§25. Closure of production pits in the wetlands

A.(1) In order to implement the provisions of Section 1 of Article IX of the Louisiana Constitution to protect, conserve, and replenish the natural resources of the state, the Legislature of Louisiana hereby declares that the use of production pits in oil and gas related activities is harmful to the wetland and marsh areas of the coastal zone of this state and therefore such pits shall be closed in accordance with this Section.

(2) Each production pit located within the inland tidal waters, lakes bounded by the Gulf of Mexico, and saltwater marshes shall be closed by January 1, 1993. The Department of Natural Resources through the office of conservation shall adopt rules to enforce the provisions of this Section and may issue compliance orders, cease and desist orders, and other such orders as are necessary to enforce the requirements of this Section and the rules of the department.

(3) The exemptions and exceptions for production pits located within the inland tidal waters, lakes bounded by the Gulf of Mexico, and saltwater marshes provided for by the rules of the Department of Natural Resources, office of conservation in Statewide Order No. 29-B, Section XV, Paragraph 2.2(K) and (M) are hereby declared null, void, and without effect. After June 30, 1989, no new production pits shall be constructed within the inland tidal waters, lakes bounded by the Gulf of Mexico, and saltwater marshes.

(4) For the purposes of this Section a "production pit" shall mean any pit, whether permanent or temporary, that has been or is utilized in oil and gas activities or in the operation of oil and gas related facilities; however, the term shall not include reserve pits, compressor station pits, pits associated with the storage of petroleum products and petroleum in saltdome caverns, and natural gas processing plant pits which collect and store process water and stormwater runoff.

(5) The commissioner of conservation may grant an extension of time within which to close production pits, not to exceed two years from January 1, 1993, provided that there is a clear showing that the production pit for which the extension is sought is being operated in such a manner so as to assure the protection of soil, surface water, wildlife, aquatic life, and vegetation. The department through the office of conservation in consultation with the Department of Environmental Quality shall adopt rules and regulations regarding the operating standards which must be followed in order to qualify for such extension of time to close said production pit in accordance with the provisions of this Section no later than April 1, 1990.

(6) The commissioner may grant an exemption from the closure requirements of this Section for any onshore terminal pit in existence on June 30, 1989, provided that there is a clear showing that such pit is being operated in such a manner so as to assure the protection of soil, surface water, wildlife, aquatic life, and vegetation. The commissioner in consultation with the Department of Environmental Quality shall adopt rules and regulations regarding the operating standards of such onshore terminal pits which must be followed in order to qualify for such exemption no later than April 1, 1990.

(7) No permit or approval from any agency, department, or authority other than the Department of Natural Resources office of conservation shall be required or sought in connection with any activity mandated by, arising out of, or resulting from the requirements of this Section.

B. The rules provided for by this Section shall be devised, drafted, and adopted in consultation with the Department of Environmental Quality. The rules shall:

(1) Provide for standards, testing, and requirements for the closure of production pits so as to assure the protection of soil, surface water, ground water aquifers, underground drinking water sources, wildlife, aquatic life, and vegetation.

(2) Require the submission of a closure plan for each pit by January 1, 1991.

(3) Require the testing of the sludge for the presence of radioisotopes.

(4) Provide for an exception for emergency pits and the standards for such pits.

(5) Provide for fees not to exceed the estimated cost of administering the provisions of this Section.

C. The operator of each production pit shall be liable for the proper closure of such pit in accordance with the provisions of this Section and the rules of the department and such liability shall not be transferable to any other person. Any person who violates the provisions of this Section or the rules of the department shall be subject to the following penalties:

(1) A civil fine of not less than five thousand dollars per day nor more than twenty-five thousand dollars per day for each day after January 1, 1993, for each production pit that has not been closed in accordance with the provisions of this Section or the rules of the department.

(2) Except as provided by Paragraph 1 of this Subsection, a civil fine of not more than twenty-five thousand dollars for each violation of the provisions of this Section, the rules of the department, or the orders of the secretary. For a continuing violation, each day of such violation shall be considered a separate violation.

D. Civil penalties may be imposed only by a ruling of the commissioner pursuant to an adjudicatory hearing held in accordance with the Administrative Procedure Act, R.S. 49:950 et seq. In determining the amount of the fine to be imposed upon a violator, the commissioner may consider the nature of the violation, the economic benefit of the violation to the violator, previous violations, any damage or harm caused by the violation, the degree of compliance, and whether the violator has acted in good faith.

E. The commissioner may institute civil proceedings in the Nineteenth Judicial District Court to enforce its rulings. In the event judgment is rendered in said court affirming the civil penalties assessed, the court shall also award to the department reasonable attorney fees and judicial interest on said civil penalties from the date of its assessment by the department until paid and all costs.

F. The commissioner may institute civil proceedings in the Nineteenth Judicial District Court seeking injunctive relief to restrain and prevent violations of the provisions of this Part or of the rules and regulations adopted under the provisions of this Part. If the court grants the injunctive relief sought by the department it shall also award reasonable attorney fees and costs to the department.

G. The requirements, rules, and penalties provided for by this Section shall be in addition to other requirements, rules, and penalties of the department and the Department of Environmental Quality.

H. No penalty shall be assessed nor any civil action commenced, as provided herein, without the person charged with said violation being given notice and an opportunity to be heard on such charge. The person charged may waive a hearing on the issue of whether or not a violation has occurred and his culpability for such violation and any other issue. When a hearing on the violation is waived, a decision may be rendered upon the uncontested facts. Any party against whom a fine or penalty is imposed may suspensively appeal said fine or penalty to the court having jurisdiction over actions of the agency imposing said fine or penalty. Any judgment obtained with regard to said fine or penalty shall be applied retroactively to the date of imposition of the fine or penalty. Fines or penalties, if appealed, shall not be payable until the judgment of the court becomes final.

I. Nothing in this Section shall apply to a landowner who granted a mineral lease on his property and, under the provision of that lease, the lessee or his assignee, sublessee, or employee constructed a pit on the property.

Acts 1989, No. 437, §1, eff. June 30, 1989; Acts 1990, No. 582, §1, eff. July 19, 1990.