Wall Bullington & Cook, LLC

By: Guy E. Wall

I. INTRODUCTION

Dramatic changes in the environmental laws applied to oil and gas operations have occurred in the last ten years. On a national and local level, as the population's concern about pollution, particularly industrial pollution, has increased, the legislative branches of government have passed laws imposing strict liability for waste handling practices that were legal at the time they occurred. Courts have liberally interpreted these acts to effectuate their intent. The theme of these legal developments has been to impose remedial liability upon the persons for whom the waste handling practices produced economic benefit, in one form or another.

More and more private claims are being brought for pollution of soil, water and groundwater. These claims are based not only on environmental statutes, but also tort, contract and the Mineral Code. Property damage concepts that evolved during an earlier era to address different problems are being invoked by private litigants to resolve pollution claims, resulting in the inevitable conflicts that occur when a set of rules designed to address one problem is then adapted to address another.

This paper addresses some of the major issues in private property damage claims associated with environmental contamination. Of course, the government also has broad powers to address pollution. Some federal statutes, notably CERCLA, also create a private cause of action. But those are subject for another day. This paper will sketch the contours of private claims for environmental property damages under Louisiana law and discuss some of the major issues inherent in such claims.

II. CAUSES OF ACTION

Until about twenty years ago, claims for property damages arising from environmental contamination were limited to tort and contract. Since then, numerous statutes have been enacted, primarily to provide the government with authority to require "responsible" parties to pay for clean up costs. Some of these laws afford private causes of action.

A. Tort, Contract and Mineral Code

1. Tort

Louisiana Civil Code article 2315 provides a remedy to a person who sustains damage caused by the fault of another. This legal principle extends to all manner of conduct, from intentional trespass to the negligent operation of a contractually authorized business. See Broussard v. Northcott Exploration Co., 481 So.2d 125 (La. 1986) (tenant farmer could recover value of growing crops unreasonably destroyed by mineral lessee in the exercise of its rights). Any unlawful physical invasion of another's property is a trespass. Gliptis v. Fifteen Oil Co., 204 La. 896, 165 So.2d 471 (1943). The discharge of pollutants onto property by someone with no right to do so would be a trespass in violation of article 2315 whether intentional or not. See Nunez v. Wainoco Oil and Gas Co., 606 So.2d 1320 (La. App. 3d Cir.), cert. denied, 608 So.2d 1010 (La. 1992) (while unit order permitted trespass, landowner may be entitled to compensation if premises damaged).

Civil Code articles 667 (works which cause damage to neighbors), 2317 (liability for defective things) and nuisance are often the basis for environmental claims. See, e.g., Inabet v. Exxon Corp., 642 So.2d 1234 (La. 1994) (art. 667 applied to damage to oyster beds); Butler v. Baber, 529 So.2d 374 (La. 1988) (same). For years, these laws imposed liability without fault within certain parameters. Effective April 16, 1996, the legislature prospectively amended the Civil Code to eliminate most forms of strict liability. The amendments apply to Civil Code articles 667 and 2317, both frequently relied on in private environmental claims. To establish liability, Article 667 now requires the plaintiff to show that:

(1) the defendant knew or should have known that the activity would cause damage;

(2) the damage could have been prevented by the exercise of reasonable care; and

(3) defendant failed to exercise reasonable care.

While the article does not eliminate liability for ultra hazardous activity, it does limit it to pile driving or blasting with explosives. Similarly, the amendment to Article 2317, consisting of new Article 2317.1, requires the plaintiff to show that

(1) defendant knew or should have known of the defect which caused damage;

(2) the damage could not have been prevented by the exercise of reasonable care; and

(3) defendant failed to exercise reasonable care.

Thus, a plaintiff must prove that the defendant's conduct was negligent, or intentionally wrongful, to prevail on a tort claim except for trespass. Theoretically, the second requirement in both amendments, i.e., showing that the damage could have been prevented, leaves open the possibility that the defendant may damage plaintiffs' property (so long as no trespass occurs) with impunity so long as the damage is unavoidable.

2. Contract

Property damage claims can be based on breach of contract. Magnolia Coal Terminal v. Phillips Oil co., 576 So.2d 475, 484 (La. 1991) (lease imposed an express obligation which is a matter of contract not within the purview of the Mineral Code). Many leases and servitudes contain provisions that address pollution and its remediation in detail. Others simply require that the property be returned to its original condition. Finally, every contract carries with it the implied obligation that it will be performed in good faith. La. Civ. Code art. 1759.

The obligation to restore the surface is implied in all mineral leases. La. Rev. Stat. Ann. § 31:122 and comments. In Broussard v. Waterbury, 346 So.2d 1342, 1344 (La. App. 3d Cir.), cert. denied, 350 So.2d 674 (La. 1977), the court awarded damages sufficient to "reasonably restore the land to the same state as before the drilling and production" based on the comments to mineral code article 122 that require the lessee to restore the surface in accordance with Civil Code articles 2719 and 2720. But see Rohner v. Austral Oil Exploration Co., 104 So.2d 253 (La. App. 1st Cir. 1958) (pre-Mineral Code requirement of negligence for recovery of property damages caused by authorized operations). Reasonableness is an evolving concept; what was a reasonable restoration twenty years ago may no longer be reasonable today; what was judicially tolerable twenty years ago may be intolerable today.

3. Mineral Code

Some obligations arise by operation of law without any fault by the obligor. For instance, Mineral Code article 11 provides:

The Owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise and respect the rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.

La. Rev. Stat. Ann. § 31:11. In Edwards v. Jeems Bayou Production Co., 507 So.2d 11 (La. App. 2d Cir. 1987), the court's inquiry focused "on whether the mineral lessee's use of the land was reasonable; negligence per se is not a necessary predicate to recovery by the landowner." Id. at 13. See also Ashby v. IMC Exploration Co., 496 So.2d 1334, 1337 (La. App. 3d Cir. 1986), aff'd, 506 So.2d 1193 (La. 1987) (judicial inquiry should focus on whether the mineral lessee's use of the land was reasonable; negligence per se is not a necessary predicate to recovery). Cf. Morgan, Correlative Rights: Surface Owner vs. Mineral Owner, 26 Inst. Min. Law 141 (under Mineral Code article 11 neither surface owner nor mineral servitude owner enjoy a paramount right of use).

Mineral Code article 22 provides:

The owner of a mineral servitude is under no obligation to exercise it. If he does, he is entitled to use only so much of the land as is reasonably necessary to conduct his operations. He is obligated, insofar as practicable, to restore the surface to its original condition at the earliest possible time.

La. Rev. Stat. Ann. § 31:22. In Prather v. Chevron U.S.A., Inc., 563 F. Supp. 1366, 1368 (M.D. La. 1983), plaintiff, the surface owner, sued the lessee of the mineral servitude owner. The court held that while the defendant does have a duty under the lease and Mineral Code Article 22 to restore the property to its original condition insofar as practicable, it does not have to pay the landowner for dirt moved about on the surface as long as that use is reasonable. See also Smith v. Schuster, 66 So.2d 430, 431 (La. App. 2d Cir. 1953) (operations restricted to area reasonably necessary to effectively produce minerals; even this area must be restored).

B. Environmental Laws

The Louisiana legislature has enacted numerous laws regarding pollution and its sources. While the main impetus for their enactment may have been to provide enforcement tools to the executive branch, many also provide for a private cause of action. The most important for our purposes is the Louisiana Environmental Quality Act ("LEQA"), and, more specifically, the citizen's suit provisions and the mini superfund law. La. Rev. Stat. Ann. § 30:2000 et seq.

1. Citizen's Suits

The LEQA and regulations issued pursuant thereto contain extensive rules regarding the entire universe of waste handling, disposal and remediation practices. Any person having an interest, which is or may be adversely affected, may commence a civil action on his own behalf against any person alleged to be in violation of the LEQA or regulations promulgated thereunder. La. Rev. Stat. Ann. § 30:2026. The action shall be afforded a preferential hearing by the court. Id. If "it appears to the satisfaction of the court that a violation has occurred, or is occurring," then plaintiff may obtain injunctive relief, actual damages, attorney's fees and penalties, which may reach $10,000 for each day of the continued noncompliance. Id. However, any penalties which are recovered must be turned over to the government. Id.

No citizen's suit may be commenced unless (a) notice by certified mail has been given to the secretary of the Louisiana Department of Environmental Quality ("DEQ") and the violator and (b) thirty days have expired without proceedings commenced, or orders issued, by the DEQ. Moreover, a lawsuit under this section may not be filed if the conduct was authorized by the government or is the subject of a government order or enforcement proceeding. However, if the government has instituted a proceeding, the party adversely affected by the violation may intervene. Id.

The remedies provided by the LEQA are not exclusive and the limitations placed on citizen suits apply only to claims based on the LEQA. See McCastle v. Rollins Environmental Services of Louisiana, Inc., 415 So.2d 515 (La. App. 1st Cir. 1982) (permitting nuisance action to proceed despite government proceedings under the Environmental Affairs Act, predecessor to the LEQA). Thus, the existence of proceedings brought by the DEQ will not prevent the plaintiff from suing for the same violation based on tort or breach of contract. Id. See also Sanders v. Gary, 657 So.2d 1085 (La. App. 1st Cir. 1995) (court rejects argument that LDEQ has exclusive jurisdiction to regulate the remediation of water).

Some issues exist regarding the extent to which the LEQA provides a remedy for past violations. An argument could be made that the citizens suit may only be brought for a current violation, since the statute permits a suit only against a person alleged to be "in violation" of the LEQA. On the other hand, recovery may be had on proof that a violation "has occurred" or "is occurring." While there are no reported court decisions on whether the citizens suit provisions of the LEQA apply to pollution that occurred prior to the 1979 enactment of the Louisiana Environmental Affairs Act, predecessor to the LEQA, the attorney general has opined that they do because the law is remedial in nature. See Op. Atty. Gen., No. 83-593 (1/10/83) (Louisiana Environmental Affairs Act, predecessor to the LEQA, provides a remedy for current problems even if the conduct or disposal took place before its enactment).

2. Mini Superfund

The Louisiana mini superfund act, patterned loosely on CERCLA, 42 U.S.C. § 9601, et eq., creates a private cause of action in favor of any person who has incurred remediation costs against any person who generated, transported or disposed of a hazardous substance or toxic pollutant or owned or operated the property where the substances are located. La. Rev. Stat. Ann. § 2276.A. While the statute arguably provides exemptions for some oil and gas wastes, similar exemptions under CERCLA have been so narrowly construed that they provide virtually no exemption at all. See, e.g., Cose v. Getty Oil Company, 4 F.3d 700 (9th Cir. 1993) (discarded tank bottoms not within CERCLA "petroleum" exemption); Jastram v. Phillips Petroleum Company, 844 F. Supp. 1139 (E.D. La. 1994) exploration and production wastes may be hazardous substances under CERCLA despite the exemption). The statute permits recovery of remediation costs, including expert and attorney's fees. Before a private claim may be asserted, the plaintiff must obtain approval of a remediation plan by the secretary of the DEQ and give the defendants sixty days written notice. La. Rev. Stat. Ann. § 2276.G(3).

III. RIGHT OF ACTION

Louisiana Civil Code article 1764, enacted in 1984, provides:

A real obligation is transferred to the universal or particular successor who acquires the movable or immovable thing to which the obligation is attached, without a special provision to that effect. But a particular successor is not personally bound, unless he assumes the personal obligations of his transferor with respect to the thing, and he may liberate himself of the real obligation by abandoning the thing.

As the comments to this article state, Louisiana courts have held that damages due to an owner of a thing for its partial destruction or for an interference with the owner's rights belong to the person who was owner at the time of the destruction or interference. See, e.g., St. Jude Medical Office Building Limited Partnership v. City Glass & Mirror, Inc., 619 So.2d 529 (La. 1993) (citing La. Civ. Code art. 1764). In Prados v. South Central Bell Telephone Co., 329 So.2d 744 (La. 1975), the Court set forth the general principle upon which this rule is based: "[A] buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sales price." 329 So.2d at 751 (emphasis added). The succeeding owner can only assert the cause of action if it was specifically conveyed in the act of sale from the owner at the time the damage occurred. See Bradford v. Richard, 46 La. Ann. 1530, 16 So. 487 (1894) (conveyance of all causes of action not specific enough). In Badalamenti v. Chevron Chemical Co., 1995 WL 386868 (E.D. La. 1995), the court, applying Louisiana law, held that the plaintiff, the current owner of the property, had no right of action against a defendant who had dumped waste on the property before the plaintiff acquired it because the cause of action belonged to the owner at the time the dumping occurred and was not specifically conveyed to the plaintiff in the act of sale. However, the rationale, if not the rule, may not be applicable in all pollution claims.

In applying this rule, the courts invariably mention that the condition was known to either the owner or the former owner or both. E.g., St. Jude, 619 So.2d at 531; Badalamenti, 1995 WL 386868 at p. 3. It is natural then to question whether the rule would be applied where neither the owner nor the former owner knew of the environmental contamination, particularly where the result would leave the plaintiff without a remedy and the property polluted. The current owner could possibly sue the former owner who could in turn file a third party claim against the polluter. Cf. Dickson v. Arkansas Louisiana Gas Co., 193 So. 246 (La. App. 2d Cir. 1939) (plaintiff's sale of land did not abate his right of action to recover property damages). But in many instances this procedure may be impractical or impossible. Moreover, this rule could result in a windfall to the former owner, vesting a cause of action for remediation costs in a party with no interest in the remediation of the property. Equity may demand that the courts temper this rule in certain circumstances.

IV. PRIMARY JURISDICTION AND ADMINISTRATIVE PROCEEDINGS

Many environmental claims will touch upon matters that are regulated by an administrative agency, frequently the Commissioner of Conservation or the DEQ. The doctrine of primary jurisdiction may come into play when enforcement of a claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative agency. E.g., United States v. Western Pacific Railroad Co., 352 U.S. 59, 63 (1956). The doctrine is designed to guide a court in determining whether and when it should refrain from or postpone the exercise of its own concurrent jurisdiction so that an administrative agency may first answer some question presented. K. Davis, Administrative Law Treatise § 22.1 (2d ed. 1983). The most common reason for a court to cede primary jurisdiction to an agency is that the court finds it desirable to take into account the product of agency expertise before deciding the lawsuit. Id. §§ 22.1, 22.11.

In Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La. 1991), the Court held that a property owner's claim for damages from soil pollution is a matter of private law within the conventional knowledge and expertise of a trier of fact. Therefore, trial courts have discretion to proceed to fix damages without waiting for the issues to be addressed by an administrative agency (assuming the agency doesn't have exclusive original jurisdiction). A court may decide plaintiff's tort or contract claim even if the agency has instituted proceedings concerning the same conditions. McCastle v. Rollins Environmental Services of Louisiana, Inc., 415 So.2d 515 (La. App. 1st Cir. 1982) (permitting nuisance action to proceed despite government proceeding addressing same conditions). The court has jurisdiction to hear plaintiff's claim even if defendant has an agency permit authorizing the conduct that forms the subject matter of the suit so long as the claim is not a specific attack on the permit. Compare Sanders v. Gary, 657 So.2d 1085 (La. App. 1st Cir. 1995) (court has jurisdiction to decide injunction to prohibit saltwater injection based on breach of contract despite permit issued by Office of Conservation) and Greater New Orleans Expressway Commission v. Traver Oil Company, 494 So.2d 1204 (La. App. 5th Cir. 1986) (court has jurisdiction to enjoin well on public safety grounds despite permit to drill issued by Office of Conservation) with Theriot v. Mermentau Resources, Inc., 385 So.2d 939 (La. App. 3d Cir.), writ denied, 392 So.2d 689 (La. 1980) (suit seeking to enjoin chemical waste injection well held to be an attack on Conservation order, concerning a subject over which Commissioner of Conservation had exclusive jurisdiction, and could only be brought in East Baton Rouge Parish). As the foregoing cases illustrate, the distinction between a suit that constitutes a specific attack on a permit and one that does not is not always readily discernible.

V. DAMAGES

A. In General

The general law applicable for determining the quantum of damages to property is set forth in Carter v. Gulf States Utilities Company, 454 So.2d 817, 819-820 (La. App. 1st Cir. 1984), as follows:

In determining damages, the trier of fact is accorded much discretion, especially where the facts of the case preclude a precise computation of damages. . . . No mechanical rule of determining damages is to be applied; the quantum in each case must be determined considering the facts and circumstances of that case. . . . Although trial judges are granted great discretion in determining damage awards, these awards must be made in accordance with law. . . . The proper goal of a damage award is to restore the plaintiff, as closely as possible, to the position which he would have occupied had the accident never occurred. . . .

Generally, damages are fixed as of date of trial and not on date the case arose. Hampton v. Rubicon Chemicals, Inc., 579 So.2d 458 (La. App. 1st Cir. 1991).

Items of damages may include:

1. Remediation and restoration costs, Mouton v. State of Louisiana, 525 So.2d 1136 (La. App. 1st cir.), writ denied, 526 So.2d 1112 (La. 1988); see also Sanders v. Gary, 657 So.2d 1085 (La. App. 1st Cir. 1985) (court rejects argument that DEQ has exclusive jurisdiction over remediation of water);

2. Decline in market value, Roman Catholic Church v. Louisiana Gas Service Company, 618 So.2d 874 (La. 1993);<

3. Profits from farm operations, Phillips v. Rollins-Purle, Inc., 387 So.2d 1148 (La. 1980);

4. Gross profits without deduction of fixed expenses that continue after damage, Morton M. Goldberg Auction Galleries, Inc. v. Canco, Inc., 650 So.2d 801 (La. App. 4th Cir. 1995).

5. Mental anguish, humiliation and embarrassment but not minimal worry and inconvenience, Vial v. South Central Bell Telephone Co., 423 So.2d 1233 (La. App. 5th Cir. 1982), writ denied, 432 So.2d 265 (La. 1983);

6. Aesthetic value of trees and shrubs, Curole v. Acosta, 303 So.2d 530 (La. App. 1st Cir. 1974); and<

7. Nominal damages in the case of trespass, Latter & Blum, Inc. v. Richmond, 378 So.2d 546 (La. App. 4th Cir. 1979), aff'd, 388 So.2d 368 (La. 1980).

B. Caps on Property Damages

Roman Catholic Church v. Louisiana Gas Service Company, 618 So.2d 874 (La. 1993), plaintiff sued to recover the costs it expended in restoring an apartment building damaged by defendant. The Court ruled that plaintiff was entitled to recover the full cost of restoration even though it exceeded the market value of the property. The Court disapproved jurisprudence that established the market value of the property as a rigid ceiling, articulating the following test:

[A]s a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

Thus, the plaintiff can elect to recover either restoration costs or the decline in market value unless restoration costs are disproportionate to the market value or economically wasteful. Even then, plaintiff can recover restoration costs if plaintiff has a personal reason for restoring the property, or if there is a reason to believe plaintiff will in fact make the necessary repairs.

Three state courts have applied the test set forth in the Roman Catholic case. In Sercovich v. Chevron U.S.A., 626 So.2d 434 (La. App. 4th Cir. 1993), the court, citing Roman Catholic, rejected defendant's argument that the amount plaintiff paid for oyster leases capped his recovery for restoration costs. However, the Supreme Court reversed this case on other grounds, ruling that the oyster lessee did not have the right to recover damages to property that he did not own (but only leased). In Tudor Chateau v. D.A. Extermination Co., 96-0951 (La. App. 1st Cir. 2/14/97), 691 So.2d 1259, the court, noting that the restoration costs were both reasonable and reasonably established, upheld the award of both the cost of building repairs necessitated by termite damage and the diminution in the value of the property as a result of market stigma even after the repairs had been made. Finally, in Mossy Motors, Inc., v. Sewerage and Water Board, 98-0495 (La. App. 4th Cir. 5/12/99), 753 So.2d 269, the court upheld the award of the cost to replace an automobile showroom that was put out of business as a result of long term road construction. The court noted that the plaintiff would have to construct a new, more expensive showroom in order to maintain its dealership license with General Motors.

Two federal courts have applied this test. In Abramson v. Florida Gas Transmission Co., 909 F. Supp. 410 (E.D.La. 1995), the court limited the recovery of damages to the diminution in the value of property where the defendant showed that its pipeline would have to be taken out of service for two months in order to perform the work that plaintiff proposed. But the plaintiff failed to present evidence of personal reasons for restoring the property or that the repairs would actually be made. In St. Martin v. Mobil Exploration & Producing U. S., Inc., 1998 WL 474211 (E.D. La. 1998) (unreported), plaintiff sought to recover the cost of restoring wetlands damaged by saltwater intrusion as a result of defendants' failure to maintain oilfield canals. The court rejected plaintiff's proposed restoration plan because it would have converted the wetlands from a flotant marsh to an attached marsh, i.e., the plan was not one to restore the property. The court also observed that plaintiff's plan, which would cost $39,000/acre, was grossly disproportionate to the value of the property and was therefore manifestly unreasonable. After additional briefing, the judge awarded $240,000 ($10,000/acre) damages in St. Martin v. Mobil Exploration & Producing U. S., Inc., 1999 WL 5671 (E.D. La. 1999). This award was in excess of the amount (presumably the market value) that plaintiff had paid for the property shortly before suit was filed. Thus, the court did not use the property value as a cap upon damages. On appeal, the Fifth Circuit affirmed the award of remediation damages of $10,000 per acre for property worth $245 per acre, writing:

In the present case, the district court found that the St. Martins have demonstrated genuine interest in the health of the marsh through their efforts on behalf of the Mandalay Wildlife Refuge, including a $ 140,000 gift to the Nature Conservancy to support its creation of the refuge (now run by the U.S. Fish and Wildlife Service), and continuing aid through the donation of labor and resources. The St. Martins live adjacent to the marsh in question, and Mr. St. Martin has used it for hunting and other recreational purposes for a considerable period of time. The marsh itself is of significant public value; it is part of a rapidly diminishing number of marshes that have been identified by national conservation efforts as key environmental and ecological resources. Michael St. Martin attempted repairs of the canal banks (which proved to be unsuccessful) and undertook other restorative projects. Under these circumstances, the St. Martins' case falls within the Roman Catholic Church allowance of greater than market value damages.

St. Martin v. Mobil Exploration & Producing, Inc., 224 F. 3d 402, 410 (5th Cir. 2000).

C. Clean Up Costs

Restoration or remediation costs can constitute a large part of a private claim for environmental contamination. The clean up costs sought by the plaintiff are often greater than what the defendant contends are necessary. There is the real possibility that the award will be more than the defendant contends but less than what the plaintiff sought, which would preclude the plaintiff from conducting the restoration plan advocated in the litigation. Moreover, even if the plaintiff does receive the award prayed for, cost overruns may still cause the plaintiff to exhaust the damage award before remediation is completed. The defendant may have exposure to the State for the same remediation costs included in the plaintiff's claim. If a plaintiff receives an award for restoration costs but does not restore the property, then the defendant theoretically could be required to pay the same costs again if the State asserted a claim against the defendant arising out of the same condition. In Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La. 1991), the Court stated that the agency with jurisdiction could protect the defendant against any double payment which might occur if the agency required the defendant to clean up the same conditions for which restoration damages were awarded to the plaintiff in a private claim. The Court further stated that the defendant would have recourse to the courts to secure that protection if the agency failed to do so. The Court did not elaborate on the nature of that recourse.

As of July 1, 1995, a defendant who is cast in judgment for, or compromises, a private claim for property damage, including site assessment or restoration, arising out of oil and gas exploration, development or production shall be given full credit for the sums paid thereunder in any proceeding by the State of Louisiana, or any state agency, to nforce any law or regulation with regard to the consequences of said exploration, production or development. La. Rev. Stat. Ann. § 30:89.1. Thus, where the plaintiff's claim for property damages arises out of contamination caused by exploration, production or development of oil and gas, the defendant is not exposed to double recovery, at least insofar s the state is concerned. However, there is no similar federal statute.

Sometimes a plaintiff does not have sufficient funds to do the testing necessary to determine the extent of the pollution. In Magnolia, the court upheld the award of damages for clean up costs and reserved to the plaintiff the right to seek additional damages after the administrative agency had conducted hearings regarding the property. But the Court placed the burden on the plaintiff to establish that these additional damages were sustained after the judgment. No reported decision has addressed the issue of whether the plaintiff can recover the cost of testing, hold the case open until the testing has been completed, and then proceed to trial on the balance of the claim. But many statutes authorize the government to proceed in this fashion.

D. Risk Based Corrective Action

A landowner is free to contend that the property should be cleaned up to a more exacting standard than that established by an agency. Nevertheless, standards promulgated by the DEQ and Office of Conservation provide persuasive evidence of which contaminant levels are harmful, and should be addressed, and which are not. Indeed, the difficult tasks for the practitioner is to first determine whether contaminant levels found on the property are significant and, second, convey that determination to the finder of fact.

Until recently, there were very few places where a lawyer could look up the maximum acceptable limits for certain contaminants in soil and water. Office of Conservation Statewide Order 29-B does list acceptable levels for some contaminants associated with oil and gas exploration and production. But c.f. Jastram v. Philips Petroleum Company, 844 F. Supp. 1139 (E.D. La. 1994) (Order 29-B not the only standard for remedial liability). However, there were few other simple references. Complicated, and expensive, toxicological studies were invariably needed to prosecute or defend a claim that contaminants exceeded a safe or acceptable level.

In August 1995, the DEQ proposed an approach for implementing a Risk Based Corrective Action Program as a method for addressing past and present uncontrolled releases into the environment. The program offers three options for determining whether a release should be cleaned up and to what level: (1) generic levels set by the DEQ; (2) site specific levels established by risk assessments; or (3) if levels established by site specific risk assessment are not attainable, then the remedy is by best demonstrated available technology. Currently, the program has not been proposed for regulation but is being implemented as policy by the DEQ.

This program does not authorize injury to private property. Nevertheless, courts and practitioners may find it useful in quantifying remediation damages. Only option 1 will be discussed briefly because the other two options will invariably require that the attorney retain an expert.

1. Criteria for use of Option 1
1. applies where hazardous constituents not present in media other than soil and groundwater (i.e., surface water, sediment and biota).
2. No sensitive ecological receptors.
3. Impacted shallow groundwater is not located beneath an enclosed, occupied structure.

2. Corrective Action Levels (CALs)- determine both the need for remediation and the remediation goals.

1. Soil (SCAL)
1. Non-industrial exposure - predominant use surrounding site is residential, farming or undeveloped
2. Industrial exposure heavy or light industry (processing, refining or manufacturing) surrounded by industrial sites and not likely to migrate to non-industrial area. Other criteria: facility operating and not seeking approval for closure; zoning; institutional controls (institution); property use does not warrant non-industrial.

1. Groundwater (GWCAL)
1. Non-industrial -- current or future potential source of water for beneficial use, such as drinking, irrigation or livestock watering. NOTE: Potential source of drinking water is defined as groundwater in a zone permeable enough to pump 400 gallons per day and which has total dissolved solids of less than 10,000 mg/l. Also no dilution/attenuation level applied.

2. Industrial
1. Not a current or potential source of drinking water
2. Not likely to be communications with current or potential drinking water.
3. No beneficial uses.

1. Application -- once the appropriate category is determined, i.e., industrial or non-industrial, the acceptable contaminant level can be ascertained by reference to a published list. A dilution/attenuation factor, which may vary from 0 to 1000, is applied to reduce the published level.

E. Punitive Damages

In 1984, the Louisiana legislature enacted article 2315.3, which permitted the plaintiff in a tort action to recover exemplary damages if his "injuries" were caused by defendant's wanton or reckless disregard for public safety in the storage, handling or transportation of hazardous or toxic substances. See King v. E. I. DuPont De Nemours, 850 F. Supp. 503 (W.D. La. 1994) (claim for punitive damages arising out of the destruction of plants in plaintiff's nursery). This provision does not apply to causes of action that arose before its enactment. Young v. American Hoechst Corp., 527 So.2d 1102 (La. App. 1st Cir. 1988). Article 2315.3 was repealed, effective April 16, 1996, by Acts 1996, 1st Ex. Sess., No. 2, section 2. The repeal applies only to causes of action which arose on and after April 16, 1996.

VI. PRESCRIPTION FOR TORT CLAIMS

A. In General

Louisiana Civil Code article 3492 provides: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained."Damage is sustained, for prescription purposes, only when it has manifested itself with sufficient certainty to support the accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154 (La. 1993). The damages suffered must at least be actual and appreciable in quality. Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise damages. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La. 1992). However, prescription will not commence at the earliest possible indication that plaintiff may have suffered some wrong. It will begin to run when plaintiff has a reasonable basis to pursue a claim against a specific defendant. Jordan v. Employee Transfer Corporation, 509 So.2d 420 (La. 1987). Prescription should not be used to force a potential plaintiff who believes that he may have a cause of action to rush to the courthouse to file suit against all parties that may have caused the damage. Miley v. Consolidated Gravity Drainage District No. 1, 642 So.2d 693 (La. App. 1st Cir. 1994).

B. Continuous or Discontinuous Conduct

Civil Code article 3493 provides: "When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage." The comments to this article provide that where the operating cause of the injury is continuous, giving rise to successive damages, prescription commences on the date the damage was completed and the owner knew or should have known of the injury. But where the operating cause of the injury is discontinuous, there is a multiplicity of causes of action and corresponding prescriptive periods. These concepts are illustrated in two cases.

In South Central Bell Telephone Company v. Texaco, Inc., 418 So.2d 531 (La. 1982), plaintiff filed suit over one year after learning that its telephone lines had been damaged by leaking underground storage tanks from defendant's property. The court held that the claim was prescribed as to one defendant, whose tanks had not leaked for at least a year before suit was filed, but not prescribed as to the defendant whose tank had leaked within a year of suit. The court wrote: "When the damaging conduct continues, prescription runs from the date of the last harmful act." 418 So.2d at 532. There the damaging conduct was the leaking of the underground storage tanks. On the other hand, once the "conduct" causing the trespass has ceased, the cause of action has accrued and prescription can commence. Thus, in Mouton v. State of Louisiana, 525 So.2d 1136 (La. App. 1st Cir.), writ denied, 526 So.2d 1112 (La. 1988), the court held that the mere continuing presence of hazardous substances deposited on property did not constitute a continuing tort since the conduct (the act of depositing the contaminants on the land) had ceased. The court ruled that plaintiff's claim had prescribed, even though the contaminants remained on the property, because for a year before suit was filed, both the conduct had ceased and plaintiff knew of the pollution.

C. Contra Non Valentem

In Labbe Service Garage, Inc. v. LBM Distributors, Inc., 904-1043 (La. App. 3d Cir. 2/1/95), 650 So.2d 824, the court reversed a summary judgment sustaining an exception of prescription. Plaintiff testified in deposition that he suspected contamination in September 1990 when underground gasoline storage tanks had been removed from his property. In response to defendant's exception that plaintiff's suit, filed in 1993, was untimely, plaintiff submitted an affidavit that he was unaware of soil and groundwater contamination beyond acceptable regulatory limits until less than a year before filing suit. The court held that prescription could not commence until plaintiff had knowledge that the contamination was "'beyond acceptable levels,' i.e., contamination (damage) which provides a reasonable basis to pursue a claim against a specified defendant." 650 So.2d at 830.

VII. ALLOCATION OF LIABILITY AMONG MULTIPLE DEFENDANTS.

Under the Louisiana mineral code, a person who acquires a mineral lease becomes liable to the lessor for the obligations thereunder to the extent of the interest acquired. For example, a person who acquires a fifty percent interest in a mineral lease becomes liable to the lessor for fifty percent of the obligation to restore the surface of the property.

In the absence of contrary contractual provisions between the parties, Louisiana currently apportions liability among defendants based upon the degree of fault of each defendant. In assessing this fault, the fact finder may consider the conduct of parties that are not defendants and may even allocate a percentage of fault to these non-parties. The defendant bears the burden of proving the fault of another party. The amount paid in settlement is ordinarily not relevant to the determination of the settling party's fault. For example, an oil company defendant that wants to reduce its share of responsibility for NORM contamination at a pipe yard may be put in the awkward position of having to prove that another oil company sent NORM contaminated tubing to the site and having to prove the amount of such tubing sent to the site. For claims involving activities over a long period of time, difficult legal issues arise about the manner of apportionment due to changes in the law.

Where two parties are liable to another party for the same obligation, these parties may be joint or solidary obligors. La. Code Civ. art. 1788. A joint obligor is liable only for his portion of the obligation. A solidary obligor is liable for the full performance of the obligation. Whether an obligation is joint or solidary depends on the intent of the parties and whether the obligation is indivisible. Nabors v. Producers' Oil Co., 140 La. 985, 74 So. 527 (1917); La. Code Civ. art. 1789 (when obligation is divisible, each joint obligor is bound to perform only his portion). In the absence of contrary evidence of intent, the parties will be joint obligors unless the bligation is indivisible. See La. Code Civ. art. 1796 (solidarity not presumed; solidary obligation arises from a clear expression of intent). If the obligation is indivisible, i.e., the performance cannot be divided, then the parties will be treated as solidary obligors.

Effective August 1, 1980, the revised Art. 2324 read as follows:

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.

Thus, Act 431 of 1979 rewrote Art. 2324 to insert a second paragraph that held that one joint tortfeasor could be held solidarily liable for the combined fault of all joint tortfeasors minus any fault attributable to the plaintiff. This second paragraph was not given a retrospective application. See Cole v. Celotex, 599 So.2d 1058 (La. 1992).

The second paragraph of Art. 2324 was again altered in 1987 to read as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages; however, when the amount of recovery has been reduced in accordance with the preceding Article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of fault has been attributed. Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as described in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise.

This revision means that liability among joint tortfeasors was only solidary up to fifty percent of the plaintiff's recoverable damages. See Ventress v. U.P. R.R. Co., 95-1240 (La.App. 4 Cir. 12/28/95), 666 So.2d 1210. Thus, if plaintiff was charged with ten percent of fault while defendants A and B were both allocated forty five percent of fault, plaintiff could collect up to fifty percent of his damages from one of the defendants. Furthermore, in the foregoing scenario one of the defendants could end up paying up to five percent more in damages than his allocated percentage of fault. On the other hand, if plaintiff's percentage of fault was ten percent, defendant A's percentage of fault was five percent, and defendant B's percentage of fault was eighty five percent, plaintiff could collect up to eighty five percent of his recoverable damages from defendant B but only five percent from defendant A. Thus, a tortfeasor would only be liable for no more than his assigned portion when his percentage of fault is less than the plaintiff's. As with the foregoing amendment, this change from complete to partial solidary liability for joint tortfeasors was given a prospective application by the courts. See Morrison v. J.A. Jones Const. Co., Inc., 537 So.2d 360 (La.App. 4 Cir. 1988).

Art. 2324 was again amended in 1988 to add a third paragraph that read as follows:

C. Interruption of prescription against one joint tortfeasor, whether the obligation is considered joint and divisible or solidary, is effective against all joint tortfeasors. Nothing in this Subsection shall be construed to affect in any manner the application of the provisions of R.S. 40:1299.41(G).

Finally, like Art. 2323, Art. 2324 was amended and rewritten in 1996 to read as follows:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

The amended subsection (B) has been given a prospective application only because it eliminates solidary liability for joint tortfeasors except in the limited case of intentional tortfeasors. See Aucoin v. State, D.O.T.D., 97-1967 (La. 4/24/98), 712 So.2d 62; Bauer v. Viacom, Inc., 98-0999 (La.App. 4 Cir. 12/9/98), 729 So.2d 1054. Thus, Art. 2324 has changed from complete solidarity for all joint tortfeasors (1980) to modified solidarity up to fifty percent of a plaintiff's recoverable damages (1987) to joint and divisible liability for all joint tortfeasors save those who commit intentional torts (1996). However, none of these alterations to Art. 2324 have been applied retroactively by the courts.