RS 2015.1 - Purpose; remediation of usable ground water
A. The legislature hereby finds and declares that Article IX, Section 1 of the Constitution of Louisiana mandates that the natural resources of the state, including 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.
B. Notwithstanding any law to the contrary, upon the filing of any litigation, action, or pleading by any plaintiff in the principal demand, or his otherwise making a judicial demand which includes a claim to recover damages for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water, such plaintiff filing same shall provide written notice by certified mail, return receipt requested, which notice shall contain a certified copy of the petition in such litigation, to the state of Louisiana through the Department of Environmental Quality. To the extent that any such litigation or action seeks to recover for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water, the Department of Environmental Quality, in accordance with its respective areas of constitutional and statutory authority and regulations adopted pursuant thereto, shall have the right to intervene in such litigation or action in accordance with the Louisiana Code of Civil Procedure. The department shall not have the right to independently assert a plea for damages to usable ground water beyond that stated by the plaintiff in the principal demand. However, nothing in this Section shall diminish the authority of the department from independently bringing any civil or administrative enforcement action. No judgment or order shall be rendered granting any relief in such litigation, nor shall the litigation be dismissed, without proof of notification to the state of Louisiana as set forth in this Subsection.
C.(1) If, prior to judgment on the merits, a party admits responsibility or the court makes a determination that contamination of usable ground water exists which poses a threat to the public health, and that evaluation or remediation is required to protect usable ground water and determines the responsible party, the court shall either order the responsible party or a court-appointed expert to develop a plan for evaluation or remediation of the contamination. The court shall also consider any plan submitted by the plaintiff. The court shall order the Department of Environmental Quality to respond to any plan submitted within sixty days from the date of submission.
(2) Within sixty days of the submission of a plan as provided in Paragraph(C)(1) of this Section, any other party may file written objections to or request modification of the plan or submit an alternative plan. If proposed modifications to the plan or an alternative plan is filed by any other party, the court shall order the Department of Environmental Quality to respond within sixty days from the date of submission.
(3) After hearing, the court shall adopt or structure a plan which the court determines to be the most feasible plan to evaluate and remediate the contamination and protect the usable ground water consistent with the health, safety, and welfare of the people. Upon adoption of the plan, the court shall order the responsible party to fund implementation of the plan and shall order the estimated cost of implementation deposited in the registry of the court.
(4) No plan shall be adopted by the court without the court having provided the Department of Environmental Quality an opportunity to provide input into the formulation of the plan and without the court having given consideration to any input provided by the department.
D. After a trial on the merits, if the court makes a determination that contamination exists which poses a threat to public health as to which evaluation or remediation is required to protect usable ground water and determines the party responsible, the court shall render judgment adopting the plan which the court determines is the most feasible plan to evaluate or remediate the contamination and protect the usable ground water consistent with the health, safety, and welfare of the people. To the extent the judgment requires the evaluation or remediation to protect usable ground water, the court shall order the responsible party to deposit the estimated cost to implement the plan in the registry of the court. The court shall order the Department of Environmental Quality to respond to any plan submitted within sixty days from the date of submission. No plan shall be adopted by the court without the court having provided the Department of Environmental Quality an opportunity to provide input into the formulation of the plan and without the court having given consideration to any input provided by the department.
E.(1) Whether or not the Department of Environmental Quality becomes a party, and except as provided in Subsection I of this Section, all damages or payments in any civil action, including interest thereon, awarded for the evaluation and remediation of contamination or pollution that impacts or threatens to impact usable ground water shall be paid exclusively into the registry of the court as provided in this Section.
(2) The district 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 and remediation. 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 plan of remediation in such amount as provided by and in accordance with the procedures set forth for the posting of suspensive appeal bonds.
(3) The court shall issue such orders as may be necessary to ensure that any such amount is actually expended for the evaluation and remediation of the contamination of the usable ground water for which the award or payment is made.
(4) In all such cases, the district court shall retain jurisdiction over the funds deposited and the party cast in judgment until such time as the evaluation and remediation is completed. The court shall, on the motion of any party or on its own motion, order the party cast in judgment to deposit additional funds into the registry of the court, if the court finds the amount of the initial deposit insufficient to complete the the evaluation or remediation and, upon completion of the evaluation and remediation, shall order any funds remaining in the registry of the court to be returned to the depositor.
F.(1) In any civil action in which a party is adjudicated responsible for damages or payments for the evaluation and remediation of contamination or pollution that impacts or threatens to impact usable ground water, the party or parties providing evidence, in whole or in part, upon which the judgment is based shall be entitled to recover from the party cast in judgment, in addition to any other amounts to which they may be entitled, all costs, including expert witness fees and reasonable attorney fees attributable to producing that portion of evidence that directly relates to the claims of contamination or pollution that impacts or threatens to impact usable ground water.
(2) In any civil action in which the Department of Environmental Quality or its employees are parties or witnesses, provide evidence, or otherwise contribute to the determination of responsibility or evaluation or remediation, such agency shall be entitled to recover from the party cast in judgment all costs, including evaluation and review costs, expert witness fees, and reasonable attorney fees.
G. Any judgment adopting a plan of evaluation or remediation of usable ground water pursuant to this Section and ordering the responsible party 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 for purposes of appeal. The review or appeal of any judgment which consists in whole or in part of an order adopting a plan of evaluation or remediation of usable ground water shall be heard with preference and on an expedited basis.
H. The provisions of this Section are intended to ensure evaluation and remediation of usable ground water. When the court does not find contamination or pollution or a threat of contamination or pollution to usable ground water, the court may dismiss the Department of Environmental Quality from the litigation.
I. This Section shall not preclude an owner of land from an award for personal injury or damage suffered as a result of contamination that impacts or threatens usable ground water. This Section shall not preclude an owner of land from an award for damages to or for remediation of any other part of the surface or subsurface of his property and any award granted in connection therewith shall not be paid into the registry of the court, but shall be made directly to the owner of the land. This Section shall not preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the Department of Environmental Quality as may be required in accordance with the terms of an expressed or implied contractual provision. This Section shall not be interpreted to create any cause of action.
J. For the purposes of this Section, the following terms shall have the following meanings:
(1) "Usable ground water" shall mean any ground water defined as Groundwater Classification I or Groundwater Classification II under the terms of the Risk Evaluation Corrective Action Program (RECAP) regulations promulgated by the Louisiana Department of Environmental Quality and in effect on January 1, 2003.
(2) "Evaluation and remediation" shall include but not be limited to investigation, testing, monitoring, containment, prevention, or abatement.
K. The Department of Environmental Quality shall establish rules and procedures for the receipt, evaluation, and approval or modification of plans for evaluation or remediation. The rules established by the agency shall be based upon risk-based standards sufficient to protect human health and the environment.
L. This Section shall not apply to oilfield sites or exploration and production (E&P) sites regulated by the Department of Natural Resources, office of conservation. "Oilfield site"or "exploration and production (E&P) site" means any oilfield site or exploration and production site as defined in R.S. 30:29(I)(4).
Acts 2003, No. 1166, §1, eff. July 2, 2003; Acts 2006, No. 312, §1, eff. June 8, 2006.
NOTE: See Acts 2003, No. 1166, §2, relative to retroactivity.