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.
Court Plan: Although the Act requires that the court shall adopt the plan recommended by the agency, if a party proves by a preponderance of the evidence that another plan is more “feasible” than the agency plan, the court can adopt another plan.
Appellate review: The review of a judgment under this Act is subject of de novo review at the court of appeal in the parish in which the district court is located.
How Act Triggered: Whenever litigation or amendment to existing litigation makes demand alleging “environmental damage” the Act applies and the party filing the demand shall provide timely notice to the State through the Louisiana Department of Natural Resources (“LDNR”) and the Attorney General (“AG”). Litigation is stayed for 30 days after such notice is issued and return receipt is filed with the court.
For litigation filed prior to the effective date of the Act, the party who filed or amended the litigation shall provide timely notice within 60 days of the effective date (June 8, 2006).
Environmental Damage: This is defined as any actual or potential impact, damage, or injury to environmental media caused by contamination resulting from activities associated with oilfield sites or exploration and production sites. “Environmental media” includes by way of example, soil, surface water, ground water, or sediment.
Nuts and bolts – how it works: A party either admits liability for environmental damage or the court finds that there is environmental damage and determines the party responsible. This appears to require some type of hearing if a party does not admit responsibility. Court then orders party to develop plan and submit it to court and LDNR within time court deems reasonable. Plaintiff then has 30 days from submission of plan to review and provide comment. LDNR is to submit schedule to court of costs of reviewing plan and party admitting responsibility or found liable is to fund those costs in registry of court. Any plan is also to include an estimation of costs. LDNR has 60 days of submission of proposed plans and comments in which to conduct a public hearing on the plan. Within 60 days after the public hearing, LDNR shall approve or structure a plan based on evidence submitted at the hearing which LDNR determines to be the “most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people.” LDNR then submits the plan to the court. The plan at that point is not subject of appellate review. The court then shall adopt the plan, subject to the ability of a party to try to prove that another plan is more “feasible”, and enter written reasons. The court shall then order the funding of the implementation of the plan.
Act does not impair contracts: A party can still maintain an action under a contract imposing remediation obligations in excess of the requirements of LDNR.
Right to intervene: AG or LDNR may intervene; also may institute independent civil or administrative enforcement proceedings. LDNR may also conduct investigation at request of landowner.
Recovery of costs and attorney fees: A party who provides evidence, in whole or in part, on which a finding of responsibility for environmental damage is rendered by the court, can recover all costs attributable to “producing the portion of the evidence relating directly to establishing environmental damage, including expert fees, investigation and testing costs, cost of developing a remediation plan and reasonable attorney fees incurred at the trial court and at the agency. The AG is also able to recover costs and reasonable attorney fees.
Landowner reserved rights for private claims: A landowner can still maintain private claims that do not fall under the act, e.g. diminution of property values, etc., and can seek more damages that a private contract might allow and to the extent such exceeds the LDNR remediation plan costs, those funds are not placed in the registry of the court.