By Dana M. Douglas

On April 20, 2007, the Louisiana Department of Natural Resources (“DNR”) issued regulations establishing procedures for agency hearings and the submission and approval of remediation plans under Act 312 of 2006.  Act 312, which enacted La. R.S. 30:29, made sweeping changes to the procedures for litigation involving potential environmental damage to oilfield sites, in order to ensure that remediation awards are actually expended on remediation.  To view the new regulations, which are codified at La. Admin. Code tit. 43, § XIX, Ch. 6, click here.  Most significantly, the regulations establish that Statewide Order 29-B is the basis upon which the agency will evaluate such remediation plans.

The new rules call for an initial Commissioner’s conference, at which a hearing date and deadlines for release of technical data, hearing notices, filing of all plans, witness and exhibit lists will be set.  All responsible parties, as defined in the rules, must participate in the conference, and all other litigation parties may participate.  


Fifteen days prior to the hearing, DNR will provide the Court and litigation parties a schedule of its estimated costs for the review and evaluation of any plans, comments, or responses, hearing costs, and any other costs the agency expects to incur.  The responsible party has the choice of depositing sufficient funds in the registry of the court to cover these costs, or with approval of the Court, submitting such funds directly to the Commissioner.


DNR will only evaluate proposed plans in accordance with Statewide Order 29-B, unless a party seeking an exception specifies Louisiana rules, regulations or statutes sought to be applied in lieu of Statewide Order 29-B and establishes good cause to grant an exception. A party seeking an exception must show that the alternative basis will not endanger the lowermost underground source of drinking water. 


The rules also contain provisions for the release of any technical data.  Such data must be provided to each party (at the cost of the party submitting the technical data) at the time the plan, comment or response is filed.  All technical data available to any party filing a plan, comment or response must be disclosed to all parties on or before the date such plan, comment or response is filed with the Commissioner, regardless of whether the technical data is used or referenced in the plan, comment or response.  If new technical data becomes available to any party after proceedings have been initiated, such data must be made available immediately to all parties by notice of its availability and release in the same manner as the initial technical data.


DNR will only consider plans, comments or responses submitted within the deadlines set by the court.  The Commissioner may designate a licensed Louisiana attorney to act as a hearing officer in any hearing or at any conferences.  Hearing officers are given the authority to rule on evidentiary or procedural matters, maintain order at hearings, and generally ensure that an accurate record is made of the proceedings.