SLS 12RS-652 ORIGINAL
Page 1 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Regular Session, 2012
SENATE BILL NO. 528
BY SENATOR LONG
MINERALS. Provides for remediation of oilfield sites and exploration and production sites.
(8/1/12)
AN ACT1
To amend and reenact R.S. 30:29, relative to remediation; to provide relative to remediation2
of certain sites by the Department of Natural Resources; to provide relative to the3
remediation of oil and gas and other sites; to provide terms, conditions, procedures,4
requirements, definitions, and standards; to provide relative to duties and5
responsibilities of certain agencies; to provide relative to certain actions or claims6
involving environmental damage; to provide relative to parties, proceedings, orders,7
judgments, and awards by the court; to provide relative to remediation and cleanup8
arising from such actions or claims; to provide relative to oilfield sites and9
exploration and production sites; to provide for landowner notification of10
environmental testing; and to provide for related matters.11
Be it enacted by the Legislature of Louisiana:12
Section 1. R.S. 30:29 is hereby amended and reenacted to read as follows: 13
ยง29. Remediation of oilfield sites and exploration and production sites14
A. The legislature hereby finds and declares :15
(1) that Article IX, Section 1 of the Constitution of Louisiana mandates that16
the natural resources and the environment of the state, including ground water, are17 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 2 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
to be protected, conserved, and replenished insofar as possible and consistent with1
the health, safety, and welfare of the people and further mandates that the legislature2
enact laws to implement this policy. It is the constitutional duty of the legislature3
to set forth procedures to ensure that damage to the environment is remediated to a4
standard that protects the public interest. To this end,5
(2) The standard for remediating environmental damage to a level that6
protects the public interest is established by regulations adopted by the7
department pursuant to this Subtitle. The provisions of this Section are8
intended to protect the public interest by ensuring the evaluation or9
remediation of environmental damage to regulatory standards. Every person10
who causes environmental damage has an obligation to remediate such damage11
to regulatory standards.12
(3) The provisions of this Section shall not be construed to limit the right13
of private litigants to assert private claims for remediation damages based on14
standards imposed by law or private contracts in excess of the requirements of15
applicable regulations or for remedies other than remediation damages as16
provided by law or private contracts. The provisions of this Section shall not be17
construed to create any cause of action or to impose additional implied18
obligations under the Louisiana mineral code or arising out of a mineral lease.19
(4) This this Section provides the procedure for judicial resolution of claims20
for environmental damage to property arising from activities subject to the21
jurisdiction of the Department of Natural Resources, office of conservation. The22
provisions of this Section shall be implemented upon receipt of timely notice as23
required by Paragraph (B)(1) of this Section. The provisions of this Section shall not24
be construed to prohibit or impede or limit provisions under private contracts25
imposing the evaluation or remediation obligations in excess of the requirements26
of of environmental damage by any person performed for the purpose of27
complying with an administrative order issued by the department or limit the right28
of a party to a private contract to enforce any contract provision. Nor shall anything29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 3 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
in this Section preclude the department from independently responding in a1
court of proper jurisdiction. timely manner to an inquiry or request by a2
landowner for investigation.3
B.(1) Notwithstanding any law to the contrary, immediately upon the filing4
or amendment of any litigation or pleading making a judicial demand arising from5
or alleging environmental damage, the provisions of this Section shall apply and the6
party filing same shall provide timely notice to the state of Louisiana through the7
Department of Natural Resources, commissioner of conservation and the attorney8
general. within ten days of the filing or the amendment. The litigation shall be9
stayed with respect to any such judicial demand until thirty days after such notice is10
issued and return receipt is filed with the court.11
(2) The department or the attorney general, in accordance with their areas of12
constitutional and statutory authority and regulations adopted pursuant thereto, shall13
have the right to intervene in such litigation brought under this Section only as14
provided in Paragraph (C)(5) of this Section. If the department does not15
intervene in accordance with the Louisiana Code of Civil Procedure. The litigation,16
nothing Nothing in this Section shall diminish the authority of the department or the17
attorney general to independently bring any civil or administrative enforcement18
action. Nor shall anything in this Section preclude the department from19
independently responding in a timely manner to an inquiry or request by a landowner20
for investigation.21
(3) Any judgment or order in any litigation to which this Section applies shall22
be without prejudice to any independent civil or administrative action by the23
department or the attorney general regarding any environmental damage alleged24
therein. No such judgment or order in such litigation may bar the department or the25
attorney general pursuant to R.S. 13:4231 et seq., or otherwise from pursuing any26
independent civil or administrative action regarding environmental damage as27
alleged therein, regardless of whether provided however, that if the department or28
intervenes in litigation brought under this Section, the feasible plan approved29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 4 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
or issued by the department under this Section shall constitute a binding1
stipulation by the department in any independent civil or regulatory action2
brought by the department or attorney general has intervened.concerning3
environmental damage addressed in the feasible plan.4
(4) No judgment or order shall be rendered granting any relief in such5
litigation to which this Section applies, nor shall the litigation be dismissed, until6
timely notice is received by the state of Louisiana as set forth in this Subsection.7
C.(1) If at any time during the proceeding a party admits liability for8
environmental damage or the finder of fact determines that environmental damage9
exists and determines the party or parties who caused the damage or who are10
otherwise legally responsible therefor, the court shall order the party or parties who11
admit responsibility or whom the court finds legally responsible for the damage to12
develop a plan or submittal for the evaluation or remediation to applicable standards13
of the contamination that resulted in the environmental damage. The court shall order14
that the plan be developed and submitted to the department and the court within a15
time that the court determines is reasonable and shall allow the plaintiff or any other16
party at least thirty days from the date each plan or submittal was made to the17
department and the court to review the plan or submittal and provide to the18
department and the court a plan, comment, or input in response thereto. The19
department shall consider any plan, comment, or response provided timely by any20
party. Within ninety days of being served with a complaint asserting an action21
under this Section, a defendant may request that the court conduct a22
preliminary hearing to determine whether there is good cause for maintaining23
said defendant as a party in the litigation. At the hearing, the parties may24
introduce evidence in affidavit or written form. The plaintiff shall have the25
initial burden to demonstrate the absence of a genuine issue of material fact that26
the moving party caused or is otherwise legally responsible for the alleged27
environmental damage. The rules governing summary judgments in the Code28
of Civil Procedure shall not apply to the preliminary hearing. A judgment of29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 5 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
dismissal under this Subsection shall be without prejudice, with all parties1
reserving the right to rejoin the dismissed defendant during the litigation upon2
discovery of evidence not reasonably available at the time of the hearing on the3
motion for preliminary dismissal. If not rejoined, a party dismissed under this4
Subsection shall be entitled to a judgment of dismissal with prejudice following5
a final judgment on the claims asserted by the party against whom the6
preliminary dismissal was granted. Any pleading rejoining any defendant7
previously dismissed under this Subsection shall relate back to the filing of the8
original petition or any amendment thereto as provided in the Code of Civil9
Procedure Art. 1153. This procedure for a preliminary dismissal shall be in10
addition to the pretrial rights and remedies available to the parties under the11
Code of Civil Procedure, including the right to conduct discovery.12
(2) Within one hundred and eighty days of service of a petition asserting13
an action covered by this Section, a party may admit responsibility for14
remediating to regulatory standards the contamination resulting in15
environmental damage alleged in the petition by providing notice of such16
admission to all parties, the court and the department. Within sixty days of such17
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. In response to the20
submission by the admitting party, the department shall either initiate a21
compliance proceeding under the provisions of R.S. 30:4 or intervene as22
provided in this Paragraph (C)(5) of this Section. The department shall submit to23
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 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
implement the plan. An admission by a party under the provisions of this29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 6 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Paragraph may be limited to a portion of the property allegedly damage.1
(3)(a) An admission by a party to responsibility for remediating to2
regulatory standards shall be admissible at trial. The court shall instruct the3
jury as to the scope of such admission based on Paragraph (C)(2) of this Section4
and the facts admitted by the admitting party.5
(b) Evidence of remediation of the property following an admission6
under Paragraph (C)(2) of this Section may be offered by the admitting party7
or the plaintiff and shall be admissible only if the admitting party first8
delineates the horizontal and vertical extent of the environmental media9
designated for remediation. If evidence of pre-trial remediation by an admitting10
party is introduced at trial, damages shall be based on the condition of the11
property as of the date of filing the original petition, subject to a credit in favor12
of the admitting party for the actual expenses incurred in performing13
remediation prior to trial pursuant to this Paragraph. Ongoing evaluation or14
remediation of the property shall not delay the scheduling of the trial on the15
merits.16
(4) Following the delay for a party to admit responsibility under17
Paragraph (C)(2), the court shall convene a conference pursuant to the Code of18
Civil Procedure Art. 1551 to establish a scheduling order for the parties to19
submit to the department plans or comments to remediate the alleged20
environmental damage to applicable regulatory standards. A party who has21
admitted responsibility for remediating to regulatory standards may resubmit22
the plan submitted to the department pursuant to Paragraph (C)(2). The23
department shall be provided a copy of the scheduling order and shall submit24
to the court a schedule of estimated costs for review of the submittals by the25
department. Upon request by a party or parties, the court shall schedule a trial26
on the merits.27
(5) Within sixty days from of the last day on which any party may provide28
the department with a plan, comment, or response to a plan as provided in Paragraph29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 7 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
(C)(1) of as provided by the scheduling order pursuant to Paragraph (C)(4), the1
department may intervene in the litigation. If the department elects to2
intervene, within sixty days of such intervention, the department shall submit3
to the court a feasible plan to remediate the environmental damage to4
regulatory standards.5
(6) If the department intervenes, all submittals by the parties to the6
department and the plan issued by the department shall be admissible at trial7
and any party may subpoena, for purposes of deposition or trial, any employee,8
contractor, or representative of the department involved in the formulation of9
the plan issued by the department.10
(7) If the department does not intervene, the parties shall not be11
permitted to conduct discovery or introduce evidence concerning the plans and12
submittals to the department or the department's actions relating to the alleged13
contamination after the date of filing of the original petition including, but not14
limited to, the department's review of the submittals or plans of the parties and15
any administrative enforcement action taken by the department.16
D. For actions tried under this Section, the department shall conduct a17
public hearing on the plan or plans submitted. Within sixty days of the conclusion18
of the hearing, the department shall approve or structure a plan based on the evidence19
submitted trier of fact shall determine whether the plaintiff has proven by a20
preponderance of the evidence the existence of environmental damage, the party21
or parties who caused the damage of who are otherwise legally responsible22
therefor, and the cost of remediation. Separate awards shall be made for the23
cost to evaluate and remediate environmental damage to regulatory standards24
and the additional cost, if any, to remediate environmental damage to a higher25
standard under any applicable laws or contract. In all cases in which the26
department determines to be intervenes and submits a feasible plan, there shall27
be a rebuttable presumption that the plan submitted by the department is the28
most feasible plan to evaluate or remediate the environmental damage and protect29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 8 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
the health, safety, and welfare of the people. The department shall issue written1
reasons for the plan it approves or structures. On motion of the department, for good2
cause shown, the court may grant the department additional time, not to exceed sixty3
days, within which to either conduct the hearing or approve a plan with reasons4
remediate the environmental damage to applicable regulatory standards. For5
cases tried to a jury, if requested by a party, the court shall instruct the jury6
regarding this presumption.7
(3) The department shall use and apply the applicable standards in approving8
or structuring a plan that the department determines to be the most feasible plan to9
evaluate or remediate the environmental damage.10
(4) The plan approved by the department for submission to the court shall not11
be considered to be an adjudication subject to appellate review pursuant to R.S.12
49:964 or R.S. 30:12.13
(5) The court shall adopt the plan approved by the department, unless a party14
proves by a preponderance of the evidence that another plan is a more feasible plan15
to adequately protect the environment and the public health, safety, and welfare. The16
court shall enter a judgment adopting a plan with written reasons assigned. Upon17
adoption of a plan, the court shall order the party or parties admitting responsibility18
or the party or parties found legally responsible by the court to fund the19
implementation of the plan.20
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant21
to this Section and ordering the party or parties admitting responsibility or the party22
or parties found legally responsible by the court to deposit funds for the23
implementation thereof into the registry of the court pursuant to this Section shall be24
considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et25
seq., for purposes of appeal.26
(b) Any appeal under this Section shall be a de novo review and shall be27
heard with preference and on an expedited basis.28
(c) The appellate court may affirm the trial court's adoption of a plan or may29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 9 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
adopt a feasible plan in conformity with this Section and shall issue written reasons1
for its decision.2
D.(1) Whether or not the department or the attorney general intervenes, and3
except as provided in Subsection H of this Section, all damages or payments in any4
civil action, E. (1) All damages, including interest thereon, awarded for the5
evaluation or remediation of environmental damage funding the feasible plan shall6
be paid exclusively into the registry of the court in an interest-bearing account with7
the interest accruing to the account for clean up., subject to credit for amounts8
actually expended for the evaluation or remediation of the environmental9
damage.10
(2) The court may allow any funds to be paid into the registry of the court11
under this Section to be paid in increments as necessary to fund the evaluation or12
remediation and implementation of any plan or submittal adopted by the court of13
contamination to regulatory standards. In any instance in which the court allows14
the funds to be paid in increments, whether or not an appeal is taken, the court shall15
require the posting of a bond for the implementation of the plan in such amount as16
provided by and in accordance with the procedures set forth for the posting of17
suspensive appeal bonds. Any such bond shall be valid through completion of the18
remediation.19
(3) The court shall issue such orders as may be necessary to ensure that any20
such funds are actually expended in a manner consistent with the adopted plan for21
the evaluation or remediation of the environmental damage for which the award or22
payment is made. If an award for remediation of environmental damage to23
regulatory standards is made by the trier of fact, the court shall allow the24
parties and the department sixty days to submit recommendations for a final25
feasible plan. If the department did not intervene pursuant to Paragraph (C)(5)26
of this Section, its recommendation to the court may be based on the27
submissions by the parties to the department under Subsection C of this Section,28
or the results of environmental testing provided to the department under R.S.29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 10 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
30:29.1, or any other information within the custody and control of the1
department. Following review of the recommendations by the parties and the2
department, the court shall issue a final feasible plan based on the following3
four factors:4
(1) The evidence introduced at trial;5
(2) The award made by the trier of fact for evaluation and remediation6
to regulatory standards;7
(3) The recommendations of the parties; and8
(4) The recommendations of the department.9
To the extent practicable, the court shall reconcile the cost to implement10
the feasible plan adopted by the court with the award made by the trier of fact11
for evaluation or remediation to regulatory standards. The feasible plan12
adopted by the court shall be incorporated into the final judgment rendered by13
the court. The court shall provide written reasons for its determination of the14
feasible plan, if requested by any party.15
(4) The court shall retain jurisdiction over the funds deposited for16
remediation of environmental damage to regulatory standards and the party or17
parties admitting responsibility or the party or parties found legally responsible by18
the court until such time as the evaluation or and remediation is are completed. If19
the court finds the amount of the initial deposit insufficient to complete the20
evaluation or remediation, the court shall, on the motion of any party or on its own21
motion, order the party or parties admitting responsibility or found legally22
responsible by the court to deposit additional funds into the registry of the court.23
Upon completion of The court shall determine whether the evaluation or24
remediation, the court shall order any funds remaining in the registry of the court to25
be returned to the depositorbased upon the feasible plan adopted by the court has26
been completed. The department and the parties shall notify the court of the27
completion of any evaluation or remediation the evaluation or remediation, and28
the court shall consider any evidence submitted by the department or any party29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 11 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
in determining whether the evaluation or remediation has been completed.1
Following a determination of completion of the evaluation and remediation, any2
money remaining in the registry of the court shall be returned to the depositor.3
EF.(1) In any civil action in which a party is responsible for damages or4
payments for the evaluation or remediation of environmental damage, a party5
providing evidence, in whole or in part, upon which the judgment is based shall be6
entitled to recover from the party or parties admitting responsibility or the party or7
parties found legally responsible by the court, in addition to any other amounts to8
which the party may be entitled, all costs attributable to producing that portion of the9
evidence that directly relates to the establishment of environmental damage,10
including, but not limited to, expert witness fees, environmental evaluation,11
investigation, and testing, the cost of developing a plan of remediation, and12
reasonable attorney fees incurred in the trial court and the department.13
(2) In any civil action in which the department or the attorney general, or14
their employees, are parties or witnesses, provide evidence, or otherwise contribute15
to the determination of responsibility for evaluation or remediation, or the approval16
of a plan of remediation, the department or attorney general shall be entitled to17
recover from the party or parties admitting responsibility or the party or parties found18
legally responsible by the court all costs thereof, including but not limited to19
investigation, evaluation, and review costs; expert witness fees; and reasonable20
attorney fees. In the event no party admits or is found responsible for21
remediation of environmental damage to regulatory standards, the party or22
parties filing the claim shall be responsible for payment of all such costs23
incurred by the department.24
FG. The court and the department shall retain oversight to ensure compliance25
with the plan to remediate the environmental damage to regulatory standards,26
and to ensure the implementation of any feasible plan adopted or structured by27
the court. The party or parties admitting responsibility or the party or parties found28
legally responsible by the court shall file progress reports periodically as the court29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 12 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
or the department may require.1
GH. The provisions of this Section are intended to ensure evaluation or and2
remediation of environmental damage to regulatory standards. If the court finds3
that no environmental damage exists, the court may dismiss the department or4
attorney general from the litigation without prejudice.5
H I. This Section shall not preclude an owner of land from pursuing a judicial6
remedy or receiving a judicial award for private claims suffered as a result of7
environmental damage, except as otherwise provided in this Section. Nor shall it8
preclude a judgment ordering damages for or implementation of additional9
remediation in excess of the requirements of the plan adopted by the court pursuant10
to this Section as may be required by law or in accordance with the terms or11
obligations of an express contractual provision a contract. Any award granted in12
connection with the judgment for additional remediation is not required to be paid13
into the registry of the court. This Section shall not be interpreted to create any cause14
of action or to impose additional implied obligations under the mineral code or15
arising out of a mineral lease.16
i. For the purposes of this Section, the following terms shall have the17
following meanings:18
(1) "Environmental damage" shall mean any actual or potential impact,19
damage, or injury to environmental media caused by contamination resulting from20
activities associated with oilfield sites or exploration and production sites.21
Environmental media shall include but not be limited to soil, surface water, ground22
water, or sediment.23
(2) "Evaluation or remediation" shall include but not be limited to24
investigation, testing, monitoring, containment, prevention, or abatement.25
(3) "Feasible Plan" means the most reasonable plan which addresses26
environmental damage in conformity with the requirements of Louisiana27
Constitution Article IX, Section 1 to protect the environment, public health, safety28
and welfare, and is in compliance with the specific relevant and applicable standards29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 13 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
and regulations promulgated by a state agency agencies in accordance with the1
Administrative Procedure Act in effect at the time of clean up to remediate2
contamination resulting from oilfield or exploration and production operations or3
waste.4
(4) "Oilfield site"or "exploration and production (E&P) site" means any5
location or any portion thereof on which oil or gas exploration, development, or6
production activities have occurred, including wells, equipment, tanks, flow lines or7
impoundments used for the purposes of the drilling, work over, production, primary8
separation, disposal, transportation or storage of E&P wastes, crude oil and natural9
gas processing, transportation or storage of a common production stream of crude10
oil, natural gas, coal seam natural gas, or geothermal energy prior to a custody11
transfer or a sales point. In general, this definition would apply to all exploration and12
production operations located on the same lease, unit or field.13
(5) "Timely notice" means written notice sent by certified mail, return receipt14
requested. Such notice shall include a copy of the petition and any other filing in15
such litigation.16
J.(1) In the event that any settlement is reached in a case subject to the17
provisions of this Section, the settlement shall be subject to approval by the court.18
The department and the attorney general shall be given notice once the parties have19
reached a settlement in principle. The department shall then have no less than thirty20
days to review that settlement and comment to the court before the court certifies the21
settlement. If after a contradictory hearing the court requires remediation, the court22
shall not certify or approve any settlement until an amount of money sufficient to23
fund such remediation is deposited into the registry of the court. No funding of a24
settlement shall occur until the requirements of this Section have been satisfied.25
However, the court shall have the discretion to waive the requirements of this26
Section if the settlement reached is for a minimal amount and is not dispositive of27
the entire litigation.28
(2) In the event a settlement is agreed to between the parties in a case in29 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 14 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
which the department or the attorney general has intervened, such agency shall be1
entitled to recover from the settling defendants all costs, including investigation,2
evaluation, and review costs; expert witness fees; and reasonable attorney fees.3
L. The prescriptive periods that apply to claims covered by the4
provisions of this Section shall be suspended for a period of one year upon the5
mailing or physical delivery to the department of a notice of intent to6
investigate. A notice of intent to investigate shall include the following7
information:8
(1) A description of the property alleged to have been damaged;9
(2) A description of the alleged environmental damage;10
(3) The general location on the property of the alleged environmental11
damage;12
(4) The name and address of all known owners of the property; and13
(5) The name and address of the current operator.14
The party issuing the notice of intent to investigate shall serve all persons15
identified therein with a copy of the notice of intent to investigate by certified16
mail, return receipt requested. The inability to obtain a signed returned receipt17
shall not prevent the suspension of prescription as provided in this Subsection.18
This Subsection shall not be construed to impede or limit the authority of the19
department to issue any order or initiate any administrative enforcement action20
relating to the alleged environmental damage identified in the notice of intent21
to investigate. No action for declaratory relief may be filed in any court against22
any party during the suspension of the prescriptive periods under this23
Subsection.24
KM. The provisions of this Section shall not apply to a judicial demand that25
prior to the effective date of this Section has been resolved through compromise26
agreement and settlement of claims, or by judgment on the merits that has become27
final and definitive.28 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 15 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by McHenry Lee.
DIGEST
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, nor shall the
intention of the legislature be construed to create any cause of action or to impose additional
implied obligations under the La. Mineral Code or arising out of a mineral lease.
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.
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 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 16 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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 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
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, and in response to the admitting party, the
department shall either initiate a compliance proceeding or intervene.
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 first delineates the
horizontal and vertical extent of the environmental media designated for 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 SB NO. 528
SLS 12RS-652 ORIGINAL
Page 17 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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, and further requires the court to reschedule a trial on the merits.
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.
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. SB NO. 528
SLS 12RS-652 ORIGINAL
Page 18 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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.
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.
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. SB NO. 528
SLS 12RS-652 ORIGINAL
Page 19 of 19
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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.
Effective August 1, 2012.
(Amends R.S. 30:29)