State of Louisiana v. the Louisiana Land and Exploration Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-830

STATE OF LOUISIANA, ET AL.

VERSUS

THE LOUISIANA LAND AND EXPLORATION CO., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 82162
HONORABLE JEROME M. WINSBERG, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm, L.L.C.
Post Office Box 426
Marksville, Louisiana 71351
(318) 253-6200
COUNSEL FOR PLAINTIFFS/APPELLANTS:
State of Louisiana
Vermilion Parish School Board

Russell Karl Zaunbrecher
Edwards, Stefanski & Zaunbrecher
Post Office Drawer 730
Crowley, Louisiana 70527
(337) 783-7000
COUNSEL FOR PLAINTIFFS/APPELLANTS:
State of Louisiana
Vermilion Parish School Board

Grady Joseph Abraham
Attorney at Law
5040 Ambassador Caffery Parkway, Suite 200
Lafayette, Louisiana 70508
(337) 234-4523
COUNSEL FOR PLAINTIFFS/APPELLANTS:
State of Louisiana
Vermilion Parish School Board

William R. Coenen, III
Talbot, Carmouche & Marcello
17405 Perkins Road
Baton Rouge, Louisiana 70810
(225) 400-9991
COUNSEL FOR PLAINTIFFS/APPELLANTS:
State of Louisiana
Vermilion Parish School Board

Calvin Eugene Woodruff, Jr.
Cooper & Woodruff
220 South Jefferson Street, 3rd Floor
Abbeville, Louisiana 70510
(337) 898-5777
COUNSEL FOR PLAINTIFF/APPELLANT:
Vermilion Parish School Board

Louis Victor Gregoire, Jr.
Kean, Miller LLP
400 Convention Street, Suite 700
Baton Rouge, Louisiana 70802
(225) 387-0999

COUNSEL FOR DEFENDANTS/APPELLEES:
Chevron Midcontinent, L.P.
Chevron USA, Inc.
Carrollton Resources, LLC
Union Exploration Partners, LP
Union Oil Company of California
(collectively, “UNOCAL”)

Kevin Wade Trahan
Ottinger, Hebert, L.L.C.
Post Office Drawer 52606
Lafayette, Louisiana 70505
(337) 232-2606
COUNSEL FOR DEFENDANTS/APPELLEES:
Chevron Midcontinent, L.P.
Chevron USA, Inc.
Carrollton Resources, LLC
Union Exploration Partners, LP
Union Oil Company of California
(collectively, “UNOCAL”)

Michael R. Phillips
Kean, Miller LLP
909 Poydras Street, Suite 3600
New Orleans, Louisiana 70112
(504) 585-3050
COUNSEL FOR DEFENDANTS/APPELLEES:
Chevron Midcontinent, L.P.
Chevron USA, Inc.
Carrollton Resources, LLC
Union Exploration Partners, LP
Union Oil Company of California
(collectively, “UNOCAL”)

Robert E. Meadows
King & Spalding, LLP
1100 Louisiana Street, Suite 4000
Houston, Texas 77002
(713) 751-3200
COUNSEL FOR DEFENDANTS/APPELLEES:
Chevron Midcontinent, L.P.
Chevron USA, Inc.
Carrollton Resources, LLC
Union Exploration Partners, LP
Union Oil Company of California
(collectively, “UNOCAL”)

Thomas E. Balhoff
Roedel Parsons Koch Blache Balhoff & McCollister
8440 Jefferson Highway, Suite 301
Baton Rouge, Louisiana 70809
(225) 929-7033
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Department of Natural Resources

CONERY, Judge.

In this oilfield remediation case, the Vermilion Parish School Board (VPSB),

in its own right and on behalf of the State of Louisiana, appeals a judgment dated

November 3, 2016, adopting the Louisiana Department of Natural Resources’

(LDNR) most feasible plan for remediation of property damaged by oil and gas

exploration and production on Section 16 property in Vermilion Parish owned by

the State of Louisiana and managed by VPSB. 1 Additionally, the judgment

attaches as Exhibit B, by reference only, twenty-seven written questions VPSB

sent to LDNR about the plan and LDNR’s answers, and makes them part of the

record. The LDNR final plan obligates the defendant/appellee, Union Oil

Company of California (UNOCAL), to pay for and perform the remediation work

required by the plan. VPSB argues that the twenty-seven questions and answers

should have been made part of the LDNR plan itself and part of the judgment, not

simply part of the record. VPSB further argues that it is the proper party to be

obligated to perform the remedial work ordered in the judgment. For the following

reasons, we affirm the trial court judgment in its entirety.

Facts and Procedural History

The property at issue is owned by the State of Louisiana and managed by

VPSB. The property consists of 1200 acres of mostly submerged wetlands located

in the southern part of Vermilion Parish, approximately twelve miles north of the

1
See Ebey v. Avoyelles Parish Sch. Bd., 03-765, p. 8 (La.App. 3 Cir. 12/17/03), 861
So.2d 910, 915, for a discussion on the authority of school boards to manage Section 16 property
owned by the State, in which the court concluded that:

Section 16 lands are held in trust by the State and managed by school boards ‘in
the manner of a statutory trustee’ for the benefit of public education. The School
Board ‘shall have the right to administer and use the property for public school
purposes,’ subject to statutory regulations regarding its sale or lease. La.R.S.
41:638; La.R.S. 41:631 et seq.

Gulf of Mexico and one-half mile east of White Lake and can only be accessed by

boat. UNOCAL or its assigns performed oil and gas exploration and production

activity for over fifty years on the property.

VPSB filed suit against UNOCAL and others in 2004 for environmental

damage to the property. 2 VPSB included in its suit, and subsequent amended

petitions, a demand for specific performance seeking to have the court order

UNOCAL, et al. to remediate or “clean up” oil field waste and contamination on

the property. In 2013, this case was before us on an appeal from a partial summary

judgment limiting damages to the actual cleanup costs. See State v. La. Land and

Exploration Co., 10-1341, 11-843, 11-1016 (La.App. 3 Cir. 2/1/12), 85 So.3d 158.

Pertinent to this discussion, a panel of this court held that a landowner could

“recover remediation damages in excess of those provided under the feasible plan”

for remediation. Id. at 162. Our opinion was affirmed by the supreme court in

State v. La. Land and Exploration Co., 12-884 (La. 1/30/13), 110 So.3d 1038, and

the case was remanded to the trial court for trial on the merits on all issues.

Background

The factual background of this case and the legislative history and purpose

of the Oilfield Remediation Statute, commonly referred to as “Act 312” and

codified in 2006 as La.R.S. 30:29, which we are applying herein, was covered in

detail in our and the supreme court’s earlier decisions and were reviewed at some

2
VPSB filed suit against other defendants in addition to UNOCAL; this appeal only
pertains to the judgment in favor of VPSB against UNOCAL. VPSB also asserted private claims
for damages in addition to the remediation claims. The private claims were not addressed in the
trial court judgment at issue in this appeal and are not before us.

2

length in the supreme court opinion.3 The supreme court stated in La. Land and

Exploration Co., 110 So.3d at 1048-53 (footnotes omitted) (alteration in original):

We noted [in Corbello v. Iowa Prod., 02-826 (La. 2/25/03), 850
So.2d 686,] the legislature had not implemented “a procedure to
ensure that landowners will in fact use the money [for remediation
costs] to clean the property.” [Corbello, 850 So.2d at 699.] We
recognized the two opposing public policy concerns which the then-
existing state of the law created. At that time, a landowner suing for
remediation of contaminated land could sue and receive remediation
damages, yet was under no obligation to use the damage award to
restore the property. At the same time, there was a strong possibility
that land would remain polluted if landowners could not bring suit for
remediation. Id. [at 701].

Interpretation of La. R.S. 30:29

In Corbello, we observed plaintiffs who were awarded
remediation damages were under no statutory obligation to perform
remediation work. The purpose of Act 312 was to create such an
obligation. In Act 312, the legislature provided a mechanism whereby
the landowner does not receive that portion of the remediation award
needed to fund the statutorily mandated plan to remediate the property
to a point that protects the public's interest. As the following analysis
will show, Act 312 ensures the damages awarded for remediation will
be used only for remediation to the extent necessary to fund the
statutorily required plan, into which the La. DNR has input, and
which is ultimately approved by the court.

We agree with the court of appeal the language of Act 312 is
clear and unambiguous. We will presently describe each section of the
Act, but its overall effect is this: The procedure described under the
Act does not interfere with private rights, whether they arise
contractually or by law. The procedure under the Act does not prohibit
the award of remediation damages for more than the amount
necessary to fund the statutorily mandated feasible plan, nor does the
procedure described in the Act intrude into the manner in which
remediation damages are determined. The Act makes no changes to
the normal trial procedures established by the Code of Civil Procedure.
The only change accomplished by Act 312 is how the damages to
remediate property are spent. Under Act 312, landowners do not
receive that portion of the remediation damages award needed to fund
the statutorily mandated feasible plan; these funds must be deposited
into the registry of the court. Finally, although the La. DNR has input
into the plan to remediate the property, the final decision as to the

3
See La. Land and Exploration Co., 85 So.3d 158. See also La. Land and Exploration
Co., 110 So.3d 1038.

3

remediation plan adopted rests with the court. Throughout the
remediation process, the court remains the gatekeeper to ensure the
purpose of the Act is accomplished—remediation of the property to
the extent of the public's interest. . . .

Subsection C of the statute sets forth the additional, mandated
procedures to be used for the determination of a remediation plan
post-trial, as well as the appellate review of those determinations. . . .
If at trial the finder of fact determines environmental damage exists
and determines the party or parties who caused the damage or who are
otherwise legally responsible for the damage, the court orders the
party or parties responsible to develop a remediation plan to be
submitted to the court and the department. Deadlines are provided for
such submissions in the statute. Id. The plaintiff and any other party
are allowed to submit remediation plans to the department. Id.

Thereafter, the department holds a public hearing on the
submissions. La. R.S. 30:29(C)(2). Within a time set by the statute,
the department determines, based on evidence submitted, the most
feasible plan to accomplish the evaluation/remediation of the
environmental damage while protecting the health, safety and welfare
of the public. Id. By mandating that “applicable standards” shall be
used and applied in approving or structuring the most feasible plan to
evaluate or remediate the environmental damage, the legislature has
not limited the department to any one standard in its development of
the most feasible plan. La. R.S. 30:29(C)(3). The plan approved by
the department is not to be considered an adjudication subject to
appellate review. La. R.S. 30:29(C)(4).

Instead, the plan approved by the department is sent to the court
for its review. The plaintiff or any other party may submit its own
plan, comment or input in response, within a certain time frame. La.
R.S. 30:29(C)(1). Unless a party proves by a preponderance of
evidence that another plan is a more feasible plan, the court shall
adopt the plan approved by the department. If the court enters a
judgment adopting a plan other than the one approved by the
department, the court shall assign written reasons. Once a plan is
determined, the court shall order the party or parties admitting
responsibility or found legally responsible by the court to fund the
implementation of the plan. In making this determination, the court
will decide how much of the damages are to be used for remediation
of the property. La. R.S. 30:29(C)(5). (Emphasis added.)

The court’s judgment adopting a plan of evaluation or
remediation and ordering the legally responsible parties to deposit
funds into the court’s registry shall be considered a final judgment for
appeal purposes. La. R.S. 30:29(C)(6)(a).

4

UNOCAL conceded it caused environmental damage to the property. 4 After

a lengthy jury trial on damages and remediation costs in April and May of 2015,

the jury returned a 3.5 million dollar verdict in favor of VPSB and against

UNOCAL for environmental damages to the property. We do not have the trial

court record of that decision and the merits of that decision are not before us. The

issues in this appeal concern only the procedural implementation of the

remediation obligation of UNOCAL pursuant to Act 312, La.R.S. 30:29, which

governs how monetary awards for environmental damages are spent.5

As discussed by the supreme court, infra, and as specifically set forth in the

2006 version of the statute at issue, first, a defendant who has admittedly caused,

or has been found to have caused, environmental damage to property must submit

a plan for remediation of the damage to the LDNR. La.R.S. 30:29(C)(1). The

plaintiff may also submit a plan for the LDNR’s consideration. La.R.S.

30:29(C)(1). The LDNR then conducts a public evidentiary hearing. 6 La.R.S.

30:29(C)(2)(a). After the hearing, the LDNR considers any plans properly

submitted and ultimately issues its own plan, which may or may not approve and

adopt all or part of either submitted plan. The LDNR plan must be the plan it finds

to be the “most feasible plan” within the meaning of La.R.S. 30:29(C)(2)(a).7

4
See State v. La. Land and Exploration Co., 85 So.3d 158.
5
Id.
6
In the case before us, “LDNR employees with relevant technical backgrounds sat as a
panel” from March 2-4 and March 7-10, 2016. At a public hearing for that purpose, the panel
heard the testimony of eight experts, five offered by UNOCAL and three by VPSB. Numerous
exhibits were shown to the panel during the hearing and admitted into the record.
7
Louisiana Revised Statutes 30:29(C)(2)(a) states, in pertinent part:

Within sixty days from the last day on which any party may provide the
department with a plan, comment, or response to a plan as provided in Paragraph
(C)(1) of this Section, the department shall conduct a public hearing on the plan

5

In July 2016, the LDNR panel released its final remediation plan for the

property in question. The plan addressed six separate areas of soil and sediment

contamination and seven areas of groundwater contamination. In areas where data

was sufficient, the plan recommended how and to what degree each section was to

be remediated. In areas where the data was insufficient, the plan required

additional testing and evaluation. It also estimated the cost of implementing the

plan as written at one million four hundred eleven thousand, one hundred and

ninety dollars ($1,411,190.00). Its estimate did not include costs of remediation

once the required additional evaluations were performed and sufficient data was

received. The plan ordered UNOCAL to fund and perform the remediation work

as set forth in the plan.

VPSB did not directly challenge the LDNR plan or request an additional

preponderance hearing under La.R.S. 30:29(C)(5).8 Instead, VPSB sent twenty-

seven written questions to LDNR after the plan was released that sought

interpretation and clarification of the plan. The LDNR panel answered these

questions in writing and specifically conditioned their use as a clarification tool

only. LDNR made clear that “[w]hile these answers do not alter the MFP [(most

or plans submitted. . . . Within sixty days of the conclusion of the hearing, the
department shall approve or structure a final plan . . . based on the evidence
submitted which the department determines to be the most feasible plan to
evaluate or remediate the environmental damage and protect the health, safety,
and welfare of the people. The department shall issue written reasons for the plan
it approves or structures.
8
Louisiana Revised Statutes 30:29(C)(5) provides:

The court shall adopt the plan approved by the department, unless a party proves
by a preponderance of the evidence that another plan is a more feasible plan to
adequately protect the environment and the public health, safety, and welfare. The
court shall enter a judgment adopting a plan with written reasons assigned. Upon
adoption of a plan, the court shall order the party or parties admitting
responsibility or the party or parties found legally responsible by the court to fund
the implementation of the plan.

6

feasible plan)] in any way, we are hopeful they will provide the requested and

desired clarity to the MFP.” (Emphasis added).

The parties then filed competing motions to adopt their respective proposed

judgments as the court’s most feasible plan. Both proposed judgments adopted the

LDNR plan as the judgment of the court. However, the parties disputed specific

language in the proposed judgments, and their motions to adopt were set for

hearing. At the “judgment hearing,” the pertinent issues presented to the trial court

for its consideration were: (1) whether and/or how to incorporate the written

questions and answers between VPSB and LDNR into the judgment and; (2) which

party should perform the remediation and evaluations recommended in the plan.

Counsel for both parties participated in the hearing and were given more than

ample opportunity to argue their respective positions to the trial court. During the

hearing, the trial judge made clear that the questions and answers provided by

LDNR to Plaintiffs, at their request, “should be part of the record, but they do not

alter the plan as indicated by LDNR. They do not alter the plan in any way.”

(Emphasis added).

Ultimately, the trial court rendered judgment on November 3, 2016,

adopting the LDNR plan as written and attached the written questions and answers

as Exhibit B to the judgment and made them part of the record. The judgment

further obligated UNOCAL to fund and perform the remedial work and

evaluations set forth in the plan. VPSB filed a timely appeal. Finding the trial

court’s ruling was legally correct, we affirm.

Assignments of Error

VPSB alleges the trial court erred by:

7

1) Denying the Motion to Adopt VPSB’s Proposed Form of
Judgment Regarding Most Feasible Plan.

2) Granting Unocal’s Motion to Enter Judgment Regarding Most
Feasible Plan.

3) Entering a Judgment on November 3, 2016 allowing Unocal to
implement the work identified in the [M]ost [F]easible [P]lan.

4) Denying the VPSB’s request to implement the work identified
in the Most Feasible Plan.

5) Failing to comply with the [s]upreme [c]ourt’s ruling in State v.
Louisiana Land and Exploration Co.[, 12-884 (La. 1/30/13),
110 So.3d 1038.]

Standard of Review

We review La.R.S. 30:29 cases under the de novo standard of review.

La.R.S. 30:29(C)(6)(b). In performing a de novo review, “the appellate court must

review the record in its entirety, giving no special weight to the trial court’s

determinations.” Kyle v. Kier, 17-134, 2017 WL 5477806, at *8-9 (La.App. 3 Cir.

11/15/17). “[U]nder the de novo standard of review, the appellate court . . .

review[s] the record in its entirety to determine whether the trial court's decision

was legally correct in light of the evidence.” Domingue v. Bodin, 08-62, p. 2

(La.App. 3 Cir. 11/5/08), 996 So.2d 654, 656 (citations omitted). In our review,

we may either “affirm the trial court’s adoption of a plan or may adopt a feasible

plan in conformity with this Section and shall issue written reasons for [our]

decision.” La.R.S. 30:29(C)(6)(c).

Law and Discussion

Assignments of Error Numbers 1-4 all address the same legal issue and will

be considered together.

Louisiana Revised Statutes 30:29(C)(5) (emphasis added) states, in pertinent

part:

8

The court shall adopt the plan approved by the department, unless a
party proves by a preponderance of the evidence that another plan is a
more feasible plan to adequately protect the environment and the
public health, safety, and welfare.

We find this language to be clear and unambiguous.9 Absent proof by a

preponderance of the evidence that another plan is more feasible than the LDNR’s

plan, La.R.S. 30:29(C)(5) mandates that the court adopt the LDNR plan. In this

case, the evidentiary hearing required before the trial court could adopt another

plan was never requested (and therefore never took place).

There is no statutory authority for VPSB to modify LDNR’s plan by

attacking the trial court’s form of judgment. However, even though VPSB did not

timely object to the LDNR plan and request a “preponderance hearing” in

accordance with La. R.S. 30:29(C)(5), the trial judge nevertheless did in fact

conduct a lengthy contradictory hearing at which it heard extensive argument on

whether to adopt the VPSB proposed judgment in this case.

After thoughtfully considering all of the concerns and arguments put forth

by VPSB, the trial court decided to adopt the LDNR plan as the most feasible plan.

It also allowed the clarification questions that VPSB had asked to LDNR and

LDNR’s answers to be attached to LDNR’s plan as well as to the trial court’s

judgment. In its oral reasons, the trial court made it clear. “While LDNR’s

answers to VPSB’s questions do not alter the most feasible plan in any way, as

LDNR acknowledges, the answers clarify the most feasible plan.” Hence the

questions and answers at issue are already attached to the trial court’s final

judgment and we agree with the trial court that the questions and “answers clarify

the most feasible plan.”

9
La. Land and Exploration Co., 110 So.3d 1038.

9

Keeping in mind that LDNR and the trial court maintain jurisdiction to

conduct additional hearings and issue supplemental rulings, and after full de novo

review, we find no error in the trial court’s decision to adopt the form of judgment

proposed by UNOCAL with the VPSB questions and LDNR’s answers attached to

the judgment at issue.

Performance of Remediation Work by UNOCAL:

VPSB strenuously argued at its requested hearing on the form of the

judgment that the trial court adopt its proposed form of judgment ordering VPSB

to perform the remediation in the LDNR plan. No evidence was presented on this

issue, only argument by counsel. We need not decide here whether this hearing

was a “preponderance hearing” required by La.R.S. 30:29(C)(5) or not. The one-

hundred plus page transcript of the attorneys’ arguments in the trial court on this

issue fully demonstrates that the trial judge conducted a contradictory hearing and

thoughtfully considered all of VPSB’s concerns about UNOCAL’s actually

performing the work discussed in the plan and its request that it be authorized to

perform the remediation.

One of the main purposes of Act 312 was to remove from the landowner the

right to receive a portion of the remediation damages and require the party at fault

to fund remediation of the environmental damages caused by its operation on a

landowner’s property. As a panel of this court stated in Savoie v. Richard, 13-1370,

pp. 8-9 (La.App. 3 Cir. 4/2/14), 137 So.3d 78, 86, writ denied, 14-1283, 14-1287

(La. 11/14/14), 152 So.3d 880 (emphasis added), “[t]he remedy for remediation to

state regulatory standards is no longer a private money award, but rather specific

performance of the remediation to those state standards that serve the public

interest.”

10

Nevertheless, VPSB alleges the portion of the judgment in this case

specifically obligating UNOCAL to perform the work set forth in the plan,

separate and apart from any obligations contained within the plan, is in error.

VPSB’s assertions that they should be allowed to perform the work is not

supported by statutory law, jurisprudence, or by the LDNR final plan adopted by

the trial court. VPSB has not cited any cases in which the plaintiff was obligated

to perform the work set forth in the plan and no independent review revealed any.

In fact, in this case, the supreme court earlier stated in its opinion that the lessee is

responsible for cleaning up its messes:

[T]he duty to remediate oilfield containment exists under the prudent
operator standard of the Mineral Code by virtue of our holding in
[Terrebone Parish Sch. Bd. v.] Castex, [04-968 (La. 1/19/05), 893
So.2d 789], and it certainly exists under the Civil Code. The holding
in Castex merely recognized that in absence of unreasonableness or
excessiveness, the lessee has the duty to restore the surface minus
normal wear and tear.

La. Land and Exploration Co., 110 So.3d at 1057, (quoting Marin v. Exxon Mobil

Co., 09-2368 (La. 10/19/10), 48 So.3d 234, 259-60).

Additionally, the plan itself specifically calls for UNOCAL to perform the

work. 10 In adopting the LDNR plan as the court’s judgment, the trial court

necessarily adopted those provisions specifying UNOCAL implement the

remediation work. Even if the trial court’s judgment did not explicitly state that

UNOCAL was to perform all the remedial work, compliance with the provisions of

the plan as adopted would produce the same result.

Insofar as VPSB references actions taken by either party in furtherance or

delay of the plan’s implementation, we cannot consider these allegations. We are

10
See pages 31, 34, 38-40, 43, and 46-51 of LDNR’s final plan.

11

limited to a review of the record available to the trial court at the time it rendered

its decision. See State v. Hoffpauir, 2017 WL 4987661 at *5 (quoting Titlesite, L.C.

v. Webb, 36,437, p. 12 (La.App. 2 Cir. 12/11/02), 833 So.2d 1061, 1068-69).11

The statute itself provides for the procedures by which VPSB can insure that

the remediation is done properly. Louisiana Revised Statutes 30:29(F) provides:

“[t]he court and the department shall retain oversight to ensure compliance with

the plan. The party or parties admitting responsibility, or the party or parties found

legally responsible by the court shall file progress reports periodically as the

court or the department may require.” (Emphasis added.) Since the trial judge

and LDNR have continuing jurisdiction over implementation of the plan, any

concern that VPSB may have as to the performance of the remediation work by

UNOCAL can be brought to LDNR’s and the trial court’s attention in subsequent

proceedings. The record reveals that at the time the trial judge signed the judgment

approving the plan, it was fully aware of the concerns of VPSB as to whether

UNOCAL would properly implement the plan. The trial judge specifically

allowed the “questions and answers” between VPSB and LDNR to form part of the

record and attached it to its judgment for further clarification during the plan’s

implementation. Continuing jurisdiction allows LDNR and the trial judge to

maintain and control the plan’s implementation and issue such subsequent orders

as may be appropriate. The legislature has clearly and specifically given that

11
[A]n appellate court must render its judgment upon the record on appeal. The
record on appeal is that which is sent by the trial court to the appellate court and
includes the pleadings, court minutes, transcript, judgments and other rulings. The
appellate court cannot review evidence that is not in the record on appeal and
cannot receive new evidence. Memoranda and exhibits not filed in evidence are
not part of the record on appeal. The briefs of the parties and the attachments
thereto are not part of the record on appeal. Further, this court does not consider
exhibits filed in the record which were not filed into evidence.

Hoffpauir, 2017 WL 4987661 at *5.

12

authority to LDNR and the trial court, with the trial judge as the final decision

maker, subject to the appellate court’s de novo review. On de novo review, we

find no error in the trial court’s ruling.

Assignment of Error No. 5 – Interpretation of State v. Louisiana Land and
Exploration Co.:

Finally, VPSB also alleges the trial court committed legal error by not

following the supreme court’s earlier holding in this case in La. Land and

Exploration Co., 110 So.3d 1038. VPSB asserts that the supreme court “ruled that

the landowner plaintiff in an Act 312 [(La.R.S. 30:29)] case has the right and

obligation to perform the cleanup” (emphasis omitted). It arrives at that erroneous

conclusion by taking language in the opinion out of context: “[‘i]n Corbello, we

observed plaintiffs who were awarded remediation damages were under no

statutory obligation to perform remediation work. The purpose of Act 312 was to

create such an obligation.’” (citation omitted) (emphasis omitted). The supreme

court did not rule that the plaintiff must perform the remediation work, it merely

stated the obvious—the purpose of the statute was to create an obligation to

remediate.

Act 312 changes only the procedure for the manner in which remediation

damages are spent. The language of the statute itself does not create a right and

obligation for the plaintiff to perform the remedial work, though there is likewise

nothing in the statute that would specifically prohibit it. The decision on how to

implement the most feasible plan is left up to LDNR and, eventually, the trial

judge. The supreme court, in its earlier decision in this case, described the “overall

effect” of Act 312 as:

The procedure described under the Act does not interfere with private
rights, whether they arise contractually or by law. The procedure

13

under the Act does not prohibit the award of remediation damages for
more than the amount necessary to fund the statutorily mandated
feasible plan, nor does the procedure described in the Act intrude into
the manner in which the remediation damages are determined. . . . The
only change accomplished by Act 312 is how the damages to
remediate property are spent. Under Act 312, landowners do not
receive the portion of the remediation damages award needed to fund
the statutorily mandated feasible plan; these funds must be deposited
into the registry of the court. . . . Throughout the remediation
process, the court remains the gatekeeper to ensure the purpose of
the Act is accomplished—remediation of the property to the
extent of the public’s interest.”

La. Land and Exploration Co., 110 So.3d 1149 (emphasis added). The trial court

did not misapply the holding of the supreme court. To the contrary, the trial judge

was correct to order the responsible party, UNOCAL, to “clean up its mess,”12 all

in accordance with the intent of the legislature manifested by the clear and

unambiguous language of La.R.S. 30:29. If UNOCAL does not, VPSB has a right

to bring any complaints it has to LDNR and the trial court, who retains jurisdiction

and “remains the gatekeeper.”

CONCLUSION

After carefully reviewing the record, we find the trial court correctly applied

the provisions of Act 312, La.R.S. 30:29. The trial court’s judgment is affirmed in

its entirety. Costs of this appeal are assessed against the Vermilion Parish School

Board.

AFFIRMED.

12
Senator Adley, introducing Senate bill 655, which eventually became Act 312 and then
La.R.S. 30:29, made this comment at a hearing on the bill: “[O]il companies, you’ve made a
mess and you’ve got to clean it up.” S.B. 655, 2006 Leg., Reg. Sess. (La. 2006).

14

THIBODEAUX, Chief Judge, dissenting.

Discussion

Of great concern in this case is that, contrary to UNOCAL’s assertions, the

statute does not by any of its terms state that the responsible party is to perform the

actual remediation, as will be discussed fully below. Act 312 requires only that the

responsible party submit a remediation plan to the Department, fund the court’s

final plan, and file progress reports as the court or the Department may require.

See La.R.S. 30:29(C)(1), (C)(5), and (F), respectively.

Upon adopting its final plan, the court orders the responsible party “to fund

the implementation of the plan.” La.R.S. 30:29(C)(5). Funds for the court’s final

plan are put in the registry of the court, and the court controls the funds. La.R.S.

30:29(D)(1) and (D)(4).

Pursuant to a de novo review, there are, in my view, trial court errors that

require a reversal of its judgment. The errors arise in three main categories.

LDNR’s Plan and Its Contingencies

While LDNR was thorough in comparing the plans submitted by UNOCAL

and VPSB and in its efforts to assess the evidence from the parties’ experts over a

seven-day public hearing, the final plan submitted to the trial court contains far too

many contingencies with no estimate of the cost of the contingencies. In short, the

LDNR plan was incomplete; it repeatedly described more work that had to be done

before remediation would be complete, including at least two years of monitoring,

but the trial court did not require cost estimates on the additional work. As a

result, no one knows, or even has a good estimate of, how much it will take to

15

remediate the land to the level required to protect the public; and no one knows

how long it will take to finish the remediation.

More specifically, LDNR’s plan states as follows (emphasis added):

C. Cost Estimate to Implement Most Feasible Plan

The cost estimate to implement the Plan as presently known is
$1,411,190 (rounded). This includes: 1) UNOCAL’s estimate to
close Tank Battery B, South Pit, which LDNR accepts; 2) UNOCAL’s
estimate for groundwater monitoring wells, which LDNR accepts; 3)
estimate for SED 15 area remediation (Table 11); 3) [sic] estimate for
sampling and excavation/disposal of mercury at Tank Battery A
(Table 12); 4) estimate for resampling costs (Table 13); and 4) [sic]
estimate for groundwater costs (Table 14). This estimate does not
include additional well installations that may be necessary pursuant
to this Plan; any additional evaluation costs that may be necessary
from additional sampling and/or further delineation required by this
Plan (beyond what is specifically covered in cost tables above);
and/or any remediation costs that may be necessary based on results
of sampling and/or further delineation. Additional costs will depend
on what sampling and/or delineation reveals.

In LDNR’s fifty-two-page plan (plus tables, charts, and graphs), there are

over thirty contingencies, introduced by if-then phrases and phrases such as data

incomplete, information inconclusive, unclear, not established, further evaluation

or remediation needed. There were at least a dozen instances of requirements for

UNOCAL to submit work plans, or report results and further evaluation or

remediation needed, or create AOI (area of interest) figures, or meet with LDEQ in

the future. There were four instances of additional wells that may be necessary,

and two locations requiring semi-annual monitoring for two years.

Under Act 312, the trial court can accept the funding in increments, but not

without requiring the defendant to post bond for the full cost of remediation. The

trial court did not require a bond and accepted only the known costs associated

with the LDNR plan as submitted. When VPSB asked questions about the

contingencies and other unclear sections after the LDNR plan was submitted to the

16

court, the LDNR supplied answers that clarified some of those contingencies, but

the trial court refused to incorporate the clarifying text, except for one $329,000.00

correction, before adopting the court’s final plan for implementation.

More specifically, VPSB’s question number 16, and LDNR’s response

provided as follows:

16. Q. Table 12 – mercury excavation costs – Table 12 identifies a
figure of $11,040,00 for the excavation of mercury in a 20'x20x3'
area. The calculations at the bottom of the table identify a 44 cubic
yard volume, which purportedly translates to 6.9 bbls of material,
which appears to be inaccurate. The actual barrel volume would
appear to be 213 bbls. If a bulking factor of 2 is included (as in the
prior LDNR calculation), the true cost of the mercury excavation
would appear to be $340,000.

A. The panel agrees the cost calculation for mercury
excavation cost is incorrect, and VPSB’s calculation is correct. This
clarification here may be viewed as a sufficient correction to the MFP
& Reasons on this point unless either party requests the issuance of a
revised Table 12 and other page(s) incorporating the incorrect [sic]
figure, which of course will be done if requested.

Based upon the foregoing $329,000.00 mistake, it is reasonable that VPSB

had other concerns regarding the LDNR plan, particularly where the plan has

UNOCAL, who apparently has not had a lease for oil and gas exploration on the

property since 1995, in charge of all the contingencies. Of VPSB’s twenty-seven

questions, answer number 16 above is the only one that was incorporated into the

final judgment and reflected in the final cost estimate in the judgment, changing

the LDNR plan’s estimate of $1.4 million to the trial court’s judgment requiring a

deposit of $1.7 million. Other examples of significant questions follow, and the

bolded emphasis in the LDNR’s answers indicates that the clarification was needed

and is important to the accuracy of the final judgment implementing the plan.

7. Q. Does this plan require any institutional controls or conveyance
notices?

17

A. No. Institutional controls or conveyance notices are not
required at this time. It is not known whether or not institutional
controls or conveyance notices will be necessary until site evaluation
is complete, all COC’s are fully delineated and UNOCAL submits
its plan(s) to address any outstanding compliance issues.

8. Q. Does this plan allow Unocal to inject contaminated
groundwater under the VPSB property without a surface lease and
over the VPSB’s objection? Or is DNR considering onsite injection
on adjacent property in the same field?

A. No. This has not been determined yet. Prior to making
any determination, further characterization and delineation is
needed[.]

9. Q. The DNR plan says “oil sheening clearly violates LDEQ
general surface water quality criteria as to aesthetics, color, floating,
suspended, and settleable solids, and oil and grease.” Does this plan
require cleanup of all oil sheens on the property? Or does it just
require cleanup of oil sheens generated in the SED-15 area? See pgs.
27-28.

A. If there is obvious sheening at other locations besides
SED-15, the source of the sheening must be cleaned up in an
appropriate manner similar to SED-15.

....

22. Q. Pg. 44-45 – It is unclear as to what CDCs are being evaluated
in this zone. The plan mentions barium, benzene, and chlorides. Is
Unocal also required to look at other contaminants that exist above
the applicable standards (i.e., selenium, strontium, TPH, chromium,
lead)? Numerous samples appear to have concentrations above
applicable limits (e.g., SB-1, HPNIPA-08-T, TBBIS, MPA04T, etc.).

A. The MFP & Reasons in this 40-50 foot zone only
addressed barium, benzene, and chlorides. The panel clarifies
that other COCs with exceedances must be characterized,
delineated, and be part of a plan of remediation. . . .

This particular clarifying answer continues for another eleven lines of

explanation. Note also the following:

25. Q. Are concentrations at BC-3 and BC-4 (which had heavy
metals and chlorides) required to be delineated?

A. Although the MFP & Reasons, pp. 49-50, dealing with
BC-3 and BC-4, specifically refers to iron, barium, strontium, and

18

radium, and the reference “other COCs” is not used, the same
comment as in No. 24 applies here. The panel clarifies that other
COCs with exceedances at BC-3 and BC-4 must be characterized,
delineated, and be part of a plan of remediation as necessary and
in accordance with RECAP. Radium, and potentially strontium, is
exclusively within the jurisdiction of LDEQ, as noted in the Radium
section of the MFP & Reasons.

The last two questions answered by LDNR specifically leave the

contingencies up to the “judgment of UNOCAL.”

26. Q. Footnote 155, pg 49, states that “the SWD’s should be
investigated as a possible source of benzene.” What COC’s is Unocal
required to delineate with respect to the SWD breaches?

A. Based on information reported to the agency at this time,
the panel has suggested UNOCAL should investigate the SWDs as a
potential source of benzene. The first step should be gathering
more data to determine if the limited benzene exceedance
information from BC-2 can be repeated/verified, and if the
exceedance is, or appears to be present in aquifer at this sample
location. Beyond benzene, any other COCs that are helpful for
purposes of determining whether a breach in a SWD is a source of
the benzene in the aquifer is left to the judgment of UNOCAL at
this point. Any plan for investigation should be submitted to LDNR
for review in accordance with applicable protocol for compliance with
RECAP and/or Office of Conservation regulations prior to
implementing any such plan. This Office will implement appropriate
action should additional information submitted to the agency
necessitate further investigation by UNOCAL.

27. Q. How is Unocal to go about investigating the SWD’s? Should
they be required to re-enter the SWD’s to determine mechanical
integrity of the well bores?

A. Whether, or how, UNOCAL investigates the SWDs is
left up to the judgment of UNOCAL at this time. However, any
plan for investigation should be submitted to LDNR for review in
accordance with applicable protocol for compliance with RECAP
and/or Office of Conservation regulations prior to implementing any
such plan. This Office will implement appropriate action should
additional information submitted to the agency necessitate further
investigation by UNOCAL.

Ultimately, VPSB agreed to the LDNR plan for ultimate remediation of

VPSB’s property; however, VPSB at least wanted LDNR’s clarifying answers on

19

the contingencies incorporated into the final plan adopted by the trial court. 13 I

agree with VPSB. Based upon a de novo review, a preponderance of the evidence

shows that the better plan for the protection of the public is the one that complies

in every respect with Act 312 and ensures that all questionable areas are revealed

and addressed.

In Sweet Lake Land & Oil Co. v. Oleum Operating Co., L.C., 17-464, p. 2

(La.App. 3 Cir. 10/18/17), 229 So.3d 993, 996, writ denied, 17-1107 (La.

10/27/17), 228 So.3d 1224, this court upheld the trial court’s rejection of LDNR’s

plan as incomplete for purposes of remediation. There, in rejecting the plan, the

trial court specifically ordered LDNR, in pertinent part, to:

a. address groundwater remediation on the property. ... The final
remediation plan may contain clean up options that depend upon the
results of additional information and should be accompanied by an
estimate of the cost to obtain the additional information. If LDNR is
unable to provide the foregoing final remediation plan, it shall provide
the Court with information to help the Court better order LDNR to do
what needs to be done;

b. Specify the regulation or standard for each clean up activity so that
the Court can enforce it[.]

In affirming the trial court, even though an amended version of Act 312 in

Sweet Lake provided for a preliminary plan before LDNR’s final submission to the

trial court, which the original version controlling this case does not, we determined

that the LDNR plan, when submitted to the trial court, is final when submitted, and

must be complete. We stated that under the explicit terms of the statute, “the role

of LDNR is to develop the most feasible plan and file the plan in the court record,

while the role of the trial court is to adopt the plan unless evidence supports

otherwise.” Sweet Lake, 229 So.3d at 1001. We further stated:

13
The majority adopts the trial court’s rationale that the questions and answers “clarify
the most feasible plan.” It stops short of saying that they are incorporated into the final plan.

20

[T]he supreme court in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-
2371, pp. 37-38 (La. 7/1/08), 998 So.2d 16, 32, stated in dicta:
“Finally, it is the district court who considers the various restoration
plans, including any that the surface owner may choose to submit,
determines which one is most feasible, and oversees the
implementation of the restoration plan. La.Rev.Stat. § 30:29(C)(5).”
In State v. Louisiana Land and Exploration Co., 12-884, p. 16 (La.
1/30/13), 110 So.3d 1038, 1049, the supreme court explained that
“although the La. DNR has input into the plan to remediate the
property, the final decision as to the remediation plan adopted rests
with the court. Throughout the remediation process, the court remains
the gatekeeper to ensure the purpose of the Act is accomplished—
remediation of the property to the extent of the public’s interest.”

Id. at 1001-02.

In Sweet Lake, we stated that, in the hearing before LDNR, “although Sweet

Lake apparently submitted a plan, there was no evidence, much less a

preponderance of evidence, as to whether its plan was more feasible than LNDR’s

plan. During the hearing, the experts mainly testified regarding the flaws and

proper interpretation of the LDNR plan.” Id. at 1001. That is not the case here,

and we are not requiring the court to fully reject the LDNR plan and send it back.

In this case, the LDNR hearing lasted seven days, and the LDNR panel heard

extensive testimony and received detailed exhibits from eight experts, five for

UNOCAL and three for VPSB. LDNR provided detailed reasons over fifty-two

pages, with 165 footnotes, as to what it found acceptable and unacceptable in each

plan submitted. There was significant evidence available to LDNR, but LDNR

still submitted a plan with many, many contingencies and no estimate of costs to

cover them. The language in LDNR’s plan itself and the twenty-seven questions

and answers prove that there were too many unknowns to even suggest that the

cost of the remediation would be the cost adopted by the trial court to implement

the remediation plan.

21

Here, there were apparently two court hearings discussing the unknown

contingencies, LDNR’s answers, which LDNR admitted by letter were

clarifications to its plan, and the content of the final judgment, before the trial court

issued its final judgment on the plan it found most feasible. The most feasible plan

will be the clearest, most specific, most accurate, and most complete plan

reasonably available. See La.R.S. 29:30(I)(3). Thus, in this case I think that a

preponderance of the evidence shows that, at the very least, the trial court should

have incorporated as an addendum the twenty-seven questions and clarifying

answers in evidence before adopting the LDNR plan as “the most feasible plan.” I

further conclude no merit in UNOCAL’s argument that VPSB had to request an

additional “preponderance hearing” as neither the reference nor the requirement

appears in the language of the statute.

The Trial Court’s Judgment

Both VPSB and UNOCAL submitted proposed final judgments for

consideration by the trial court. Following a September 2016 hearing, the trial

court ordered the parties to try to agree on a final judgment. They could not reach

agreement. During the November 2016 hearing on the content of the judgment, the

trial court adopted, in large part, the judgment drafted by the defendant, UNOCAL,

the party found liable by a jury for environmental contamination of the property

during the fifty-five years that it had operated oil and gas exploration thereon, from

1940 to 1995. The judgment adopted by the trial court, over repeated objections

by VPSB, in some paragraphs implies that the cost to implement the Most Feasible

Plan is the known costs of roughly $1.7 million.

22

One paragraph states that “the cost estimate to implement the Most Feasible

Plan as presently known is $1,740,150.00 (rounded).” It is true that this language

is based upon the first sentence of the paragraph near the end of LDNR’s plan at

section C, entitled, “Cost Estimate to Implement the Most Feasible Plan” as shown

in full above and discussed early on in this opinion. The mathematical error has

been corrected in the final judgment. But the next sentence which begins, “This

includes,” and the remainder of the paragraph wherein LDNR explains what is

captured in the cost estimate and what is not captured in the estimate is omitted.

This was a very contentious point at the November hearing on the judgment, and

yet the trial court accepted UNOCAL’s proposed judgment omitting specifics that

LDNR clearly thought necessary to include in its plan.

The next paragraph in the trial court’s judgment, states that “pursuant to

La.R.S. 30:29(C)(5) and (6)(a), UNOCAL shall fund the implementation of the

Most Feasible Plan by depositing . . . $1,740,150.00 . . . into the registry of the

court[.]” Act 312 at La.R.S. 30:29(C)(5) does require the court to order the

responsible party “to fund the implementation of the plan.” But (C)(5) does not

instruct the court to order the responsible party “to fund the implementation of the

plan by depositing” any amount, much less only part of the cost of a plan riddled

with contingencies and a plan which states by its own terms that the estimate of

$1,740,150.00 does not cover specific contingencies (emphasis added):

This estimate does not include additional well installations that may
be necessary pursuant to this Plan; any additional evaluation costs
that may be necessary from additional sampling and/or further
delineation required by this Plan (beyond what is specifically covered
in cost tables above); and/or any remediation costs that may be
necessary based on results of sampling and/or further delineation.
Additional costs will depend on what sampling and/or delineation
reveals.

23

In addition to adding language that is not part of (C)(5), such that the

sentence implies that the amount stated will fully implement the plan, the sentence

also references (C)(6)(a), which states that the judgment is final. This reinforces

the implication, in one sentence, that the deposited amount will fund the plan and

that this is the court’s final judgment on the matter. Since there are six more

paragraphs to the court’s judgment, the last of which appropriately references

La.R.S. 30:29(C)(6)(a), it begs the question: why the placement of (C)(6)(a)

regarding finality of the judgment in an early paragraph where it has no easily

discernible meaning, except to imply finality to an amount that clearly is not final?

In fact, the statute itself anticipates that a defendant’s initial deposit into the

registry of the court may not be enough to fully fund remediation of the subject

property, and the statute provides for additional funds to be deposited. More

specifically:

The court shall retain jurisdiction over the funds deposited and
the party or parties admitting responsibility or the party or parties
found legally responsible by the court until such time as the
evaluation or remediation is completed. If the court finds the amount
of the initial deposit insufficient to complete the evaluation or
remediation, the court shall, on the motion of any party or on its own
motion, order the party or parties admitting responsibility or found
legally responsible by the court to deposit additional funds into the
registry of the court. Upon completion of the evaluation or
remediation, the court shall order any funds remaining in the registry
of the court to be returned to the depositor. The department and the
parties shall notify the court of the completion of any evaluation or
remediation.

La.R.S. 30:29(D)(4).

Following the previously discussed problematic paragraphs of the trial

court’s judgment, the next paragraph dealing with (D)(4), quoted immediately

above, was highly contested at the hearing on the judgment. This was because the

trial court would not allow VPSB’s use of the phrase “initial deposit” in the

24

sentence specifically referencing (D)(4) two times in the sentence. The trial

court’s paragraph stated that, “pursuant to La.R.S. 30:29(D)(4), if the court finds

that the deposited amount ($1,740,150.00) is not sufficient to fund the

implementation of the Most Feasible Plan, the court shall . . . order UNOCAL to

deposit additional funds into the registry of the Court in accordance with La.R.S.

30:29(D)(4).” The collective effect of the above discussed additions to, deletions

from, and misplaced references to, the statutory language of Act 312 of 2006,

contained in the trial court’s judgment, is a final judgment that will propagate

needless litigation in the future. This is particularly true where full remediation is

at least two years away.

The VPSB judgment appearing in the record on pages 545-548, filed on

October 19, 2016, as “Exhibit A” to VPSB’s “Memorandum in Support of Motion

to Adopt VPSB’s Proposed Form of Judgment Regarding Most Feasible Plan”

most accurately reflects the language and intent of the LDNR plan and the

language and intent of La.R.S. 30:29. Accordingly, the VPSB judgment should

have been accepted in its entirety, except for the minor clarifying revisions shown

below.

The first revision clarifies how the VPSB questions and LDNR’s letter and

answers discussed above will be incorporated into the LDNR plan. Since a

seamless incorporation of the answers into the original text of the plan will likely

invite more litigation over the re-wording, I conclude that an addendum of the

letter and the questions and answers is the most efficient and accurate way to

incorporate them into the final plan adopted by the court. To that end, VPSB’s

judgment, on page two, in the paragraph addressing the “September 2, 2016 letter”

25

and the questions and answers, should add the words “by Addendum” inserted

after the existing words “will be incorporated.”

The next clarification is in the first full paragraph on page three of VPSB’s

proposed judgment. The reference to “La.R.S. 30:29(D)(1)” should instead be

“La.R.S. 30:29(D).” The third full paragraph on page three should end with “,

pursuant to La.R.S. 30:29(D)(3).” The fourth full paragraph should end with “,

pursuant to La.R.S. 30:29(D)(4).” The fifth full paragraph should end with “,

pursuant to La.R.S. 30:29(F).” The sixth full paragraph on page three should end

with “, pursuant to La.R.S. 30:29(D)(4).” The first paragraph on page four should

delete “is obligated to” and insert “shall” in its place, for reasons more fully

discussed below.

Actual Performance of the Remediation Work

The trial court accepted UNOCAL’s argument that Act 312 not only

required UNOCAL to fund the remediation, but it also required UNOCAL to

actually perform the remediation work on the property. That is a false assertion.

Act 312, enacted as La.R.S. 30:29 on June 8, 2006, does not specify who must do

the work. The cases cited by UNOCAL involved current operators and

leaseholders who were operating on the subject property under leases they had paid

for. Moreover, none of those cases held that Act 312 required the responsible

party to perform the remediation work. In this case UNOCAL has no lease, and it

has no incentive to remediate the property on any timetable except its own; nor

does it have an incentive to readily comply with LDNR’s requirements without

arguing every point.

26

Where UNOCAL has no interest in the property and stands to recover

unused funds from its deposits into the registry, its primary business incentive will

be to spend as little as possible, argue against every requirement to deposit more

money, and find ways to get as much refunded from the registry as possible. It

was not the intent of the Act or the legislature to require a defendant, especially

one in UNOCAL’s position, to perform the actual remediation work. In fact, the

308-page hearing transcript of May 17, 2006, wherein testimony regarding Senate

Bill 655 (Act 312) was given before the Natural Resources Committee, contains no

argument over language requiring a particular party to do the actual work––

because such language was not in the bill. There were many arguments, as

testimony was given by landowners, oil companies, LDNR, lawyers, and

environmental engineers. There were arguments about technical requirements,

applicable standards, the role of the courts; and some discussions contained

comments such as “make them [the oil companies] clean up their messes” or

“require them [the landowners] to use their court awards to clean up their

property.” But none of those comments or arguments were about language

requiring the wrong party, or any party, to actually perform the remediation work.

In this case, VPSB has the greater incentive to quickly remediate its property

because it is losing money every day the contamination exists. That is in part

because VPSB is having to cancel the hunting and fishing leases that it has issued

to its paying leaseholders. While the 2006 legislature did not state which party

should perform the remediation work, VPSB argues that the Louisiana Supreme

Court places that obligation on the landowner. VPSB cites language from an

earlier appeal in this case, wherein the supreme court affirmed this court’s findings

that Act 312 does not cap the landowner’s damages to the limited remediation to

27

state agency standards when the landowner’s lease with the oil company provides

for a higher remediation standard. It is the supreme court’s most recent and most

in-depth decision on the statute. The supreme court starts with the rules of

legislative interpretation, which are certainly applicable herein:

When there is long-standing interpretation of a legal issue or
several laws on a particular subject matter, we must also give due
regard to the well-settled rules of statutory construction succinctly set
forth in M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 13-14
(La.7/1/08); 998 So.2d 16, 27:

It is also well established that the Legislature is
presumed to enact each statute with deliberation and with
full knowledge of all existing laws on the same subject.
[State v.] Johnson, [2003-2993 (La.10/19/04);] 884 So.2d
[568] at 576; State v. Campbell, 03-3035 (La.7/6/04), 877
So.2d 112, 117. Thus, legislative language will be
interpreted on the assumption the Legislature was aware
of existing statutes, well established principles of
statutory construction and with knowledge of the effect
of their acts and a purpose in view. Johnson, 884 So.2d
at 576-77; Campbell, 877 So.2d at 117. It is equally well
settled under our rules of statutory construction, where it
is possible, courts have a duty in the interpretation of a
statute to adopt a construction which harmonizes and
reconciles it with other provisions dealing with the same
subject matter. La. Civ.Code art. 13; City of New
Orleans v. Louisiana Assessors’ Retirement and Relief
Fund, 05-2548, 986 So.2d 1 (La.10/1/07).

State v. Louisiana Land & Expl. Co., 12-884, p. 9 (La. 1/30/13), 110 So.3d 1038,

1045.

The court then gave a history leading to Act 312 in 2006 and the purpose of

La.R.S. 30:29 by discussing its 2003 decision in Corbello v. Iowa Production, 02-

826 (La. 2/25/03), 850 So.2d 686. There, the landowner was awarded $33 million

in damages against the former mineral lessee for unauthorized disposal of saltwater

and the poor condition of the property. In affirming, the supreme court articulated:

A large part of the damages plaintiffs recovered were for
restoration of groundwater damage which threatened the Chicot

28

Aquifer, the source of drinking water for Lake Charles, Louisiana. In
this court, the mineral lessee argued the appellate court’s affirmance
of this award to plaintiffs for what is strictly an alleged public injury
was error, where the plaintiffs had no legal duty to use the award to
restore the property. We found the contamination of the groundwater
was both a public injury and a private injury, which would not prevent
plaintiffs from collecting damages. [Corbello] 850 So.2d at 699.

We noted the legislature had not implemented “a procedure to
ensure that landowners will in fact use the money to clean the
property.” Id. We recognized the two opposing public policy
concerns which the then-existing state of the law created. At that
time, a landowner suing for remediation of contaminated land could
sue and receive remediation damages yet, was under no obligation to
use the damage award to restore the property. At the same time, there
was a strong possibility that land would remain polluted if landowners
could not bring suit for remediation. Id. [at] 701.

Corbello was decided in February of 2003. The legislature
responded in the 2003 legislative session by enacting La. R.S.
30:2015.1, effective July 2, 2003, which set forth procedures for the
remediation of usable groundwater in the public’s interest. In 2006,
the legislature extended its remediation procedures into other
environmental media by enacting Act 312, which established a
procedure to ensure the remediation of oilfield sites and exploration
and production sites in La. R.S. 30:29. We now turn to the provisions
of the statute at issue and its interpretation.

Interpretation of La. R.S. 30:39

In Corbello, we observed plaintiffs who were awarded
remediation damages were under no statutory obligation to perform
remediation work. The purpose of Act 312 was to create such an
obligation.

Louisiana Land & Expl. Co., 110 So.3d at 1048 (emphasis added).

This last paragraph contains the language on which VPSB relies for its

position that the supreme court interprets the statute as placing an obligation on the

landowner to perform the remediation work called for in the Most Feasible Plan. I

certainly find this argument persuasive, not only because of the italicized language,

but because of the supreme court’s language and reasoning throughout the opinion.

However, we need not reach the question of whether the supreme court intended a

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narrow interpretation of the statute or a broad interpretation of the statute. In this

case, where UNOCAL has no interest in the property, and, as VPSB points out, no

employees of its own, the party with the most interest in getting the remediation

accomplished in a timely manner, which is the purpose of Act 312, should be

allowed to hire its own contractors to do the work. This is particularly true where

this state is subject to hurricanes and tropical storms that fling contamination far

beyond its source, to the further detriment of the public health, as pointed out in the

testimony at the hearing on the senate bill. In this case, that party is clearly VPSB.

Because the trial court accepted UNOCAL’s interpretation of the statute as

requiring the responsible party to perform the actual remediation work, and

because the statute contains no such requirement, the trial court’s judgment is in

error. I would reverse the judgment as to form and content and revise it to conform

with the observations contained herein.

I respectfully dissent.

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