Environmental Litigation and Regulation

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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 First Circuit Decision to Potentially Affect Air Permitting in Louisiana

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 Boiler MACT, Now It’s Gone!

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 Boiler MACT Rule Vacated, But Not (Yet) Gone!

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 New Trace Benzene Study To Be Published

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 Untapped Benefits of Louisiana’s Pollution Tax Exclusion

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 Claims Against Corps of Engineers Set For Trial

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 Will Your Settlement Negotiations With LDEQ Be Published on the Web?

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 PROPOSED REVISIONS TO LOUISIANA SOLID WASTE REGULATIONS

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 LANDOWNER NOT LIABLE UNDER OPA 90 FOR ABANDONED OILFIELD EQUIPMENT

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 SUMMARY OF KEY FEATURES OF S.B. 655 (the “Act”)