CHAPTER 12. LIABILITY FOR HAZARDOUS
SUBSTANCE REMEDIAL ACTION
PART I. GENERAL PROVISIONS
§2271. Findings and purpose
A. The legislature hereby finds and declares the following:
(1) Hazardous chemicals and substances have been disposed of in Louisiana for many years in a manner that, although possibly legal at the time, was careless and inappropriate and created conditions which are extremely dangerous and may cause long-term health and environmental problems for the people of this state.
(2) Hazardous substances are produced and transported on a regular basis around this state and there have been numerous recent discharges resulting from accidents which have caused extensive damage to the citizens of the state and have caused the state to expend large sums to respond to these incidents.
(3) Those persons generating these substances knew or were in a position to know of the hazardous and dangerous nature of the substances which they were producing and knew or should have known that improper disposal could have long-term health risks and could cause irreversible environmental damage.
(4) The state cannot and should not bear the costs associated with a private profit making venture.
B. The purpose of this Chapter is to encourage prompt notification to the department of any hazardous substance discharge or disposal, to identify locations at which a discharge or disposal of a hazardous substance may have occurred at any time in the past, to provide a mechanism to the department to insure that the costs of remedial actions are borne by those who contributed to the discharge or disposal, and to allow the department to respond as quickly as possible to hazardous substance discharges while retaining the right to institute legal actions against those responsible for remedial costs.
Acts 1984, No. 791, §1; Acts 1995, No. 1092, §2, eff. July 1, 1996.
§2272. Definitions
As used in this Chapter, the following terms shall have the meaning ascribed to them in this Section, unless the context clearly indicates otherwise:
(1) "Bona fide prospective purchaser" shall have the meaning ascribed to such term in 42 U.S.C. 9601(40).
(2)(a) "Contractual relationship" includes but is not limited to land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in Item (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence:
(i) At the time the defendant acquired the facility, the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility.
(ii) The defendant is a government entity which acquired the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by inheritance or bequest.
(iv) In addition to establishing one or more of the circumstances described in Item (i), (ii), or (iii) of this Subparagraph, the defendant must establish that the defendant has satisfied the requirements of R.S. 30:2277(3)(a) and (b), provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility, including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility, is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action.
(b) To establish that the defendant had no reason to know of the matter described in Item (a)(i) of this Paragraph, the defendant must demonstrate to a court that on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices; and the defendant took reasonable steps to stop any continuing release; prevent any threatened future release; and prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance. For purposes of satisfying the requirement to carry out all appropriate inquiries, the standards, practices, criteria, and site inspection and title search responsibilities otherwise applicable to a defendant under 42 U.S.C. 9601(35)(B) shall apply.
(c) Nothing in this Paragraph shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this Chapter. Notwithstanding the provision of this Paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under this Chapter, and no defense under R.S. 30:2277 shall be available to such defendant.
(d) Nothing in this Paragraph shall affect the liability under this Chapter of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility.
(3) "Discharge" means discharge as defined in R.S. 30:2004.
(4) "Disposal" means disposal as defined in R.S. 30:2173.
(5) "Facility" means facility as defined in R.S. 30:2004.
(6)(a) "Hazardous substance" means any gaseous, liquid, or solid material which because of its quantity, concentration, or physical, chemical, or biological composition when released into the environment poses a substantial present or potential hazard to human health, the environment, or property, and which material is identified or designated as being hazardous by rules and regulations adopted and promulgated by the secretaries of the Department of Environmental Quality or of the Department of Public Safety and Corrections, regardless of whether it is intended for use, reuse, or is to be discarded.
(b) The secretary, in finding that a material is hazardous, shall consider the following factors with respect to each material:
(i) Actual or relative potential for harm to human health, the environment, or property.
(ii) Scientific evidence of its potential for harm based upon quantity, concentration, or chemical or biological composition.
(iii) State of current scientific knowledge regarding the material.
(iv) Its history and current pattern of harm.
(v) Actual or potential volatility when combined with other common substances likely to be encountered when disposed of, stored, or transported.
(vi) Actual or relative potential for harm to human health if allowed to escape its containment.
(c) The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under this Subsection, and the term does not include natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
(7) "Hazardous waste" means hazardous waste as defined in R.S. 30:2173.
(8) "Nonparticipating party" means a person who refuses to comply with the demand of the secretary, or fails to respond to the demand, or against whom a suit has been filed by the secretary.
(9) "Owner or operator" means any person owning or operating a facility.
(10) "Participating party" means a person who undertakes remedial action after receiving a demand from the secretary in compliance with the demand and as approved by the secretary.
(11) "Pollution source" means pollution source as defined in R.S. 30:2004 and R.S. 30:2173.
(12)(a) "Remedial cost" means after the discharge or disposal of a hazardous substance the cost of:
(i) Removing, confining, or storing any hazardous substance; constructing barriers, securing the site, encapsulating in clay or other impermeable material;
(ii) Cleaning up a contamination, recycling, or reuse of a hazardous substance;
(iii) Diversion, destruction, or segregation of reactive or other wastes;
(iv) Dredging or excavating a site;
(v) Repairing or replacing leaking containers;
(vi) Collection of leachate and runoff;
(vii) Onsite treatment or incineration of a substance;
(viii) Provision of alternative water supplies;
(ix) Monitoring, testing, or analyzing;
(x) Employing legal, engineering, chemical, biological, architectural, or other professional consultants or personnel;
(xi) Investigation, initiation, or prosecution of lawsuits to final judgment;
(xii) Transporting and disposing of waste from the site; or
(xiii) Any other action the secretary deems necessary to restore the site or remove the hazardous substance.
(b) Remedial costs as used herein shall include only such costs as are reasonable after consideration of the cost effectiveness of such action, the extent of remediation, and alternative methods of treatment or disposal.
Acts 1984, No. 791, §1; Acts 1988, No. 624, §1; Acts 2003, No. 1127, §1, eff. July 2, 2003.
§2272.1. Minimum remediation standards
A.(1) The Department of Environmental Quality shall adopt minimum remediation standards for soil, groundwater, and surface water quality necessary for the remediation of contamination of immovable property. The standards shall be developed with input at all major points from an advisory group or task force appointed by the governor, balanced for thoroughness and fairness, composed of representatives of industry, business, state and local agencies with related jurisdiction, universities, environmental organizations, and other citizens. The remediation standards shall be developed to ensure that the potential for harm to public health and safety and to the environment is minimized to acceptable levels, taking into consideration the location, the surroundings, the intended use of the property, the potential exposure to the discharge, and the surrounding ambient conditions, whether naturally occurring or man-made. The standards shall be adopted as a rule in accordance with the Administrative Procedure Act.
(2) Until the minimum remediation standards for the protection of public health and safety as described herein are adopted, the department shall not approve any voluntary remedial action plan under Part II of this Chapter.
B. In developing minimum remediation standards the department shall:
(1) Base the standards on generally accepted and peer reviewed scientific evidence or methodologies to the extent practical.
(2) Base the standards upon reasonable assumptions of exposure scenarios as to amounts of contaminants to which humans or other receptors will be exposed, when and where those exposures will occur, and the amount of that exposure.
(3) Avoid the use of redundant conservative assumptions. The department shall avoid to the maximum extent reasonable the use of redundant conservative assumptions by the use of parameters that provide an adequate margin of safety and which avoid the use of unrealistic conservative exposure parameters and which guidelines make use of the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980", 42 U.S.C. 9601 et seq. and other statutory authorities as applicable.
(4) Where feasible, establish the remediation standards as numeric or narrative standards setting forth acceptable levels or concentrations for particular contaminants.
Acts 1995, No. 1092, §1, eff. July 1, 1996.
§2273. Persons who must comply with requirements of this Chapter
The following persons or entities must comply with and are subject to the provisions of this Chapter:
(1) The owner, operator, or lessee of any pollution source or facility.
(2) Any person who has directly transported or directly contracted for the transportation of a hazardous substance or hazardous waste to a pollution source or facility.
(3) Any person who generated a hazardous waste which was eventually transported, stored, disposed of or discharged at a pollution source or facility.
(4) Any other person who disposed of or discharged a hazardous substance at a pollution source or facility.
Acts 1984, No. 791, §1; Acts 1990, No. 681, §1, eff. July 20, 1990; Acts 1991, No. 773, §1.
§2274. Notification and demand of secretary
A. After the secretary has determined that a discharge or disposal has occurred which may present an imminent and substantial endangerment to health or the environment, he shall attempt to notify each person known to have disposed of, transported to, or allowed the discharge or disposal at a pollution source or facility that they are to provide him with all information on hazardous substances disposed of or discharged at the site including:
(1) The types of substances and their chemical name or makeup if known.
(2) The volumes of such substances disposed of or discharged.
(3) The locations of disposal or discharge of any known pollution source or facility.
(4) Dates of disposal and amounts on each date.
(5) Person providing transportation of hazardous substances.
(6) Name of owner or operator at the site at the time of disposal or discharge.
B. Any person who willfully fails to provide the information to the secretary as required by this Section shall be liable for a penalty of up to twenty-five thousand dollars for each day that the required information is not received after the date on which it is due and shall not be allowed to avail himself of the defenses provided in R.S. 30:2277.
C. The secretary shall promulgate rules and regulations no later than January 1, 1989, for requiring from all persons who have or may have generated, transported, disposed of or discharged, or contracted for the transportation, disposal, or discharge of a hazardous substance which was discharged or disposed of at any pollution source or facility the types of information in accordance with Subsection A of this Section and any other such information as the secretary deems necessary. The secretary is authorized to do a general survey of all generators of hazardous waste in the state with regard to their past or present methods of disposal of hazardous wastes in accordance with Subsection A of this Section.
D. Notwithstanding the provisions of Subsection A of this Section, if the secretary, pursuant to his investigation, determines that it is not feasible for him to notify every potentially responsible person at the site of a pollution source or facility, he may limit his notice to those persons he deems most responsible based on the volume of hazardous substances disposed of or discharged, the toxicity of substances disposed of or discharged, failure to exercise due diligence in the handling, maintenance, or disposal at the site, knowledge of the risk associated with the discharge or disposal at the site, and other such criteria as the secretary may deem necessary.
Acts 1984, No. 791, §1; Acts 1988, No. 624, §1; Acts 1988, No. 965, §1, eff. July 27, 1988.
§2275. Demand by secretary; remedial action
A. When the secretary determines that a discharge or disposal of a hazardous substance has occurred or is about to occur which may present an imminent and substantial endangerment to health or the environment, he shall make a written demand on every owner, generator, transporter, disposer, operator, or other responsible person who has participated in the disposal or discharge of a hazardous substance at the site to undertake remedial actions at the site in accordance with a plan approved by the secretary or pay to the secretary the cost of the remedial action to be taken by the secretary.
B. The order for remedial action shall prescribe a reasonable time for reply. If, after the time limit provided in the written demand, the secretary has received no reply or has received a refusal to comply with the demand, he shall institute a suit in the district court of proper venue demanding that the defendants bear the remedial costs at the site or asking the court to issue an order that the site be closed or any other order necessary to abate, contain, or remove the hazard.
C. If a person fails to respond to a demand to undertake remedial action, the secretary may take all actions authorized by this Subtitle prior to filing suit for recovery.
D. Notwithstanding the provisions of Subsection A of this Section, if the secretary, pursuant to his investigation, determines that it is not feasible for him to make demand on every potentially responsible person at the site of a pollution source or facility, he may limit his demand to those persons he deems most responsible based on the volume of hazardous substances disposed of or discharged, the toxicity of substances disposed of or discharged, failure to exercise due diligence in the handling, maintenance, or disposal at the site, knowledge of the risk associated with the discharge or disposal at the site, and other such criteria as the secretary may deem necessary.
E. Notwithstanding any other provision of law in this Subtitle, in any order pursuant to this Section requiring an owner, operator, or responsible person to test, monitor, and analyze to ascertain the nature and extent of any pollution source or requiring any owner, operator, or responsible person to contain, abate, or clean up the site, the secretary may waive any permits which might otherwise be required under this Subtitle. No such waiver shall be deemed to authorize any discharge or emission which would endanger the environment or public health.
Acts 1984, No. 791, §1; Acts 1986, No. 306, §1, eff. June 30, 1986; Acts 1988, No. 253, §1, eff. July 6, 1988; Acts 1988, No. 624, §1.
§2276. Finding of liability by the court
A. The court shall find the defendant liable to the state for the costs of remedial action taken because of an actual or potential discharge or disposal which may present an imminent and substantial endangerment to health or the environment at a pollution source or facility, if the court finds that the defendant performed any of the following:
(1) Was a generator who generated a hazardous substance which was disposed of or discharged at the pollution source or facility.
(2) Was a transporter who transported a hazardous substance which was disposed of or discharged at the pollution source or facility.
(3) Was a disposer who disposed of or discharged a hazardous substance or hazardous waste at the pollution source or facility.
(4) Contracted with a person for transportation or disposal at the pollution source or facility.
(5) Is or was the owner or operator of the pollution source or facility subsequent to the disposal of hazardous waste.
B. The court does not have to find that the defendant was negligent, knew that the hazardous substance was being improperly disposed of, or that the activity was illegal at the time of disposal.
C. The defendant shall be responsible for his proportionate contribution to the remedial costs as defined in this Chapter.
D. The liability of the defendants shall be limited to those costs which can be calculated by the court upon presentation of evidence.
E. After an administrative determination of the cleanup cost, legal interest shall run on such amount. In addition thereto the court shall hold a nonparticipating party liable for a penalty of three times that party's share of the remedial cost if the court determines that the failure of the nonparticipating party to respond to the administrative determination or court proceeding was without sufficient cause. Nothing in this Section shall be construed to relieve the imposition of solidary liability otherwise provided for in this Chapter. The court may order any penalties provided by this Subtitle or as provided in this Chapter.