As we learned during the flooding in South Louisiana in August of 2016, the help of our neighbors and friends in Texas and around the country strengthened us, and allowed our communities to rebuild and flourish. That’s part of the reason Kean Miller donated a total of $25,000 this week to the Greater Houston Community Foundation, the United Way of Greater Houston, and the American Red Cross in lieu of our fall client event originally scheduled for today, September 16th.

Our thoughts and prayers are with our friends, colleagues and peers in Houston and Southeast Texas today, and in the weeks and months ahead.

People First.

By Tokesha Collins-Wright

On September 1, 2017, the Louisiana Department of Environmental Quality (“LDEQ”) updated the emergency order that was issued by the Governor of Louisiana on Thursday, August 24, 2017. That earlier emergency order put the entire State of Louisiana under a declaration of emergency and was to remain in place until Friday, September 22, 2017, unless terminated sooner. On September 1, 2017, the Governor issued an amended declaration of emergency that now applies only to the parishes that have been declared federal disaster areas (the “Order”). At the time of the signing of the Order, these federal disaster areas were Acadia, Allen, Beauregard, Calcasieu, Cameron, Iberia, Jefferson Davis, Natchitoches, Rapides, Sabine, Vernon, and Vermilion. If at any point additional parishes are also declared as federal disaster areas, then those parishes will also be included in the Order.

Among the matters covered in the Order:

  • Permittees with Louisiana Pollutant Discharge Elimination System (“LPDES”) permits should consider activating the upset provisions in their permits. LAC 33:IX.2701. An upset constitutes an affirmative defense to an action brought for non-compliance with such technology-based permit effluent limitations if the requirements of LAC 33:IX.2701.N.3 are met. This Order extends upset provisions to include water quality based effluent limitations. For upsets caused by Hurricane Harvey, the 24-hour oral notification is waived unless the non-compliance may endanger human health.
  • New emergency discharges, which are eligible for coverage under the LPDES General Permit LAG420000 (Short-Term and Emergency Discharges General Permit), and are located in an area that has been included in this Order are considered provisionally covered under the terms and conditions of the permit immediately and fully covered 72 hours after the postmark date or upon hand-delivery of a complete and correct Notice of Intent. The Notice of Intent shall be submitted no later than 10 business days after commencing discharge.
  • When handling and managing wastes generated as a result of Hurricane Harvey, owners and operators of solid waste management facilities and local governments shall adhere to the State of Louisiana “Comprehensive Plan for Disaster Clean-up and Debris Management” (the “Debris Management Plan”), except where the Debris Management Plan may be in conflict with the provisions of this Order, in which case the provisions of this Order shall prevail. The Debris Management Plan contains provisions and instructions for handling various types of waste material and for locating and receiving authorization for Emergency Debris Sites, which are sites that local governments and state agencies may “activate” upon the declaration of an emergency by LDEQ and the issuance of this Order.
  • LDEQ will consider, on an individual basis, requests for approval for open burning, by persons other than local governments or their agents, of storm-generated trees, leaves, vines, twigs, branches, grass, and other vegetative debris. Any such burning approved by the LDEQ must be conducted in compliance with the requirements of the Debris Management Plan and LAC 33:III.1109.D.6. Local governments and their agents shall follow the provisions of the Debris Management Plan.
  • Owners and operators of solid waste management facilities permitted by the LDEQ before Hurricane Harvey are authorized to make all necessary repairs to restore essential services and the functionality of storm water management and leachate collection systems damaged by Hurricane Harvey, without prior notice to the LDEQ. Within thirty (30) days of commencing the work of such repair or replacement, however, the permittee shall notify the LDEQ in writing, describing the nature of the work, giving its location, and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • The LDEQ authorizes the minor repair of any previously permitted stationary source of air pollution that was damaged by the Hurricane to restore it to its previously permitted condition without prior notice to the LDEQ. Within thirty (30) days of commencing such repairs, however, the permittee shall notify the LDEQ in writing, stating the location and nature of the work and providing the name, address, and telephone number of the representative of the permittee to contact concerning the work.
  • LDEQ will consider, on an individual basis, requests for approval for, but not limited to, the following sources of air pollution:
    1. temporary air pollution control devices, such as portable flares, used for vessel and pipeline segment purging and the limited operation of facilities with damaged vapor control equipment;
    2. portable storage tanks, used for interim storage while damaged equipment is being repaired; and
    3. repairs, other than the minor repairs discussed above, of permitted stationary sources that have been damaged by the Hurricane, provided that the sources are restored or replaced with equipment that is identical or functionally.

All activities authorized under this Order must be commenced before the expiration of this Order unless otherwise provided in an authorization or permit. The deadline for commencement under any authorization or permit issued under this Order may be extended on a showing that contractors or supplies are not available to commence the work, or if additional time is needed to obtain any required authorization from the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, or other local, state, or federal agencies.

The Order is set to expire on October 26, 2017, unless modified or extended by further order. For more information, click here.

Unprecedented flooding has severely impacted the City of Houston and Southeast Texas due to Hurricane Harvey.  In August 2016, South Louisiana and the Capital Region were affected by a major rain and flood event.  In response, Kean Miller created the South Louisiana Flood section of our Louisiana Law Blog as a legal resource for those impacted by the Louisiana flood.  Today, we have launched the Hurricane Harvey section of our blog to provide additional legal resources to our friends, contacts, and clients in Texas and those affected in Southwest Louisiana.

The August 2016 flood taught us many things, and Kean Miller has a unique familiarity with flood relief efforts.  From organizing work teams equipped to rebuild homes, to collecting and distributing relief supplies, we have information and ideas that may help.  Our Director of Human Resources, Mary Coghlan, led our internal relief efforts and is available to consult with any of the law firms or clients affected by the Texas flood.  She can be reached at 225-382-3488 or mary.coghlan@keanmiller.com

Although there is still much work to do, we know the strength of the people in Texas will see them through this historic event.  Our continued thoughts and prayers are with our friends, clients and contacts in Houston and anyone affected by this unprecedented event.

By Jeffrey N. Boudreaux

Earlier this week, the Texas Supreme Court and the Texas Court of Criminal Appeals issued an emergency order to allow the courts affected by the disaster to suspend regular court procedures and deadlines. The order is effective for one month and states in part:

Pursuant to Section 22.0035(b) of the Texas Government Code, all courts in Texas should consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures – whether prescribed by statute, rule, or order – in any case, civil or criminal.

Misc. Doc. No.17- 9098.

Yesterday, the Court added a formal judicial suspension of all deadlines to the otherwise applicable statute of limitations which states in part:

Inasmuch as statutes of limitations are not subject to a good-cause exception, the Supreme Court now further orders, again pursuant to Section 22.0035(b), that any applicable statute of limitations is suspended for any civil claim if the claimant shows that the disastrous conditions resulting from Hurricane Harvey prevented the timely filing of the claim despite the party’s and counsel’s diligent efforts.  Any such suspension extends only to the date on which it becomes reasonably possible to file the claim despite the disastrous conditions, taking into account the circumstances.

Misc. Doc. No. 17- 9091

Unlike the Louisiana Executive Order JBE 16-66, issued last year following the catastrophic flooding in Baton Rouge and similar orders issued in previous years (by previous Governors) which suspended the applicable prescriptive period, the Texas Order still requires some showing of  that the claimant attempted to timely file its claim.

At this juncture, it is premature to speculate on what level of proof will be required for a claimant to take advantage of the suspended deadlines, but it is clear some standard of proof will be required

The link to determine whether a particular court is closed can be found here.

By Lauren J. Rucinski

On August 28, 2017, the Environmental Protection Agency (“EPA”) approved an emergency fuel waiver for areas for Louisiana affected by Hurricane Harvey. The waiver is an effort to minimize or prevent problems with the supply of gasoline. Sixteen parishes in the state are required to sell low Reid vapor pressure (“RVP”) gasoline,[i] having a maximum RVP of 7.8 pounds per square inch (“psi”), during the summer ozone season. The waiver temporarily lifts this requirement and allows higher RVP gasoline of 9.0 psi to be sold in these parishes through September 15, 2017. The sixteen parishes impacted by the emergency waiver are Ascension, East Baton Rouge, Iberville, Livingston, West Baton Rouge, Beauregard, Calcasieu, Jefferson, Lafayette, Lafourche, Orleans, Point Coupee, St. Bernard, St. Charles, St. James, and St. Mary.

EPA has also waived the requirement of 40 C.F.R. §80.27(d) for gasoline sold in these parishes. Under the waiver, gasoline with less than 9% ethanol by volume will qualify for the “special provisions for alcohol blends” requirement and the provisions that prohibit any person from blending gasoline unless certain conditions are met are temporarily lifted.

Authority for the waiver was exercised under the Section 211(c)(4)(C)(ii) of the Clean Air Act (“CAA”), 42 U.S.C. § 7545(c)(4)(C)(ii). EPA Administrator, Scott Pruitt, determined Hurricane Harvey to be an unforeseen “extreme and unusual fuel [ ] supply circumstance” that will prevent the distribution of an adequate supply of gasoline to consumers in the designated parishes. Administrator Pruitt further determined that the waiver is in the public interest.

As required by law, the EPA and the Department of Energy (“DOE”) are continuing to actively monitor the fuel supply situation in the midst of Hurricane Harvey. The EPA and DOE have the authority to act expeditiously if extreme and unusual circumstances exist in other areas of the state.

For more information, click here.

If you need more information, please contact a member of our Environmental Team:  Tokesha Collins-Wright, Maureen N. Harbourt, Dwayne Johnson, and Lauren J. Rucinski

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[i] Reid Vapor Pressure (“RVP”) is a measure of gas volatility. EPA regulates the vapor pressure of gasoline sold at retail stations during the summer ozone season (June 1 to September 15) to reduce evaporative emissions from gasoline that contribute to ground-level ozone and diminish the effects of ozone-related health problems. Note that, on August 9, 2017, EPA proposed to relax the low RVP requirements for 11 of the 16 parishes covered under this emergency waiver. See 82 Fed. Reg. 37,184. However, this is just a proposal, not a final rule. Further, only 11 of the 16 parishes covered in the emergency waiver are covered under the August 9, 2017, proposal. As such, the emergency waiver is still needed.

By Maureen N. Harbourt

Effective August 25, 2017, the Secretary of the Department of Natural Resources authorized the performance of activities within the Louisiana Coastal Zone necessary to prevent or to mitigate damages associated with Hurricane Harvey.  In the event that new construction is needed for such purposes, an after-the-fact Coastal Use Permit application might be required.  The Secretary’s message can be found here.

The Secretary noted that the emergency use provisions of the Coastal Use Permit Rules and Procedures (LAC 43:I.723.B.3) are activated by his determination that potential damage to energy and other infrastructure in the Louisiana Coastal Zone by Hurricane Harvey may result in an emergency situation and that damage resulting in a threat to life, property, or the environment.  (The Coastal Use Permit rules are available under Louisiana Administrative Code Title 43, Part I here.)  Further, the Secretary has determined that due to the potential threat that Hurricane Harvey may cause impacts of statewide significance, all emergency uses under the jurisdiction of the Louisiana Coastal Resources Program which are necessitated for preparation, response to, and the aftermath of Hurricane Harvey shall be considered uses of state concern (as distinguished from uses of local concern).

The LDNR stated: “Because of the potential for widespread damage associated with Hurricane Harvey, the Department of Natural Resources is temporarily modifying its usual emergency authorization procedures for storm related repair/restoration projects located in the Coastal Zone.  This modification applies ONLY to those activities needed to restore infrastructure.  Unless this notice is renewed, it shall expire on September 15, 2017.”

LDNR requires that those using this emergency authority are to provide the Department with notification via letter, email or fax as soon as possible for documentation purposes.  The notification should include:  the name of the entity undertaking the activity; a description of the work performed; a vicinity map showing the location of the emergency work; and project coordinates (lat/long) if available.  Notifications to LDNR should be directed to:  Karl Morgan, P.O. Box 44487, Baton Rouge, LA 70804-4487 (Fax: 225-342-9439) (E-mail: karl.morgan@la.gov).

By Maureen N. Harbourt

Just a quick reminder that in 2007, the Louisiana State Police (“LSP”) adopted regulations requiring special reporting requirements for persons “engaged in the transportation of hazardous materials by railcars, vessels, or barges, or the temporary storage of hazardous materials in any storage vessel not permanently attached to the ground” if that activity is within “a parish affected, or projected to be affected, by a Category 3 or higher hurricane for which a mandatory evacuation order has been issued.”  LAC 33:V.11103.  Hazardous materials are those materials listed in 40 C.F.R. Part 355, Appendix A.  Temporary storage is defined as storage in a portable container, and excludes any storage in pipelines or any other storage vessel permanently attached to the ground.

At the present time (11 a.m, CST, August 25, 2017),  Hurricane Harvey is a Category 2 storm with maximum sustained winds of 110 mph; but, it is projected that Harvey will strengthen to a Category 3 Hurricane by the time of landfall, which is projected to occur between Corpus Christi and Houston, Texas, late evening on August 25, 2017.  It is also projected that the hurricane will affect southwest and south central Louisiana parishes.  In fact, the Governor of Louisiana has issued an executive order that puts the entire State of Louisiana under a declaration of emergency.  Yesterday evening, Cameron Parish entered a mandatory evacuation order for all areas of the parish south of the Intracoastal Waterway, effective at 6 a.m., CST, August 25, 2017.   We are not aware of any mandatory evacuation orders for any other Louisiana parishes at this time.  The following is a link to all parish emergency response offices which will provide contact information to inquire about any orders issued: http://gohsep.la.gov/about/parishpa.

If a mandatory evacuation order is issued for any Louisiana parishes due to a Class 3 or higher category hurricane, the rules (LAC 33:V.11105) require the following:

  • Notification shall be given to the DPS, via electronic submittal, to the 24-hour Louisiana Emergency Hazardous Materials Hotline email address at emergency@la.gov within 12 hours of a mandatory evacuation order issued by the proper parish authorities.
  • For persons engaged in the transportation activities noted above, the report must include the following information:
    • the exact nature of, and the type, location, and relative fullness of the container (i.e., full, half-full, or empty) of all hazardous materials that are located within a parish subject to the evacuation order;
    • the primary and secondary contact person’s phone, e-mail, and fax number; and
    • whether the facility will be sufficiently manned such that post-event assessments will be performed by company personnel (as soon as safely practicable) and that any releases and/or hazardous situations will be reported in accordance with existing Louisiana Department of Environmental Quality (LDEQ) and State Police reporting requirements.
  • For those materials that are stored, it shall be necessary to only report those hazardous materials that were not reported in the annual SARA inventory report (40 CFR Parts 312/313) and those that are in excess of what is typically stored at the facility.

In addition to the notification to the LSP, “within a reasonable period of time” persons subject to the rule “shall perform a post-event assessment of those hazardous materials that were actually present in the affected area and to what degree, if any, those materials were compromised by said event and their current condition.”  Such information must be available for review by both the LSP and the LDEQ shall have access to this information.