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Regular Session, 2012 ENROLLED
SENATE BILL NO. 555
BY SENATOR ADLEY AND REPRESENTATIVES ABRAMSON, ADAMS,
BERTHELOT, BILLIOT, STUART BISHOP, BROADWATER,
HENRY BURNS, BURRELL, DOVE, GAROFALO, GISCLAIR,
GUINN, HARRIS, HARRISON, HAVARD, HENRY, JEFFERSON,
KLECKLEY, NANCY LANDRY, MILLER, JIM MORRIS, PIERRE,
PYLANT, REYNOLDS, RICHARD, SCHEXNAYDER, SEABAUGH,
THOMPSON AND WHI TNEY
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
C of this Section, or an agency that reviews and provides comments under18
ACT No. 779 SB NO. 555 ENROLLED
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Subsection C of this Section. Discovery regarding the department's review,1
approval, or structuring of the feasible plan and of an agency that reviews and2
provides comments shall not be allowed until after the department submits its3
final feasible plan with reasons to the court pursuant to Subsection C of this4
Section. If a party subpoenas the records or testimony of the department or an5
agency for deposition or trial, the party issuing the subpoena shall pay the costs6
of the department or agency in responding to such subpoena.7
(6) Within sixty days of being served with a petition or amended petition8
asserting an action, a defendant may request that the court conduct a9
preliminary hearing to determine whether there is good cause for maintaining10
the defendant as a party in the litigation. At the hearing, the parties may11
introduce evidence in affidavit or written form. The plaintiff shall have the12
initial burden to introduce evidence to support the allegations of environmental13
damage, following which the moving party shall have the burden to14
demonstrate the absence of a genuine issue of material fact that the moving15
party caused or is otherwise legally responsible for the alleged environmental16
damage. The rules governing summary judgments in the Code of Civil17
Procedure shall not apply to the preliminary hearing. Within fifteen days of the18
preliminary hearing, the court shall issue an order on any timely request for19
preliminary dismissal. A judgment of dismissal under this Paragraph shall be20
without prejudice, with all parties reserving the right to rejoin the dismissed21
defendant during the litigation upon discovery of evidence not reasonably22
available at the time of the hearing on the motion for preliminary dismissal. If23
not rejoined, a party dismissed under this Paragraph shall be entitled to a24
judgment of dismissal with prejudice following a final nonappealable judgment25
on the claims asserted by the party against whom the preliminary dismissal was26
granted. Any pleading rejoining any defendant previously dismissed under this27
Paragraph shall relate back to the filing of the original petition or any28
amendment thereto as provided in the Code of Civil Procedure Article 1153.29
The finding of the district court shall be without prejudice of any party to30 SB NO. 555 ENROLLED
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litigate the legal responsibility of any potentially responsible party, the1
allocation of responsibility among the potentially responsible parties, and any2
other issues incident to the finder of fact's determination of the party or parties3
who caused the damage or who are otherwise legally responsible for the alleged4
environmental damage. The procedure for a preliminary dismissal provided5
by this Paragraph shall be in addition to the pretrial rights and the remedies6
available to the parties under the Code of Civil Procedure, including the right7
to civil discovery.8
(7)(a) The prescriptive period that applies to any claim covered by the9
provisions of this Section shall be suspended for a period of one year upon the10
mailing or physical delivery to the department of a notice of intent to11
investigate. A notice of intent to investigate shall include all of the following12
information:13
(i) A description of the property alleged to have been damaged.14
(ii) A description of the alleged environmental damage.15
(iii) The general location of the alleged environmental damage on the16
property.17
(iv) The name and address of all known owners of the property.18
(v) The name and address of the current operator.19
(b) The party issuing the notice of intent to investigate shall mail by20
certified mail return receipt requested to all persons identified in the notice a21
copy of the notice.22
(c) If a party submits a notice of intent to investigate, any subsequent23
judicial demand by the party under the provisions of this Section shall identify24
on a map the location of any alleged environmental damage and include the25
results of any environmental testing performed on the property. Failure to26
include this information at the time of the filing of the judicial demand shall27
result in exclusion of the information.28
C.(1) If at any time during the proceeding a party admits liability for29
environmental damage or the finder of fact determines that environmental damage30 SB NO. 555 ENROLLED
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exists and determines the party or parties who caused the damage or who are1
otherwise legally responsible therefor, the court shall order the party or parties who2
admit responsibility or whom the court finds legally responsible for the damage to3
develop a plan or submittal for the evaluation or remediation to applicable4
regulatory standards of the contamination that resulted in the environmental5
damage. The court shall order that the plan be developed and submitted to the6
department and the court within a time that the court determines is reasonable and7
shall allow the plaintiff or any other party at least thirty days from the date each plan8
or submittal was made to the department and the court to review the plan or9
submittal and provide to the department and the court a plan, comment, or input in10
response thereto. The department shall consider any plan, comment, or response11
provided timely by any party. The department shall submit to the court a schedule12
of estimated costs for review of the plans or submittals of the parties by the13
department and the court shall require the party admitting responsibility or the party14
found legally responsible by the court to deposit in the registry of the court sufficient15
funds to pay the cost of the department's review of the plans or submittals. Any plan16
or submittal shall include an estimation of cost to implement the plan.17
(2)(a) Within sixty days from the last day on which any party may provide18
the department with a plan, comment, or response to a plan as provided in Paragraph19
(C)(1) of this Section, the department shall conduct a public hearing on the plan or20
plans submitted. When a public hearing is held following a limited admission21
pursuant to the Code of Civil Procedure Article 1563, then the department shall22
not conduct an additional public hearing pursuant to this Section for the same23
environmental damage. Within sixty days of the conclusion of the hearing, the24
department shall approve or structure a final plan, or if applicable, a preliminary25
plan pursuant to Subparagraph (C)(3)(b) of this Section, based on the evidence26
submitted which the department determines to be the most feasible plan to evaluate27
or remediate the environmental damage and protect the health, safety, and welfare28
of the people. The department shall issue written reasons for the plan it approves or29
structures. On motion of the department, for good cause shown, the court may grant30 SB NO. 555 ENROLLED
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the department additional time, not to exceed sixty days, within which to either1
conduct the hearing or approve a plan with reasons.2
(b) Except as otherwise provided for in this Section, from the date the3
party or parties, who admit responsibility or whom the court finds legally4
responsible for the damage, submit a plan to the department until after the5
department has filed with the court the approved feasible plan for the6
evaluation or remediation of the environmental damage, no party to the7
litigation, either directly or indirectly, shall have ex parte communication with8
any employee, contractor, or representative of the department regarding the9
formation of the feasible plan or an agency providing comments to the10
department regarding the formation of the feasible plan. The feasible plan11
issued by the department shall contain a signed affidavit of compliance with this12
restriction. Any comments provided by an agency to the department shall also13
contain a signed affidavit of compliance with this restriction.14
(3)(a) The department shall use and apply the applicable regulatory15
standards in approving or structuring a plan that the department determines to be the16
most feasible plan to evaluate or remediate the environmental damage.17
(b)(i) If the department preliminarily approves or structures a18
preliminary plan that requires the application of regulatory standards of an19
agency other than the department or that provides an exception from the20
department's standards, within fifteen days of such preliminary structuring or21
approval, the department shall submit the plan to the Department of22
Agriculture and Forestry, the Department of Environmental Quality, and the23
Department of Natural Resources for review and comment. Within thirty days24
after the department's submission of the plan to all of the agencies, each agency25
may provide written comments regarding the plan. Each agency providing26
written comments shall submit a schedule of the agency's costs for review of the27
plan to the court for reimbursement by the responsible party. Failure of an28
agency to respond to the department shall not affect the validity of the plan29
approved by the department. The department and agency heads shall30 SB NO. 555 ENROLLED
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coordinate in order to establish protocol to ensure inter-agency communication1
regarding plan development, timely delivery of all proposed plans to the2
appropriate agency heads, and timely receipt of all agency comments back to3
the department.4
(ii) Within thirty days after the receipt of any agency's written5
comments, the department shall file in the court record the final plan, with6
written reasons that the department determines to be the most feasible plan to7
evaluate or remediate the environmental damage under applicable regulatory8
standards, together with any comments submitted by an agency under Item (i)9
of this Subparagraph. Based on the findings of the department, the department10
may issue any compliance order it deems necessary to either the operator of11
record or, where applicable, a party found responsible or admitting12
responsibility for implementing the most feasible plan to evaluate or remediate13
the environmental damage under applicable regulatory standards. If a14
compliance order is issued against the responsible party who is not the current15
operator of record, the responsible party shall give the current operator of16
record notice of the compliance order within thirty days of the responsible17
party's receipt of the compliance order.18
* * *19
L. If pursuant to the terms of a contract the responsible party is entitled20
to indemnification against punitive damages arising out of the environmental21
damage that is subject to the provisions of this Section, the responsible party22
shall waive the right to enforce the contractual right to indemnification against23
such punitive damages caused by the responsible party's acts or omissions if the24
responsible party admits responsibility for the remediation of the25
environmental damage under applicable regulatory standards pursuant to the26
provisions of the Code of Civil Procedure Article 1563. Such waiver of the right27
to indemnification against punitive damages shall not apply to any other claims28
or damages.29
Section 2. The provisions of this Act shall not apply to any case in which the court30 SB NO. 555 ENROLLED
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on or before May 15, 2012, has issued or signed an order setting the case for trial, regardless1
of whether such trial setting is continued.2
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: