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.
If the court subsequently determines (or a “responsible party” admits) that “contamination of usable ground water exists which poses a threat to the public health,” and that evaluation or remediation is necessary, the court basically smacks heads together to confect a plan, and can reach out to its own expert if needed. The DNR or DEQ, whichever has chosen to become involved, is ordered to respond to the plan, and any party can weigh in with alternative proposals.
The court ultimately adopts a plan, invoices the responsible party, and “shall order the estimated cost of implementation deposited in the registry of the court.” It a trial is held, “all damages…awarded for the evaluation and remediation of contamination or pollution that impacts or threatens to impact usable ground water” is paid into the registry of the court.
The trial court retains control of these funds and is charged by the law with the task of ensuring the money is “actually expended for the evaluation and remediation of the contamination….”
SB 655 enacts a new statute, La. R.S. 30:29, to house the substantive provisions relating to oil field sites.
UNDER SB655, any “litigation or pleading making a judicial demand arising from or alleging environmental damage” requires “timely notice” to DNR, and the attorney general. “Environmental damage” is defined in proposed La. R.S. 30:29(I)(1) as “any actual or potential impact damage, or injury to environmental media [including soil, surface water, ground water, or sediment] caused by contamination resulting from activities associated with oil field sites or exploration or production sites.” In other words, with regard to oilfield sites, the limitation to threats to usable ground water has been removed.
In the event of a settlement or judgment, the court is now to order the parties (no court-appointed expert involvement) to confect a plan, which is then submitted to DNR. DNR conducts a public hearing, then approves a plan “based on the evidence submitted which the department determines to be the most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people.” This plan is not an adjudication subject to appellate review in accordance with the traditional protocol for final administrative actions.
The court is mandated to accept DNR’s plan unless a party proves by a preponderance of the evidence that another plan is more feasible. The court issues a judgment, with written reasons, and the responsible party is to fund its implementation through a deposit of money in the court registry.
Regardless of whether DNR or the attorney general intervenes, “all damages or payments in any civil action…awarded for the evaluation or remediation of environmental damage” are to be paid into the registry of the court. The court retains control of the money deposited, and “the court and the department shall retain oversight to ensure compliance with the plan.”
The parties cannot settle a lawsuit involving claims of environmental damage unless the court approves it, after notice to, and review by, DNR and the attorney general. If the court finds, after a contradictory hearing, that remediation is necessary, it can require deposit of sufficient funds in the registry of court before approving the settlement.
Proposed La. R.S. 30:29.1 requires the owner or operator of any oilfield site or exploration and production site [defined in La. R.S. 30:29] to provide the landowner and DNR, within ten days, results of any environmental testing conducted on the property.
Under the proposed revision to La. R.S. 30:2015.1, DEQ is now the only state agency to be given notice in the event of a claim involving a threat to usable ground water. New Subsection (L) excludes from coverage under this section oilfield sites which are to be covered by La. R.S. 30:29.