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• Kean Miller Releases Practical Digest of Louisiana Class Action Decisions Kean Miller LLP is pleased to announce the release of the ninth edition of the Practical Digest of Louisiana Class Action Decisions.  The digest is produced by Charles S. McCowan, Jr., Bradley C. Myers, Gerald E. Meunier (Gainsburgh, Benjamin, David, Meunier & Warshauer), and Thomas F. Daley (District Attorney of the 40th Judicial District).  The fifty page book provides a digest of Louisiana class action decisions, classification by subject matter, and classification by certification disposition. Click here to download  a copy of the digest.  For a hard copy, please email client_services@keanmiller.com * The digest is a compilation of certain class action decisions and it should not be construed as a complete reflection of the holdings of the cases. ....
• Final Regulations Issued for Financing Solid Waste Disposal Facilities By Angela W. Adolph The Internal Revenue Code restricts the amount of private business use that can occur in facilities financed with tax-exempt bond proceeds, but there are a number of exceptions to this general rule. Certain facilities (“exempt facilities”) that are privately used are eligible for tax-exempt bond financing if they benefit the general public or implement specific Congressional policies. In August, the IRS issued final regulations for determining whether a facility is a “solid waste disposal facility” that qualifies for tax-exempt bond financing.The final regulations define a “solid waste disposal facility” as a facility that processes solid waste in a qualified solid waste disposal process, performs a function preliminary to such process, or is functionally related and subordinate to the facility. Under prior regulations, the solid waste had to have no value, which greatly limited the facilities that could be financed with ....
• Louisiana Supreme Court Expands Judicial Limitations on Landowner Tort Claims By Lou Grossman The Subsequent Purchaser Doctrine is a judicially created limitation on the rights of a current landowner to sue for pre-acquisition damages. For over 160 years, Louisiana courts have held that a current landowner has no right of action to sue for damages to his/her property occurring prior to the date of sale in the absence of an express assignment of that right. In environmental contamination disputes, appellate courts were divided on whether the doctrine should apply to cases involving non-apparent or subsurface property damage. In a recent 4/3 decision, a majority of the Justices of the Louisiana Supreme Court rejected the notion that property damage must be overt, and held that a landowner has no right to sue for non-apparent damages to land inflicted before the act of sale in the absence of an express assignment of, or subrogation to, that right. Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 2010-2267 (La. 10/25/2011) –So.3d --. In reaching this ....
• Outer Continental Shelf Safety and Environmental Management Systems: Imminent Deadlines, New Guidance and Proposed Rules By Lee Vail On October 15, 2010, the former Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) issued new regulations, incorporating in its entirety and making mandatory the implementation of the American Petroleum Institute’s Recommended Practice 75 (API RP 75).  The rule requires development of Safety and Environmental Management Systems (SEMS) plans by “a lessee, the owner or holder of operating rights, a designated operator or agent of the lessee(s), a pipeline right-of-way holder, or a state lessee granted a right-of-use and easement.” 30 C.F.R § 250.105. According to BOEMRE, “the purpose of SEMS is to enhance the safety and cleanliness of operations by reducing the frequency and severity of accidents.” This final rule applies to all Outer Continental Shelf oil and gas and sulphur operations and the facilities under BOEMRE jurisdiction including drilling, production, construction, well workover, ....
• Louisiana DEQ Is Eliminating Coverage Under General Permit for Territorial Seas Discharges of Produced Waters By Esteban Herrera and Dwayne Johnson On October 14, 2009, the Louisiana Department of Environmental Quality (DEQ) issued General Permit No. LAG260000 for discharges within the territorial seas of Louisiana from oil and gas exploration, development, and production facilities. In a lawsuit filed in state district court in Baton Rouge, the Louisiana Environmental Action Network challenged this General Permit. In a May 2010 decision, the state district court upheld the permit. However, in a ruling dated June 10, 2011, the Louisiana First Circuit Court of Appeal remanded the permit to DEQ for further proceedings.  In a Notice published in the Potpourri Section of the Louisiana Register on October 20, 2011, DEQ said it would be modifying the General Permit to remove produced water discharges from coverage under the permit.  Facilities wishing to discharge produced water within the territorial seas of Louisiana now must seek authorization to do so under an individual ....
• New Louisiana Disclosure Rules on Hydraulic Fracturing Take Effect 10.20.11 By Brittany L. Buckley Effective today, October 20, 2011, new permitting and disclosure requirements apply to hydraulic fracturing operations in Louisiana. Known as “fracking” in the oil and gas industry, hydraulic fracturing refers to the process of injecting fluid into tight shale or sandstone formations, which creates fractures in the rock through which oil and gas may travel into the wellbore. When combined with horizontal drilling, fracking allows producers to capture oil and gas reserves that were once thought to be out-of-reach. Pursuant to the newly-implemented amendment to Subpart I of LAC 43:XIX (Statewide Order 29-B), fracking operators must now apply for and obtain a specific permit for “hydraulic fracture stimulation” from the Louisiana Department of Natural Resources’ Office of Conservation before utilizing pressurized fluids to fracture any formation for the purpose of improving its ability to produce hydrocarbons. After obtaining the ....
• PHMSA Seeks Comments on Expansion of Gas Transmission Pipeline Regulations By Lee Vail On August 25, 2011, the U.S. Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced that it was seeking information concerning contemplated changes in natural gas transportation safety regulations. (1)  This advanced notice of proposed rulemaking (“ANPRM”) follows another one published by PHMSA involving hazardous liquid pipelines. See, 75 Fed. Reg. 63774 (Oct. 18, 2010). Draft rules have not yet been proposed in response to that initiative. In this initiative, PHMSA requests comments on considerations to greatly expand both the reach and the regulatory requirements for gas pipelines.An August 24, 2011 press release from the DOT focused on the suggested elimination of an exemption granted to older pipelines. (2)  At issue is the exemption of §192.619(a)(3) that allows “pipelines to operate at the highest actual operating pressure to which they were ....
• Louisiana Affected By President Obama's Action on Ozone Standard Reconsideration By Maureen N. Harbourt On September 2, 2011, President Obama announced that he had requested the Environmental Protection Agency to withdraw the proposed revision to the primary National Ambient Air Quality Standard for ozone at this time. A White House press release quoted the President as stating: “I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013.” 1 The request was delivered to EPA Administrator Lisa Jackson via a letter from Cass Sunstein, Director of the Office of Management and Budget. The letter stated that the decision was based on the President’s ....
• Louisiana Department of Environmental Quality Declines to Regulate Carbon Dioxide Emissions By Tokesha M. Collins On July 28, 2011, the Louisiana Department of Environmental Quality (LDEQ) denied a petition for the adoption of a rule to regulate fossil fuel carbon dioxide (CO2) emissions and to establish an effective emissions reduction strategy that will achieve a concentration of 350 parts per million (ppm) atmospheric CO2 by the year 2100. The petition was filed on May 4, 2011, by Kezia Kamenetz, of New Orleans, and Kids vs Global Warming, a non-profit organization formed in Oak View, California.The petition requested that the LDEQ promulgate a rule containing the following steps to regulate CO2 emissions: Ensure that CO2 emissions from fossil fuels peak in the year 2100; Adopt a CO2 emissions reduction plan that reduces state-wide fossil fuel generated CO2 emissions by at least 6% annually until at least 2050 and expands Louisiana’s capacity for carbon sequestration; Establish a state-wide greenhouse gas (GHG) emissions accounting, verification, and inventory ....
• Louisiana Department of Natural Resources Proposes New Reporting Regulations for Hydraulic Fracturing By Brittany L. Buckley The recent development of the Haynesville Shale in North Louisiana and other shale formations around the country has generated huge public interest in the hydraulic fracturing process, which is known as “fracking” in the oil and gas industry. Fracking refers to the procedure of injecting fluid into tight shale or sandstone formations to create fractures in the rock, through which oil and gas flow into the wellbore. When combined with horizontal drilling, fracking allows producers to capture oil and gas reserves that were once thought to be out-of-reach. Last week, the Louisiana Department of Natural Resources (LDNR) filed a Notice of Intent to amend LAC 43:XIX Subpart I (Statewide Order No. 29-B). The proposal seeks to amend Statewide Order 29-B to include new reporting regulations for fracking operations in Louisiana. If the proposed regulation is promulgated, it would require any operator engaged in fracking to regularly report: The types and ....
• "Pipeline Infrastructure and Community Protection Act" Hearings Focus on Recent Pipeline Incidents By R. Lee Vail and Maureen N. Harbourt On July 15, 2011, the House of Representative, Committee on Energy and Power, Subcommittee on Energy and Commerce held hearings on a draft of the “Pipeline Infrastructure and Community Protection Act of 2011.”  Chairman Fred Upton’s initial comments focused on recent pipeline incidents: the 20,000 barrel oil spill into Talmadge Creek, Michigan in the summer of 2010, the September 2010 gas pipeline explosion that killed 8 people in San Bruno, California and the most recent spill of 1,000 barrels of oil near Billings, Montana. (1)  Chairman Upton concluded that these incidents indicate that pipeline laws must be strengthened. Included within the draft legislation are the following provisions: one-hour time limit to report incidents; use of automatic or remote control shutoff-valves; better leak detection technology; substantial increase in civil penalties for releases from pipeline; enhanced inspection techniques; more ....
• Shreveport-Bossier Area Exceeds Current Ozone National Ambient Air Quality Standard - Triggers Potential Consequences for Air Emission Sources By Maureen Harbourt As of July 3, 2011, the air quality measured at the official ozone monitor at 1425 Airport Drive, which is within Shreveport, but located in Bossier Parish, indicated that the design value for the parish is now 76.7 parts per billion (ppb) which exceeds the 75 ppb standard set by EPA in 2008. 40 C.F.R. §50.15. The design value for each monitor is the 3 year average of the 4th highest ozone reading at that monitor each year. The exceedance of the current standard will likely cause the Louisiana Department of Environmental Quality (LDEQ) to propose that EPA designate Bossier Parish, and perhaps Caddo and DeSoto Parishes, as an ozone nonattainment area. LDEQ was required to submit its recommendation for nonattainment designations under the 2008 ozone standard by March 12, 2009. EPA was then required to act on the proposals and make final designations no later than March 12, 2010. 73 Fed. Reg. 16436, 16503 (Mar. 27, 2008). In its 2009 recommendation, LDEQ did ....
• Louisiana DNR Extends Offshore Drilling Emergency Order By R. Lee Vail In response to the Gulf of Mexico Deepwater Horizon Incident, the Louisiana Department of Natural Resources (“DNR”), Office of Conservation (“Conservation”) issued a series of emergency rules with effective dates: July 15, 2010(1) , December 9, 2010(2), January 12, 2011(3) and most recently May 12, 2011(4).  . The initial emergency rule created: “a new Chapter within Statewide Order No. 29-B (LAC 43:XIX.Ch. 2) to provide additional rules concerning the drilling and completion of oil and gas wells at water locations, specifically providing for the following: rig movements and reporting requirements, additional requirements for applications to drill, casing-header requirements, mandatory diverter systems and blowout preventer requirements, oil and gas workover operations, diesel engine safety requirements, and drilling fluid regulations.” See, 36 La. Reg. 1427. The initial emergency rule also amended Statewide Order No. ....
• Environmental Groups Attempt to Block Shell Deepwater Gulf of Mexico Drilling By R. Lee Vail Deepwater oil and gas production from the Gulf of Mexico has become a significant portion of the current production within the United States, equal to over 1.6 million barrels per day of oil equivalent; total U.S oil production is around 5.3 million barrels per day. (1)  Worldwide shallow water oil production peaked around the year 2000 whereas worldwide deep water production has risen to around 5 million barrels per day. On May 10, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) approved Royal Dutch Shell’s Exploration Plan S-0744 to better define discoveries announced in 2009 and 2010. (2)  Several environmental groups filed suit in an attempt to block the approved plan. Gulf Restoration Network, Inc., Florida Wildlife Federation, and Sierra Club Inc. filed a petition on June 8, 2011, in the United States Court of Appeals, 11th Circuit, in an attempt to set aside BOEMRE’s approval of the plan. ....
• BOEMRE Notice Requires Hurricane and Tropical Storm Effects Reports By R. Lee Vail On June 1, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) issued a notice to Gulf of Mexico Outer Continental Shelf Region (GOMR) lease and pipeline right-of-way (ROW) holders on reporting hurricane and tropical storm effects. Specifically, the recent notice, designated NTL No. 2011-G01(1), requires four reports, as appropriate: Evacuation and Production curtailment statistic report – partially evacuated platforms are not considered evacuated Facility shut-in reports – including facilities that are partially shut-in Facility damage reports – including platforms, rigs and pipelines Pollution reports - facility discharged or continues to discharge oil during or as a result of the event   The Evacuation and Production curtailment statistic report and the Facility shut-in report overlap in subject matter. They differ in that the first report is general and requires overall company statistics (number of facilities ....
• Office of Conservation Issues Emergency Order Imposing Affirmative Obligations on Oilfield Sites, Facilities, Structures, Injection Wells and Pipelines Throughout the State By R. Lee Vail On April 28, 2011, Governor Bobby Jindal declared a State of Emergency as a result of growing concern over the predicted crest of the Mississippi River well above flood stage in many areas. Consistent with his authority, on May 13, 2011, James Welsh, Commissioner of Conservation, also issued an emergency and administrative order. It is expected that substantial flooding in the state will likely lead to adverse effects on many oilfield sites which could result in serious threats to public safety and the environment. The order specifically applies to following throughout the state: Oilfield sites – including injection wells Other facilities – including commercial E&P waste disposal and transfer stations Structures and Pipelines Ordered actions are both general calls for alert monitoring of the situation and a more specific list of necessary steps (as appropriate). The Order contains a practical, common sense mandate, to keep track of forthcoming ....
• EPA Clarifies Solid Waste Materials By R. Lee Vail On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610. Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by ....
• District of Columbia Circuit Denies Stay of EPA 1-Hour SO2 Standard By Maureen N. Harbourt and R. Lee Vail On April 7, 2011, the U.S. Court of Appeals for the District of Columbia issued a per curiam opinion denying petitioners’ motion to stay EPA from implementing the new 75 ppb 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard. Nat’l Env. Development Assn. Clean Air Project v. EPA, No. 10-1252, (D.C. Cir., Apr. 7, 2011). That standard was published by EPA at 75 Fed.Reg. 35520 (June 22, 2010). A number of industrial parties and two states – Texas and North Dakota - challenged the standard by filing petitions for reconsideration with EPA and petitions for judicial review with the D.C. Circuit. The Louisiana Department of Environmental Quality (LDEQ) intervened in the case to challenge the standard while the American Lung Association and the Environmental Defense Fund intervened to support the standard. In January 2011, EPA denied the petitions for reconsideration, clearing the way for the court litigation to move ....
• Application of Pesticides That May Impact Waters of the State Now Require LPDES Permit By R. Lee Vail The Louisiana Department of Environmental Quality (“LDEQ”) announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1).  The exemption, based on an identical exemption promulgated by the EPA under the NPDES program, allowed the use of pesticides in such locations if applied “in compliance with relevant requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).”(2)  See, 40 C.F.R 122.3(h) and LAC 33:IX.2315.A.8.  However, the federal exemption from permit requirements was later held invalid and vacated by the U.S. Court of Appeals for the Sixth Circuit in National Cotton Council of Am. v. U.S. EPA, 533 F.3d 927 (6th Cir. 2009), cert. denied, 130 S.Ct. 1505 (2010). The Sixth Circuit noted that prior to incorporating the exemption into federal regulation, “[t]he State of Washington had ....
• EPA Denies Reconsideration of One-hour Sulfur Dioxide Standard By R. Lee Vail On January 26, 2011, the U.S. EPA denied petitioner’s request to reconsider the newly promulgated one-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). See, 76 Fed. Reg. 4780. The EPA determined that the objections raised were not of “central relevance” purportedly because they failed to support an argument that the promulgated standards should be revised. The petitioners objected, in part, to non-binding preamble guidance concerning implementation issues that were separate and independent from revisions of the NAAQS. Since the EPA denied reconsideration, no need existed for a stay.  Petitioner’s primary objection centered on perceived changes in EPA policy through utilization of modeling data to designate areas as non-compliant with the SO2 NAAQS. EPA countered that modeling had long been utilized “to determine whether areas have attained the NAAQS.” Petitioners also expressed concerns that modeling may ....