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Regular Session, 2012
SENATE BILL NO. 731
BY SENATOR ALLAIN
MINERALS. Provides relative to 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 productions 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. 731
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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. This obligation may be enforced by the department12
under the provisions of this Section or in a separate independent civil or13
administrative action.14
(3) The provisions of this Section shall not be construed to limit the right15
of private litigants to assert private claims for remediation damages based on16
standards in excess of the requirements of applicable regulations or to seek17
remedies other than damages for remediation.18
(4) This this Section provides the procedure for judicial resolution of claims19
for environmental damage to property arising from activities subject to the20
jurisdiction of the Department of Natural Resources, office of conservation. The21
provisions of this Section shall be implemented upon receipt of timely notice as22
required by Paragraph (B)(1) of this Section. The provisions of this Section shall not23
be construed to prohibit or impede or limit provisions under private contracts24
imposing the evaluation or remediation obligations in excess of the requirements25
of of environmental damage by any person performed for the purpose of26
complying with an administrative order issued by the department or limit the right27
of a party to a private contract to enforce any contract provision. Nor shall anything28
in this Section preclude the department from independently responding in a29 SB NO. 731
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court of proper jurisdiction. timely manner to an inquiry or request by a1
landowner for investigation.2
B.(1) Notwithstanding any law to the contrary, immediately upon the filing3
or amendment of any litigation or pleading making a judicial demand arising from4
or alleging environmental damage, the provisions of this Section shall apply and the5
party filing same shall provide timely notice to the state of Louisiana through the6
Department of Natural Resources, commissioner of conservation and the attorney7
general. within ten days of the filing or the amendment. The litigation shall be8
stayed with respect to any such judicial demand until thirty days after such notice is9
issued and return receipt is filed with the court.10
(2) The department or the attorney general, in accordance with their areas of11
constitutional and statutory authority and regulations adopted pursuant thereto, shall12
have the right to intervene in such litigation brought under this Section only as13
provided in Subsection C of this Section. If the department does not intervene14
in accordance with the Louisiana Code of Civil Procedure. the litigation, nothing15
Nothing in this Section shall diminish the authority of the department or the attorney16
general to independently bring any civil or administrative enforcement action. Nor17
shall anything in this Section preclude the department from independently18
responding in a timely manner to an inquiry or request by a landowner for19
investigation.20
(3) Any judgment or order in any litigation to which this Section applies shall21
be without prejudice to any independent civil or administrative action by the22
department or the attorney general regarding any environmental damage alleged23
referred to therein. No such judgment or order in such litigation may bar the24
department or the attorney general pursuant to R.S. 13:4231 et seq., or otherwise25
from pursuing any independent civil or administrative action regarding26
environmental damage as alleged therein, regardless of whether provided however,27
that if the department or intervenes in litigation brought under this Section, the28
feasible plan approved or issued by the department under this Section shall29 SB NO. 731
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constitute a binding stipulation by the department in any independent civil or1
regulatory action brought by the department or attorney general has intervened.2
concerning environmental damage addressed in the feasible plan.3
(4) No judgment or order shall be rendered granting any relief in such4
litigation to which this Section applies, nor shall the litigation be dismissed, until5
timely notice is received by the state of Louisiana as set forth in this Subsection.6
C.(1) If at any time during the proceeding a party admits liability for7
environmental damage or the finder of fact determines that environmental damage8
exists and determines the party or parties who caused the damage or who are9
otherwise legally responsible therefor, the court shall order the party or parties who10
admit responsibility or whom the court finds legally responsible for the damage to11
develop a plan or submittal for the evaluation or remediation to applicable standards12
of the contamination that resulted in the environmental damage. The court shall order13
that the plan be developed and submitted to the department and the court within a14
time that the court determines is reasonable and shall allow the plaintiff or any other15
party at least thirty days from the date each plan or submittal was made to the16
department and the court to review the plan or submittal and provide to the17
department and the court a plan, comment, or input in response thereto. The18
department shall consider any plan, comment, or response provided timely by any19
party. Within ninety days of being served with a complaint asserting an action20
under this Section, a defendant may request that the court conduct a21
preliminary hearing to determine whether there is good cause for maintaining22
said defendant as a party in the litigation. At the hearing, the parties may23
introduce evidence in affidavit or written form. The plaintiff shall have the24
initial burden to introduce evidence to support the allegation of environmental25
damage, following which the moving party shall have the burden to26
demonstrate the absence of a genuine issue of material fact that the moving27
party caused or is otherwise legally responsible for the alleged environmental28
damage. The rules governing summary judgments in the Code of Civil29 SB NO. 731
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Procedure shall not apply to the preliminary hearing. A judgment of dismissal1
under this Subsection shall be without prejudice, with all parties reserving the2
right to rejoin the dismissed defendant during the litigation upon discovery of3
evidence not reasonably available at the time of the hearing on the motion for4
preliminary dismissal. If not rejoined, a party dismissed under this Subsection5
shall be entitled to a judgment of dismissal with prejudice following a final non-6
appealable judgment on the claims asserted by the party against whom the7
preliminary dismissal was granted. Any pleading rejoining any defendant8
previously dismissed under this Subsection shall relate back to the filing of the9
original petition or any amendment thereto as provided in the Code of Civil10
Procedure Art. 1153. This procedure for a preliminary dismissal shall be in11
addition to the pretrial rights and remedies available to the parties under the12
Code of Civil Procedure, including the right to conduct discovery.13
(2)(a) Within one hundred and eighty days of service of a petition14
asserting an action covered by this Section, a party may admit responsibility for15
remediating to regulatory standards the contamination resulting in16
environmental damage alleged in the petition by providing notice of such17
admission to all parties, the court and the department. Such notice shall identify18
the scope of the admission and all proposed variances or exceptions to19
regulatory standards or parameters. Within sixty days of such an admission, the20
party or parties who admit responsibility shall submit to the department a plan21
for the remediation to applicable regulatory standards of the contamination22
that resulted in the environmental damage, which may include variances and23
exceptions included in the notice of admission. Any party to the litigation may24
submit comments, plans or other submittals to the department within sixty days25
of the plan offered by the admitting party. The department shall submit to the26
court a schedule of estimated costs for review of the plans or submittals of the parties27
by the department and the court shall require the party or parties admitting28
responsibility or the party found legally responsible by the court to deposit in the29 SB NO. 731
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registry of the court sufficient funds to pay the cost of the department's review of the1
plans or submittals. Any plan or submittal shall include an estimation of cost to2
implement the plan. An admission under the provisions of this Paragraph may3
be limited to a portion of the property allegedly damaged.4
(b) In response to an admission of regulatory responsibility, the5
department may take any and all action authorized by law to protect the public6
interest, including issuing a compliance order based on the plans and submittals7
of the parties without a public hearing or additional public comment, initiating8
a formal compliance proceeding under the provisions of R.S. 30:4, or9
intervening in the litigation as provided in Paragraph (C)(5) of this Section.10
(3)(a) An admission by a party to responsibility for remediating to11
regulatory standards shall be admissible at trial. The court shall instruct the12
jury as to the limited scope of such admission based on the notice of admission13
made under Paragraph (C)(2) of this Section.14
(b) Evidence of remediation of the property following an admission15
under Paragraph (C)(2) of this Section shall be admissible only if the admitting16
party is able to delineate the horizontal and vertical extent of the environmental17
damage prior to remediation. If evidence of pretrial remediation by an18
admitting party is introduced at trial, damages shall be based on the condition19
of the property as of the date of filing the original petition, subject to a credit20
in favor of the admitting party for the actual expenses incurred in performing21
remediation prior to trial pursuant to this Paragraph. Ongoing evaluation or22
remediation of the property shall not delay the scheduling of the trial on the23
merits.24
(4) Following the delay for a party to admit responsibility under25
Paragraph (C)(2), the court shall convene a conference pursuant to the Code of26
Civil Procedure Art. 1551 to establish a scheduling order for the parties to27
submit to the department plans or comments to remediate the alleged28
environmental damage to applicable regulatory standards. A party who has29 SB NO. 731
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admitted responsibility for remediating to regulatory standards may resubmit1
the plan submitted to the department pursuant to Paragraph (C)(2). The2
department shall be provided a copy of the scheduling order and shall submit3
to the court a schedule of estimated costs for review of the submittals by the4
department.5
(5) Within sixty days from of the last day on which any party may provide6
the department with a plan, comment, or response to a plan as provided in Paragraph7
(C)(1) of as provided by the scheduling order pursuant to Paragraph (C)(4), the8
department may intervene in the litigation. On motion of the department, for9
good cause shown, the court may grant the department additional time to10
intervene, not to exceed sixty days. If the department elects to intervene, within11
sixty days of such intervention, the department shall submit to the court a12
feasible plan to remediate the environmental damage to regulatory standards.13
(6) If the department intervenes, all submittals by the parties to the14
department and the plan issued by the department shall be admissible at trial15
and any party may issue discovery and subpoena, for purposes of deposition or16
trial, any employee, contractor, or representative of the department involved17
in the formulation of the plan issued by the department.18
(7) If the department does not intervene, the parties shall not be19
permitted to conduct discovery or introduce evidence concerning the plans and20
submittals to the department or the department's actions relating to the alleged21
contamination after the date of filing of the original petition including, but not22
limited to, the department's review of the submittals or plans of the parties and23
any administrative enforcement action taken by the department.24
D. For actions tried under this Section, the department shall conduct a25
public hearing on the plan or plans submitted. Within sixty days of the conclusion26
of the hearing, the department shall approve or structure a plan based on the evidence27
submitted trier of fact shall determine whether the plaintiff has proven by a28
preponderance of the evidence the existence of environmental damage, the party29 SB NO. 731
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or parties who caused the damage of who are otherwise legally responsible1
therefor, and the cost of remediation. Separate awards shall be made for the2
cost to evaluate and remediate environmental damage to regulatory standards3
and the additional cost, if any, to remediate environmental damage to a higher4
standard under any applicable laws or contract. In all cases in which the5
department determines to be intervenes and submits a feasible plan, there shall6
be a rebuttable presumption that the plan submitted by the department is the7
most feasible plan to evaluate or remediate the environmental damage and protect8
the health, safety, and welfare of the people. The department shall issue written9
reasons for the plan it approves or structures. On motion of the department, for good10
cause shown, the court may grant the department additional time, not to exceed sixty11
days, within which to either conduct the hearing or approve a plan with reasons12
remediate the environmental damage to applicable regulatory standards. For13
cases tried to a jury, if requested by a party, the court shall instruct the jury14
regarding this presumption.15
(3) The department shall use and apply the applicable standards in approving16
or structuring a plan that the department determines to be the most feasible plan to17
evaluate or remediate the environmental damage.18
(4) The plan approved by the department for submission to the court shall not19
be considered to be an adjudication subject to appellate review pursuant to R.S.20
49:964 or R.S. 30:12.21
(5) The court shall adopt the plan approved by the department, unless a party22
proves by a preponderance of the evidence that another plan is a more feasible plan23
to adequately protect the environment and the public health, safety, and welfare. The24
court shall enter a judgment adopting a plan with written reasons assigned. Upon25
adoption of a plan, the court shall order the party or parties admitting responsibility26
or the party or parties found legally responsible by the court to fund the27
implementation of the plan.28
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant29 SB NO. 731
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to this Section and ordering the party or parties admitting responsibility or the party1
or parties found legally responsible by the court to deposit funds for the2
implementation thereof into the registry of the court pursuant to this Section shall be3
considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et4
seq., for purposes of appeal.5
(b) Any appeal under this Section shall be a de novo review and shall be6
heard with preference and on an expedited basis.7
(c) The appellate court may affirm the trial court's adoption of a plan or may8
adopt a feasible plan in conformity with this Section and shall issue written reasons9
for its decision.10
D.E.(1) Whether or not the department or the attorney general intervenes,11
and except as provided in Subsection H of this Section, all damages or payments in12
any civil action, All damages, including interest thereon, awarded by the court for13
the evaluation or remediation of environmental damage funding the feasible plan14
shall be paid exclusively into the registry of the court in an interest-bearing account15
with the interest accruing to the account for clean up cleanup., subject to credit for16
amounts actually expended for the evaluation or remediation of the17
environmental damage.18
(2) The court may allow any funds to be paid into the registry of the court19
under this Section to be paid in increments as necessary to fund the evaluation or20
remediation and implementation of any plan or submittal adopted by the court of21
contamination to regulatory standards. In any instance in which the court allows22
the funds to be paid in increments, whether or not an appeal is taken, the court shall23
require the posting of a bond for the implementation of the plan in such amount as24
provided by and in accordance with the procedures set forth for the posting of25
suspensive appeal bonds. Any such bond shall be valid through completion of the26
remediation.27
(3)(a) The court shall issue such orders as may be necessary to ensure that28
any such funds are actually expended in a manner consistent with the adopted plan29 SB NO. 731
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for the evaluation or remediation of the environmental damage for which the award1
or payment is made. If an award for remediation of environmental damage to2
regulatory standards is made by the trier of fact, the court shall allow the3
parties and the department sixty days to submit recommendations for a final4
feasible plan. If the department did not intervene pursuant to Paragraph (C)(5)5
of this Section, its recommendation to the court may be based on the6
submissions by the parties to the department under Subsection C of this Section,7
or the results of environmental testing provided to the department under R.S.8
30:29.1, or any other information within the custody and control of the9
department. Following review of the recommendations by the parties and the10
department, the court shall issue a final feasible plan based on the following11
four factors:12
(1) The evidence introduced at trial;13
(2) The award made by the trier of fact for evaluation and remediation14
to regulatory standards;15
(3) The recommendations of the parties; and16
(4) The recommendations of the department.17
To the extent practicable, the court shall reconcile the cost to implement18
the feasible plan adopted by the court with the awards made by the trier of fact.19
The feasible plan adopted by the court shall be incorporated into the final20
judgment rendered by the court. The court shall provide written reasons for its21
determination of the feasible plan, if requested by any party.22
(b) Appeal of the judgment rendered under Paragraph (D)(3)(a) shall be23
a de novo review and shall be heard with preference and on an expedited basis.24
The appellate court may affirm the court's adoption of a plan or may adopt a25
plan in conformity with this Section and shall issue written reasons for its26
decision.27
(4) The court shall retain jurisdiction over the funds deposited for28
remediation of environmental damage to regulatory standards and the party or29 SB NO. 731
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parties admitting responsibility or the party or parties found legally responsible by1
the court until such time as the evaluation or and remediation is are completed. If2
the court finds the amount of the initial deposit insufficient to complete the3
evaluation or remediation, the court shall, on the motion of any party or on its own4
motion, order the party or parties admitting responsibility or found legally5
responsible by the court to deposit additional funds into the registry of the court.6
Upon completion of The court shall determine whether the evaluation or7
remediation, the court shall order any funds remaining in the registry of the court to8
be returned to the depositor based upon the feasible plan adopted by the court has9
been completed. The department and the parties shall notify the court of the10
completion of any evaluation or remediation the evaluation or remediation, and11
the court shall consider any evidence submitted by the department or any party12
in determining whether the evaluation or remediation has been completed.13
Following a determination of completion of the evaluation and remediation, any14
money remaining in the registry of the court shall be returned to the depositor.15
E F.(1) In any civil action in which a party is responsible for damages or16
payments for the evaluation or remediation of environmental damage, a party17
providing evidence, in whole or in part, upon which the judgment is based shall be18
entitled to recover from the party or parties admitting responsibility or the party or19
parties found legally responsible by the court, in addition to any other amounts to20
which the party may be entitled, all costs attributable to producing that portion of the21
evidence that directly relates to the establishment of environmental damage and the22
responsibility of a party or parties, including, but not limited to, expert witness23
fees, environmental evaluation, investigation, and testing, the cost of developing a24
plan of remediation, and reasonable attorney fees incurred in the trial court and the25
department at all stages of the proceeding.26
(2) In any civil action in which the department or the attorney general, or27
their employees, are parties or witnesses, provide evidence, or otherwise contribute28
to the determination of responsibility for evaluation or remediation, or the approval29 SB NO. 731
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of a plan of remediation, the department or attorney general shall be entitled to1
recover from the party or parties admitting responsibility or the party or parties found2
legally responsible by the court for all costs thereof, including but not limited to3
investigation, evaluation, and review costs; expert witness fees; and reasonable4
attorney fees. In the event no party admits or is found responsible for5
remediation of environmental damage to regulatory standards, the party or6
parties filing the claim shall be responsible for payment of all such costs7
incurred by the department.8
FG. The court and the department shall retain oversight to ensure compliance9
with the plan to remediate the environmental damage to regulatory standards,10
and to ensure the implementation of any feasible plan adopted or structured by11
the court. The party or parties admitting responsibility or the party or parties found12
legally responsible by the court shall file progress reports periodically as the court13
or the department may require.14
G H. The provisions of this Section are intended to ensure evaluation or15
remediation of environmental damage to regulatory standards. If the court finds16
that no environmental damage exists, the court may dismiss the department or17
attorney general from the litigation without prejudice.18
H I. This Section shall not preclude an owner of land from pursuing a judicial19
remedy or receiving a judicial award for private claims suffered as a result of20
environmental damage, except as otherwise provided in required by the procedures21
established under this Section. Nor shall it preclude a judgment ordering damages22
for or implementation of additional remediation in excess of the requirements of the23
plan adopted by the court pursuant to this Section as may be required by law or in24
accordance with the terms obligations of an express contractual provision a25
contract. Any award granted in connection with the judgment for additional26
remediation is not required to be paid into the registry of the court. This Section shall27
not be interpreted to create or modify any cause of action or to impose additional28
implied obligations under the mineral code or arising out of a mineral lease.29 SB NO. 731
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I J. For the purposes of this Section, the following terms shall have the1
following meanings:2
(1) "Environmental damage" shall mean any actual or potential impact,3
damage, or injury to environmental media caused by contamination resulting from4
activities associated with oilfield sites or exploration and production sites.5
Environmental media shall include but not be limited to soil, surface water, ground6
water, or sediment.7
(2) "Evaluation or remediation" shall include but not be limited to8
investigation, testing, monitoring, containment, prevention, or abatement.9
(3) "Feasible Plan" means the most reasonable plan which addresses10
environmental damage in conformity with the requirements of Louisiana11
Constitution Article IX, Section 1 to protect the environment, public health, safety12
and welfare, and is in compliance with the specific relevant and applicable standards13
and regulations promulgated by a state agency agencies in accordance with the14
Administrative Procedure Act in effect at the time of clean up to remediate15
contamination resulting from oilfield or exploration and production operations or16
waste.17
(4) "Oilfield site"or "exploration and production (E&P) site" means any18
location or any portion thereof on which oil or gas exploration, development, or19
production activities have occurred, including wells, equipment, tanks, flow lines or20
impoundments used for the purposes of the drilling, work over, production, primary21
separation, disposal, transportation or storage of E&P wastes, crude oil and natural22
gas processing, transportation or storage of a common production stream of crude23
oil, natural gas, coal seam natural gas, or geothermal energy prior to a custody24
transfer or a sales point. In general, this definition would apply to all exploration and25
production operations located on the same lease, unit or field.26
(5) "Timely notice" means written notice sent by certified mail, return receipt27
requested. Such notice shall include a copy of the petition and any other filing in28
such litigation.29 SB NO. 731
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J K.(1) In the event that any settlement is reached in a case subject to the1
provisions of this Section, the settlement shall be subject to approval by the court.2
The department and the attorney general shall be given notice once the parties have3
reached a settlement in principle. The department shall then have no less than thirty4
days to review that settlement and comment to the court before the court certifies the5
settlement. If after a contradictory hearing the court requires remediation, the court6
shall not certify or approve any settlement until an amount of money sufficient to7
fund such remediation is deposited into the registry of the court. No funding of a8
settlement shall occur until the requirements of this Section have been satisfied.9
However, the court shall have the discretion to waive the requirements of this10
Section if the settlement reached is for a minimal amount and is not dispositive of11
the entire litigation.12
(2) In the event a settlement is agreed to between the parties in a case in13
which the department or the attorney general has intervened, such agency shall be14
entitled to recover from the settling defendants all costs, including investigation,15
evaluation, and review costs; expert witness fees; and reasonable attorney fees.16
L.(1) The prescriptive periods that apply to claims covered by the17
provisions of this Section shall be suspended for a period of one year upon the18
mailing or physical delivery to the department of a notice of intent to19
investigate. A notice of intent to investigate shall include the following20
information:21
(a) A description of the property alleged to have been damaged;22
(b) A description of the alleged environmental damage;23
(c) The general location on the property of the alleged environmental24
damage;25
(d) The name and address of all known owners of the property; and26
(e) The name and address of the current operator.27
(2) The party issuing the notice of intent to investigate shall serve all28
persons identified therein with a copy of the notice of intent to investigate by29 SB NO. 731
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certified mail, return receipt requested. The inability to obtain a signed1
returned receipt shall not prevent the suspension of prescription as provided in2
this Subsection. This Subsection shall not be construed to impede or limit the3
authority of the department to issue any order or initiate any administrative4
enforcement action relating to the alleged environmental damage identified in5
the notice of intent to investigate. No action for declaratory relief may be filed6
in any court against any party during the suspension of the prescriptive periods7
under this Subsection.8
K M. The provisions of this Section are procedural and shall not apply9
to any case in which the court on or before the effective date of this Act has10
issued or signed an order setting the case for trial, regardless of whether such11
trial is continued. However, any party or parties who filed such a judicial12
demand may elect to have such litigation governed by all provisions of this Act13
by filing with the court a notice of such right within sixty days of the effective14
date of this Act. Nor shall the The provisions of this Section shall not apply to a15
judicial demand that prior to the effective date of this Section has been resolved16
through compromise agreement and settlement of claims, or by judgment on the17
merits that has become final and definitive.18
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 it 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. Further provides that such obligation can be enforced by the
department or in a separate independent civil or administrative action.
Proposed law provides that it is not the intent of the legislature to limit the right of private SB NO. 731
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litigants to assert private claims for remediation damages based on standards in excess of the
requirements of applicable regulations or to seek remedies other than remediation damages.
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 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 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. SB NO. 731
SLS 12RS-1433 ORIGINAL
Page 17 of 20
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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. Such notice must identify the scope of the admission and all proposed variances
or exceptions to regulatory standards or parameters. 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
allows any party to the litigation to submit comments, plans or other submittals to the
department within 60 days of the plan offered by the admitting party.
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 may be limited to a portion of the property
allegedly damaged.
Proposed law provides that the department may take any action authorized by law to protect
the public interest, including issuing compliance orders 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.
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 shall be admissible only if the admitting
party first delineates the horizontal and vertical extent of the environmental damage prior
to remediation and further provides that if evidence of pretrial 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 the court may grant the department additional time to intervene,
for good cause shown, not to exceed 60 days.
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 at trial and any party
may issue discovery and 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. SB NO. 731
SLS 12RS-1433 ORIGINAL
Page 18 of 20
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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.
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 appeals of judgments rendered under proposed law will be de
novo reviews and heard with preference and on an expedited basis. Further provides that the
appellate court may affirm the court's adoption of a plan or may adopt a different plan, but
must issue written reasons for its decision. SB NO. 731
SLS 12RS-1433 ORIGINAL
Page 19 of 20
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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 or modify 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 delivery 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 SB NO. 731
SLS 12RS-1433 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
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.
Proposed law provides that the provisions of proposed law are procedural and do not apply
to any case in which the court on or before the date of enactment has issued or signed an
order setting the case for trial, regardless of whether such a trial is continued, but allows any
party who filed such a judicial demand to choose to have such litigation governed by all the
provisions of proposed law by filing with the court a notice of such right within 60 days of
the effective date of enactment.
Effective August 1, 2012.
(Amends R.S. 30:29)