Legacy lawsuit seminar

Legacy Lawsuit Seminar
“Limited Admission Legislation”
New Orleans
June 27, 2012

Legacy 2012
Legislative Process

Representative Neil Abramson

General Overview of
the Legislation
HB 618 by Rep. Neil Abramson
SB 555 by Sen. Robert Adley

Jason Bergeron

GENERAL OVERVIEW OF HB 618

CCP 1552
“Environmental
Management Orders

CCP 1563
“Limited Admission
of Liability”

• Govern environmental assessments
CCP 1552
“Environmental
Management Orders

CCP 1563
of Liability”

CCP 1552
“Environmental • Sharing of test results (admissibility)
Management Orders

CCP 1563
of Liability”

CCP 1552
Management Orders • Deadline to make limited admission

CCP 1563
of Liability”

CCP 1552

• Limited to “regulatory” damages
 Media speciﬁc (soil vs. GW)
 Location speciﬁc
CCP 1563
of Liability”

CCP 1552

CCP 1563 • No “serial admissions”
of Liability”

CCP 1552

“Limited Admission • Pretrial OOC Public Hearing
of Liability”  Admissibility of “feasible plan”

CCP 1552


• Preservation of defenses

CCP 1552


• 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
Investigate

Preliminary Hearing

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
Investigate

Preliminary Hearing

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
• 1-year suspension of prescription
Investigate

Preliminary Hearing

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
Investigate • Environmental data with
petition

Preliminary Hearing

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
petition

•Dismissal without prejudice
• Rejoinder
Preliminary Hearing • Contesting liability ﬁndings

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
petition

• Rejoinder
• “Good cause” hearing
• Evidence of environmental
damage

Discovery to DNR
and other State
Agencies

• Presuit Notice
Notice of Intent to
petition

• Rejoinder
damage

• No “ex parte” communications
Discovery to DNR  Afﬁdavit of Compliance
and other State
Agencies

• Presuit Notice
Notice of Intent to
petition

• Rejoinder
damage

• No “ex parte” communications
Discovery to DNR  Afﬁdavit of Compliance
and other State • Discovery and trial subpoenas
Agencies  After “ﬁnal feasible plan”


The Public Hearing

Anti-Indemnity

• Pre-trial hearing
 Regulatory damages within
Limited Admission

The Public Hearing

Anti-Indemnity

Limited Admission
• Post-trial hearing
 Regulatory damages outside
Limited Admission
The Public Hearing

Anti-Indemnity

Limited Admission
Limited Admission
The Public Hearing
• “Final” feasible plan
• “Preliminary” feasible plan
 Application of regulatory
standards other than 29-B
 Comments from other State
Agencies

Anti-Indemnity

Limited Admission
Limited Admission
The Public Hearing
Agencies
• Punitive Damages Only
 Preserve right to pursue
Anti-Indemnity indemnity for other damages

Limited Admission
Limited Admission
The Public Hearing
Agencies
• Punitive Damages Only
 Preserve right to pursue
Anti-Indemnity indemnity for other damages
• Limited Admission Only

ANATOMY OF A
LIMITED ADMISSION

Notice of
Intent

(1 year)

Suit Filed

Notice of
Intent

EMO

(1 year)

Suit Filed

Notice of
Intent

EMO

(1 year)
Limited
Admission
Suit Filed

Notice of
Intent

EMO

(1 year)
Limited
Admission
Suit Filed
Preliminary
Hearing

Notice of
Intent

EMO

(1 year)
Limited
Admission
Suit Filed
Preliminary
Hearing
Pretrial
Discovery

Notice of
Intent

EMO

(1 year)
Limited “Serial”
Admission (60 days) admissions
Suit Filed
Preliminary
Hearing
Pretrial
Discovery

Notice of Limited Admission “Window”
Intent

EMO

(1 year)
Suit Filed
Preliminary
Hearing
Pretrial
Discovery

Intent
(court sets) Testing
EMO
Deadline
(1 year)
Suit Filed
Preliminary
Hearing
Pretrial
Discovery

Intent
(court sets) Testing (90 days) Admission
EMO
Deadline Deadline
(1 year)
Suit Filed
Preliminary
Hearing
Pretrial
Discovery

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral
Preliminary (immediate)
Hearing
Pretrial
Discovery

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral
Hearing (court sets)

Pretrial Defendant submits
Discovery Plan to OOC

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)

Plaintiff submits
Plan to OOC

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)

Plaintiff submits
Plan to OOC
(60 days)

Public Hearing

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)

Plaintiff submits
Plan to OOC
(60 days)
“Preliminary” Plan
(60 days) Public Hearing
“Final” Plan

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)
Referral to other
Plaintiff submits
Agencies
Plan to OOC
(15 days)
(60 days)
“Final” Plan

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)
Other Agency (30 days) Referral to other
Plaintiff submits
Comments Agencies
Plan to OOC
(15 days)
(60 days)
“Final” Plan

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)
Plaintiff submits
Comments Agencies
Plan to OOC
(15 days)
(30 days) (60 days)
“Final” Plan

Intent
EMO
Deadline Deadline
(1 year)
Suit Filed
OOC Referral

(30 days)
Plaintiff submits
Comments Agencies
Plan to OOC
(15 days)
(30 days) (60 days)
Trial “Preliminary” Plan
“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 Preliminary
Hearing
✦Affidavits
✦“In Written Form”
✦Live witnesses?

Burden at Preliminary
Hearinginitial 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 Do
Preliminary 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 to
Investigate
✦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 on
Subsequent 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

Environmental
Management Order

George Arceneaux

Art. 1552. Environmental civil action alleging environmental
Upon the request of any party in any management orders
damage pursuant to R.S. 30:29, or the Department of Natural Resources,
office of conservation, the court shall direct the attorneys for the parties
to appear before the court to develop an environmental management
order. The environmental management order shall authorize all parties to
access the property allegedly impacted to perform inspections and
environmental testing. The order shall require that all test results be
submitted to all parties and the Department of Natural Resources, office of
conservation, within thirty days of receipt thereof. Failure by a party to
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.
(2) Investigation and environmental testing.
(3) Sampling and testing protocols.
(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
the following:

sampling.

Upon
Environmental Management Orders
developed at Party’s Request:
accessthe request ofallegedly impactedcourt shall direct
Upon the property any party . . . the to perform inspections and
the attorneys for the parties to appear before the court
environmental environmental management order. all test results be
to develop an testing. The order shall require that
the following:

sampling.

Upon
Environmental Management Orders
developed at Party’s Request:
accessthe request ofallegedly impactedcourt shall direct
Upon the property any party . . . the to perform inspections and
the attorneys for the parties to appear before the court
environmental environmental management order. all test results be
to develop an testing. The order shall require that
Environmental Management Order
(“EMO”) Will Affect Case Timing:
Coordination of Defendants is
the 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
sampling.

Upon
EMO’s pursuant to R.S.Terms the Department of Natural Resources,
damage Establish 30:29, or and Timing
of Testing reasonable terms for direct the attorneys for the parties
office of conservation, the court shall
EMO “shall include all of
the
following: before the court to develop an environmental management
to appear

(1) Access to the property

(2) Investigation and environmental testing

(3) Sampling and testing protocols

(4) Speciﬁc time frames for testing and sampling
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
sampling.

Upon
Mandatory Exchange of Test Results: for the parties
office of conservation, the court shall direct the attorneys
The order shall require that all test results be
submitted to all parties and the Department of Natural
Resources within thirty days of receipt thereof.
Failure by a party to provide the Department of Natural Resources, office of
submitted to all parties and the results of testing to
the other parties shall preclude that party from
admitting thosewithin thirty evidence . . . . thereof. Failure by a party to
conservation, results into days of receipt
the following:

When are test results
sampling.

A Proposed Form For
Environmental 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 the

Louisiana Code of Civil Procedure,

IT IS ORDERED that the parties are to perform inspections and environmental testing of

the 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 these

proceedings (hereinafter “Party” or “Parties”) shall have the right to access the Property to

perform inspections and environmental testing without further need of Orders from this Court or

discovery requests. The right to conduct inspections and environmental testing shall be subject

to 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 the

following protocol shall be followed with respect to any such Sampling Event. The Party

seeking to conduct a Sampling Event, or on whose behalf such Sampling Event will be

conducted, 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

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 DATA

A. 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

Questions and Situations to Consider
1. EMO will govern sampling activity once it is adopted. An
initial protective order to address sampling may be a good idea

2. Staged sampling has been the norm, and is still desireable.
Fundamental fairness requires that the defense be able to
review and respond to Plaintiff’s data package by testing.

3. Will or should the EMO be coupled with a CMO
requirement for issuance of a deliniation or similar report?

Conducting an
Environmental
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
Hearing
Contents of the Plan Submitted to DNR

Lou Buatt

Hearing
✦ 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 Don'ts Considering Prohibitions on Ex
Parte Communications

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’s
Conference 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 & Closing
Statements
 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 & Closing
Statements
✦ 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 of
Liability 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 with
the LDNR over remediation performed pursuant to a limited
admission

Strategy for Handling
Limited Admissions in
Pending Cases

Jason Bergeron

How much time do I have?

Defendant
Submits DNR Issues
Plan to “Final” Plan
DNR


Defendant
225 DAYS*
Submits
(with other Agency review) DNR Issues
DNR


Defendant
225 DAYS*
Submits
(with other Agency review) DNR Issues
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 developed
Prioritizing
Your Cases 3. Cases with preliminary
environmental data developed

4. Cases with no environmental
data developed

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