mandates that the natural resources of the state
are to be protected, conserved and replenished insofar as possible and consistent with the
health, safety, and welfare of the people and further mandates that the legislature enact laws
to implement this policy.
Proposed law provides that is a constitutional duty of the legislature to set forth procedures
to ensure that damage to the environment is remediated to a standard that protects the public
interest concomitant with the constitutional duty of the courts to adjudicate private claims.
Proposed law provides that the intent of the legislature is intended to protect the public
interest by ensuring the evaluation or remediation of environmental damage to regulatory
standards and that every person who causes environmental damage has an obligation to
remediate such damage.
Proposed law provides that it is not the intent of the legislature to limit the right of private
litigants to assert private claims for remediation damages based on standards imposed by law
or private contracts in excess of the requirements of applicable regulations or for remedies
other than remediation damages as provided by law or private contracts.
Present law provides that upon filing or amendment of any litigation or pleading making a
judicial demand arising from environmental damage, the filing party shall provide timely
notice to the state through the Department of Natural Resources, commissioner of
conservation, and the attorney general. HLS 12RS-2270 ORIGINAL
HB NO. 1180
Page 16 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law provides that the filing party must make notice to the state within 10 days of
the filing or the amendment.
Present law provides that the department or the attorney general shall have the right to
intervene in such litigation, and further provides that nothing in present law shall diminish
the authority of the department or attorney general from pursuing any independent or civil
action regarding environmental damage regardless of whether the department or the attorney
general has intervened, and provides that nothing in the Section shall preclude the
department from independently responding to in a timely manner to an inquiry or request
by a landowner for investigation.
Proposed law gives the department the exclusive right to intervene in such litigation only as
provided under proposed law and removes the provision that precludes the department from
independently responding in a timely manner to an inquiry or request by a landowner for
investigation.
Present law provides that no judgment or order in any litigation shall be without prejudice
to any independent civil or administrative action by the department or attorney general
regarding any environmental damage and that no such judgment shall bar the department of
attorney general from pursuing any independent civil or administrative action, regardless of
whether the department or attorney general has intervened.
Proposed law retains present law but provides that if the department intervenes in litigation,
the plan approved or issued by the department shall constitute a binding stipulation by the
department in any independent civil or regulatory action brought by the department or
attorney general concerning damage addressed in the feasible plan.
Present law provides that should a party admit liability for environmental damage or the
finder of fact determines that environmental damage exists and determines the party who
caused the damage or who is responsible, requires the court to order the party who admits
responsibility to develop a plan for the evaluation or remediation of the damage. Further
provides that the plan shall be submitted to the department and court within a time that the
court determines is reasonable and allow the plaintiff at least 30 days from the date each plan
or submittal was made to the department.
Proposed law removes present law but provides that within 90 days of being served a
complaint, a defendant may request that the court conduct a preliminary hearing to determine
whether there is a good cause for maintaining the defendant as a party in the litigation, and
allows parties to introduce evidence. Provides that the plaintiff shall have the initial burden
to introduce evidence to support allegations of environmental damage, following which the
moving party shall have the burden to introduce evidence to support the allegations,
following the moving party shall have the burden to demonstrate the absence of an issue of
material fact that the moving party is responsible for the damage. Provides that the rules
governing summary judgments in the Code of Civil Procedure shall not apply to the
preliminary hearing, and further provides that all parties reserving the right to rejoin the
dismissed defendant during the litigation upon discovery of evidence not reasonably
available at the time of the hearing on the motion for preliminary dismissal. Provides that
if not rejoined, a party dismissed shall be entitled to a judgment of dismissal with prejudice
following a final non-appealable judgment on the claims asserted by the party against whom
the preliminary dismissal was granted.
Proposed law requires that within 180 days of service of a petition a party may admit
responsibility for remediating to regulatory standards the contamination or damage alleged
in the petition by providing notice of such admissions to all parties, the court and the
department. Within 60 days of such an admission, the party who admits responsibility shall
submit to the department a plan for the remediation to applicable regulatory standards of the
contamination that resulted in the damage. Any party may submit comments, plans or other
submittals to the department within 60 days of the plan offered by the admitting party. HLS 12RS-2270 ORIGINAL
HB NO. 1180
Page 17 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law provides that in response to an admission of regulatory responsibility, the
department may take any and all action to protect the public interest, including issuing a
compliance order based on the plans and submittals of the parties without a public hearing
or additional public comment, initiating a formal compliance proceeding or intervening in
the litigation as provided in present law.
Present law requires the court to submit a schedule of estimated costs for review of the plans
or submittals of the parties by the department and the court shall require the party admitting
responsibility or the party found legally responsible by the court to deposit in the registry of
the court sufficient funds to pay the cost of the department's review of the plans or
submittals, which shall include an estimation of cost to implement the plan.
Proposed law provides that an admission by a party may be limited to a portion of the
property allegedly damaged.
Proposed law provides that an admission by a party to responsibility for remediating to
regulatory standards shall be admissible at trial.
Proposed law provides that evidence of remediation may be offered by the admitting party
or the plaintiff and shall be admissible only if the admitting party is able to delineate the
horizontal and vertical extent of the environmental remediation and further provides that if
evidence of pre-trial remediation by the admitting party is introduced at trial, damages shall
be based on the condition of the property as of the date of filing the original petition, subject
to a credit in favor of the admitting party for the actual expenses incurred in performing
remediation prior to trial. Further provides that ongoing evaluation or remediation of the
property shall not delay the scheduling of the trial on the merits.
Proposed law provides that following the delay for a party to admit responsibility, the court
shall convene a conference to establish a scheduling order for the parties to submit to the
department plans or comments to remediate the alleged damage to regulatory standards, and
that any party who has admitted responsibility for remediating regulatory standards may
resubmit the plan submitted to the department. Requires the department to provide a copy
of the scheduling order and submit to the court a schedule of estimated costs for review of
the submittals.
Proposed law provides that if the department intervenes, all submittals by the parties to the
department and the plan issued by the department shall be admissible and trial and any party
may subpoena for purposes of deposition any employee, contractor, or representative of the
department involved in the formation of the plan.
Proposed law provides that if the department does not intervene, the parties shall not be
permitted to conduct discovery or introduce evidence concerning the plans and submittals
to the department's actions relating to the alleged damage after the date of filing of the
original petition, including but not limited to the department's review of the submittals or
plans of the parties and any administrative enforcement action taken by the department.
Present law requires the department to conduct a public hearing on the plan submitted and
that within 60 days of the conclusion of the hearing, the department shall approve or
structure a plan based on the evidence, and further provides that the court may provide the
department no more than 60 days additional time to either conduct a hearing or approve a
plan.
Proposed law changes present law to provide that the trier of fact shall determine whether
the plaintiff has proven the existence of environmental damage, the party responsible, and
the cost of remediation. Provides that separate awards shall be made for the cost to evaluate
and remediate damage to regulatory standards and the additional costs, if any, to remediate
environmental damage to a higher standard under any applicable laws or contracts. HLS 12RS-2270 ORIGINAL
HB NO. 1180
Page 18 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Present law provides that the department shall use and apply applicable standards in
approving and structuring a plan, that the approved plan shall not be considered an
adjudication subject to appellate law, and that the court shall adopt the plan unless a party
proves that an alternative plan is more feasible.
Proposed law removes present law.
Present law provides that any judgment adopting a plan and ordering the party admitting
responsibility or found legally responsible by the court to deposit funds for the
implementation into the registry of the court.
Proposed law removes present law.
Present law provides that an appellate court may affirm the trial court's adoption of the plan
or may adopt a feasible plan.
Proposed law removes present law.
Present law provides that all damages awarded for remediation shall be paid into the registry
of the court in an interest-bearing account with the interest accruing to the account for clean-
up.
Proposed law changes present law to specify that interest accrued shall be subject to credit
for amounts actually expended for the evaluation or remediation of the damage.
Present law provides that the court shall issue orders as may be necessary to ensure that any
such funds are actually expended in a manner consistent with the adopted plan for the
evaluation or remediation of the environmental damage for which the award or payment is
made.
Proposed law removes present law.
Proposed law provides that if an award for environmental damage to regulatory standards
is made by trier of fact, the court shall allow the parties and the department 60 days to
submit recommendations for a final feasible plan and the court shall issue a feasible plan
based on four factors: (1) the evidence introduced at trial; (2) the award made by the trier of
fact for evaluation and remediation to regulatory standards; (3) the recommendations of the
parties; and (4) the recommendations of the department. Further provides that the court shall
reconcile the cost to implement the feasible plan adopted by the court with the award made
by the trier of fact for evaluation or remediation to regulatory standards, and the plan
adopted by the court shall incorporate a final judgment rendered by the court.
Proposed law provides that an appeal shall be a de novo review and shall be heard with
preference and on an expedited basis. The appellate court may affirm the court's adoption
of a plan or may adopt a plan in conformity with proposed law and shall issue written
reasons for its decision
Present law provides that the court shall retain jurisdiction over the funds and the responsible
party until the remediation is complete. Further provides that if the court finds the amount
of the initial deposit insufficient to complete the evaluation or remediation, the court shall
order the responsible party to deposit additional funds into the registry of the court. Further
provides that upon completion of the remediation, the court shall order any remaining funds
returned to the depositor.
Proposed law provides that the court shall determine whether the remediation has been
completed, and provides that the court shall consider any evidence submitted by the
department or any party in determining whether the evaluation or remediation has been
completed. HLS 12RS-2270 ORIGINAL
HB NO. 1180
Page 19 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Present law provides that in any civil action in which a party deemed responsible for
damages or payments, the party providing evidence upon which the judgment is based shall
be entitled to recover from the parties admitting responsibility or found legally responsible
by the court, in addition to any other amounts to which the party may be entitled, all costs
attributable to producing that portion of the evidence that directly relates to the establishment
of environmental damage.
Present law provides that the department or attorney general may recover costs associated
with determining responsibility from the parties admitting responsibility or found legally
responsible.
Proposed law provides that in the event no party admits or is found responsible for the
damage, the parties filing the claim shall be responsible for payment of all such costs.
Present law provides that the court and the department shall retain oversight to ensure
compliance with the plan and that the responsible parties shall file progress reports on the
remediation.
Present law provides that provisions of present law are intended to ensure evaluation and
remediation of environmental damage, and that if no such damage exists, the court may
dismiss the department or attorney general from the litigation.
Present law provides that current landowners are not precluded from pursuing a judicial
remedy or receiving a judicial award for private claims suffered as a result of environmental
damage, nor does present law preclude a judgment ordering damages for or implementation
of additional remediation in excess of the requirement of the plan adopted by the court.
Further provides that any award granted in connection with the judgment for additional
remediation is not required to be paid into the registry of the court.
Present law provides that nothing in present law shall be interpreted to create any cause of
action or to impose additional implied obligations under the Mineral Code or arising out of
a mineral lease.
Proposed law removes present law.
Present law provides for certain definitions.
Proposed law provides that the prescriptive periods that apply to claims covered by proposed
law shall be suspended for one year upon the mailing or physical deliver to the department
of a notice of intent to investigate and that such notice shall include the following: (1) a
description of the property alleged to have been damaged; (2) a description of the alleged
environmental damage; (3) the general location on the property of the alleged environmental
damage; (4) the name and address of all known owners of the property; and (5) the name and
address of the current operator.
Proposed law provides that the party serving the notice of intent to investigate shall serve
all persons identified in the notice and that an inability to obtain a signed returned receipt
shall not prevent the suspension of prescription.
Proposed law provides that nothing in proposed law shall be construed to impede or limit
the authority of the department to issue any order or initiate any administrative enforcement
action relating to the alleged environmental damage identified in the notice.
(Amends R.S. 30:29)