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Legacy lawsuit seminar

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June 27, 2012...

June 27, 2012

A special session will be held in the morning on Legacy Lawsuits “The Limited Admission Legislation” – assuming the legacy legislation makes it through the legislative process. This 3-hour session will give those involved in Legacy Lawsuits a detailed analysis of the legislation that was passed and instructions on how defendants should move forward and navigate the waters. We will have speakers available for a Q & A panel following the presentation. You do not want to miss this event.

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Legacy lawsuit seminar Legacy lawsuit seminar Presentation Transcript

  • Legacy Lawsuit Seminar “Limited Admission Legislation” New Orleans June 27, 2012
  • Legacy 2012Legislative Process Representative Neil Abramson
  • General Overview of the Legislation HB 618 by Rep. Neil Abramson SB 555 by Sen. Robert Adley Jason Bergeron View slide
  • GENERAL OVERVIEW OF HB 618 CCP 1552 “EnvironmentalManagement Orders CCP 1563“Limited Admission of Liability” View slide
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “EnvironmentalManagement Orders CCP 1563“Limited Admission of Liability”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders CCP 1563“Limited Admission of Liability”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission CCP 1563“Limited Admission of Liability”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission • Limited to “regulatory” damages  Media specific (soil vs. GW)  Location specific CCP 1563“Limited Admission of Liability”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission • Limited to “regulatory” damages  Media specific (soil vs. GW)  Location specific CCP 1563 • No “serial admissions”“Limited Admission of Liability”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission • Limited to “regulatory” damages  Media specific (soil vs. GW)  Location specific CCP 1563 • No “serial admissions”“Limited Admission • Pretrial OOC Public Hearing of Liability”  Admissibility of “feasible plan”
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission • Limited to “regulatory” damages  Media specific (soil vs. GW)  Location specific CCP 1563 • No “serial admissions”“Limited Admission • Pretrial OOC Public Hearing of Liability”  Admissibility of “feasible plan” • Preservation of defenses
  • GENERAL OVERVIEW OF HB 618 • Govern environmental assessments CCP 1552 “Environmental • Sharing of test results (admissibility)Management Orders • Deadline to make limited admission • Limited to “regulatory” damages  Media specific (soil vs. GW)  Location specific CCP 1563 • No “serial admissions”“Limited Admission • Pretrial OOC Public Hearing of Liability”  Admissibility of “feasible plan” • Preservation of defenses • Reimbursement of expenses  $100,000 prepayment to DNR  Plaintiff’s costs
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29)Notice of Intent to InvestigatePreliminary Hearing Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to InvestigatePreliminary Hearing Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription InvestigatePreliminary Hearing Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription Investigate • Environmental data with petitionPreliminary Hearing Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription Investigate • Environmental data with petition •Dismissal without prejudice • RejoinderPreliminary Hearing • Contesting liability findings Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription Investigate • Environmental data with petition •Dismissal without prejudice • RejoinderPreliminary Hearing • Contesting liability findings • “Good cause” hearing • Evidence of environmental damage Discovery to DNR and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription Investigate • Environmental data with petition •Dismissal without prejudice • RejoinderPreliminary Hearing • Contesting liability findings • “Good cause” hearing • Evidence of environmental damage • No “ex parte” communications Discovery to DNR  Affidavit of Compliance and other State Agencies
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Presuit NoticeNotice of Intent to • 1-year suspension of prescription Investigate • Environmental data with petition •Dismissal without prejudice • RejoinderPreliminary Hearing • Contesting liability findings • “Good cause” hearing • Evidence of environmental damage • No “ex parte” communications Discovery to DNR  Affidavit of Compliance and other State • Discovery and trial subpoenas Agencies  After “final feasible plan”
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29)The Public HearingAnti-Indemnity
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Pre-trial hearing  Regulatory damages within Limited AdmissionThe Public HearingAnti-Indemnity
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Pre-trial hearing  Regulatory damages within Limited Admission • Post-trial hearing  Regulatory damages outside Limited AdmissionThe Public HearingAnti-Indemnity
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Pre-trial hearing  Regulatory damages within Limited Admission • Post-trial hearing  Regulatory damages outside Limited AdmissionThe Public Hearing • “Final” feasible plan • “Preliminary” feasible plan  Application of regulatory standards other than 29-B  Comments from other State AgenciesAnti-Indemnity
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Pre-trial hearing  Regulatory damages within Limited Admission • Post-trial hearing  Regulatory damages outside Limited AdmissionThe Public Hearing • “Final” feasible plan • “Preliminary” feasible plan  Application of regulatory standards other than 29-B  Comments from other State Agencies • Punitive Damages Only  Preserve right to pursueAnti-Indemnity indemnity for other damages
  • GENERAL OVERVIEW OF SB 555 (amendment to La. R.S. 30:29) • Pre-trial hearing  Regulatory damages within Limited Admission • Post-trial hearing  Regulatory damages outside Limited AdmissionThe Public Hearing • “Final” feasible plan • “Preliminary” feasible plan  Application of regulatory standards other than 29-B  Comments from other State Agencies • Punitive Damages Only  Preserve right to pursueAnti-Indemnity indemnity for other damages • Limited Admission Only
  • ANATOMY OF ALIMITED ADMISSION
  • Notice of Intent
  • Notice of Intent(1 year)Suit Filed
  • Notice of Intent EMO(1 year)Suit Filed
  • Notice of Intent EMO(1 year) Limited AdmissionSuit Filed
  • Notice of Intent EMO(1 year) Limited AdmissionSuit Filed Preliminary Hearing
  • Notice of Intent EMO(1 year) Limited AdmissionSuit Filed Preliminary Hearing Pretrial Discovery
  • Notice of Intent EMO(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed Preliminary Hearing Pretrial Discovery
  • Notice of Limited Admission “Window” Intent EMO(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed Preliminary Hearing Pretrial Discovery
  • Notice of Limited Admission “Window” Intent (court sets) Testing EMO Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed Preliminary Hearing Pretrial Discovery
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed Preliminary Hearing Pretrial Discovery
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing Pretrial Discovery
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Plaintiff submits Plan to OOC
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Plaintiff submits Plan to OOC (60 days) Public Hearing
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Plaintiff submits Plan to OOC (60 days) “Preliminary” Plan (60 days) Public Hearing “Final” Plan
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Referral to other Plaintiff submits Agencies Plan to OOC (15 days) (60 days) “Preliminary” Plan (60 days) Public Hearing “Final” Plan
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Other Agency (30 days) Referral to other Plaintiff submits Comments Agencies Plan to OOC (15 days) (60 days) “Preliminary” Plan (60 days) Public Hearing “Final” Plan
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Other Agency (30 days) Referral to other Plaintiff submits Comments Agencies Plan to OOC (15 days) (30 days) (60 days) “Preliminary” Plan (60 days) Public Hearing “Final” Plan
  • Notice of Limited Admission “Window” Intent (court sets) Testing (90 days) Admission EMO Deadline Deadline(1 year) Limited “Serial” Admission (60 days) admissionsSuit Filed OOC Referral Preliminary (immediate) Hearing (court sets) Pretrial Defendant submits Discovery Plan to OOC (30 days) Other Agency (30 days) Referral to other Plaintiff submits Comments Agencies Plan to OOC (15 days) (30 days) (60 days) Trial “Preliminary” Plan (60 days) Public Hearing “Final” Plan
  • Notice of Intent &Preliminary Hearing Loulan Pitre
  • “Rest of the Story” Notice of Intent Preliminary Hearing✦Enacted by SB 555 ✦Enacted by SB 555✦Enacts La. R.S. 29(B)(6) ✦Enacts La. R.S. 29(B)(7)
  • Preliminary Hearing✦Any defendant may request a preliminary hearing✦Within 60 days of filing of petition or amended petition✦To determine “whether there is good cause for maintaining the defendant as a party to the litigation”
  • Evidence at PreliminaryHearing✦Affidavits✦“In Written Form”✦Live witnesses?
  • Burden at PreliminaryHearinginitial burden to introduce evidence✦Plaintiff has to support the allegations of environmental damage✦Moving defendant then has burden to demonstrate the absence of a genuine issue of material fact that the moving party caused or is otherwise allegedly responsible for the alleged environmental damage✦Rules governing summary motion judgments do NOT apply
  • Post-Hearing Procedure✦Court shall order within fifteen days of hearing✦Dismissal, if any, shall be without prejudice
  • The Yo-Yo✦All parties shall have the right to rejoin dismissed defendants during the litigation “upon discovery of evidence not reasonably available at the time of the hearing”✦Any pleading re-joining a previously dismissed defendants shall relate back✦A party dismissed shall be entitled to a dismissal with prejudice following a final nonappealable judgment
  • What It Does Not DoPreliminary dismissal does not prejudice the right of any party to litigate: ✦The legal responsibility of any potentially responsibly party ✦The allocation of responsibility among the potentially responsible parties ✦Any other issues incident to the finder of fact’s determination of the party or parties who caused the damage or who are otherwise responsible for the damage
  • What good is it? ✦The value of involuntary dismissal without prejudice is limited ✦But it may be useful as a discovery device ✦It will discourage premature filing of suit ✦But even if dismissed, should file request for notice ✦You will need to decide how closely to monitor the litigation
  • Notice of Intent toInvestigate✦Prescription shall be suspended for one year!✦Mailing or physical delivery to the Office of Conservation of “Notice of Intent to Investigate”✦Copy of notice shall also be sent to all persons identified in the notice (but you might not get a copy even if vulnerable to a claim)
  • Contents the property alleged to have ✦Description of of Notice been damaged ✦Description of the alleged environmental damage ✦General location of the alleged environmental damage on the property ✦Name and address of all known owners of the property ✦Name and address of the current operator
  • Effect of Notice onSubsequent Litigation Any subsequent judicial demand ✦Shall identify on a map the location of any alleged environmental damage ✦Shall include the results of any environmental damage, under penalty of exclusion of the information
  • IsItthis a fair atrade? ✦ buys the plaintiffs year✦But the petition that ultimately gets filed will be more specific than some Judge’s require✦Plus, potential defendants can use that year to get ready✦Problem: potential defendants may not receive the notice✦It would be good to monitor the list; perhaps it will be posted online
  • EnvironmentalManagement Order George Arceneaux
  • Art. 1552. Environmental civil action alleging environmentalUpon the request of any party in any management ordersdamage pursuant to R.S. 30:29, or the Department of Natural Resources,office of conservation, the court shall direct the attorneys for the partiesto appear before the court to develop an environmental managementorder. The environmental management order shall authorize all parties toaccess the property allegedly impacted to perform inspections andenvironmental testing. The order shall require that all test results besubmitted to all parties and the Department of Natural Resources, office ofconservation, within thirty days of receipt thereof. Failure by a party toprovide the results of testing to the other parties shall preclude that partyfrom admitting those results into evidence in the civil action. Theenvironmental management order shall include reasonable terms for all ofthe following:(1) Access to the property.(2) Investigation and environmental testing.(3) Sampling and testing protocols.(4) Specific time frames within which to conduct such testing andsampling.
  • Art.the request of any party in any civil action alleging environmentalUpon 1552. Environmental management ordersdamage pursuant to R.S. 30:29, or the Department of Natural Resources,office of conservation, the court shall direct the attorneys for the partiesto appear before the court to develop an environmental managementorder. The environmental management order shall authorize all parties toaccess the property allegedly impacted to perform inspections andenvironmental testing. The order shall require that all test results besubmitted to all parties and the Department of Natural Resources, office ofconservation, within thirty days of receipt thereof. Failure by a party toprovide the results of testing to the other parties shall preclude that partyfrom admitting those results into evidence in the civil action. Theenvironmental management order shall include reasonable terms for all ofthe following:(1) Access to the property.(2) Investigation and environmental testing.(3) Sampling and testing protocols.(4) Specific time frames within which to conduct such testing andsampling.
  • Art.the request of any party in any civil action alleging environmentalUpon 1552. Environmental management ordersdamage pursuant to R.S. 30:29, or the Department of Natural Resources, Environmental Management Ordersoffice of conservation, the court shall direct the attorneys for the parties developed at Party’s Request:to appear before the court to develop an environmental managementorder. The environmental management order shall authorize all parties toaccessthe request ofallegedly impactedcourt shall direct Upon the property any party . . . the to perform inspections and the attorneys for the parties to appear before the courtenvironmental environmental management order. all test results be to develop an testing. The order shall require thatsubmitted to all parties and the Department of Natural Resources, office ofconservation, within thirty days of receipt thereof. Failure by a party toprovide the results of testing to the other parties shall preclude that partyfrom admitting those results into evidence in the civil action. Theenvironmental management order shall include reasonable terms for all ofthe following:(1) Access to the property.(2) Investigation and environmental testing.(3) Sampling and testing protocols.(4) Specific time frames within which to conduct such testing andsampling.
  • Art.the request of any party in any civil action alleging environmentalUpon 1552. Environmental management ordersdamage pursuant to R.S. 30:29, or the Department of Natural Resources, Environmental Management Ordersoffice of conservation, the court shall direct the attorneys for the parties developed at Party’s Request:to appear before the court to develop an environmental managementorder. The environmental management order shall authorize all parties toaccessthe request ofallegedly impactedcourt shall direct Upon the property any party . . . the to perform inspections and the attorneys for the parties to appear before the courtenvironmental environmental management order. all test results be to develop an testing. The order shall require thatsubmitted to all parties and the Department of Natural Resources, office ofconservation, within thirty days of receipt thereof. Failure by a party toprovide the results of testing to the other parties shall preclude that party Environmental Management Orderfrom admitting those results into evidence in the civil action. The (“EMO”) Will Affect Case Timing:environmental management order shall include reasonable terms for all of Coordination of Defendants isthe following: Important(1) Access to the property. Court has control, but parties can work(2) Investigation and environmental testing.formulate a workable together to process and schedule(3) Sampling and testing protocols.(4) Specific time frames within which to conduct such testing andsampling.
  • Art.the request of any party in any civil action alleging environmental Upon 1552. Environmental management ordersEMO’s pursuant to R.S.Terms the Department of Natural Resources, damage Establish 30:29, or and Timingof Testing reasonable terms for direct the attorneys for the parties office of conservation, the court shallEMO “shall include all of thefollowing: before the court to develop an environmental management to appear order. The environmental management order shall authorize all parties to access the property allegedly impacted to perform inspections and (1) Access to the property environmental testing. The order shall require that all test results be (2) Investigation and environmental testing submitted to all parties and the Department of Natural Resources, office of conservation, within thirty days of receipt thereof. Failure by a party to (3) Sampling and testing protocols provide the results of testing to the other parties shall preclude that party (4) Specific time frames for testing and sampling from admitting those results into evidence in the civil action. The environmental management order shall include reasonable terms for all of the following: (1) Access to the property. Similar to current CMO’s, but (2) Investigation and environmental testing. process may result in 312 (3) Sampling and testing protocols. different timing for sampling (4) Specific time frames within which to conduct such testing and sampling.
  • Art.the request of any party in any civil action alleging environmental Upon 1552. Environmental management orders damage pursuant to R.S. 30:29, or the Department of Natural Resources,Mandatory Exchange of Test Results: for the parties office of conservation, the court shall direct the attorneys to appear before the court to develop an environmental managementThe order shall require that all test results be order. The environmental management order shall authorize all parties tosubmitted to all parties and the Department of Natural access the property allegedly impacted to perform inspections andResources within thirty days of receipt thereof. environmental testing. The order shall require that all test results beFailure by a party to provide the Department of Natural Resources, office of submitted to all parties and the results of testing tothe other parties shall preclude that party fromadmitting thosewithin thirty evidence . . . . thereof. Failure by a party to conservation, results into days of receipt provide the results of testing to the other parties shall preclude that party from admitting those results into evidence in the civil action. The environmental management order shall include reasonable terms for all of the following: (1) Access to the property. When are test results (2) Investigation and environmental testing. (3) Sampling and testing protocols. (4) Specific time frames within which to conduct such testing and sampling.
  • A Proposed Form ForEnvironmental Management Order
  • 39th JUDICIAL DISTRICT COURT PARISH OF UTOPIA, STATE OF LOUISIANA DOCKET NO. 10-001 LANDOWNER vs. OIL COMPANY ENVIRONMENTAL MANAGEMENT ORDER GOVERNING ENVIRONMENTAL SAMPLING Upon appearance of the parties, and as otherwise provided by article 1552 of theLouisiana Code of Civil Procedure, IT IS ORDERED that the parties are to perform inspections and environmental testing ofthe property at issue in these proceedings (“the Property”), as follows:I. Site Access Pursuant to Article 1552 of the Louisiana Code of Civil Procedure, any party to theseproceedings (hereinafter “Party” or “Parties”) shall have the right to access the Property toperform inspections and environmental testing without further need of Orders from this Court ordiscovery requests. The right to conduct inspections and environmental testing shall be subjectto the provisions of this Order.II. Protocols for Notice and Field Activities Should any Party to these proceedings wish to conduct sampling and/or testing of air,water, groundwater, aquifer, soils, sediments, wells, and/or equipment with respect to, from, on,in or under the Property at issue in this lawsuit (hereinafter “Sampling Event”), then thefollowing protocol shall be followed with respect to any such Sampling Event. The Partyseeking to conduct a Sampling Event, or on whose behalf such Sampling Event will beconducted, is hereby referred to as the “Sampling Party.” A. The Sampling Party shall provide written notice to the other Parties of the scope and media to be sampled and the time, date, and location where such Sampling Event will take place. The Sampling Party shall
  • 39th JUDICIAL DISTRICT COURT PARISH OF UTOPIA, STATE OF LOUISIANA DOCKET NO. 10-001 LANDOWNER vs. OIL COMPANY ENVIRONMENTAL MANAGEMENT ORDER GOVERNING ENVIRONMENTAL SAMPLING Upon appearance of the parties, and as otherwise provided by article 1552 of theLouisiana Code of Civil Procedure, IT IS ORDERED that the parties are to perform inspections and environmental testing ofthe property at issue in these proceedings (“the Property”), as follows:I. Site Access Pursuant to Article 1552 of the Louisiana Code of Civil Procedure, any party to theseproceedings (hereinafter “Party” or “Parties”) shall have the right to access the Property toperform inspections and environmental testing without further need of Orders from this Court ordiscovery requests. The right to conduct inspections and environmental testing shall be subjectto the provisions of this Order.II. Protocols for Notice and Field Activities Should any Party to these proceedings wish to conduct sampling and/or testing of air,water, groundwater, aquifer, soils, sediments, wells, and/or equipment with respect to, from, on,in or under the Property at issue in this lawsuit (hereinafter “Sampling Event”), then thefollowing protocol shall be followed with respect to any such Sampling Event. The Partyseeking to conduct a Sampling Event, or on whose behalf such Sampling Event will beconducted, is hereby referred to as the “Sampling Party.” A. The Sampling Party shall provide written notice to the other Parties of the scope and media to be sampled and the time, date, and location where such Sampling Event will take place. The Sampling Party shall
  • provide such notice no less than ten (10) calendar days prior to the date on which the Sampling Event will be conducted. In describing the location, the notice must provide sufficient information to allow the other Parties to locate and attend the Sampling Event.B. The other Parties who desire to witness the Sampling Event must be allowed to do so, at each Party’s own cost and expense. The Sampling Party shall allow and/or provide reasonable access to the other Parties to the Sampling Event.C. At the request of any other Party, the Sampling Party shall allow split or duplicate samples to be taken, if volume allows, by the other Party, and/or the other Party’s authorized representative(s), but the Party requesting split or duplicate samples will be responsible for the costs of testing the samples and the costs of containers and other routine field supplies necessary to collect the split samples. If volume is insufficient to allow each Party to obtain its own split sample, then the non-sampling Parties may agree on sharing split media, or apply to the Court for an Order to control split samples.D. Any and all field notes, photographs, video, and /or coordinate data received by the Sampling Party and/or the Party requesting split or duplicative samples shall be provided to all other parties within thirty (30) days of the receipt or generation of that information or data. Electronic data or media such as that which is generated by terrain or other conductivity surveys, aquifer testing, NORM surveys, or similar electronically rendered processes, or other electronic means shall be shared at the time data is generated or collected if possible, or otherwise promptly thereafter, and no later than 30 days following the collection or generation of such data.E. Any and all analytical test results from samples taken from the Property shall be submitted to all Parties and the Department of 2
  • provide such notice no less than ten (10) calendar days prior to the date on which the Sampling Event will be conducted. In describing the location, the notice must provide sufficient information to allow the other Parties to locate and attend the Sampling Event.B. The other Parties who desire to witness the Sampling Event must be allowed to do so, at each Party’s own cost and expense. The Sampling Party shall allow and/or provide reasonable access to the other Parties to the Sampling Event.C. At the request of any other Party, the Sampling Party shall allow split or duplicate samples to be taken, if volume allows, by the other Party, and/or the other Party’s authorized representative(s), but the Party requesting split or duplicate samples will be responsible for the costs of testing the samples and the costs of containers and other routine field supplies necessary to collect the split samples. If volume is insufficient to allow each Party to obtain its own split sample, then the non-sampling Parties may agree on sharing split media, or apply to the Court for an Order to control split samples.D. Any and all field notes, photographs, video, and /or coordinate data received by the Sampling Party and/or the Party requesting split or duplicative samples shall be provided to all other parties within thirty (30) days of the receipt or generation of that information or data. Electronic data or media such as that which is generated by terrain or other conductivity surveys, aquifer testing, NORM surveys, or similar electronically rendered processes, or other electronic means shall be shared at the time data is generated or collected if possible, or otherwise promptly thereafter, and no later than 30 days following the collection or generation of such data.E. Any and all analytical test results from samples taken from the Property shall be submitted to all Parties and the Department of 2
  • provide such notice no less than ten (10) calendar days prior to the date on which the Sampling Event will be conducted. In describing the location, the notice must provide sufficient information to allow the other Parties to locate and attend the Sampling Event.B. The other Parties who desire to witness the Sampling Event must be allowed to do so, at each Party’s own cost and expense. The Sampling Party shall allow and/or provide reasonable access to the other Parties to the Sampling Event.C. At the request of any other Party, the Sampling Party shall allow split or duplicate samples to be taken, if volume allows, by the other Party, and/or the other Party’s authorized representative(s), but the Party requesting split or duplicate samples will be responsible for the costs of testing the samples and the costs of containers and other routine field supplies necessary to collect the split samples. If volume is insufficient to allow each Party to obtain its own split sample, then the non-sampling Parties may agree on sharing split media, or apply to the Court for an Order to control split samples.D. Any and all field notes, photographs, video, and /or coordinate data received by the Sampling Party and/or the Party requesting split or duplicative samples shall be provided to all other parties within thirty (30) days of the receipt or generation of that information or data. Electronic data or media such as that which is generated by terrain or other conductivity surveys, aquifer testing, NORM surveys, or similar electronically rendered processes, or other electronic means shall be shared at the time data is generated or collected if possible, or otherwise promptly thereafter, and no later than 30 days following the collection or generation of such data.E. Any and all analytical test results from samples taken from the Property shall be submitted to all Parties and the Department of 2
  • provide such notice no less than ten (10) calendar days prior to the date on which the Sampling Event will be conducted. In describing the location, the notice must provide sufficient information to allow the other Parties to locate and attend the Sampling Event.B. The other Parties who desire to witness the Sampling Event must be allowed to do so, at each Party’s own cost and expense. The Sampling Party shall allow and/or provide reasonable access to the other Parties to the Sampling Event.C. At the request of any other Party, the Sampling Party shall allow split or duplicate samples to be taken, if volume allows, by the other Party, and/or the other Party’s authorized representative(s), but the Party requesting split or duplicate samples will be responsible for the costs of testing the samples and the costs of containers and other routine field supplies necessary to collect the split samples. If volume is insufficient to allow each Party to obtain its own split sample, then the non-sampling Parties may agree on sharing split media, or apply to the Court for an Order to control split samples.D. Any and all field notes, photographs, video, and /or coordinate data received by the Sampling Party and/or the Party requesting split or duplicative samples shall be provided to all other parties within thirty (30) days of the receipt or generation of that information or data. Electronic data or media such as that which is generated by terrain or other conductivity surveys, aquifer testing, NORM surveys, or similar electronically rendered processes, or other electronic means shall be shared at the time data is generated or collected if possible, or otherwise promptly thereafter, and no later than 30 days following the collection or generation of such data.E. Any and all analytical test results from samples taken from the Property shall be submitted to all Parties and the Department of 2
  • provide such notice no less than ten (10) calendar days prior to the date on which the Sampling Event will be conducted. In describing the location, the notice must provide sufficient information to allow the other Parties to locate and attend the Sampling Event.B. The other Parties who desire to witness the Sampling Event must be allowed to do so, at each Party’s own cost and expense. The Sampling Party shall allow and/or provide reasonable access to the other Parties to the Sampling Event.C. At the request of any other Party, the Sampling Party shall allow split or duplicate samples to be taken, if volume allows, by the other Party, and/or the other Party’s authorized representative(s), but the Party requesting split or duplicate samples will be responsible for the costs of testing the samples and the costs of containers and other routine field supplies necessary to collect the split samples. If volume is insufficient to allow each Party to obtain its own split sample, then the non-sampling Parties may agree on sharing split media, or apply to the Court for an Order to control split samples.D. Any and all field notes, photographs, video, and /or coordinate data received by the Sampling Party and/or the Party requesting split or duplicative samples shall be provided to all other parties within thirty (30) days of the receipt or generation of that information or data. Electronic data or media such as that which is generated by terrain or other conductivity surveys, aquifer testing, NORM surveys, or similar electronically rendered processes, or other electronic means shall be shared at the time data is generated or collected if possible, or otherwise promptly thereafter, and no later than 30 days following the collection or generation of such data.E. Any and all analytical test results from samples taken from the Property shall be submitted to all Parties and the Department of 2
  • Natural Resources (hereinafter referred to as “DNR”) within thirty days of the receipt of certified laboratory results. If after submitting analytical test results to all Parties and DNR there is a correction or change in the test results, then the revised data shall be provided to all parties and DNR within thirty days of the receipt of the corrected data from a laboratory. Compliance with this provision shall constitute full compliance with the requirements of Code of Civil Procedure article 1522.F. The Sampling Event shall be conducted during daylight hours on any day of the ordinary work week. No Sampling Event shall be conducted on Saturday, Sunday, or any other legal holiday, except with consent of all Parties or by order of the Court.G. Pursuant to Code of Civil Procedure article 1522, any Party may access the Property for viewing, photographing, or otherwise entering upon the Property solely for purposes other than a Sampling Event, upon four (4) business days notice to all Parties. Any field notes or photographs of the Property taken during a non-Sampling Event by anyone other than attorneys shall be exchanged upon written request pursuant to the provisions of this Order in Paragraph II.D., above.H. Nothing contained herein shall prohibit any party from obtaining relief from, or modification of, specific provisions of this order for good cause shown, after notice and a contradictory hearing.III. ISSUANCE OF NOTICE AND EXCHANGE OF DATAA. The notice required in this Order at Paragraphs II.A and II.D., and the exchange of laboratory results, data and information required in this Order at Paragraphs II.B and II.E shall be provided by facsimile or email to representative of each Party as follows: 1. Plaintiff: 3
  • Natural Resources (hereinafter referred to as “DNR”) within thirty days of the receipt of certified laboratory results. If after submitting analytical test results to all Parties and DNR there is a correction or change in the test results, then the revised data shall be provided to all parties and DNR within thirty days of the receipt of the corrected data from a laboratory. Compliance with this provision shall constitute full compliance with the requirements of Code of Civil Procedure article 1522.F. The Sampling Event shall be conducted during daylight hours on any day of the ordinary work week. No Sampling Event shall be conducted on Saturday, Sunday, or any other legal holiday, except with consent of all Parties or by order of the Court.G. Pursuant to Code of Civil Procedure article 1522, any Party may access the Property for viewing, photographing, or otherwise entering upon the Property solely for purposes other than a Sampling Event, upon four (4) business days notice to all Parties. Any field notes or photographs of the Property taken during a non-Sampling Event by anyone other than attorneys shall be exchanged upon written request pursuant to the provisions of this Order in Paragraph II.D., above.H. Nothing contained herein shall prohibit any party from obtaining relief from, or modification of, specific provisions of this order for good cause shown, after notice and a contradictory hearing.III. ISSUANCE OF NOTICE AND EXCHANGE OF DATAA. The notice required in this Order at Paragraphs II.A and II.D., and the exchange of laboratory results, data and information required in this Order at Paragraphs II.B and II.E shall be provided by facsimile or email to representative of each Party as follows: 1. Plaintiff: 3
  • Natural Resources (hereinafter referred to as “DNR”) within thirty days of the receipt of certified laboratory results. If after submitting analytical test results to all Parties and DNR there is a correction or change in the test results, then the revised data shall be provided to all parties and DNR within thirty days of the receipt of the corrected data from a laboratory. Compliance with this provision shall constitute full compliance with the requirements of Code of Civil Procedure article 1522.F. The Sampling Event shall be conducted during daylight hours on any day of the ordinary work week. No Sampling Event shall be conducted on Saturday, Sunday, or any other legal holiday, except with consent of all Parties or by order of the Court.G. Pursuant to Code of Civil Procedure article 1522, any Party may access the Property for viewing, photographing, or otherwise entering upon the Property solely for purposes other than a Sampling Event, upon four (4) business days notice to all Parties. Any field notes or photographs of the Property taken during a non-Sampling Event by anyone other than attorneys shall be exchanged upon written request pursuant to the provisions of this Order in Paragraph II.D., above.H. Nothing contained herein shall prohibit any party from obtaining relief from, or modification of, specific provisions of this order for good cause shown, after notice and a contradictory hearing.III. ISSUANCE OF NOTICE AND EXCHANGE OF DATAA. The notice required in this Order at Paragraphs II.A and II.D., and the exchange of laboratory results, data and information required in this Order at Paragraphs II.B and II.E shall be provided by facsimile or email to representative of each Party as follows: 1. Plaintiff: 3
  • Natural Resources (hereinafter referred to as “DNR”) within thirty days of the receipt of certified laboratory results. If after submitting analytical test results to all Parties and DNR there is a correction or change in the test results, then the revised data shall be provided to all parties and DNR within thirty days of the receipt of the corrected data from a laboratory. Compliance with this provision shall constitute full compliance with the requirements of Code of Civil Procedure article 1522.F. The Sampling Event shall be conducted during daylight hours on any day of the ordinary work week. No Sampling Event shall be conducted on Saturday, Sunday, or any other legal holiday, except with consent of all Parties or by order of the Court.G. Pursuant to Code of Civil Procedure article 1522, any Party may access the Property for viewing, photographing, or otherwise entering upon the Property solely for purposes other than a Sampling Event, upon four (4) business days notice to all Parties. Any field notes or photographs of the Property taken during a non-Sampling Event by anyone other than attorneys shall be exchanged upon written request pursuant to the provisions of this Order in Paragraph II.D., above.H. Nothing contained herein shall prohibit any party from obtaining relief from, or modification of, specific provisions of this order for good cause shown, after notice and a contradictory hearing.III. ISSUANCE OF NOTICE AND EXCHANGE OF DATAA. The notice required in this Order at Paragraphs II.A and II.D., and the exchange of laboratory results, data and information required in this Order at Paragraphs II.B and II.E shall be provided by facsimile or email to representative of each Party as follows: 1. Plaintiff: 3
  • alawyer@lawyer.com Fax: 555-111-3456 blawyer@lawyer.com clawyer@lawyer.com Counsel for Plaintiff 2. Defendants: DefenseLawyer@BigFirm.Com Fax: 555-111-1234 DefenseLawyer2@BigFirm.Com Attorneys for Oil Company I DefenseLawyer3@BigFirm2.Com Fax:444-111-1234 Attorneys for Oil Company II 3. Department of Natural Resources: regulator@la.gov.dnr Fax:225-111-1234 Designated Representative of LDNR B. If notice is not provided as required by Paragraph II.A. hereinabove, and a Party is deprived of its ability to attend the Sampling Event due to the failure to provide such notice, then the failure to provide notice shall preclude the admissibility of those results in this matter, absent good cause demonstrating why the results should otherwise be admissible. C. The time delays for notice provided for in this Order may be waived by consent of all Parties and maybe modified by further Order of this Court.IV. Time Limits A. Plaintiffs shall conduct all testing and sampling of the Property on or before ______. B. Any other party who desires to conduct testing and sampling of the Property, shall do so on or before ___(typically 120 days post completion of Plaintiff’s testing). THUS DONE AND SIGNED on this ____ day of _____________, 2012, at__________________, Louisiana. 4
  • alawyer@lawyer.com Fax: 555-111-3456 blawyer@lawyer.com clawyer@lawyer.com Counsel for Plaintiff 2. Defendants: DefenseLawyer@BigFirm.Com Fax: 555-111-1234 DefenseLawyer2@BigFirm.Com Attorneys for Oil Company I DefenseLawyer3@BigFirm2.Com Fax:444-111-1234 Attorneys for Oil Company II 3. Department of Natural Resources: regulator@la.gov.dnr Fax:225-111-1234 Designated Representative of LDNR B. If notice is not provided as required by Paragraph II.A. hereinabove, and a Party is deprived of its ability to attend the Sampling Event due to the failure to provide such notice, then the failure to provide notice shall preclude the admissibility of those results in this matter, absent good cause demonstrating why the results should otherwise be admissible. C. The time delays for notice provided for in this Order may be waived by consent of all Parties and maybe modified by further Order of this Court.IV. Time Limits A. Plaintiffs shall conduct all testing and sampling of the Property on or before ______. B. Any other party who desires to conduct testing and sampling of the Property, shall do so on or before ___(typically 120 days post completion of Plaintiff’s testing). THUS DONE AND SIGNED on this ____ day of _____________, 2012, at__________________, Louisiana. 4
  • alawyer@lawyer.com Fax: 555-111-3456 blawyer@lawyer.com clawyer@lawyer.com Counsel for Plaintiff 2. Defendants: DefenseLawyer@BigFirm.Com Fax: 555-111-1234 DefenseLawyer2@BigFirm.Com Attorneys for Oil Company I DefenseLawyer3@BigFirm2.Com Fax:444-111-1234 Attorneys for Oil Company II 3. Department of Natural Resources: regulator@la.gov.dnr Fax:225-111-1234 Designated Representative of LDNR B. If notice is not provided as required by Paragraph II.A. hereinabove, and a Party is deprived of its ability to attend the Sampling Event due to the failure to provide such notice, then the failure to provide notice shall preclude the admissibility of those results in this matter, absent good cause demonstrating why the results should otherwise be admissible. C. The time delays for notice provided for in this Order may be waived by consent of all Parties and maybe modified by further Order of this Court.IV. Time Limits A. Plaintiffs shall conduct all testing and sampling of the Property on or before ______. B. Any other party who desires to conduct testing and sampling of the Property, shall do so on or before ___(typically 120 days post completion of Plaintiff’s testing). THUS DONE AND SIGNED on this ____ day of _____________, 2012, at__________________, Louisiana. 4
  • Questions and Situations to Consider1. EMO will govern sampling activity once it is adopted. Aninitial protective order to address sampling may be a good idea2. Staged sampling has been the norm, and is still desireable.Fundamental fairness requires that the defense be able toreview and respond to Plaintiff’s data package by testing.3. Will or should the EMO be coupled with a CMOrequirement for issuance of a deliniation or similar report?
  • Conducting anEnvironmental Assessment Bill Fenstermaker
  • Historical Investigation ✦Well Records Search ✦Operator History ✦Historical Aerial Photography ✦Regulatory Agency Records ✦Surface Ownership History ✦Mineral Ownership History
  • Site Visit ✦Document Existing Conditions ✦Interview Field Personnel ✦Identify Potential Problematic Areas ✦Develop Preliminary Sampling Plan
  • Aerial Photography ✦Aerial Photography ✦ Feature Identification ✦ Sample Locations
  • Historical Aerials ✦Feature Identification ✦Document Conditions
  • Site Conceptual Model ✦Sample for 29-B Parameters ✦Prepare Sketch of Sampling Plan ✦Document Sampling Procedures ✦Log Sample Locations with GPS ✦Document Sample Collection ✦Lithologic Investigation
  • Sample Analyses ✦Document ASTM Sampling Procedures ✦Deliver Samples to LELAP Certified Lab ✦Specify Parameters for Analysis ✦Chain-of-Custody Forms
  • Costs & Time Frames ✦Analyses ✦ Laboratory Tests ($350 ea for 29-B Analysis) ✦ Can take 2-3 weeks for results ✦Wetlands ✦ Can impact project costs (Mitigation ~ $35,000/Acre) ✦ Ratio may be 2:1 or more (~ $70,000/ Acre) ✦ Extend time to complete (3 – 6 Months) ✦Field Investigation ✦ Site Reconnaissance (Time and Material: Typically $1000 - $2000) ✦ Topo Survey - Identify and document equipment on location (Survey Crew) ✦ NORM Survey (Included in Site Reconnaissance) ✦Report Generation ✦ Compile Data and Design Plan (1-2 Weeks) ✦ Create and Distribute Report
  • GISTrack Current Progress ✦ Documentation ✦Hyperlink to Documents and Information ✦Chronology of Field History To access a working demonstration of our GIS capability, log onto the Fenstermaker website: www.fenstermaker.com Go to Secure Client Area Enter Username: SiteDemo@project.com Password: Remediation1
  • Litigating the Public HearingContents of the Plan Submitted to DNR Lou Buatt
  • Litigating the PublicHearing ✦ The Problem prior to HB 618 and SB 555-Plaintiffs introduce to juries excessive cleanup plans that are technically and economically infeasible and in many instances would be unlawful to implement. Juries never hear from DNR or any other state agencies regarding appropriate cleanup options. ✦ Importance of the Public Hearing ✦Admissibility of Plan Approved by DNR ✦Admissibility of Comments of other Agencies; ✦SB 555 provides authority to subpoena DNR and other commenting agencies for trial or deposition after submission of final feasible plan.
  • ✦Understanding DNR, DEQ and DAF requirements and approaches to remediation ✦DNR’s 29-B and DEQ’s RECAP-When consistent and when inconsistent ✦DNR/DEQ Memorandum of Understanding
  • ✦ General Requirements of the Cleanup/Evaluation Plans Submitted to DNR: ✦General Requirements (LAC 43:XIX.609) ✦Specific Requirements (LAC 43:XIX.611) ✦Evaluated in accordance with 29-B, except as specifically provided; ✦Site must be fully delineated, vertically and horizontally; ✦Sampling and testing in accordance with 29-B and the latest revision of the DNR Laboratory Procedures for Analysis of Exploration and Production Waste; ✦Plat showing the physical location where samples were taken; ✦Identity of the person or company taking the samples and a copy of the certification of such person or company (if applicable); ✦Documentation showing the method of sampling, the chain of custody and all other such relevant information; ✦Sample analysis shall be in accordance with applicable regulatory requirements and DNR’s “Laboratory Procedures for Analysis of Exploration and Production Waste;
  • ✦Specific Requirements (LAC 43:XIX.611) continued ✦Laboratory analysis shall be performed by DEQ LELAP accredited laboratory; ✦Testing results shall contain a report certified by the testing laboratory including a description of the test method, whom conducted such testing, a copy of the laboratory accreditation and all applicable required quality assurance/quality control data; ✦Separate section analyzing the sampling and testing by comparison with applicable 29-B criteria; ✦Chronological work schedule or proposal for chronological work schedule detailing activities necessary for implementation, an estimated cost for each item along with a comprehensive itemized cost basis for each item; and ✦A certification of review and approval by signature from an attorney licensed to practice in Louisiana.
  • ✦Specific Requirements (LAC 43:XIX.611) continued ✦Exception to Requirements of 29-B ✦A plan that complies with 29-B, exclusive of §319; ✦A separate plan that includes: ✦Sufficient proof that there is good cause to grant an execption ✦Sufficient proof showing that the exception does not endanger USDW’s and ✦Specific citation to the Louisiana rules, regulations or statutes sought to be applied in lieu of 29-B (Example RECAP)
  • ✦ Strategy to Use Regulatory and Administrative Process to Influence the Judicial Process ✦Current Plaintiff Strategy is to present excessive cleanup plans to juries and for juries not to hear from DNR or other State Agencies; ✦DNR positions regarding most feasible cleanup plan will be developed during the public hearing process; ✦Cleanup Plan meeting the requirements of 29-B and consistent with DEQ’s RECAP ✦Comprehensive Feasibility Study or Corrective Action Study consistent with federal and state requirements (EPA and DEQ) that compares and contrast several different remedial alternatives, including those likely submitted or to be submitted by plaintiffs.
  • ✦No Ex parte Communications ✦Act 555 provides: “… 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.” ✦Summary and Discussion of Prohibitions of Ex Parte Communication in Adjudications and Judicial Proceedings ✦The Do’s and Donts Considering Prohibitions on Ex Parte Communications
  • Litigating the Public Hearing Procedure in the Public Hearing Victor Gregoire Michael Phillips
  • Statewide Order 29-B,Chapter 6 ✦ Used and Applied by Commissioner of Conservation in accordance with Administrative Procedure Act ✦ Shallapply to Office of Conservation hearings and the submission and approval of plans under Act 312
  • Commissioner’sConference schedule set a hearing The Department shall  Commissioner’s Conference to a date and deadlines for the release of technical data, hearing notices, filing of all plans, witness and exhibit lists, and any other preliminary matters related to the hearing  The Conference shall be scheduled as soon as practicable after the final plan submission  Each responsible party is required to participate and any litigation party may participate
  • Notice of Hearing ✦ The Commissioner shall publish legal notice in the State Journal ✦ Theresponsible party shall post a copy of legal notice of the hearing and the plat in a prominent place in the affected area ✦ Theresponsible party shall publish at least fifteen (15) days before hearing a copy of legal notice in a newspaper published in the general area of the affected tract
  • Notice of Hearing ✦ The responsible party shall mail copies of the legal notice and plat to all parties ✦ Evidence of posting, publishing and mailing shall be submitted by the responsible party at the hearing ✦A hearing shall be held no more than sixty (60) days from the date when any litigation party may submit a plan, comment or response
  • Rules of Hearing  The responsible party shall mail copies of the legal notice and plat to all parties  Evidence of posting, publishing and mailing shall be submitted by the responsible party at the hearing  A hearing shall be held no more than sixty (60) days from the date when any litigation party may submit a plan, comment or response
  • Rules of Hearing ✦ Any litigation party who submitted a plan shall present the entire scientific, technical, or other basis of its plan ✦ A litigation party that filed a plan in opposition to a responsible party’s plan shall present followed by a litigation party who may have filed a plan in support of the responsible party’s plan ✦ Theresponsible party followed by litigation party shall have an opportunity to provide rebuttal evidence
  • Rules of Testimony✦ All witnesses shall be subject to examination by the Commissioner or any member of his staff and by no more than two representatives of a party.✦ Crossexamination shall be made under the following guidelines: ✦ Limited to questions concerning testimony and exhibits presented by the witness or any other witness or the credibility of the witness.
  • Rules of Testimony ✦ Matterswithin the knowledge of the cross examiner or his witness shall be presented on direct examination. ✦ Cross examination shall be conducted in a polite and courteous manner
  • Opening & ClosingStatements  Thelitigation party and responsible party may make opening statements  The parties also may make closing statements, but shall not include technical matters not presented by sworn testimony
  • Opening & ClosingStatements✦ The responsible party shall have the right to make the last closing statement✦ When there is more than one litigation and responsible party, the parties may agree on a sequence in which the opening or closing statements are presented.
  • Limited Admission at Trial Rob McNeal
  • Prior Law Governing Admission ofLiability for Environmental Damage ✦ La. R.S. 30:29 allowed a party to admit liability for environmental damage BUT ✦ Admission could waive defenses to other claims. ✦ No option to admit limited liability for only part of environmental damage. ✦ No specific procedure existed for prompt remediation of property when an admission was made.
  • How Limited Admission is Made ✦ Must be in writing and filed in the lawsuit record. ✦ Should describe the contamination at issue subject to admission. ✦ When limited admission must be filed: ✦ Anytime between filing of lawsuit and ninety (90) days after completion of the environmental testing set forth in environmental management order (EMO). ✦ Filing deadline can be extended for “good cause”.
  • LDNR Expenses ✦ Litigation Expenses: ✦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. ✦Public Hearing Expenses: ✦Defendant who admits limited liability must deposit $100,000 with LDNR to cover LDNR’s costs . ✦ Deposit must be made prior to or along with the submission of the admitting party’s plan to LDNR. ✦If LDNR’s expenses do not exceed $100,000, balance of deposit is reimbursed to the admitting party.
  • Reimbursement of Plaintiff’s Costs ✦Current law: ✦Admitting party is liable to plaintiff for costs attributable to producing evidence that directly relates to establishing environmental damage which court determines are recoverable . ✦Includes expert fees and attorneys’ fees ✦ Modification for limited admissions: ✦ Party making limited admission must reimburse plaintiff’s costs within 30 days after LDNR files its feasible plan recommendation with court.
  • Evidentiary Effect of Admission ✦ Current law: Not addressed in Act 312. ✦ New Law for Limited Admissions: ✦ If a party makes a limited admission, the following are admissible as evidence in the action: ✦The limited admission; ✦The plan approved by LDNR; and ✦All written comments to the plan provided by other agencies . ✦Use of evidence is still subject to the Code of Evidence Articles 702 through 705 and Code of Civil Procedure Art. 1425.
  • Waiver of Indemnity ✦Current law: ✦Admission of liability has no effect on indemnity rights. ✦ Modification for limited admissions ✦ Limited admission automatically waives the admitting party’s contractual indemnity rights for punitive damages claims caused by acts or omissions of the admitting party. ✦ Waiver does not affect other indemnification rights.
  • Primary Jurisdiction✦ C.C.P. 1563 does not establish primary jurisdiction withthe LDNR over remediation performed pursuant to a limitedadmission
  • Strategy for HandlingLimited Admissions in Pending Cases Jason Bergeron
  • Prioritizing Your Cases
  • How much time do I have?Defendant Submits DNR Issues Plan to “Final” Plan DNR
  • How much time do I have?Defendant 225 DAYS* Submits (with other Agency review) DNR Issues Plan to “Final” Plan DNR
  • How much time do I have?Defendant 225 DAYS* Submits (with other Agency review) DNR Issues Plan to “Final” Plan DNR *For good cause shown, court can grant additional 60 days to OOC to conduct hearing or approve the plan.
  • 1. Cases set for trial 2. Cases with significant environmental data developedPrioritizingYour Cases 3. Cases with preliminary environmental data developed 4. Cases with no environmental data developed
  • Questions?