OSHA Seeks Public Comment On Proposed Online Whistleblower Complaint Form
The Occupational Safety and Health Administration (OSHA) is seeking public comments regarding a proposal for a new online whistleblower complaint form. The form, which would allow whistleblowers to electronically submit whistleblower complaints directly to OSHA, is part of OSHA’s proposal to revise the information collection requirements for handling retaliation complaints filed with OSHA under various whistleblower protection statutes. The proposal may be accessed electronically here, and comments are due on or before March 18, 2013.
OSHA is responsible for investigating alleged violations of whistleblower provisions contained in a number of statutes. These statutes include:
- Occupational Safety and Health Act, 29 U.S.C. 660
- Asbestos Hazard Emergency Response Act, 15 U.S.C. 2651
- International Safe Container Act, 46 U.S.C. 80507
- Safe Drinking Water Act, 42 U.S.C. 300j-9(i)
- Federal Water Pollution Control Act, 33 U.S.C. 1367
- Toxic Substances Control Act, 15 U.S.C. 2622
- Solid Waste Disposal Act, 42 U.S.C. 6971
- Clean Air Act, 42 U.S.C. 7622
- Energy Reorganization Act of 1974, 42 U.S.C. 5851
- Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610
- Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
- Corporate and Criminal Fraud Accountability Act of 2002 (Title VIII of the Sarbanes-Oxley Act of 2002)
- Pipeline Safety and Improvement Act of 2002
- National Transit Systems Security Act and the Federal Railroad Safety Act
- Consumer Product Safety Improvement Act of 2008
- Affordable Care Act, 29 U.S.C. 218C
- Consumer Financial Protection Act, Section 1057 of the Dodd Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203
- Seaman's Protection Act, 46 U.S.C. 2114, as amended by Section 611 of the Coast Guard Authorization Act of 2010, Public Law 111-281
- Section 402 of the FDA Food Safety and Modernization Act, Public Law 111-353
- Section 31307 of the Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. 30171
The electronic form expands the methods in which a whistleblower may submit a complaint to OSHA under one of these statutes – either by submitting the form electronically directly through the Internet; or by downloading, completing, and submitting the form to OSHA by fax, mail, or hand-delivery. The proposed form will enable workers to electronically submit whistleblower complaints directly to OSHA 24-hours a day. Last year, a record number of whistle-blower cases were filed and resolved by OSHA. This was after a series of initiatives were launched during the 2012 fiscal year to strengthen OSHA’s whistleblower protection programs. It is believed that the current proposals, if accepted and initiated in 2013, will result in an even greater number of OSHA whistleblower claims being filed.Posted In Admiralty and Maritime , Energy , Environmental Litigation and Regulation , Health Law , Labor and Employment Law , Toxic Tort Litigation
After the 2003 Corbello decision, the Louisiana legislature attempted to enact a workable procedure for recovering environmental damages arising from oil and gas operations known as Act 312. The main goal of Act 312 was to ensure that property contaminated by oilfield operations would be cleaned up to applicable regulatory standards. Since the enactment of Act 312, very few cases have made it through the Act 312 process. Thus, in an attempt to expedite the identification and remediation of contaminated property, the Louisiana legislature recently passed two new measures revising the Act 312 procedure.
Summary of the New Legislation
The first measure (a House bill enacted as Act 754) amends the Louisiana Code of Civil Procedure to provide for:
- The issuance of an environmental management order (EMO) to expedite site inspections and sampling, and
- A limited admission of environmental liability that allows defendants to begin to remediate property before trial (limited to the most feasible plan to remediate the property).
The second measure (a Senate bill enacted as Act 779) provides for a number of amendments to Act 312:
- Allows a plaintiff to provide a notice of intent to investigate potential environmental damage that suspends prescription of the claim for one year upon the notice being provided to LDNR,
- Requires the plaintiff to identify the alleged environmental damage and the results of any environmental testing if a lawsuit is filed after a notice of intent to investigate is filed,
- Permits a defendant to request an early preliminary hearing to determine whether there is good cause for it to remain a defendant in the case,
- Grants subpoena power over agency personnel involved in developing the feasible plan and allows for discovery regarding the development of the plan after a final plan has been submitted,
- Prohibits ex parte communications with agencies, officials, and contractors who are involved in formulating the feasible plan,
- Requires the Departments of Agriculture, Forestry, and Natural Resources, along with the Department of Environmental Quality (DEQ), to comment if LDNR approves or structures a preliminary plan that applies regulations other than those of LDNR, and
- Provides for a waiver of indemnity rights against punitive damages caused by a party who admits limited liability.
By Mark D. Mese
The purpose of this post is to provide insureds with general information that will assist them in recognizing important facts and issues related to insurance coverage of environmental disasters. The primary areas addressed include (1) understanding the general types of potential insurance coverage; (2) recognizing environmental disasters; (3) deciding what to do once an environmental disaster is discovered to improve the possibility of insurance coverage and finally, (4) long term plans to improve coverage of potential future environmental disaster claims.
Insurance Coverage for Environmental Disaster Coverage is a complicated subject that must consider many different issues over many different timelines and many different jurisdictions with many different types of hazards. Understanding what an environmental disaster is and recognizing that one has occurred is the first thing an insured must do. Until the insured has recognized that an environmental disaster has occurred, it cannot ask the insurer for coverage and it cannot provide notice and coverage cannot be triggered. There are many different types of environmental disasters, a brief review of the history of the pollution exclusion in general liability policies provides some prospective as to how insurers look at environmental disasters and coverage.
Early standard general liability policies issues prior to 1966 contained insuring agreements that provided coverage for injury (caused by accident). The standard insurance service organization (ISO form) which is a general liability form used by most insurers was revised in 1966 to provide coverage for an “occurrence” with neither “expected” nor “intended” by the insured and specifically included continuous or repeated exposure to substantially the same conditions in its coverage. As a result of these changes, claims related to environmental damages increase dramatically. Insurers using the standard form added a mandatory endorsement in 1970 (ISO Form 00020173 1973) that excluded coverage using the following language:
“Bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke vapors, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.”
The referenced ISO form was often used in conjunction with a carve-back in of coverage which provided: “this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”
As you might expect, and as many of you may know, the 1970’s and 1980’s were a turbulent period for insureds and insurers who were engaged in coverage disputes under CGL policies for pollution related claims. Courts in the various jurisdictions reached different conclusions and were often at odds which made predicting coverage difficult.
The insurers, through the insurance service organization, created an absolute pollution exclusion in 1985 (See ISO form CG0021207), which excluded coverage for the following:
“Bodily injury” or property damage” arising out of the actual, alleged, or threatened discharge, dispersal, release or escape of pollutants:
At or from any premises, site or location which is or was at any time owned, occupied, or rented or loaned to, an insured[.]
“Pollutants” means solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”
The absolute pollution exclusion lacked an exception for coverage for sudden or accidental problems and it did not provide coverage for allegations or threats of a polluting event and it also eliminated the requirement for a discharge into a foreign land, the atmosphere or water course or a body of water.
Not surprisingly, the absolute pollution exclusion was a source of significant litigation between insureds and insurers and lead to various interpretations by courts across the country. Some courts fell into a camp which accepted the insurance industry’s broad interpretation of the exclusion. Another group affords limited exclusion to damages when an undefined claim involved harm to the broader environment. Another group of courts found that the exclusion was ambiguous or required to be interpreted based on history of the exclusion and looked at the presentations of the insurance industry to the various insurance commissioners in the various states “Doer v. Mobil Oil Corporation,” 774 So.2d 119, 2000-0947, (La. 12/19/00). Knowing which state an environmental disaster is in and more importantly, what state law is going to apply to coverage, becomes very important and can be important in planning litigation as will be discussed below in some detail.
There are many types of insurance products today providing various types of coverage for environmental disasters. A review of all of the different products available is beyond the scope of this paper. Coverage ranges from limited coverage provided via endorsements to CGL policies to stand alone policy forms. Over the years, insureds have sought an expansion of coverage to avoid the gaps created by the pollution exclusions in CGL policies. In recent years there has been a significant increase in the number of carriers providing environmental coverage products compared to the limited market of even five or six years ago. Based on work with brokers over the last year or so, it appears that there are around 30 different insurers now offering some form of environmental coverage. Coverage available for environmental claims is more readily available currently on a claims made basis; although occurrence based insurance is also sometimes available.
>> Continue Reading Posted In Benzene Litigation , Class Action , Environmental Litigation and Regulation , Insurance , Louisiana In General , Toxic Tort Litigation
Pipelines Maximum Pressure Documentation Must Be Traceable, Verifiable, and Complete
Each pipeline has a regulatory maximum operating pressure: Maximum Allowable Operating Pressure (“MAOP”) for gas pipelines and Maximum Operating Pressure (“MOP”) for hazardous liquids pipelines. See 49 C.F.R. 192.619(a) and 49 C.F.R. 195.406(a). The Pipeline and Hazardous Materials Safety Administration (“PHMSA”) recently issued an Advisory Bulletin requiring that owners and operators “assure that all MAOP and MOP are supported by records that are traceable, verifiable, and complete.” See 77 Fed. Reg. 26822, 26823 (May 7, 2012).
Several technical considerations go into establishment of MAOP/ MOP including the design pressure of the weakest element in a segment, pressure testing, and maximum safe pressure considering specific pipeline history. However, pre-1970 pipelines may establish MAOP/MOP based on pre-1970 operating data. See 49 C.F.R 192.619(a) and 49 C.F.R. 195.406(a). Owners and operators of qualifying pre-1970 pipelines do not have to pressure test pipeline segments nor consider design information when establishing MAOP/MOP.
However, where MAOP/MOP records for a specific method are not traceable, verifiable, and complete, the owner/operator must “rely on another method as allowed in 49 C.F.R. 192.619 or 40 C.F.R. 195.406.” See 77 Fed. Reg. 26822 and 76 Fed. Reg. 1504, 1506 (Jan. 10, 2011). As such, MAOP/MOP developed using non-traceable, non-verifiable, or incomplete pre-1970 operating pressure data would not be allowed; MAOP/MOP must be developed by another method. In effect, the grandfathered segment would no longer be grandfathered. Further, given the forty plus years since construction, compliance options may be limited as required design information may no longer exist (assuming it ever did).
The referenced Advisory Bulletin establishes guidelines for information that support MAOP/MOP determinations, including “the highest actual operating pressure to which the segment was subjected” prior to 1970. 40 C.F.R. 192.619 (a)(3). This historical operating pressure data must be traceable, verifiable, and complete.
- Traceable records can be traced back to the original source document. Transcribed documents require further verification.
- Verifiable records can be confirmed by other records such as contracts for pressure tests that are confirmed by pressure charts or fields log.
- Complete records must be signed and dated.
The implication of the guidance is that owners and operators must have original documents containing pre-1970 operating pressure data for grandfathered pipelines (or data that can be verified to represent pre-1970 data) that is signed and dated. Without sufficient data to establish MAOP/MOP using historical data, owner/operators must establish MAOP/MOP by other allowed methods.
PHMSA is also planning revisions to the Annual Report form for Gas Transmission and Gathering Lines (PHMSA F 7100.2-1) to facilitate collection of information regarding methodology used by the owner/operator to determine MAOP of gas transmission pipelines. 77 Fed. Reg. 22387, 22388 (Apr. 13, 2012). Under the same initiative, the Annual Report will require disclosure of non-pressure tested and “non- piggable” pipeline segments. To the extent it has not already been done, operators and owners of pipelines should review their records supporting their MAOP and MOP determinations, consistent with this recent guidance.
Kean Miller Releases Practical Digest of Louisiana Class Action Decisions
Kean Miller LLP is pleased to announce the release of the ninth edition of the Practical Digest of Louisiana Class Action Decisions. The digest is produced by Charles S. McCowan, Jr., Bradley C. Myers, Gerald E. Meunier (Gainsburgh, Benjamin, David, Meunier & Warshauer), and Thomas F. Daley (District Attorney of the 40th Judicial District). The fifty page book provides a digest of Louisiana class action decisions, classification by subject matter, and classification by certification disposition.
Click here to download a copy of the digest. For a hard copy, please email firstname.lastname@example.org
* The digest is a compilation of certain class action decisions and it should not be construed as a complete reflection of the holdings of the cases.Posted In Business Litigation , Class Action , Environmental Litigation and Regulation , General Litigation , Louisiana In General , Products Liability , Toxic Tort Litigation
The Internal Revenue Code restricts the amount of private business use that can occur in facilities financed with tax-exempt bond proceeds, but there are a number of exceptions to this general rule. Certain facilities (“exempt facilities”) that are privately used are eligible for tax-exempt bond financing if they benefit the general public or implement specific Congressional policies. In August, the IRS issued final regulations for determining whether a facility is a “solid waste disposal facility” that qualifies for tax-exempt bond financing.>> Continue Reading Posted In Business and Corporate , Environmental Litigation and Regulation , Louisiana In General , Municipal Finance and Bonds
Louisiana Supreme Court Expands Judicial Limitations on Landowner Tort Claims
By Lou Grossman
The Subsequent Purchaser Doctrine is a judicially created limitation on the rights of a current landowner to sue for pre-acquisition damages. For over 160 years, Louisiana courts have held that a current landowner has no right of action to sue for damages to his/her property occurring prior to the date of sale in the absence of an express assignment of that right. In environmental contamination disputes, appellate courts were divided on whether the doctrine should apply to cases involving non-apparent or subsurface property damage.
In a recent 4/3 decision, a majority of the Justices of the Louisiana Supreme Court rejected the notion that property damage must be overt, and held that a landowner has no right to sue for non-apparent damages to land inflicted before the act of sale in the absence of an express assignment of, or subrogation to, that right. Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 2010-2267 (La. 10/25/2011) –So.3d --. In reaching this decision, the majority acknowledged 160 years of jurisprudence constante regarding the subsequent purchaser rule and found that the rationale should also extend to the situation where damage to the property is not apparent.
In reaching this decision, the Louisiana Supreme Court also rejected various theories advanced by Eagle Pipe, most notably of which was Eagle Pipe’s continuing tort theory. According to the Court, the presence of alleged contamination on Eagle Pipe’s property was not caused by “overt, persistent and ongoing acts,” but was simply a continuing ill effect from the original tortious acts. As such, it was not a continuing tort and could not give rise to a separate tort claim under that theory.
This decision resolves any dispute among the appellate courts and explicitly limits the rights of current landowners to bring suit for environmental harm inflicted prior to the date they acquired the property, regardless of whether the purchaser could have known of the contamination. Such landowners may still seek claims against prior owners and are further permitted to seek environmental remediation, but private actions and damages have been severely abrogated by the Court’s ruling. Moreover, in rejecting the continuing tort theory, the Court refused to allow private claims for environmental harm to exist in perpetuity, providing greater certainty to industry with respect to tort liabilities.
Notably, the Court’s decision created a sharp divide among the justices which continues to persist. Justice Clark, who authored the majority opinion, and Justice Weimer, who authored the dissent have both provided additional written opinions, days after the original opinion was released. As this dispute continues, it is important to recognize a number of similar cases currently pending before the Court, including two arising from oil and gas exploration and production activities performed pursuant to mineral leases. The Court will continue to face such sharp divisions in ruling on these matters and the issue is far from final resolution.
Outer Continental Shelf Safety and Environmental Management Systems: Imminent Deadlines, New Guidance and Proposed Rules
By Lee Vail
On October 15, 2010, the former Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) issued new regulations, incorporating in its entirety and making mandatory the implementation of the American Petroleum Institute’s Recommended Practice 75 (API RP 75). The rule requires development of Safety and Environmental Management Systems (SEMS) plans by “a lessee, the owner or holder of operating rights, a designated operator or agent of the lessee(s), a pipeline right-of-way holder, or a state lessee granted a right-of-use and easement.” 30 C.F.R § 250.105. According to BOEMRE, “the purpose of SEMS is to enhance the safety and cleanliness of operations by reducing the frequency and severity of accidents.” This final rule applies to all Outer Continental Shelf oil and gas and sulphur operations and the facilities under BOEMRE jurisdiction including drilling, production, construction, well workover, well completion, well servicing, and DOI pipeline activities.
Responsibility for developing and implementing a SEMS program lies with the lessee (or owner or holder of an operating right), unless it delegates the responsibility to another (likely the operator). Contractors are not responsible for developing the plan; however if compliant, contractor procedures may be incorporated into the lessee’s/operator’s SEMS plan.
Louisiana DEQ Is Eliminating Coverage Under General Permit for Territorial Seas Discharges of Produced Waters
On October 14, 2009, the Louisiana Department of Environmental Quality (DEQ) issued General Permit No. LAG260000 for discharges within the territorial seas of Louisiana from oil and gas exploration, development, and production facilities.
In a lawsuit filed in state district court in Baton Rouge, the Louisiana Environmental Action Network challenged this General Permit. In a May 2010 decision, the state district court upheld the permit. However, in a ruling dated June 10, 2011, the Louisiana First Circuit Court of Appeal remanded the permit to DEQ for further proceedings. In a Notice published in the Potpourri Section of the Louisiana Register on October 20, 2011, DEQ said it would be modifying the General Permit to remove produced water discharges from coverage under the permit. Facilities wishing to discharge produced water within the territorial seas of Louisiana now must seek authorization to do so under an individual permit. In addition, facilities discharging produced water currently covered by the General Permit must file the O and G-IND permit application for an individual permit no later than April 1, 2012. The notice states that “the individual permit will require an evaluation of the effects of produced water discharges on the environment and human health.” DEQ further said that “the regulated community will be responsible for providing information that will be utilized to determine whether authorization to discharge produced water in the territorial seas will be granted.”Posted In Coastal/Wetlands Issues , Energy , Environmental Litigation and Regulation , Louisiana In General
Effective today, October 20, 2011, new permitting and disclosure requirements apply to hydraulic fracturing operations in Louisiana. Known as “fracking” in the oil and gas industry, hydraulic fracturing refers to the process of injecting fluid into tight shale or sandstone formations, which creates fractures in the rock through which oil and gas may travel into the wellbore. When combined with horizontal drilling, fracking allows producers to capture oil and gas reserves that were once thought to be out-of-reach.
Pursuant to the newly-implemented amendment to Subpart I of LAC 43:XIX (Statewide Order 29-B), fracking operators must now apply for and obtain a specific permit for “hydraulic fracture stimulation” from the Louisiana Department of Natural Resources’ Office of Conservation before utilizing pressurized fluids to fracture any formation for the purpose of improving its ability to produce hydrocarbons. After obtaining the requisite permit and conducting its fracking operations, the operator must be prepared to publicly disclose (1) the types and volumes of base fluid used during fracking; (2) a detailed list of all additives used in the fluid and the name of the supplier for each type of additive; and (3) a list and concentration of any chemicals contained in the fracking fluid that are regulated by the Occupational Safety and Health Administration (OSHA) and reported on Materials Safety Data Sheets (MSDS). The lone exception to these disclosure requirements permits an operator to withhold trade secrets, but the regulations still require the operator to disclose pertinent chemical characteristics of even proprietary constituents used in fracking operations.
To comply with these disclosure requirements, the operator must utilize the Office of Conservation’s new WH-1 Form to disclose the information about the base fluids (discussed above), together with detailed information about the identities and volumes of water supplies used during each phase of fracking operations. In lieu of submitting the WH-1 Form directly to the Office of Conservation, the operator may elect to satisfy its chemical reporting obligations by publishing the required information to an online database that makes the information available to the public free of charge. If utilizing the online option, the operator must also furnish a written statement to the Office of Conservation certifying that all required information has been published in an online registry. FracFocus is one online database specifically endorsed by the new regulation, but the disclosure requirements can also be met by publishing the required information to any other “similar registry.” It is anticipated that the option to satisfy Louisiana’s new disclosure requirements by publishing information to FracFocus will be heavily utilized, as many oil and gas companies have already become accustomed to using this registry to comply with other states’ disclosure regulations.
>> Continue Reading Posted In Energy , Environmental Litigation and Regulation , Legacy Oil Field Sites , Louisiana In General
By Lee Vail
On August 25, 2011, the U.S. Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced that it was seeking information concerning contemplated changes in natural gas transportation safety regulations. (1) This advanced notice of proposed rulemaking (“ANPRM”) follows another one published by PHMSA involving hazardous liquid pipelines. See, 75 Fed. Reg. 63774 (Oct. 18, 2010). Draft rules have not yet been proposed in response to that initiative. In this initiative, PHMSA requests comments on considerations to greatly expand both the reach and the regulatory requirements for gas pipelines.>> Continue Reading Posted In Environmental Litigation and Regulation
On September 2, 2011, President Obama announced that he had requested the Environmental Protection Agency to withdraw the proposed revision to the primary National Ambient Air Quality Standard for ozone at this time. A White House press release quoted the President as stating:
“I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013.” 1
The request was delivered to EPA Administrator Lisa Jackson via a letter from Cass Sunstein, Director of the Office of Management and Budget. The letter stated that the decision was based on the President’s Executive Order 13563, which emphasizes that “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” The letter from OMB indicated that EPA was already in the process of reviewing the ozone standard again based upon the most recent science and is required to complete that review by 2013. It urged EPA to complete that process. However, OMB indicated that the President requested that EPA “reconsider” its proposed rule in light of the directives of the Executive Order, in particular, to “promote predictability and reduce uncertainty.” The OMB letter flatly stated that President Obama did not support EPA’s proposed rule and that regulatory agencies should take action consistent with the President’s priorities. 2
On July 28, 2011, the Louisiana Department of Environmental Quality (LDEQ) denied a petition for the adoption of a rule to regulate fossil fuel carbon dioxide (CO2) emissions and to establish an effective emissions reduction strategy that will achieve a concentration of 350 parts per million (ppm) atmospheric CO2 by the year 2100. The petition was filed on May 4, 2011, by Kezia Kamenetz, of New Orleans, and Kids vs Global Warming, a non-profit organization formed in Oak View, California.>> Continue Reading Posted In Climate Change / GHG , Environmental Litigation and Regulation , Louisiana In General
Louisiana Department of Natural Resources Proposes New Reporting Regulations for Hydraulic Fracturing
The recent development of the Haynesville Shale in North Louisiana and other shale formations around the country has generated huge public interest in the hydraulic fracturing process, which is known as “fracking” in the oil and gas industry. Fracking refers to the procedure of injecting fluid into tight shale or sandstone formations to create fractures in the rock, through which oil and gas flow into the wellbore. When combined with horizontal drilling, fracking allows producers to capture oil and gas reserves that were once thought to be out-of-reach.
Last week, the Louisiana Department of Natural Resources (LDNR) filed a Notice of Intent to amend LAC 43:XIX Subpart I (Statewide Order No. 29-B). The proposal seeks to amend Statewide Order 29-B to include new reporting regulations for fracking operations in Louisiana. If the proposed regulation is promulgated, it would require any operator engaged in fracking to regularly report:
- The types and volumes of base fluid used during fracking;
- A detailed list of all additives used in the fluid and the name of the supplier for each type of additive; and
- A list and concentration of any chemicals contained in the fracking fluid that are regulated by the Occupational Safety and Health Administration (OSHA) and reported on Materials Safety Data Sheets (MSDS).
If, however, the identity of any reportable chemical or additive is a “trade secret,” the operator may refuse to report proprietary details but must still report pertinent chemical characteristics of the product. The proposed regulation would only apply to new wells that are drilled after the date that a final regulation is promulgated.
The Notice of Intent is merely the first step in promulgating the new reporting requirements for fracking in Louisiana. This proposed regulation was initiated based on recommendations from the State Review of Oil and Natural Gas Environmental Regulations (STRONGER), (1) which champions itself as a “successful alternative to federal oversight of state oil and gas exploration and production waste regulatory programs.” (2) With this proposal, Louisiana joins a growing list of states including Arkansas (3), Michigan (4), Montana (5) , Texas (6) , and Wyoming (7) that are discussing or have passed state regulations requiring disclosure or reporting of the contents of hydraulic fracturing fluids. A public hearing regarding the proposed Louisiana regulations will occur on August 30, 2011 in Baton Rouge.
To view the full Notice of Intent, visit the LDNR’s website.
(1) See Louisiana Department of Natural Resources, Notice of Intent: Hydraulic Fracturing Stimulation Operations (LAC 43:XIX.118) (“a review of the Office of Conservation policies and regulations associated with the hydraulic fracturing process was conducted by the non-profit, multi-stakeholder organization, STRONGER, Inc. to assess the effectiveness and adequacy of current regulations. Their report finalized March 2011, recommended some of the changes included in the proposed amendment.”).
(2) STRONGER, Inc. website, “The History and Accomplishments of the State Review Process,” available at: http://www.strongerinc.org/documents/STRONGER%20State%20Review%20Process%203-4-2011.pdf.
(3) See Arkansas Oil & Gas Commission, Rule B-19, available at: http://www.aogc.state.ar.us/PDF/B-19%20Final%201-15-11.pdf.
(4) See Michigan Department of Environmental Quality, Supervisor of Wells Instruction 1-2011(Reporting Instructions), available at: http://www.michigan.gov/documents/deq/SI_1-2011_353936_7.pdf.
(5) See Department of Natural Resources and Conservation of the State of Montana website, available at: http://bogc.dnrc.mt.gov/PDF/36-22-157pro-arm.pdf.
(6) See Texas House Bill 3328 (effective 9/1/11), http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=82R&Bill=HB3328; http://www.legis.state.tx.us/BillLookup/history.aspx?LegSess=82R&Bill=HB3328.
(7) See Wyoming Oil & Gas Conservation Commission Rules (Chap. 4, Sect. 10), http://soswy.state.wy.us/Rules/RULES/7929.pdf.
"Pipeline Infrastructure and Community Protection Act" Hearings Focus on Recent Pipeline Incidents
On July 15, 2011, the House of Representative, Committee on Energy and Power, Subcommittee on Energy and Commerce held hearings on a draft of the “Pipeline Infrastructure and Community Protection Act of 2011.” Chairman Fred Upton’s initial comments focused on recent pipeline incidents: the 20,000 barrel oil spill into Talmadge Creek, Michigan in the summer of 2010, the September 2010 gas pipeline explosion that killed 8 people in San Bruno, California and the most recent spill of 1,000 barrels of oil near Billings, Montana. (1) Chairman Upton concluded that these incidents indicate that pipeline laws must be strengthened. Included within the draft legislation are the following provisions:
- one-hour time limit to report incidents;
- use of automatic or remote control shutoff-valves;
- better leak detection technology;
- substantial increase in civil penalties for releases from pipeline;
- enhanced inspection techniques; more miles of pipeline inspected; and
- increased number of pipeline inspectors.
Cynthia Quarterman, Administrator of the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), within the Department of Transportation, appeared and offered general support for the bill. However she offered specific recommendations to various provisions to strengthen the legislation. Among the recommendations were: (2)
- higher administrative penalties should apply in High Consequence Areas;
- eliminate statutory exemption for gathering lines; and
- clarity should be added that shut-off valve requirements apply to gas and hazardous pipelines.
Because changes in regulatory programs often occur quickly after incidents such as these recent three pipeline events, interested parties should be aware of the above issues and recommendations. Owners and operators of regulated pipelines should expect more inspection/detection requirements and the likelihood of enhanced PHSMA and state agency inspections and enforcement actions.
(1) Opening Statement of Chairman Fred Upton (July 15, 2011), found at http://republicans.energycommerce.house.gov/Media/file/Hearings/Energy/071511/Upton%20.pdf (last visited July 18, 2011).
(2) Written Statement of Cynthia Quarterman, Administrator, PHMSA (July 15, 2011) found at http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Testimony/House%20Energy%20and%20Commerce%20Written%20Testimony%20-%20July%2015%202011%20-%20For%20Web%20_2_.pdf (last visited July 18, 2011).
Shreveport-Bossier Area Exceeds Current Ozone National Ambient Air Quality Standard - Triggers Potential Consequences for Air Emission Sources
As of July 3, 2011, the air quality measured at the official ozone monitor at 1425 Airport Drive, which is within Shreveport, but located in Bossier Parish, indicated that the design value for the parish is now 76.7 parts per billion (ppb) which exceeds the 75 ppb standard set by EPA in 2008. 40 C.F.R. §50.15. The design value for each monitor is the 3 year average of the 4th highest ozone reading at that monitor each year. The exceedance of the current standard will likely cause the Louisiana Department of Environmental Quality (LDEQ) to propose that EPA designate Bossier Parish, and perhaps Caddo and DeSoto Parishes, as an ozone nonattainment area.
LDEQ was required to submit its recommendation for nonattainment designations under the 2008 ozone standard by March 12, 2009. EPA was then required to act on the proposals and make final designations no later than March 12, 2010. 73 Fed. Reg. 16436, 16503 (Mar. 27, 2008). In its 2009 recommendation, LDEQ did designate Caddo, but not Bossier or DeSoto, parishes as nonattainment. (1) However, when air quality in Caddo parish improved to compliance status over the past several years, LDEQ amended that recommendation in January 2010 to classify Caddo as attainment. (2)
Louisiana DNR Extends Offshore Drilling Emergency Order
By R. Lee Vail
In response to the Gulf of Mexico Deepwater Horizon Incident, the Louisiana Department of Natural Resources (“DNR”), Office of Conservation (“Conservation”) issued a series of emergency rules with effective dates: July 15, 2010(1) , December 9, 2010(2), January 12, 2011(3) and most recently May 12, 2011(4). . The initial emergency rule created:
“a new Chapter within Statewide Order No. 29-B (LAC 43:XIX.Ch. 2) to provide additional rules concerning the drilling and completion of oil and gas wells at water locations, specifically providing for the following: rig movements and reporting requirements, additional requirements for applications to drill, casing-header requirements, mandatory diverter systems and blowout preventer requirements, oil and gas workover operations, diesel engine safety requirements, and drilling fluid regulations.” See, 36 La. Reg. 1427.
The initial emergency rule also amended Statewide Order No. 29-B-a (LAC 43:XIX. Ch. 11) “to provide for and expand upon rules concerning the use of storm chokes in oil and gas wells at water locations.” Id.
In the emergency rules, Conservation has reviewed and incorporated “all provisions of the MMS [Minerals Management Service] regulations concerning well control issues at water locations” that were not repetitive, duplicative or otherwise inapplicable to the situations encountered in Louisiana waters. See, 37 La. Reg. 1548. In addition to providing Conservation more time promulgate final comprehensive rules, the most recent version of the emergency rules contains a few noteworthy changes from the January 2011 version of the rule. These are:
- The Oil and Gas Well-Workover Operations section, located at LAC 43:XIX.211, contains specific requirements for blow out preventer components and configuration. Conservation removed a provision (formally located at LAC 43:XIX.213.L) allowing the Commissioner to grant an exemption from specific equipment requirements mandated by that section. The January 2011 version of the rule allowed an exemption from specific equipment requirements where the operator could demonstrate the unavailability of the mandated equipment and that anticipated surface pressures minimize the opportunity for loss of well control.
- Conservation changed the mandatory industry standard for design and operation of subsurface safety valves (“SSSV”) from “API RP 14B” to “API RP 14H”. See, LAC 43:XIX.1104.E (making the emergency rule consistent with 30 C.F.R. §250.804(a)(5)).
- All four versions of the emergency rule require that installed subsurface-controlled SSSV’s be removed and tested every twelve or six months, depending on whether they were installed on a landing nipple or not. However, the most recent emergency rule also included a requirement that all SSSVs be inspected for leakage every month to six weeks. See, LAC 43:XIX.1104.E.2.a.
(1) 36 Louisiana Register 1427, July 20, 2010, available at: http://www.doa.louisiana.gov/osr/reg/1007/1007.pdf
(last visited June 27, 2011).
(2) 36 Louisiana Register 2823, Dec. 20, 2010, available at: http://www.doa.louisiana.gov/osr/reg/1012/1012.pdf
(last visited June 27, 2011).
(3) 37 Louisiana Register 460, Feb. 20, 2011, available at: http://www.doa.louisiana.gov/osr/reg/1102/1102.pdf
(last visited June 27, 2011).
(4) 37 Louisiana Register 1547, June 20, 2011, available at: http://www.doa.louisiana.gov/osr/reg/1106/1106.pdf (last visited June 27, 2011).
By R. Lee Vail
Deepwater oil and gas production from the Gulf of Mexico has become a significant portion of the current production within the United States, equal to over 1.6 million barrels per day of oil equivalent; total U.S oil production is around 5.3 million barrels per day. (1) Worldwide shallow water oil production peaked around the year 2000 whereas worldwide deep water production has risen to around 5 million barrels per day. On May 10, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) approved Royal Dutch Shell’s Exploration Plan S-0744 to better define discoveries announced in 2009 and 2010. (2)
Several environmental groups filed suit in an attempt to block the approved plan. Gulf Restoration Network, Inc., Florida Wildlife Federation, and Sierra Club Inc. filed a petition on June 8, 2011, in the United States Court of Appeals, 11th Circuit, in an attempt to set aside BOEMRE’s approval of the plan. The allegations in the petition are relatively general, alleging violation of the National Environmental Policy Act (“NEPA”) (i.e., for BOEMRE’s alleged failure to appropriately conduct the required environmental assessments and/or impact statements) and further alleging elements required pursuant to 43 U.S.C §1349(c) necessary to maintain the suit under the Outer Continental Shelf Lands Act (“OCSLA”).
BOEMRE Notice Requires Hurricane and Tropical Storm Effects Reports
By R. Lee Vail
On June 1, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) issued a notice to Gulf of Mexico Outer Continental Shelf Region (GOMR) lease and pipeline right-of-way (ROW) holders on reporting hurricane and tropical storm effects. Specifically, the recent notice, designated NTL No. 2011-G01(1), requires four reports, as appropriate:
- Evacuation and Production curtailment statistic report – partially evacuated platforms are not considered evacuated
- Facility shut-in reports – including facilities that are partially shut-in
- Facility damage reports – including platforms, rigs and pipelines
- Pollution reports - facility discharged or continues to discharge oil during or as a result of the event
The Evacuation and Production curtailment statistic report and the Facility shut-in report overlap in subject matter. They differ in that the first report is general and requires overall company statistics (number of facilities evacuated or not evacuated, overall production shut-in); the second report is specific, requiring statistics platform by platform. Facility damage reports are to be submitted as soon as the information becomes available. Other reports are to be submitted daily as long as the condition exists. Reports may be submitted by e-mail or through the BOEMRE GOMR internet-based Permitting and Reporting System (eWell). Although the notice outlines the specific information and instructions required when the transmission is by e-mail, BOEMRE GOMR strongly encourages use of eWell to transmit the required data.
The eWell system, described in NTL No. 2007-G15 (2), was developed to increase efficiency of well permitting and reporting transactions between OCS lessees and operators and the GOMR by both reducing the time (and cost) required to process data and to reduce input errors. The system is designed to simplify submittal of multiple reports and subsequent daily reports. Interested lessees and operators and pipeline ROW holders must apply to BOEMRE GOMR for access to the eWell system.
 BOEMRE, Hurricane and Tropical Storm Effects Reports, NTL No. 2011-G01, http://www.gomr.boemre.gov/homepg/regulate/regs/ntls/2011NTLs/11-G01.pdf (last visited June 10, 2011).
 BOERME, eWell Permitting and Reporting System, NTL- No. 2007-G15, http://www.gomr.boemre.gov/homepg/regulate/regs/ntls/2007NTLs/07-g15.pdf (last visited June 10, 2011).
Posted In Admiralty and Maritime , Energy , Environmental Litigation and Regulation , Hurricane Gustav , Hurricane Katrina , Louisiana In General , New Orleans/Louisiana Recovery
Office of Conservation Issues Emergency Order Imposing Affirmative Obligations on Oilfield Sites, Facilities, Structures, Injection Wells and Pipelines Throughout the State
By R. Lee Vail
On April 28, 2011, Governor Bobby Jindal declared a State of Emergency as a result of growing concern over the predicted crest of the Mississippi River well above flood stage in many areas. Consistent with his authority, on May 13, 2011, James Welsh, Commissioner of Conservation, also issued an emergency and administrative order. It is expected that substantial flooding in the state will likely lead to adverse effects on many oilfield sites which could result in serious threats to public safety and the environment. The order specifically applies to following throughout the state:
- Oilfield sites – including injection wells
- Other facilities – including commercial E&P waste disposal and transfer stations
- Structures and Pipelines
Ordered actions are both general calls for alert monitoring of the situation and a more specific list of necessary steps (as appropriate). The Order contains a practical, common sense mandate, to keep track of forthcoming proclamations, orders, warnings, predictions, forecasts, directives or other communications from federal, state and local authorities and to monitor water levels and weather activity. Additionally, the order requires operators to take all necessary steps and perform all necessary actions to avoid damage to the environment or threats to life or safety, including the following, where appropriate:
- Empty petroleum tanks and re-fill with water
- Remove chemicals from sites
- Remove or secure loose items
- Ensure that storm chokes or downhole plugs are installed in wells
- Empty active pits of E&P waste
- Shut in and secure wells where necessary
- Protect sites from stray debris
The above list of actions is discretionary, tasking each operator with the duty to determine which actions are necessary as each operator is in the best position to assess the potential risks and dangers.
The Order also requires notification to the Office of Conservation within 12 hours should an operator shut down one of the covered facilities. The Order will extend for 120 days, unless modified or extended. The order may be found here.Posted In Admiralty and Maritime , Coastal/Wetlands Issues , Environmental Litigation and Regulation , Louisiana In General
By R. Lee Vail
On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610.
Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by indicating that it includes burning for energy recovery. See, 76 Fed. Reg. 15468-69.
District of Columbia Circuit Denies Stay of EPA 1-Hour SO2 Standard
On April 7, 2011, the U.S. Court of Appeals for the District of Columbia issued a per curiam opinion denying petitioners’ motion to stay EPA from implementing the new 75 ppb 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard. Nat’l Env. Development Assn. Clean Air Project v. EPA, No. 10-1252, (D.C. Cir., Apr. 7, 2011). That standard was published by EPA at 75 Fed.Reg. 35520 (June 22, 2010). A number of industrial parties and two states – Texas and North Dakota - challenged the standard by filing petitions for reconsideration with EPA and petitions for judicial review with the D.C. Circuit. The Louisiana Department of Environmental Quality (LDEQ) intervened in the case to challenge the standard while the American Lung Association and the Environmental Defense Fund intervened to support the standard. In January 2011, EPA denied the petitions for reconsideration, clearing the way for the court litigation to move forward. Some of the parties sought a stay of implementation of the new rule until there is a final decision on the merits. The D.C. Circuit opinion on April 7, 2011, indicated that petitioners did not meet the stringent burden of staying EPA’s implementation of the standard while the litigation progresses. The per curiam opinion did not address the merits of the case. The court ordered the parties to submit a proposal for a briefing schedule by May 12, 2011. It is likely that oral argument will not be held until the last quarter 2011 or first quarter 2012.
This result means that states must complete their recommendations for designations of nonattainment, attainment and unclassifiable areas by June 2, 2011 and EPA must take final action on those designation recommendations by June 2, 2012. It is anticipated that two Louisiana parishes will be proposed for nonattainment classification – West Baton Rouge and St. Bernard. LDEQ must submit to EPA revisions to its State Implementation Plan to address requirements for sources in attainment and unclassifiable parishes by June 2, 2013 and must submit revisions to its SIP by February 2014 (18 mos. from EPA nonattainment designation) to address sources in nonattainment parishes to bring them into attainment by August 2017 (5 yrs. from EPA nonattainment designation). The denial of the stay also means that certain new source review requirements, including Prevention of Significant Deterioration NAAQS compliance demonstrations for new sources and major modifications, remain applicable as of the effective date of the rule (August 23, 2010).Posted In Environmental Litigation and Regulation
Application of Pesticides That May Impact Waters of the State Now Require LPDES Permit
By R. Lee Vail
The Louisiana Department of Environmental Quality (“LDEQ”) announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1). The exemption, based on an identical exemption promulgated by the EPA under the NPDES program, allowed the use of pesticides in such locations if applied “in compliance with relevant requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).”(2) See, 40 C.F.R 122.3(h) and LAC 33:IX.2315.A.8. However, the federal exemption from permit requirements was later held invalid and vacated by the U.S. Court of Appeals for the Sixth Circuit in National Cotton Council of Am. v. U.S. EPA, 533 F.3d 927 (6th Cir. 2009), cert. denied, 130 S.Ct. 1505 (2010).
The Sixth Circuit noted that prior to incorporating the exemption into federal regulation, “[t]he State of Washington had issued a general permit to allow the application of all aquatic pesticides in the State” allowing users of aquatic pesticides to “discharge those pesticides covered by the rule without obtaining a permit.” (3) Further the court stated that “[o]nce the EPA or a state agency issues such a [general] permit, covered entities, in some cases, need take no further action to achieve compliance with NPDES besides adhering to the permit conditions.”(4) In its Louisiana Register notification, LDEQ indicated that the Sixth Circuit decision compelled it to remove the equivalent LPDES exemption, but acknowledged that, in response to deleting the exemption, it was necessary “to issue a general permit for the application of pesticides.” (5)
In January 2011, the LDEQ published a draft general LPDES permit for pesticide application to fulfill this purpose and invited public comment (which ended on February 16, 2011). (6) The draft general permit authorizes dischargers to discharge pesticides in accordance with four identified categories: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control and forest canopy pest control. Unlike most general permits, the proposed general permit does not require submission of a Notice of Intent (NOI) for coverage; however certain record keeping requirements exist to demonstrate authorization and compliance. The draft general permit “also authorizes the discharge of storm water runoff from facilities which handle or use pesticides . . . when handled and stored according to FIFRA instructions” unless the facility “qualifies for coverage under the Multi-Sector General Permit.” The general permit disallows the use of pesticides where they cause a violation of water quality standards or various other listed impairments; but does not require ambient water body testing by the pesticide user. LDEQ does conduct routine ambient monitoring through its water quality assessment division. According to the draft permit, the LDEQ “may deny coverage under the permit and require submittal of an application for an individual LPDES permit based on a person’s compliance record, ambient water quality data, or any other information relative to the application of pesticides.”
With the withdrawal of the regulatory exemption, as of April 11, 2011, discharge of pesticides into or near waters of the state without a permit will be prohibited. Those planning to apply pesticides after that time should familiarize themselves with the details of the existing draft permit and ultimately any final general permit that may be issued by LDEQ.
(1) 37 La. Reg. 588-89 (Feb. 20, 2011).
(2) Application of Pestcides to Waters of the United States in Compliance With FIFRA, 71 Fed. Reg. 68483 (Nov. 27, 2006).
(3) Id. at 931.
(4) Id. citing S. Florida Water Mgmt. Dist. V. Miccosukee Tribe of Indians, 541 U.S. 95, 108 n. *(2004)
(5) 37 La. Reg. at 589.
(6) Public Notice, Draft of Reissuance of Water Discharge General Permit LAG870000, Discharge of Pesticides Into or Near Waters of the State, AI 169705 (Jan. 8, 2011) located at http://www.deq.louisiana.gov/apps/pubNotice/ (last visited Feb. 21, 2011).
By R. Lee Vail
On January 26, 2011, the U.S. EPA denied petitioner’s request to reconsider the newly promulgated one-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). See, 76 Fed. Reg. 4780. The EPA determined that the objections raised were not of “central relevance” purportedly because they failed to support an argument that the promulgated standards should be revised. The petitioners objected, in part, to non-binding preamble guidance concerning implementation issues that were separate and independent from revisions of the NAAQS. Since the EPA denied reconsideration, no need existed for a stay.
Petitioner’s primary objection centered on perceived changes in EPA policy through utilization of modeling data to designate areas as non-compliant with the SO2 NAAQS. EPA countered that modeling had long been utilized “to determine whether areas have attained the NAAQS.” Petitioners also expressed concerns that modeling may over-predict violations. In its denial, the EPA countered that “modeling can very accurate identify areas of potential daily, maximum 1-hour concentrations above the NAQQS,” and if over-predictions exist, “interested parties would have a fair opportunity to show that using modeling in that case may not be appropriate.” See, 76 Fed. Reg. at 4782. Under this implementation process, the designation of non-attainment, based on modeling, will be the challengeable final decision.
Louisiana Second Circuit Court of Appeals Upholds Application of Subsequent Purchaser Doctrine in Oilfield Legacy Case
By Lou Grossman
In a recent decision, the Louisiana Second Circuit Court of Appeals upheld the application of the longstanding subsequent purchaser doctrine to an oilfield legacy case. The decision Wagoner v. Chevron U.S.A. Inc., et. al., No. 10-45507 (La. 2. Cir. 2010) affirmed the legal principle that the right to recover for property damages is a personal right that does not pass to subsequent purchasers of the property. According to the Second Circuit, this right is a personal right even when the harm is subsurface environmental contamination.
In reaching its decision, the Second Circuit rejected multiple theories advanced by the plaintiffs. Most significantly, the Second Circuit rejected plaintiffs’ contention that the existence of a mineral lease created a real obligation to restore the leased premises to its original condition.
The right to damages conferred by a lease, whether arising under a mineral lease or a predial lease, is a personal right, not a property right; and, as a personal right, it does not pass to the new owners of the land when there is no specific conveyance of that right in the instrument of sale.
The Second Circuit’s decision creates a further divide among the Circuit Courts of Appeal on the subsequent purchaser doctrine. Plaintiffs have sought Writs of Supervisory Review from the Louisiana Supreme Court and this is one of several, similar decisions currently on review.
by R. Lee Vail
New major and modified existing stationary sources require air permits prior to beginning construction. Where increases of criteria pollutants such as sulfur dioxide, nitrogen dioxide, carbon monoxide, particulate and volatile organic compounds exceed a “significance” threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions units. With agency agreement, the selection of BACT becomes an enforceable part of the permit.
We now have a new “pollutant,” greenhouse gas (“GHG”) equivalents for the six regulated greenhouse gases (carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, perfluorocabons, and hydrofluorocarbons). GHGs are measured as equivalents to carbon dioxide, the most common GHG (CO2e). Starting January 2, 2011, permits issued for facilities that otherwise trigger PSD (as above) and have a new or increased potential to emit (PTE) of CO2e of 75,000 TPY, must address GHG emissions. Following July 1, 2011, a PSD permit may be required for significant increases in GHGs alone (100,000 tpy for a new source or 75,000 tpy for` a modification), even where there is no significant increase of any other regulated criteria pollutant.
As with other pollutants, once PSD is triggered for GHGs, the permittee must evaluate and propose that which constitutes BACT to control the CO2e. Although the general scheme for selecting BACT is familiar, a top down ranking of available and technical feasible technologies, the available options are not. There are no conventional CO2e scrubbers or waste heat boilers, or filter traps to capture CO2e. While some technologies are emerging, the process of determining BACT for CO2 control is a new frontier, and lack of guidance can cause permitting delays. To address some of the uncertainties, EPA issued guidance on November 10, 2010 concerning permitting GHGs explaining the process for determining the required emission control technology - BACT.
>> Continue Reading Posted In Climate Change / GHG , Environmental Litigation and Regulation
Electronic Discovery, or “E-Discovery”, is not considered the “novel issue” it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery.
In Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007), the Western District of Louisiana granted the plaintiff’s motion to compel. In an unfair competition and trade secret theft action, the plaintiff claimed that the defendant, a former employee, had stolen various data files. Plaintiff had unsuccessfully requested production of defendant’s laptop and desktop. The Court granted the motion to compel the defendant to produce these two items because they were the most likely places that the data files would be located. The Court did institute protective measures so as to prevent the disclosure of any irrelevant or personal information.
During the 2010 Session, the Louisiana Legislature enacted Act 986 to amend La. R.S. 30:2022, the state law concerning the Louisiana Department of Environmental Quality’s (LDEQ) permit process. The legislation began as House Bill 1169 and was authored by Representative Karen St. Germain. Governor Bobby Jindal signed the legislation on July 7, 2010, as Act 986. The Act became effective that same day.
The Act enacted La. R.S. 30:2022(D), which requires greater transparency from LDEQ regarding changes made to permits, renewals, extensions, and modifications. First, Act 986 requires that, if requested by a permit applicant, LDEQ provide the applicant with a written summary of the specific changes to the existing permit whenever LDEQ prepares a draft database permit for the renewal, extension, or substantial permit modification of an existing hazardous waste permit, solid waste permit, Louisiana Pollutant Discharge Elimination System (LPDES) permit, or air quality permit. The database is LDEQ’s Tools for Environmental Management and Protection Organization (TEMPO) database system. Previously, LDEQ was under no obligation to inform a permit applicant of each and every change that had been made in the renewal, extension, or substantial modification of an existing permit.
Office of Conservation Rules for Groundwater Evaluation and Remediation at E&P Sites Incorrectly Published
The July 20, 2010 Louisiana Register contained a notice from the Office of Conservation, Louisiana Department of Natural Resources that purported to promulgate rules amending Statewide Order 29-B to add a new Chapter 8 on procedures for evaluation and remediation of groundwater at E&P sites. Conservation’s Web site on July 20, 2010 contained a “final” version of the SERP Manual that was part of the proposed rules. In a memorandum dated July 20, 2010 sent to interested parties, the Commissioner of Conservation said the July 20 notice on these proposed rules had been “unintentionally and incorrectly published” in the Louisiana Register as a final rule. The memorandum states that Conservation does not consider the proposed rules “to be final or in effect at this time.” Look for future information on these proposed rules.
Posted In Energy , Environmental Litigation and Regulation , Legacy Oil Field Sites , Louisiana In General
Louisiana Supreme Court Dismisses Environmental Property Damages Case Based on One-Year Prescriptive Period
By Leonard L. Kilgore, III and Richard D. McConnell
In Hogg v. Chevron U.S.A. Inc., Docket No. 09-CC-2635 (see opinion here), a case handled by Kean Miller attorneys, Leonard L. Kilgore, III and Richard D. McConnell, Jr., the Louisiana Supreme Court reversed the trial court’s denial of a motion for summary judgment based on a prescription (statute of limitations) defense. In a 5-2 decision, the Louisiana Supreme Court clarified several issues pertinent to prescription in tort cases, in particular to cases involving allegations of environmental contamination of immovable (real) property. The Court addressed the following issues:
1. What constitutes “actual” and/or “constructive” knowledge of plaintiffs sufficient to commence the running of the applicable prescriptive period for torts under La. Civil Code articles 3492 and 3493;
2. What constitutes a continuing tort; and
3. Does the alleged failure to remediate environmental damage constitutes a distinct, continuing tort?
The Court held that letters from the Louisiana Department of Environmental Quality (LDEQ) received by the landowners several years prior to filing suit, advising the landowners of the potential for underground migration of gasoline constituents from a former, leaking underground storage tank (UST) located on nearby property, were sufficient to provide the landowners with knowledge of the potential claim within the meaning of La. Civil Code Article 3493. Article 3493 provides:
“When damage is caused to immoveable property, the one year prescription commences to run from the day the owner of the immoveable acquired, or should have acquired, knowledge of the damages.”
>> Continue Reading Posted In Environmental Litigation and Regulation
On June 2, 2010, the Environmental Protection Agency adopted a final rule which significantly lowers the primary National Ambient Air Quality Standard (“NAAQS”) for sulfur dioxide (“SO2 ”). EPA is phasing out both the annual standard (0.03 parts per million or ppm) and the existing 24-hour standard set at 0.14 ppm, and phasing in a new 1-hour standard set at 75 parts per billion (“ppb”). The new 1-hour standard is met when the 3-year average of the 99th percentile of daily maximum 1-hour averages at each monitor does not exceed 75 ppb. EPA will transition to the new standard with overlap of the existing standards. In areas that are in compliance with the current standards (all of Louisiana), the existing 24-hour and annual standards will be revoked one year after the designations of new nonattainment areas. Designations are to be final in June 2012, so the existing standards will no longer remain effective as of June 2013.>> Continue Reading Posted In Climate Change / GHG , Energy , Environmental Litigation and Regulation , Louisiana In General
In 2006, the Louisiana Legislature enacted Louisiana Revised Statute 30:29 (“Act 312”) to provide a procedure for judicial resolution of claims for environmental damage to property. The provisions of Act 312 are applicable whenever there is “any litigation or pleading making a judicial demand arising from or alleging environmental damage” involving “contamination resulting from activities associated with oilfield sites or exploration and production (“E&P”) sites,” regardless of whether claims for remediation arise under the Louisiana Mineral Code or Civil Code. La. R.S. 30:29(I)(1).>> Continue Reading Posted In Energy , Environmental Litigation and Regulation , Legacy Oil Field Sites , Louisiana In General
In testimony before the Senate Appropriations Subcommittee on Interior and Related Agencies on March 3, 2010, Administrator Lisa Jackson of the Environmental Protection Agency indicated that EPA plans to move forward with adopting the Greenhouse Gas (“GHG”) Tailoring Rule (74 Fed.Reg. 55,292) later this month. The Tailoring Rule is intended to ameliorate the impact of GHGs becoming “regulated pollutants” under the Clean Air Act Prevention of Significant Deterioration and Title V programs, which would otherwise be fully triggered by the enactment of another EPA proposed rule concerning GHG emissions from cars and light duty trucks. (74 Fed.Reg. 49,454)>> Continue Reading Posted In Environmental Litigation and Regulation
The February 10, 2010 Federal Register contains a notice of EPA's final decision that the Baton Rouge ozone nonattainment area “has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS)." (The Baton Rouge area consists of the parishes of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge.) EPA found that the ambient monitoring data for 2006-2008 demonstrated attainment and noted there were no exceedances of the standard in 2009. Although this 1-hour ozone standard was revoked in 2005 and replaced with a more stringent 8-hour standard, some of the SIP requirements associated with the old 1-hour standard were continued under the Clean Air Act’s “anti-backsliding” provisions. The EPA action, known as a "Clean Data Policy Determination," formally suspends several requirements associated with the Louisiana Department of Environmental Quality’s (“LDEQ’s”) State Implementation Plan (“SIP”) as long as the area continues to achieve the 1-hour standard. These suspended requirements include “a severe attainment demonstration, a severe reasonable further progress plan (RFP), applicable contingency measures plans, and other planning State Implementation Plan (SIP) requirements related to attainment of the 1-hour ozone NAAQS.”>> Continue Reading Posted In Climate Change / GHG , Environmental Litigation and Regulation , Louisiana In General
Office of Conservation Proposes Rules for Groundwater Evaluation and Remediation at Exploration and Production Sites
In the January 20, 2010 Louisiana Register, the Office of Conservation, Louisiana Department of Natural Resources issued a Notice of Intent to amend Statewide Order 29-B to incorporate new rules for the evaluation and remediation of groundwater conditions at exploration and production sites.
The proposed rules can be found at this link. As part of the proposal, Conservation has published a draft manual entitled “Exploration and Production Waste Site Evaluation and Remediation Procedures Manual” or “SERP Manual.” A copy of the SERP Manual can be found here.
Conservation will accept comments on the proposal through March 8, 2010. A public hearing on the proposal is scheduled for March 1, 2010, at 9:00 a.m. (CST). Anyone with interests involving energy exploration and production sites should carefully review the proposal.Posted In Coastal/Wetlands Issues , Corps of Engineers , Energy , Environmental Litigation and Regulation , Legacy Oil Field Sites , Louisiana In General
During the past few years, the Louisiana Legislature has adopted many “green” initiatives as part of climate and energy policies. The state has placed a strong emphasis on increasing both renewable energy generation and energy efficiency. The following is a list of some of these important initiatives:
- The Louisiana Renewable Energy Development Act allows Grid Tied Net Metering systems throughout the state, which allows electric utility customers, who wish to install a net metering facility, to reduce their monthly electricity bill by using electricity that is generated from solar, wind, hydroelectric, geothermal, or biomass resources. See La. R.S. 51:3061-51:3063 (2003).
The Louisiana Department of Environmental Quality (LDEQ) is developing written procedures to implement Louisiana’s antidegradation policy (1). These implementation procedures will significantly affect the permitting of wastewater discharges under the Louisiana Pollutant Discharge Elimination System (LPDES) program, especially the permitting of new or expanded discharges.>> Continue Reading Posted In Environmental Litigation and Regulation
Two days before the end of the 2009 Legislative Session, the Louisiana Legislature adopted the Louisiana Geologic Sequestration of Carbon Dioxide Act. Introduced as HB661, the final amended bill passed both the House and Senate unanimously. There are three major facets to the law: establishment of a comprehensive regulatory program for the control of injection, storage, and use of carbon dioxide under the auspices of the Office of Conservation within the Department of Natural Resources; establishment of liability limits for operators with transfer of liability for storage operations to the Geologic Storage Trust Fund (run by the state) after a specified time; and authority for expropriation of pipeline servitudes, storage facilities and other associated facilities necessary for carbon sequestration operations upon a determination of public convenience and necessity.>> Continue Reading Posted In Environmental Litigation and Regulation
The EPA has proposed a rule that would require mandatory reporting of greenhouse gas (GHG) emissions from large sources in the United States. The proposed rule was signed by the EPA Administrator on March 10, 2009 and published in the Federal Register on April 10, 2009 (74 Fed. Reg. 16,448). As proposed, the rule will require reporting of stationary source GHG emissions for the 2010 calendar year by March 31, 2011. According to the EPA, the proposed rule is intended to “collect accurate and comprehensive emissions data to inform future policy decisions.”>> Continue Reading Posted In Environmental Litigation and Regulation
On April 3, 2009, the National Environmental Development Association (NEDA) filed a petition for rehearing en banc on a controversial decision (Sierra Club v. EPA) by the D.C. Circuit Court of Appeals. In that case, decided December 19, 2008, the court vacated the Startup, Shutdown, Malfunction (SSM) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. The exemption has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act. Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. The appeal stems from proposed rulemakings by the EPA in 2002, 2003 and 2006 to revise the SSM requirements.>> Continue Reading Posted In Environmental Litigation and Regulation
On December 19, 2008, the D.C. Circuit Court of Appeals issued a startling ruling vacating the Startup, Shutdown, Malfunction (“SSM”) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. Sierra Club v. Environmental Protection Agency (Docket Nos. 02-1135, 03-1219, 06-1215, 07-1201). The Sierra Club asked the court to strike down the SSM exemption – an exemption that has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act (CAA). Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. In 2002, 2003 and 2006, the EPA promulgated rulemakings to revise these SSM requirements.>> Continue Reading Posted In Environmental Litigation and Regulation
By Laura Hart
I. LDEQ Recently Issued Proposed Rule Pursuant to Louisiana Mercury Risk Reduction Act to Reduce Use of Mercury-Containing Products and to Force Proper Disposal or Recycling of Mercury-Containing Products
In the August 2008 publication of the Louisiana Register, the Louisiana Department of Environmental Quality (“LDEQ”) issued a proposed rule that will supplement the procedures and requirements set forth in the Louisiana Mercury Risk Reduction Act (La. R.S. 30:2571–2588) for manufacturers of mercury-added products offered for sale, users of mercury-added products in drinking water and wastewater treatment systems, and dismantlers of end-of-life productions that contain mercury-added products within Louisiana (hereinafter “Proposed Rule”). See, La. Admin. Code Tit. 33, §§ 2701, 2703, 2705, 2707, 2709, 2711, 2713, 2715, 2717, 2719, and 2721 (2008). The Proposed Rule was published after the LDEQ’s consideration of numerous comments received in response to a rule published by the LDEQ in the December 2007 Potpourri Section of the Louisiana Register.
The Louisiana Mercury Risk Reduction Act was enacted in June 2006. The law was the first of its kind and provided the LDEQ with the authority to regulate mercury-added products and also gave the LDEQ the authority to handle unregulated mercury sources. The stated intent of the Louisiana Mercury Risk Reduction Act was to “achieve significant reductions in environmental mercury by encouraging the establishment of effective state and local waste reduction, recycling, and management programs while encouraging non-mercury alternatives.” La. R.S. 30:2571(C).>> Continue Reading Posted In Environmental Litigation and Regulation , Louisiana In General
Several developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in 2006 and 2007. Thoughtful planning and continued tracking of these developments will be necessary to ensure compliance.
EPA revised the SPCC plan requirements in 2006 to:
- Provide the option to self-certify SPCC Plans in lieu of review and certification by a Professional Engineer for facilities that have an aboveground oil storage capacity of 10,000 gallons or less and meet other qualifying criteria.
- Provide an alternative to the general secondary containment requirement without requiring a determination of impracticability for qualified oil-filled operational equipment.
- Define and exempt particular vehicle fuel tanks and other on-board bulk oil storage containers (called motive power containers).
- Exempt mobile refuelers from the sized secondary containment requirements for bulk storage containers.
- Remove SPCC requirements for animal fats and vegetable oils for certain types of facilities.
- Extend the SPCC compliance dates for farms.
Recent Daubert Challenges to Experts in Environmental Litigation
Environmental litigators face unique challenges in dealing with the expert phase of a lawsuit. For example, a lawsuit involving alleged environmental contamination of soil, groundwater, or surface waters may require the use of experts such as environmental/civil engineers, hydrogeologists, hydrologists, geologists, soil scientists, agronomists, analytical chemists, toxicologists, environmental chemists, risk assessment experts, wetlands scientists, health physicists, biologists, and statisticians.
These experts must often present difficult and complicated technical information in a way that can be understood by judges, lawyers, and juries, who in most cases are not engineers and scientists. In some cases, environmental litigators face the task of having to deal with many of these disciplines simultaneously. Before any of these experts can testify at trial, however, each expert and his or her work must satisfy evidentiary standards applicable to expert testimony, many of which are grounded in the principles laid out in the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
This article provides a review of recent decisions where the opinions of environmental experts, from disciplines mentioned above, have been the subject of Daubert challenges based on the reliability of methods or principles and how those challenges were successfully presented or defended.
* Reprinted with permission from the American Bar Association, Natural Resources & Environment, Vol. 22, No. 4, Spring 2008.
Posted In Environmental Litigation and Regulation
The Louisiana Department of Environmental Quality recently finalized revisions to the “Comprehensive Toxic Air Pollutant Emission Control Program” set forth in LAC 33:III.Chapter 51 of the Louisiana Air Quality Regulations. A final rulemaking, first initiated in September 2005, was published in the December 20, 2007 Louisiana Register and can be obtained at the following web address: http://www.deq.louisiana.gov/portal/tabid/2644/Default.aspx. Unlike some states, Louisiana has its own air toxics program, which applies to major sources of “toxic air pollutants” as defined in LAC 33:III.5103. State toxic air pollutants include all federal “hazardous air pollutants” set forth in Clean Air Act § 112, and also 13 other pollutants, including ammonia, sulfuric acid, nitric acid, and hydrogen sulfide.
The final rulemaking, published in AQ-256, provides for the following revisions:>> Continue Reading Posted In Environmental Litigation and Regulation
European Union to Cut Greenhouse Gas Emissions by Twenty Percent by 2020: European Commission Issues Climate Change Policy Package
The European Commission recently released a preliminary package of broad climate change policies that would affect industry, energy generation and transportation in the European Union. The goals of the climate change policies are to: (1) to reduce greenhouse gas emissions by twenty percent (20%) below 1990 levels by the year 2020; (2) to increase the proportion of power generated by renewable resources to twenty percent (20%) of total energy consumption; and (3) to institute a mandate that ten percent (10%) of the fuel consumed by the European vehicles to be from biofuel sources.
The proposed measures include:>> Continue Reading Posted In Environmental Litigation and Regulation
On December 21, 2007, EPA published notice of its adoption of a final rule to “clarify” the recordkeeping and reporting requirements for projects that do not constitute a major modification under the prevention of significant deterioration (“PSD”) and nonattainment new source review (“NNSR”) programs when calculated by the baseline actual emissions to projected actual emissions (“BAE to PAE”) methodology, but which have a “reasonable possibility” to result in a significant emissions increase. 72 Fed. Reg. 72607. The final rule defines “reasonable possibility” as either: 1) where the difference between BAE and PAE is > 50% of the significance level for the regulated pollutant; or 2) where the difference between BAE and PAE prior to subtraction of the emissions excluded from PAE through the “capable of accommodating/demand growth” exclusion is > 50% of the significance level for the regulated pollutant. However, the recordkeeping and reporting requirements differ depending upon whether “reasonable possibility” is triggered by scenario 1) or 2).>> Continue Reading Posted In Environmental Litigation and Regulation
On August 22, 2007, the Louisiana First Circuit Court of Appeal rendered a decision – In the Matter of Waste Management of Louisiana, L.L.C. (Docket No. 2006 CA 1011) – that may affect the Louisiana Department of Environmental Quality’s approval of previous pollution control projects under PSD/NNSR provisions. Appellants LEAN and Concerned Citizens of Livingston Parish asked the court to reverse the lower court’s affirmation of LDEQ’s issuance of a Title V air permit issued to Woodside Landfill in 2004. In 2003, LDEQ exempted from PSD review a pollution control project to install a gas collection and control system and bioremediation area at the landfill. The later-issued Title V permit included conditions for the flare that was installed as part of the project. It is unclear from the facts stated in the opinion whether the original 2003 authorization-to-construct the project or the 2004 permit also authorized an expansion of the landfill. EPA issued a letter of no objection to the Title V permit.>> Continue Reading Posted In Environmental Litigation and Regulation
In June, we reported that a three judge panel of the District of Columbia Court of Appeal had issued a decision in NRDC v. EPA, Docket 04-1385, to vacate both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”). That report indicated that the court’s decision could be stayed by a timely request for hearing or a stay order.>> Continue Reading Posted In Environmental Litigation and Regulation
On June 8, 2007, a three judge panel of the District of Columbia Court of Appeal issued a decision in NRDC v. EPA, vacating both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”). The decision will not become effective (meaning the CISWI and Boiler MACT Rules are still effective), until legal delays for rehearing and/or appeal have run. Moreover, two of the three judges wrote concurring opinions which strongly suggest that a stay order, with conditions, is likely to be issued if the parties so request it. With the September 13, 2007, Boiler MACT compliance deadline looming, EPA needs to provide prompt guidance to the thousands of regulated entities on their compliance obligations in light of the decision.>> Continue Reading Posted In Environmental Litigation and Regulation
Louisiana Adopts Procedure and Standards For "Contained-Out" Determinations For Contaminated Environmental Media
In final rules adopted on March 20, 2007, the Louisiana Department of Environmental Quality (“LDEQ”) adopted amendments to the Louisiana Hazardous Waste Rules to create a procedure by which an applicant may obtain a determination that contaminated media (soil/sediment, groundwater, and/or surface water) do not contain a hazardous waste and may be managed as nonhazardous. This procedure does not establish clean-up standards; instead, it will be used to determine whether hazardous waste rules apply to the management of such media when removed from their location or otherwise managed.>> Continue Reading Posted In Environmental Litigation and Regulation
During a presentation at the Defense Research Institute’s Toxic Torts and Environmental Law Seminar in New Orleans on Friday March 9, 2007, Dr. Pamela Williams of ChemRisk, Inc. indicated that she was preparing to publish a study on the potential for exposure to benzene from products containing trace (less than 0.1%) levels of benzene. Her study will likely conclude that measured airborne concentrations of benzene during the handling or use of petroleum-derived products in the United States have typically not exceeded workplace standards since at least the early 1980's. The Williams’ study will also likely conclude that indoor air modeling shows that workplace exposures are likely to be minimal during the application of products containing trace levels of benzene. Finally, the Williams study will likely conclude that petroleum-derived products containing trace levels of benzene are not expected to produce 8-hour TWA airborne concentrations that exceed current regulatory standards under typical product use scenarios.>> Continue Reading Posted In Environmental Litigation and Regulation , General Litigation , Toxic Tort Litigation
Many companies in Louisiana may be aware of the beneficial tax exclusion authorized in La. R.S. 47:301 and LAC 61:I.4302 for pollution reduction projects. What they may not be aware of, however, is the broader scope of Louisiana’s program than most other states. Unlike other states, Louisiana’s exclusion applies to both pollution control devices and pollution control systems. Thus, the Louisiana legislature intended to apply the program to more than simply “end of the pipe” control technology. This more expansive scope may make certain projects in Louisiana more attractive for multi-state companies competing for the same project dollars.>> Continue Reading Posted In Environmental Litigation and Regulation , Louisiana In General , State and Local Taxation
A case now pending in federal court in New Orleans may have an important impact on potential claims against the federal government for coastal land loss in Louisiana.
Judge Duval has set the claims of numerous plaintiffs against the Army Corps of Engineers for trial beginning September 8, 2008. Plaintiffs contend the Corps contributed to flooding of their property in St. Bernard Parish and New Orleans during Hurricane Katrina.>> Continue Reading Posted In Environmental Litigation and Regulation , General Litigation , Hurricane Katrina , Louisiana In General
The Louisiana Department of Environmental Quality (“LDEQ”) recently instituted a pilot program of making its Electronic Document Management System (“EDMS”) available on the internet for a six-month trial period. The EDMS is the electronic repository of official records that have been created or received by LDEQ. All documents that are defined as “public records,” including e-mail, either created or received by any LDEQ personnel are placed in the EDMS and can be searched on the internet through LDEQ’s website. All public documents that have not been labeled as confidential pursuant to LDEQ’s confidentiality statute, La. R.S. 30:2030, and that are dated July 1, 2005 or later are part of the pilot. The only exception is documents concerning radiation media as LDEQ has asserted confidentiality of these pursuant to its authority to keep potentially sensitive national security information as confidential.>> Continue Reading Posted In Environmental Litigation and Regulation
The Louisiana Solid Waste Regulations, LAC 33:VII (the “LSWR”), have largely existed in their current state since February 1993, when the Louisiana Department of Environmental Quality (“LDEQ”) completely rewrote the Aold@ solid waste regulations. Now, in the culmination of an over 20-month joint effort by LDEQ, the regulated community, and the public, LDEQ hopes to propose comprehensive amendments to the LSWR. (These amendments may be proposed by as early as July of this year.) Unlike the 1993 revisions, however, the current draft amendments are not a wholesale rewrite of the LSWR. Instead, LDEQ proposes to reorganize, streamline, and supplement the existing regulations to make them easier to understand and apply. LDEQ also has attempted to ease the compliance burden, where possible, without increasing risk to public health or environment. That said, for the most part, the proposed amendments constitute a “tweaking,” not an overhaul, and existing regulations will continue in their current form, although perhaps reordered and renumbered.>> Continue Reading Posted In Environmental Litigation and Regulation
The United States Department of Justice, in a case of first impression, attempted to hold a landowner responsible for the Coast Guard’s response costs in the clean up of abandoned oilfield equipment in United States of America v. Louisiana Land & Exploration Company, USDC, Eastern District of Louisiana, No. 03-3208, Section “L”. Defendant LL&E was the surface owner of the property, which it purchased subject to an existing mineral lease. The lessee had engaged in operations for several years and had installed wells, tanks and other drilling and exploration equipment on the property. Although the operator allegedly ceased operations, LL&E never received any notification that the lease was being terminated.
In 2001, the US Coast Guard reported an oil spill from a storage tank on the property. Because the property allegedly was located in marshlands adjacent to a bayou which drained into the Gulf of Mexico, the US Coast Guard initiated clean up pursuant to the Oil Spill Pollution Act of 1990 (“OPA 90"). Upon completion, it sought to recover response costs of approximately $800,000 from the landowner under the theory that the operator had abandoned its equipment and that, pursuant to OPA 90 and La. C.C. art. 493, LL&E became the owner of this equipment when the lease “terminated” and was therefore responsible for all damage it caused.>> Continue Reading Posted In Environmental Litigation and Regulation
Effective Date: Upon signature of the governor which occurred on June 8, 2006.
Limitation On Some Matters: Does not apply to a case in which the court, on or before March 27, 2006 (first day of the legislative session), has issued or signed an order setting the case for trial, regardless if such trial date is continued.
Opt-in Provision: A party who filed a judicial demand has the right to come under S.B. 655 and can do so by filing a notice in the court where the case is pending, a notice of the exercise of such right within 60 days of the effective date of the Act.
Remediation Monies: Monies for remediation projects awarded shall be placed in the registry of the court and the remediation plan shall be implemented under the supervision of the agency with the court maintaining supervisory jurisdiction until plan completed. Monies may be funded incrementally. Any leftover funds are returned to the party who paid the money into the registry of the court. The money does not go to the landowner, but into the remediation project. Note that an award will include monies for investigation and remediation.
“Feasible Plan:” The definition of “feasible plan” for a remediation to be performed under the Act means the most reasonable plan which addresses “environmental damage” (see definition below) in compliance with the Constitution to protect the environment, public health, safety and welfare, and is in compliance with the specific relevant and applicable standards and regulations promulgated by a state agency in accordance with the Administrative Procedure Act in effect at the time of clean up to remediate contamination resulting from oilfield or exploration and production operations or waste.>> Continue Reading Posted In Environmental Litigation and Regulation
The U.S. Supreme Court issued an opinion June 19, 2006 in Rapanos v. United States and Carabell v. United States, cases focusing on the extent of the jurisdiction of the Corps of Engineers (“COE”) over wetlands under the Clean Water Act (“Act”). The Act allows the Corps to regulate “navigable waters of the United States.” However, “navigable waters” under the Act is defined as “the waters of the United States, including the territorial seas” and are not limited to waters that are “navigable” in the traditional sense. 33 U.S.C. §1362(7). For years the Corps interpreted the Act expansively to assert jurisdiction over virtually all wetlands regardless of how remote the connection to a navigable water, using the Commerce Clause as a basis. That was prior to the Supreme Court decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 167, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC”), which held that “isolated” wetlands do not fall within the jurisdiction of the Corps and that wetlands must be adjacent or have a “significant nexus” to navigable waters to fall within the Corps' jurisdiction. Following SWANCC, the Corps and the courts have wrestled with the meaning of “isolated” and “significant nexus,” with the Corps ever seeking to retain the broadest jurisdiction. .
>> Continue Reading Posted In Environmental Litigation and Regulation
Distinguished fellow blogger Stephen Holzer, at Environmental Legal Blogs has an excellent short analysis of the U.S. Supreme Court Decision in Rapanos v. United States. Check it out here, and check out his blog frequently for similar insightful posts. His concluding comment on the case:
"Nonetheless, for those of us accustomed over the last 40-50 years to seeing the Supreme Court rarely put brakes of any kind on the federal government's appetite for expansion, today was indeed one for the books."
Louisiana's Title V permit program requires each permit to contain "a schedule of compliance consistent with LAC 33:III.517.E.4." Under Section 517.E.4, and its federal counterpart 40 C.F.R. 70.6(c), the permit application must contain a "narrative description of how the source will achieve compliance and a compliance schedule" with respect to "any applicable requirements with which the source is not in compliance at the time of permit application submittal." The schedule proposed must "resemble and be at least as stringent as that contained in any judicial consent decree or administrative order or compliance order to which the source is subject." Id. Progress reports are required at least every six months. Id.>> Continue Reading Posted In Environmental Litigation and Regulation
Under the current law, La. R.S. 30:2015.1, anyone suing for damages for the "evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water" has to provide written notice to the Department of Natural Resources (DNR) and the Department of Environmental Quality (DEQ), who then have the right to intervene in the lawsuit. "Usable ground water" is statutorily defined as Groundwater Classification I or II under DEQ's RECAP regulations.>> Continue Reading Posted In Environmental Litigation and Regulation
On March 17, 2006, the Court of Appeals for the D.C. Circuit vacated EPA's final Equipment Replacement Provision rulemaking which attempted to establish a bright-line test for routine maintenance, repair and replacement (RMRR) in New York v. EPA, No. 03-1380 (D.C. Cir. 2006). To vacate a rule is to rescind and set it aside entirely (as opposed to a remand which would have sent it back to the agency for further justification.)>> Continue Reading Posted In Environmental Litigation and Regulation
Kean Miller Adds 12 Attorneys in Admiralty & Maritime, Construction, and Energy Practice Groups - New Orleans Office Triples in Size
Kean Miller is pleased to announce that 12 lawyers, formerly in the Admiralty & Maritime, Construction, and Energy practice areas with Lemle & Kelleher, LLP, have joined the firm in the New Orleans office.
"We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana's major port cities --- New Orleans, Baton Rouge and Lake Charles -- and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients." said Gary A. Bezet, managing partner of the 121-lawyer firm.
New Orleans to Host Air & Waste Management Association's 99th Annual Conference & Exhibition in June 2006
As cleanup from Hurricane Katrina and its aftermath progresses, the Air & Waste Management Association is proud to announce that its 99th Annual Conference & Exhibition will take place in New Orleans as originally scheduled, June 20-23, 2006. With the theme, "Healthy Environments: Rebirth & Renewal," the conference is expected to bring nearly 3000 of the world's leading environmental professionals to New Orleans.
In addition to the program tracks that attendees are accustomed to, the conference will feature a special session devoted to waste management responses to Hurricane Katrina, focusing on the analysis, transportation, disposal, and cleanup of debris and potentially contaminated soil and sediment. Papers also will address environmental readiness to aid in responses to future natural disasters. Also featured at the conference:
*The Keynote Program, with a presentation by Shell Oil Company President John Hofmeister on the company's plans for energy diversification;
*A symposium dedicated to Particulate Matter and Health;
*An Exhibition on the latest technologies used in the Katrina cleanup, as well as other environmental products and services; and
*More than 160 sessions covering a range of air, environmental, and waste issues.
EPA Releases Guidance Document and Proposed Amendments to Spill Prevention, Control, and Countermeasure Rules
Several recent developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in December 2005 that may have a major impact on Louisiana facilities. First, the EPA released the long awaited SPCC "Guidance for Regional Inspectors." The Guidance is intended to assist regional inspectors in reviewing a facility's implementation of the rule, but will also be beneficial for regulated facilities in determining how particular provisions of the rule may be applied.>> Continue Reading Posted In Environmental Litigation and Regulation
Reproduced with permission from Toxics Law Reporter, Vol. 20, No. 47, pp. 1067-1069 (Dec 8, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com
In the wake of two hurricanes, many Louisiana industries, businesses, and citizens are left with a monumental task of cleaning up the damages caused by the storms. Many Louisianians also face the somewhat unknown future of what potential liability lies ahead under various environmental statutes and programs. After the storms, the State of Louisiana and the federal government temporarily eased many requirements under various environmental regulatory programs so that immediate actions could be taken to preserve property and protect lives. Significant questions remain, however, as to how these agencies are going to use their enforcement discretion in the future with respect to events that occurred during and after the storms.>> Continue Reading Posted In Environmental Litigation and Regulation , Hurricane Katrina , Toxic Tort Litigation
Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 795-797 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com
The damages caused by Hurricane Katrina in Louisiana, Mississippi, and Alabama constitute the largest natural disaster in U.S. history. Hurricane Katrina's impact on insurers and their policyholders have already set in motion what will probably be one of the largest legal and public policy storms to hit the United States in modern times. Nowhere will the storm be more evident than in disputes involving wind and water damage coverage.
The eye of the coverage storm is already manifesting itself in coastal areas of Louisiana, Mississippi, and Alabama.>> Continue Reading Posted In Business Litigation , Environmental Litigation and Regulation , General Litigation , Hurricane Katrina , Louisiana In General , Real Estate , Toxic Tort Litigation
Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 793-795 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com
Katrina has already spawned a hurricane of lawsuits. These suits include: suits by individuals who claim they were injured by hazardous substances that leaked from storage facilities, refineries, or pipeline facilities; suits by individuals who claim that oilfield production and pipeline activities caused wetland damage that exacerbated the effects of hurricane Katrina; and suits by individuals who claim faulty levees caused the widespread flooding that followed in the days after Katrina made landfall. All of these suits have a common thread: each will require the courts to determine whether the damages sued upon resulted from nature's fury or human blunder.
Louisiana, like many other states, recognizes the general principle that an "act of God" can be a complete defense to liability for negligence and strict liability claims. Louisiana courts have generally used a consistent definition of the term "act of God," but the application of that definition in the context of a specific event has not always been consistent or clear, particularly when the issue of contributing human fault is at play.
Writ applications have been filed with the Louisiana Supreme Court in two oilfield pollution cases that have the potential to dramatically impact the scope of the numerous legacy lawsuits currently pending throughout the state.>> Continue Reading Posted In Environmental Litigation and Regulation , Legacy Oil Field Sites , Louisiana In General
The past twenty years has seen a dramatic increase in the volume of mass tort and other forms of complex litigation. As the volume of litigation has grown, so too have the burdens on the judiciary and the litigants. To address this growing problem, it is imperative that modern adjudicatory tools be adopted to achieve the goal of securing the just, speedy, and inexpensive determination of every action. One such case management tool that has developed in the context of mass tort litigation - but that can be equally effective in other types of litigation - is the Lone Pine Order.>> Continue Reading Posted In Class Action , Environmental Litigation and Regulation , General Litigation , Toxic Tort Litigation
As a service to the community and its clients, Kean Miller will present a Post-Katrina Energy Industry Forum on Thursday, October 13th. In addition, the firm will host its Louisiana Environmental Forum on Friday, October 14th. These two important industry events are part of a week-long breakfast briefing series designed to provide innovation, insight and ideas for business and industry in Louisiana. These breakfast briefing events will be held at Drusilla Place, 3482 Drusilla Lane (Jefferson Highway at I-12 in Baton Rouge).>> Continue Reading Posted In Environmental Litigation and Regulation , Hurricane Katrina , Legacy Oil Field Sites , Louisiana In General , Toxic Tort Litigation
Hurricane Katrina will undoubtedly go down in history as the worst natural disaster to hit the United States. The current estimated cost to repair damage from Hurricane Katrina caused has reached $50.0 billion, much of which may be covered by insurance. Hurricane Katrina will have enormous impact on policyholders and their insurers in Louisiana, Mississippi, and Alabama. Policyholders will need to act carefully and in some cases promptly to protect their rights under insurance policies providing coverage for environmental claims, business interruption claims, property loss claims, and general liability claims.>> Continue Reading Posted In Business Litigation , Business and Corporate , Construction Law , Environmental Litigation and Regulation , General Litigation , Hurricane Katrina , Louisiana In General
by Maureen Harbourt
NOTE: THIS OUTLINE IS INTENDED TO PRESENT AN OVERVIEW OF SOME POTENTIALLY HELPFUL PROVISIONS. IT DOES NOT ADDRESS ALL POTENTIAL REGULATORY OPTIONS NOR DOES IT ADDRESS RELEASE REPORTING REQUIREMENTS.
The Louisiana Department of Environmental Quality has issued an Emergency Order in response to Hurricane Katrina ; however, while it suspends several of the existing solid waste and asbestos management rules, it does not provide relief from the hazardous waste rules (with the exception of one provision extending the time for accumulation in less-than 90-day tanks and containers). In fact, the emergency order specifically indicates that any hazardous waste generated due to the storm must be segregated from other wastes and must be disposed in a permitted facility. However, mechanisms do exist under the existing rules to address emergency situations, as discussed below. See http://www.ldeq.org/news/pdf/Declarationofemergency.pdf at Section 3.
>> Continue Reading
Posted In Environmental Litigation and Regulation
United States Eastern District Court Closes Until Further Notice
Per its website at http://www.laed.uscourts.gov, the United States District Court for the Eastern District of Louisiana has closed until further notice, and has suspended "all deadlines and delays in matters pending before this court...until ordered otherwise."Posted In Business Litigation , Class Action , Constitutional Law , Environmental Litigation and Regulation , General Litigation , Hurricane Katrina , Labor and Employment Law , Louisiana In General , Products Liability , Toxic Tort Litigation
In light of the Louisiana Supreme Court's decision in the Suire case, businesses and industrial concerns may want to consider modification of their indemnity provisions in contracts in order to allow for the litigation of defense and indemnity claims during underlying tort litigation.>> Continue Reading Posted In Environmental Litigation and Regulation , General Litigation
EPA Report on Environmental Cleanup Obligations
From the redoubtable Stephen Holzer at Environmental Law Blog comes a discussion of the Government Accountability Office's report "ENVIRONMENTAL LIABILITIES: EPA Should Do More to Ensure That Liable Parties Meet Their Cleanup Obligations". Here is a link to the report itself.Posted In Environmental Litigation and Regulation
All industrial facilities should have an emergency response plan. Here are ten tips for establishing and implementing an emergency response plan.>> Continue Reading Posted In Environmental Litigation and Regulation
Eight-Parish New Orleans Metropolitan Statistic Area Close to Ozone Nonattainment
The 8-Hour National Ambient Air Quality Standard for Ozone became effective throughout Louisiana on June 15, 2004. The standard is 84 parts per billion (ppb). Compliance with the standard is measured by the 3- year average of the 4th highest reading each year at each monitor within an area. Stated differently, the 3- year average of the 4th highest 8-hour reading at each monitor within an area must equal 84 ppb or less. Currently, the monitor at Kenner, Louisiana is in danger of causing the New Orleans Metropolitan Statistical Area (MSA) be in nonattainment of the standard. According to Louisiana Department of Environmental Quality records, the Kenner monitor has had readings of 87, 85, 83, and 81 parts per billion during the 2005 ozone season which runs from May through October. Due to the readings over the past two years, the Kenner monitor cannot exceed 83 ppb as the 4th high reading this year, or the 3-year average will be greater than 84 ppb. Thus, if that monitor has an 8-hour average of 84 ppb or greater on two more days during this ozone season, then the whole MSA will go into nonattainment. The New Orleans MSA consists of Jefferson, Orleans, Plaquemines, St. Bernard, St. James, St. Charles, St. John the Baptist, and St. Tammany parishes.
Nonattainment status would trigger a number of additional regulatory requirements for businesses within the area, as well as transportation planning requirements and potential restrictions for municipalities.
The Louisiana Department of Environmental Quality publishes notices of Ozone Action Days on its website: http://www.deq.louisiana.gov/evaluation/ozone/oz_today.asp.
Moreover, the Department also has a list of do's and don'ts to help citizens and business assist in avoiding ozone exceedances. That action guide is available at http://www.deq.louisiana.gov/evaluation/o3act/oap_you.htm.
The 5 parish area around Baton Rouge (EBR, WBR, Ascension, Iberville and Livingston) is now subject to a new 8-hour ozone standard. The area is classified as being in "marginal" nonattainment [on a scale of marginal, moderate, serious, severe, and extreme] - so that is pretty good - it means we are close to being in attainment. For those of you in the Lake Charles area and New Orleans area - read this too. You are not out of the woods as your areas are barely in attainment and could go into nonattainment if we have a particularly hot year.>> Continue Reading Posted In Environmental Litigation and Regulation
In-house counsel who are employed in Louisiana but are not licensed to practice law here have until July 1, 2005 to file an application for limited licensure to practice under the Louisiana Supreme Court's new In-House Counsel Rule.>> Continue Reading Posted In Business Litigation , Business and Corporate , Class Action , Constitutional Law , Environmental Litigation and Regulation , Health Law , Intellectual Property , Labor and Employment Law , Legacy Oil Field Sites , Louisiana In General , Products Liability , Real Estate , State and Local Taxation , Toxic Tort Litigation
Louisiana Department of Environmental Quality Adopts Emergency Rule for Baton Rouge Nonattainment Area
On Friday, June 10, 2005, the Louisiana Department of Environmental Quality (LDEQ) enacted an Emergency Rule to adopt the 8-hour primary and secondary National Ambient Air Quality Standards for ozone and to revoke the 1-hour standards (both primary and secondary standards). The rule also establishes special Nonattainment New Source Review provisions for the 5-Parish Baton Rouge Nonattainment Area (Ascension, East Baton Rouge, Iberville, Livingston and West Baton Rouge Parishes). The rule becomes effective on June 15, 2005, the same date that the federal 1-hour ozone NAAQS are revoked.
Fourth Circuit Upholds Lower Court's Award of Compensatory Damages, Reduces Punitive Damage Award in Property Restoration Case
The Louisiana Fourth Circuit, in a decision sure to be appealed, recently upheld a lower court's award of compensatory damages - and reduced the lower court's punitive damage award - as a result of the defendants' alleged contamination of the plaintiffs' land with naturally occurring radioactive material (NORM). Grefer, et al. v. Alpha Technical, et al., 2002-CA-1237 (La. App. 4th Cir. 3/31/05); appeal from, Civil District Court, Orleans Parish.>> Continue Reading Posted In Environmental Litigation and Regulation , Legacy Oil Field Sites
Environmental managers are not often popular with company CFO's as more often than not, their proposed projects to install pollution control measures involve large expenditures with little prospect of cost-recovery. However, a review of various state decisions on what constitutes "pollution-control" may enable the thrifty EHS manager to soften the blow with creative mechanisms such as pollution control tax credits.>> Continue Reading Posted In Environmental Litigation and Regulation
The Louisiana Department of Environmental Quality (DEQ) began a pilot program for Expedited Penalty Agreements in mid-2004 which is continuing until June 10, 2005, and may be renewed. This pilot program establishes fixed penalty amounts for common environmental violations of minor to moderate significance - for instance, failure to report RQ releases, late submittal of air and water reports, missed sampling events, sanitary sewer system problems, UST requirements, waste oil requirements and the like.>> Continue Reading Posted In Environmental Litigation and Regulation
Proposed Legislation May Politicize Environmental Penalties and Settlements
If you think that Louisiana's environmental penalty settlement process is already political - you ain't seen nothin' yet! Representative Wayne Waddel of Shreveport has introduced House Bill 347 in the 2005 Louisiana Legislative Session to amend the environmental statutes to require that ten percent of any fine imposed by the Louisiana Department of Environmental Quality or ten percent of any settlement of any environmental penalty be given to the parish governing authority for the parish where the violation occurred. The bill has been assigned to the Appropriations committee rather than the Environment committee for review. The text of this bill as well as any schedule for hearings can be located at the Legislature's web site http://www.legis.state.la.us through the "Bill Search" feature.Posted In Environmental Litigation and Regulation
EPA Reconsiders Fee and Antibacksliding Provisions in Ozone NAAQS
On February 3, 2005, the U.S. Environmental Protection
Agency (EPA) responded to two issues raised in petitions for reconsideration filed in response to EPA's rule to implement the 8-hour ozone National Ambient Air Quality Standard (NAAQS). See, 70 Fed. Reg. 5593. The federal agency also proposed to revise two aspects of the implementation rule first published in the Federal Register on April 30, 2004 (69 Fed. Reg. 23,858). Go to Article