§ 30:29 — Remediation of oilfield sites and exploration and production sites

Louisiana § 30:29

• Jurisdiction: Louisiana
• Title 30: Mortgages and Privileges

Text

§29. Remediation of oilfield sites and exploration and production sites
A. The legislature hereby finds and declares that Article IX, Section 1 of the
Constitution of Louisiana mandates that the natural resources and the environment of the
state, including ground water, are to be protected, conserved, and replenished insofar as
possible and consistent with the health, safety, and welfare of the people and further
mandates that the legislature enact laws to implement this policy. It is the duty of the
legislature to set forth procedures to ensure that damage to the environment is evaluated and
if necessary remediated to a standard that protects the public interest. To this end, this
Section provides the procedure for judicial resolution of claims for environmental damage
to property arising from activities subject to the jurisdiction of the Department of
Conservation and Energy, office of conservation. The provisions of this Section shall be
implemented upon receipt of timely notice as required by Paragraph (B)(1) of this Section.
The provisions of this Section shall not be construed to impede or limit provisions under
private contracts imposing remediation obligations in excess of the requirements of the
department or limit the right of a party to a private contract to enforce any contract provision
in a court of proper jurisdiction.
B.(1) Notwithstanding any law to the contrary, immediately upon the filing or
amendment of any litigation or pleading making a judicial demand arising from or alleging
environmental damage, including actions based in whole or in part on R.S. 30:16 or 26, the
provisions of this Section shall apply, and the party filing same shall provide timely notice
to the state of Louisiana through the Department of Conservation and Energy, commissioner
of conservation and the attorney general. The litigation shall be stayed with respect to any
judicial demand until thirty days after notice is issued and return receipt is filed with the
court.
(2) The department or the attorney general, in accordance with their areas of
constitutional and statutory authority and regulations adopted pursuant thereto, shall have the
right to intervene in such litigation in accordance with the Louisiana Code of Civil
Procedure. Nothing in this Section shall diminish the authority of the department or the
attorney general to independently bring any civil or administrative enforcement action. Nor
shall anything in this Section preclude the department from independently responding in a
timely manner to an inquiry or request by a landowner for investigation.
(3) Any judgment or order in any litigation to which this Section applies shall be
without prejudice to any independent civil or administrative action by the department or the
attorney general regarding any environmental damage alleged therein. No such judgment or
order in such litigation may bar the department or the attorney general pursuant to R.S.
13:4231 et seq., or otherwise from pursuing any independent civil or administrative action
regarding environmental damage alleged therein, regardless of whether the department or the
attorney general has intervened.
(4) No judgment or order shall be rendered granting any relief in such litigation to
which this Section applies, nor shall the litigation be dismissed, until timely notice is
received by the state of Louisiana as set forth in this Subsection.
(5) Any party may subpoena, for purposes of deposition or trial, any employee,
contractor, or representative of the department involved in the formulation of the feasible
plan approved by the department under Subsection C of this Section, or an agency that
reviews and provides comments under Subsection C of this Section. Discovery regarding
the department's review, approval, or structuring of the feasible plan and of an agency that
reviews and provides comments shall not be allowed until after the department submits its
final feasible plan with reasons to the court pursuant to Subsection C of this Section. If a
party subpoenas the records or testimony of the department or an agency for deposition or
trial, the party issuing the subpoena shall pay the costs of the department or agency in
responding to such subpoena.
(6) Within sixty days of being served with a petition or amended petition asserting
an action, a defendant may request that the court conduct a preliminary hearing to determine
whether there is good cause for maintaining the defendant as a party in the litigation. At the
hearing, the parties may introduce evidence in affidavit or written form. The plaintiff shall
have the initial burden to introduce evidence to support the allegations of environmental
damage, following which the moving party shall have the burden to demonstrate the absence
of a genuine issue of material fact that the moving party caused or is otherwise legally
responsible for the alleged environmental damage. The rules governing summary judgments
in the Code of Civil Procedure shall not apply to the preliminary hearing. Within fifteen days
of the preliminary hearing, the court shall issue an order on any timely request for
preliminary dismissal. A judgment of dismissal under this Paragraph shall be without
prejudice, with all parties reserving the right to rejoin the dismissed defendant during the
litigation upon discovery of evidence not reasonably available at the time of the hearing on
the motion for preliminary dismissal. If not rejoined, a party dismissed under this Paragraph
shall be entitled to a judgment of dismissal with prejudice following a final nonappealable
judgment on the claims asserted by the party against whom the preliminary dismissal was
granted and shall be entitled to recover from the party who asserted the claim an award of
reasonable attorney fees and costs, as may be determined by the court. Any pleading
rejoining any defendant previously dismissed under this Paragraph shall relate back to the
filing of the original petition or any amendment thereto as provided in the Code of Civil
Procedure Article 1153. The finding of the district court shall be without prejudice of any
party to litigate the legal responsibility of any potentially responsible party, the allocation of
responsibility among the potentially responsible parties, and any other issues incident to the
finder of fact's determination of the party or parties who caused the damage or who are
otherwise legally responsible for the alleged environmental damage. The procedure for a
preliminary dismissal provided by this Paragraph shall be in addition to the pretrial rights and
the remedies available to the parties under the Code of Civil Procedure, including the right
to civil discovery.
(7)(a) The prescriptive period that applies to any claim covered by the provisions of
this Section shall be suspended for a period of one year upon the mailing or physical delivery
to the department of a notice of intent to investigate. A notice of intent to investigate shall
include all of the following information:
(i) A description of the property alleged to have been damaged.
(ii) A description of the alleged environmental damage.
(iii) The general location of the alleged environmental damage on the property.
(iv) The name and address of all known owners of the property.
(v) The name and address of the current operator.
(b) The party issuing the notice of intent to investigate shall mail by certified mail
return receipt requested to all persons identified in the notice a copy of the notice.
(c) If a party submits a notice of intent to investigate, any subsequent judicial
demand by the party under the provisions of this Section shall identify on a map the location
of any alleged environmental damage and include the results of any environmental testing
performed on the property. Failure to include this information at the time of the filing of the
judicial demand shall result in exclusion of the information.
C.(1) If at any time a party admits liability for environmental damage or the finder
of fact determines that environmental damage exists and determines the party or parties who
caused the damage or who are otherwise legally responsible therefor, the court shall order
the party or parties who admit responsibility or whom the court finds legally responsible for
the damage to develop a plan or submittal for the evaluation or remediation to applicable
regulatory standards of the contamination that resulted in the environmental damage. The
court shall order that the plan be developed and submitted to the department within one
hundred eighty days from the first date a party admits responsibility or one hundred eighty
days of the date the court finds a party legally responsible, whichever occurs later. The
plaintiff or any other party shall have thirty days from the date each plan or submittal was
submitted to the department to review the plan or submittal and to provide the department
with an alternate plan, comments, or input in response to the plan or plans submitted. The
court may extend the time for filing any plan or comments for good cause shown. The
department shall consider any plan, comment, or response provided timely by any party. The
department shall submit to the court a schedule of estimated costs for review of the plans or
submittals of the parties by the department and shall require the party admitting responsibility
or the party found legally responsible by the court to deposit in the registry of the court
sufficient funds to pay the cost of the department's review of the plans or submittals. Any
plan or submittal shall include an estimation of cost to implement the plan.
(2)(a) Within sixty days from the last day on which any party may provide the
department with a plan, comment, or response to a plan as provided in Paragraph (C)(1) of
this Section, the department shall conduct a public hearing on the plan or plans submitted.
When a public hearing is held following a limited admission pursuant to the Code of Civil
Procedure Article 1563, then the department shall not conduct an additional public hearing
pursuant to this Section for the same environmental damage. Within sixty days of the
conclusion of the hearing, the department shall approve or structure a final plan, or if
applicable, a preliminary plan pursuant to Subparagraph (C)(3)(b) of this Section, 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. The department shall issue written reasons for the plan it approves or
structures. On motion of the department, for good cause shown, the court may grant the
department additional time, not to exceed sixty days, within which to either conduct the
hearing or approve a plan with reasons.
(b) Except as otherwise provided for in this Section, from the date the party or
parties, who admit responsibility or whom the court finds legally responsible for the damage,
submit a plan to the department until after the department has filed with the court the
approved feasible plan for the evaluation or remediation of the environmental damage, no
party to the litigation, either directly or indirectly, shall have ex parte communication with
any employee, contractor, or representative of the department regarding the formation of the
feasible plan or an agency providing comments to the department regarding the formation
of the feasible plan. The feasible plan issued by the department shall contain a signed
affidavit of compliance with this restriction. Any comments provided by an agency to the
department shall also contain a signed affidavit of compliance with this restriction.
(c) In all cases in which a party makes a limited admission of liability under the
provisions of the Code of Civil Procedure Article 1563, there shall be a rebuttable
presumption that the plan approved or structured by the department, after consultation with
the Department of Environmental Quality as appropriate, shall be the most feasible plan to
evaluate or remediate to applicable regulatory standards the environmental damage for which
responsibility is admitted. For cases tried by a jury, the court shall instruct the jury regarding
this presumption if so requested by a party.
(3)(a) The department shall use and apply applicable regulatory standards including
but not limited to the Risk Evaluation and Corrective Action Program (RECAP) and may use
other exceptions to LAC 43:XIX.101 et seq., otherwise identified as Statewide Order No. 29-B, in approving or structuring a plan that the department determines to be the most feasible
plan to evaluate or remediate the environmental damage. In any action governed by the
provisions of this Section, the department shall consult with the landowner to consider
exceptions, including RECAP, but shall not be required to obtain landowner consent.
(b)(i) If the department preliminarily approves or structures a preliminary plan that
requires the application of regulatory standards of an agency other than the department or that
provides an exception from the department's standards, within fifteen days of the preliminary
structuring or approval, the department shall submit the plan to the Department of
Agriculture and Forestry, the Department of Environmental Quality, and the Department of
Conservation and Energy for review and comment. Within thirty days after the department's
submission of the plan to all of the agencies, each agency may provide written comments
regarding the plan. Each agency providing written comments shall submit a schedule of the
agency's costs for review of the plan to the court for reimbursement by the responsible party.
Failure of an agency to respond to the department shall not affect the validity of the plan
approved by the department. The department and agency heads shall coordinate in order to
establish protocol to ensure interagency communication regarding plan development, timely
delivery of all proposed plans to the appropriate agency heads, and timely receipt of all
agency comments back to the department.
(ii) Within thirty days after the receipt of any agency's written comments, the
department shall file in the court record the final plan, with written reasons that the
department determines to be the most feasible plan to evaluate or remediate the
environmental damage under applicable regulatory standards, together with any comments
submitted by an agency under Item (i) of this Subparagraph. Based on the findings of the
department, the department may issue any compliance order it deems necessary to either the
operator of record or, where applicable, a party found responsible or admitting responsibility
for implementing the most feasible plan to evaluate or remediate the environmental damage
under applicable regulatory standards. If a compliance order is issued against the responsible
party who is not the current operator of record, the responsible party shall give the current
operator of record notice of the compliance order within thirty days of the responsible party's
receipt of the compliance order.
(4) The plan approved by the department for submission to the court shall not be
considered to be an adjudication subject to appellate review pursuant to R.S. 49:978.1 or R.S.
30:12.
(5) The court shall adopt the plan approved by the department as the most feasible
plan, unless a party proves by clear and convincing evidence that another timely submitted
plan was provided to the department pursuant to this Subsection is a more feasible plan to
adequately protect the environment and the public health, safety, and welfare. The court shall
enter a judgment adopting the most feasible plan with written reasons assigned. Upon
adoption of a plan, the court shall order the party or parties admitting responsibility or the
party or parties found legally responsible by the court to fund the implementation of the plan.
The trial on the merits shall be stayed from the filing of a limited admission until the court
adopts the most feasible plan.
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant to this
Section and ordering the party or parties admitting responsibility or the party or parties found
legally responsible by the court to deposit funds for the implementation thereof into the
registry of the court pursuant to this Section shall be considered a final judgment pursuant
to the Code of Civil Procedure Article 2081 et seq., for purposes of appeal.
(b) Any appeal under this Section of a judgment adopting the most feasible plan shall
be taken to the Court of Appeal for the First Circuit. The appeal of a judgment adopting the
most feasible plan shall be heard with preference and on an expedited basis.
(c) The appellate court may affirm the trial court's adoption of the most feasible plan
or may adopt a most feasible plan in conformity with this Section and shall issue written
reasons for its decision.
(d) In the absence of an express contractual provision providing for remediation to
original condition or some other specific remediation standard, a party's legal responsibility
is satisfied by meeting the standards set forth in applicable regulatory standards.
D.(1) Whether or not the department or the attorney general intervenes, and except
as provided in Subsection H of this Section, all damages or payments in any civil action,
including interest thereon, awarded for the evaluation or remediation of environmental
damage shall be paid exclusively into the registry of the court in an interest-bearing account
with the interest accruing to the account for evaluation or remediation.
(2) The court may allow any funds to be paid into the registry of the court to be paid
in increments as necessary to fund the evaluation or remediation and implementation of the
most feasible plan or submittal adopted by the court under Paragraph (C)(5) of this Section.
In any instance in which the court allows the funds to be paid in increments, whether or not
an appeal is taken, the court shall require the posting of a bond for the implementation of the
most feasible plan in such amount as provided by and in accordance with the procedures set
forth for the posting of suspensive appeal bonds. Any such bond shall be valid through
completion of the remediation. In lieu of paying funds into the registry of the court, the
responsible party may at its option pay directly the cost of implementing the most feasible
plan and post bond in an amount equal to the total cost of the most feasible plan as provided
by and in accordance with the procedures set forth for the posting of suspensive appeal
bonds. If a responsible party directly pays the cost of implementing the most feasible plan,
then the responsible party shall provide to the district court a summary of costs paid each
quarter until the earlier of when the most feasible plan is fully implemented or the district
court orders that no further summaries are required.
(3) The court shall issue such orders as may be necessary to ensure that any such
funds are actually expended in a manner consistent with the adopted and most feasible plan
for the evaluation or remediation of the environmental damage for which the award or
payment is made.
(4) The court shall retain jurisdiction over the funds deposited and the party or
parties admitting responsibility or the party or parties found legally responsible by the court
until such time as the evaluation or remediation is completed. If the court finds the amount
of the initial deposit insufficient to complete the evaluation or remediation, the court shall,
on the motion of any party or on its own motion, order the party or parties admitting
responsibility or found legally responsible by the court to deposit additional funds into the
registry of the court. Upon completion of the evaluation or remediation, the court shall order
any funds remaining in the registry of the court to be returned to the depositor. The
department and the parties shall notify the court of the completion of any evaluation or
remediation.
E.(1) In any civil action in which a party is responsible for environmental damage,
a party providing evidence, in whole or in part, upon which the judgment is based shall be
entitled to recover from the party or parties found legally responsible by the court, all costs
attributable to producing that portion of the evidence that directly relates to the establishment
of environmental damage, including but not limited to expert witness fees, environmental
evaluation, investigation, and testing, the cost of developing a plan of evaluation or
remediation, and reasonable attorney fees incurred in the trial court and the department.
Upon adoption of the most feasible plan by the trial court, a party admitting responsibility
or a party found to be legally responsible for environmental damage shall not be responsible
for any further attorney fees or costs including but not limited to expert witness fees,
environmental evaluation, monitoring, investigation, and testing. Upon a finding by the court
that a defendant did not cause or is otherwise not legally responsible for the alleged
environmental damage, that defendant shall be entitled to recover from the plaintiff
reasonable attorney fees and all costs including expert witness fees, environmental
evaluation, monitoring, investigation, and testing if that defendant is found at trial not to
have caused or is otherwise not legally responsible for the alleged environmental damage.
(2) In any civil action in which the department or the attorney general, or their
employees, are parties or witnesses, provide evidence, or otherwise contribute to the
determination of responsibility for evaluation or remediation, or the approval of a plan of
remediation, the department or attorney general shall be entitled to recover from the party or
parties admitting responsibility or the party or parties found legally responsible by the court
all costs thereof, including but not limited to investigation, evaluation, and review costs;
expert witness fees; and reasonable attorney fees.
F. The court and the department shall retain oversight to ensure compliance with the
plan. The party or parties admitting responsibility or the party or parties found legally
responsible shall file progress reports periodically as the court or the department may require.
G. The provisions of this Section are intended to ensure evaluation or remediation
of environmental damage. If the court finds that no environmental damage exists, the court
may dismiss the department or attorney general from the litigation without prejudice.
H.(1) This Section shall not preclude an owner of land from pursuing a judicial
remedy or receiving a judicial award for private claims suffered as a result of environmental
damage, except as otherwise provided in this Section. Any award granted in connection with
the judgment for additional remediation in excess of the requirements of the feasible plan
adopted by the court shall not be paid into the registry of the court. Any award granted in
connection with the judgment for damages awarded to fund the most feasible plan shall be
paid into the registry of the court.
(2) Damages that may be awarded in an action under this Section shall be governed
by the provisions of Subsection M of this Section. This Section shall not be interpreted to
create any cause of action or to impose additional implied obligations under the mineral code
or arising out of a mineral lease.
I. For the purposes of this Section, the following terms shall have the following
meanings:
(1) "Contamination" shall mean the introduction or presence of substances or
contaminants into a usable groundwater aquifer, an underground source of drinking water
(USDW) or soil in such quantities as to render them unsuitable for their reasonably intended
purposes.
(2) "Environmental damage" shall mean any actual or potential impact, damage, or
injury to environmental media caused by actual or potential contamination resulting from
activities associated with oilfield sites or exploration and production sites. Environmental
media shall mean soil, surface water, ground water, or sediment.
(3) "Evaluation or remediation" shall include but not be limited to investigation,
testing, monitoring, containment, prevention, or abatement.
(4) "Most feasible plan" means the most reasonable plan which addresses
environmental damage in conformity with the requirements of Article IX, Section 1 of the
Constitution of Louisiana 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 the most feasible plan to evaluate or if necessary remediate environmental damage
resulting from oilfield or exploration and production operations or waste.
(5) "Oilfield site"or "exploration and production (E&P) site" means any location or
any portion thereof on which oil or gas exploration, development, or production activities
have occurred, including wells, equipment, tanks, flow lines or impoundments used for the
purposes of the drilling, workover, production, primary separation, disposal, transportation
or storage of E&P wastes, crude oil and natural gas processing, transportation or storage of
a common production stream of crude oil, natural gas, coal seam natural gas, or geothermal
energy prior to a custody transfer or a sales point. In general, this definition would apply to
all exploration and production operations located on the same lease, unit or field.
(6) "Timely notice" means written notice sent by certified mail, return receipt
requested. Such notice shall include a copy of the petition and any other filing in such
litigation.
J.(1) In the event that any settlement is reached in a case subject to the provisions of
this Section, the settlement shall be subject to approval by the court. The department and the
attorney general shall be given notice once the parties have reached a settlement in principle.
The department shall then have no less than thirty days to review that settlement and
comment to the court before the court certifies the settlement. If after a contradictory hearing
the court requires remediation, the court shall not certify or approve any settlement until an
amount of money sufficient to fund such remediation is deposited into the registry of the
court. No funding of a settlement shall occur until the requirements of this Section have
been satisfied. However, the court shall have the discretion to waive the requirements of this
Section if the settlement reached is for a minimal amount and is not dispositive of the entire
litigation.
(2) In the event a settlement is agreed to between the parties in a case in which the
department or the attorney general has intervened, such agency shall be entitled to recover
from the settling defendants all costs, including investigation, evaluation, and review costs;
expert witness fees; and reasonable attorney fees.
K. The provisions of this Section shall not apply to a judicial demand that prior to
the effective date of this Section has been resolved through compromise agreement and
settlement of claims, or by judgment on the merits that has become final and definitive.
L. If pursuant to the terms of a contract the responsible party is entitled to
indemnification against punitive damages arising out of the environmental damage that is
subject to the provisions of this Section, the responsible party shall waive the right to enforce
the contractual right to indemnification against such punitive damages caused by the
responsible party's acts or omissions if the responsible party admits responsibility for the
remediation of the environmental damage under applicable regulatory standards pursuant to
the provisions of the Code of Civil Procedure Article 1563. Such waiver of the right to
indemnification against punitive damages shall not apply to any other claims or damages.
M.(1) In an action governed by the provisions of this Section, and notwithstanding
any provision contained in this Section to the contrary, damages, including without limitation
remediation and nonremediation damages, may be awarded only for the following:
(a) The cost of funding the feasible plan adopted by the court.
(b) The cost of additional remediation only if required by an express contractual
provision providing for remediation to original condition or to some other specific
remediation standard.
(c) Economic loss damages may be recovered if proven by a preponderance of the
evidence. All other nonremediation damages shall be limited to no more than three hundred
percent of the fair market value. The fair market value of the property shall be based on the
value of the surface of the property as if it had no environmental damage.
(d) Repealed by Acts 2025, No. 458, §11, eff. Oct. 1, 2025.
(2) The provisions of this Subsection shall not be construed to alter the traditional
burden of proof or to imply the existence or extent of damages in any action, nor shall it
affect an award of reasonable attorney fees or costs under this Section.
NOTE: See Acts 2014, No. 400, §3, regarding applicability.

Legislative History

Acts 2006, No. 312, §1, eff. June 8, 2006; Acts 2012, No. 779, §1; Acts 2014, No. 400, §1; Acts 2023, No. 150, §5, eff. Jan. 10, 2024; Acts 2025, No. 458, §2, eff. June 24, 2025, §11, eff. Oct. 1, 2025.