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Regular Session, 2012
SENATE BILL NO. 555
BY SENATOR ADLEY
MINERALS. Provides for the remediation of oilfield sites and exploration and production
sites. (8/1/12)
AN ACT1
To amend and reenact R.S. 30:29(C)(1), (2), and (3) and to enact R.S. 30:29(B)(5), (6), (7),2
and (L), relative to the remediation of oilfield sites and exploration and production3
sites; to provide for the admission or finding of liability by certain parties; to provide4
for the issuance of subpoenas for certain individuals and the procedure for a5
preliminary hearing; to suspend the prescriptive period for cases involving6
environmental damage; to provide for indemnification; to provide terms, conditions,7
requirements, and procedures; and to provide for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. R.S. 30:29(C)(1), (2), and (3) are hereby amended and reenacted and R.S.10
30:29(B)(5), (6), (7), and (L) are hereby enacted to read as follows: 11
ยง29. Remediation of oilfield sites and exploration and production sites12
* * *13
B.(1) * * *14
(5) Any party may subpoena, for purposes of deposition or trial, any15
employee, contractor, or representative of the department involved in the16
formulation of the feasible plan approved by the department under Subsection17 SB NO. 555
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C of this Section, or an agency that reviews and provides comments under1
Subsection C of this Section. Discovery regarding the department's review,2
approval, or structuring of the feasible plan and of an agency that reviews and3
provides comments shall not be allowed until after the department submits its4
final feasible plan with reasons to the court pursuant to Subsection C of this5
Section. If a party subpoenas the records or testimony of the department or an6
agency for deposition or trial, the party issuing the subpoena shall pay the costs7
of the department or agency in responding to such subpoena.8
(6) Within sixty days of being served with a petition or amended petition9
asserting an action, a defendant may request that the court conduct a10
preliminary hearing to determine whether there is good cause for maintaining11
the defendant as a party in the litigation. At the hearing, the parties may12
introduce evidence in affidavit or written form. The plaintiff shall have the13
initial burden to introduce evidence to support the allegations of environmental14
damage, following which the moving party shall have the burden to15
demonstrate the absence of a genuine issue of material fact that the moving16
party caused or is otherwise legally responsible for the alleged environmental17
damage. The rules governing summary judgments in the Code of Civil18
Procedure shall not apply to the preliminary hearing. Within fifteen days of the19
preliminary hearing, the court shall issue an order on any timely request for20
preliminary dismissal. A judgment of dismissal under this Paragraph shall be21
without prejudice, with all parties reserving the right to rejoin the dismissed22
defendant during the litigation upon discovery of evidence not reasonably23
available at the time of the hearing on the motion for preliminary dismissal. If24
not rejoined, a party dismissed under this Paragraph shall be entitled to a25
judgment of dismissal with prejudice following a final non-appealable judgment26
on the claims asserted by the party against whom the preliminary dismissal was27
granted. Any pleading rejoining any defendant previously dismissed under this28
Paragraph shall relate back to the filing of the original petition or any29 SB NO. 555
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amendment thereto as provided in the Code of Civil Procedure Article 1153.1
The finding of the district court shall be without prejudice of any party to2
litigate the legal responsibility of any potentially responsible party, the3
allocation of responsibility among the potentially responsible parties, and any4
other issues incident to the finder of fact's determination of the party or parties5
who caused the damage or who are otherwise legally responsible for the alleged6
environmental damage. The procedure for a preliminary dismissal provided7
by this Paragraph shall be in addition to the pretrial rights and the remedies8
available to the parties under the Code of Civil Procedure, including the right9
to civil discovery.10
(7)(a) The prescriptive period that applies to any claim covered by the11
provisions of this Section shall be suspended for a period of one year upon the12
mailing or physical delivery to the department of a notice of intent to13
investigate. A notice of intent to investigate shall include all of the following14
information:15
(i) A description of the property alleged to have been damaged.16
(ii) A description of the alleged environmental damage.17
(iii) The general location of the alleged environmental damage on the18
property.19
(iv) The name and address of all known owners of the property.20
(v) The name and address of the current operator.21
(b) The party issuing the notice of intent to investigate shall mail by22
certified mail return receipt requested to all persons identified in the notice a23
copy of the notice.24
(c) If a party submits a notice of intent to investigate, any subsequent25
judicial demand by the party under the provisions of this Section shall identify26
on a map the location of any alleged environmental damage and include the27
results of any environmental testing performed on the property. Failure to28
include this information at the time of the filing of the judicial demand shall29 SB NO. 555
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result in exclusion of the information.1
C.(1) If at any time during the proceeding a party admits liability for2
environmental damage or the finder of fact determines that environmental damage3
exists and determines the party or parties who caused the damage or who are4
otherwise legally responsible therefor, the court shall order the party or parties who5
admit responsibility or whom the court finds legally responsible for the damage to6
develop a plan or submittal for the evaluation or remediation to applicable7
regulatory standards of the contamination that resulted in the environmental8
damage. The court shall order that the plan be developed and submitted to the9
department and the court within a time that the court determines is reasonable and10
shall allow the plaintiff or any other party at least thirty days from the date each plan11
or submittal was made to the department and the court to review the plan or12
submittal and provide to the department and the court a plan, comment, or input in13
response thereto. The department shall consider any plan, comment, or response14
provided timely by any party. The department shall submit to the court a schedule15
of estimated costs for review of the plans or submittals of the parties by the16
department and the court shall require the party admitting responsibility or the party17
found legally responsible by the court to deposit in the registry of the court sufficient18
funds to pay the cost of the department's review of the plans or submittals. Any plan19
or submittal shall include an estimation of cost to implement the plan.20
(2)(a) Within sixty days from the last day on which any party may provide21
the department with a plan, comment, or response to a plan as provided in Paragraph22
(C)(1) of this Section, the department shall conduct a public hearing on the plan or23
plans submitted. When a public hearing is held following a limited admission24
pursuant to the Code of Civil Procedure Article 1563, then the department shall25
not conduct an additional public hearing pursuant to this Section for the same26
environmental damage. Within sixty days of the conclusion of the hearing, the27
department shall approve or structure a final plan, or if applicable, a preliminary28
plan pursuant to Subparagraph (C)(3)(b) of this Section, based on the evidence29 SB NO. 555
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submitted which the department determines to be the most feasible plan to evaluate1
or remediate the environmental damage and protect the health, safety, and welfare2
of the people. The department shall issue written reasons for the plan it approves or3
structures. On motion of the department, for good cause shown, the court may grant4
the department additional time, not to exceed sixty days, within which to either5
conduct the hearing or approve a plan with reasons.6
(b) Except as otherwise provided for in this Section, from the date the7
party or parties, who admit responsibility or whom the court finds legally8
responsible for the damage, submit a plan to the department until after the9
department has filed with the court the approved feasible plan for the10
evaluation or remediation of the environmental damage, no party to the11
litigation, either directly or indirectly, shall have ex parte communication with12
any employee, contractor, or representative of the department regarding the13
formation of the feasible plan or an agency providing comments to the14
department regarding the formation of the feasible plan. The feasible plan15
issued by the department shall contain a signed affidavit of compliance with this16
restriction. Any comments provided by an agency to the department shall also17
contain a signed affidavit of compliance with this restriction.18
(3)(a) The department shall use and apply the applicable regulatory19
standards in approving or structuring a plan that the department determines to be the20
most feasible plan to evaluate or remediate the environmental damage.21
(b)(i) If the department preliminarily approves or structures a22
preliminary plan that requires the application of regulatory standards of an23
agency other than the department or that provides an exception from the24
department's standards, within fifteen days of such preliminary structuring or25
approval, the department shall submit the plan to the Department of26
Agriculture and Forestry, the Department of Environmental Quality, and the27
Department of Natural Resources for review and comment. Within thirty days28
after the department's submission of the plan to all of the agencies, each agency29 SB NO. 555
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may provide written comments regarding the plan. Each agency providing1
written comments shall submit a schedule of the agency's costs for review of the2
plan to the court for reimbursement by the responsible party. Failure of an3
agency to respond to the department shall not affect the validity of the plan4
approved by the department. The department and agency heads shall5
coordinate in order to establish protocol to ensure inter-agency communication6
regarding plan development, timely delivery of all proposed plans to the7
appropriate agency heads, and timely receipt of all agency comments back to8
the department.9
(ii) Within thirty days after the receipt of any agency's written10
comments, the department shall file in the court record the final plan, with11
written reasons that the department determines to be the most feasible plan to12
evaluate or remediate the environmental damage under applicable regulatory13
standards, together with any comments submitted by an agency under Item14
(C)(3)(b)(i). Based on the findings of the department, the department may issue15
any compliance order it deems necessary to either the operator of record or,16
where applicable, a party found responsible or admitting responsibility for17
implementing the most feasible plan to evaluate or remediate the environmental18
damage under applicable regulatory standards. If a compliance order is issued19
against the responsible party who is not the current operator of record, the20
responsible party shall give the current operator of record notice of the21
compliance order within thirty days of the responsible party's receipt of the22
compliance order.23
* * *24
L. If pursuant to the terms of a contract the responsible party is entitled25
to indemnification against punitive damages arising out of the environmental26
damage that is subject to the provisions of this Section, the responsible party27
shall waive the right to enforce the contractual right to indemnification against28
such punitive damages caused by the responsible party's acts or omissions if the29 SB NO. 555
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responsible party admits responsibility for the remediation of the1
environmental damage under applicable regulatory standards pursuant to the2
provisions of the Code of Civil Procedure Article 1563. Such waiver of the right3
to indemnification against punitive damages shall not apply to any other claims4
or damages.5
Section 2. The provisions of this Act shall not apply to any case in which the court6
on or before May 15, 2012, has issued or signed an order setting the case for trial, regardless7
of whether such trial setting is continued.8
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by J. W. Wiley.
DIGEST
Adley (SB 555)
Present law provides that if at any time during the proceeding a party admits liability for
environmental damage or the finder of fact determines that environmental damage exists and
determines the party or parties who caused the damage or who are otherwise legally
responsible, the court shall order the party or parties who admit responsibility or whom the
court finds legally responsible for the damage to develop a plan or submittal for the
evaluation or remediation to applicable standards of the contamination that resulted in the
environmental damage.
Proposed law allows any party to subpoena, for purposes of deposition or trial, any
employee, contractor, or representative of the department or agency involved in the
formulation of the feasible plan. Further allows the department or agency to recover costs
associated with the subpoena.
Proposed law does not allow for discovery of the department's review, approval, or
structuring of the feasible plan or of an agency's review and comments until after submission
to the court of the final feasible plan.
Proposed law provides a procedure for a defendant to request that the court conduct a
preliminary hearing to determine whether there is good cause for maintaining the defendant
as a party in the litigation.
Proposed law suspends the prescriptive period for one year for any claim covered by the
present law. Further provides for the procedure and requirements for the suspension.
Present law provides a procedure for a public hearing on the plan or plans submitted to
evaluate or remediate the environmental damage.
Proposed law provides that if a public hearing is held following a limited admission then the
department will not conduct an additional public hearing for the same environmental
damage.
Proposed law provides that from the date a party admits responsibility or whom the court
finds legally responsible for the damage submits a plan to the department until after the
department has filed with the court the approved feasible plan for the evaluation or
remediation of the environmental damage, no party to the litigation, either directly or SB NO. 555
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indirectly, may have ex parte communication with any employee, contractor, or
representative of the department or a commenting agency regarding the formation of the
feasible plan.
Proposed law provides a procedure for review of a plan that requires the application of
regulatory standards of an agency other than the department or that provides an exception
from the department's standards. Further provides that the Dept. of Ag. and Forestry, DEQ,
and DNR will review and comment on the plan.
Proposed law allows the department to issue compliance orders to either the operator of
record or to a party found responsible or admitting responsibility for implementing the most
feasible plan. Further provides for notice of the compliance order to the current operator.
Proposed law provides for waiver of the right to enforce the contractual right to
indemnification against such punitive damages caused by the responsible party's acts or
omissions if the responsible party admits responsibility for the remediation of the
environmental damage under applicable regulatory standards. Further provides that the
waiver of the right to indemnification against punitive damages will not apply to any other
claims or damages.
Provides that the provisions of proposed law will not apply to any case in which the court
on or before May 15, 2012, has issued or signed an order setting the case for trial, regardless
of whether such trial setting is continued.
Effective August 1, 2012.
(Amends R.S. 30:29(C)(1), (2), and (3); adds R.S. 30:29(B)(5), (6), (7), and (L))
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Natural Resources to
the original bill
1. Provides subpoena and preliminary hearing procedure.
2. Provides for suspension of prescriptive period.
3. Removes limited admission of liability language.
4.Provides for public hearings.
5.Prohibits ex parte communication.
6.Provides procedure for approval of a feasible plan and allows for issuance of
compliance orders.
7.Provides for indemnification.