La. Admin. Code tit. 43 § XXIX-129

Current through Register Vol. 50, No. 9, September 20, 2024

Section XXIX-129 - Recovery of Damages

A. Upon developing a restoration plan, the coordinator must present a written demand to the responsible party. Delivery of the demand should be made in a manner that establishes the date of receipt by the responsible party. The demand must invite the responsible party to either:

1. implement the final restoration plan subject to state trustee oversight and reimburse the trustees for their response costs and costs associated with the development of the damage assessment and restoration plan; or

2. advance to the trustees a specified sum representing trustee response and assessment costs and all trustee costs associated with implementing the final restoration plan.

3. negotiate and purchase the credit(s) specified by the state trustees from a restoration bank certified under LAC 43:XXXI.Chapter 1, provided that the offered credit price is consistent with the requirement for cost-effective restoration under OPA and OSPRA. Should the state trustees determine that the price being offered for the purchase of the credit(s) is not cost-effective (as that term is defined in OPA and OSPRA rules and regulations) the state trustees may elect to propose and select other restoration alternatives consistent with the requirements of OPA and OSPRA.

B. In an action filed or settled pursuant to the Oil Spill Prevention and Response Act (OSPRA), R.S. 30:2480, the state trustees may recover those costs which are attributable to the performance of the assessment of damages and the development, implementation, and monitoring of the restoration plan, including:

1. the costs of the assessment including, but not limited to:

a. salary, fringe benefits, overhead, transportation, lodging, and state per diem costs;

b. the costs of sampling and analyses of oil and natural resources, including reference areas;

c. the costs of laboratories, contractors, and other experts retained by the trustees in assessing injury and determining damages;

d. the cost of the mediation required by §133 of this Chapter (relating to mediation);

2. the costs of restoration, rehabilitation, replacement and/or acquisition of equivalent resources and/or services to hasten recovery to baseline;

3. the costs of emergency restoration to diminish further injury to natural resources from the time of the initial unauthorized discharge until the time of restoration of the injured natural resources and the services they provide;

4. the cost of restoration, rehabilitation, replacement and/or acquisition of equivalent resources and/or services to provide compensation for losses from the time of the initial unauthorized discharge until the time baseline is achieved;

5. the net loss of taxes, royalties, rents, fees, or net profit share that the state would otherwise have collected in the absence of the unauthorized discharge of oil;

6. all costs that have a rational connection to the assessment and are incurred in the performance of the assessment, and the development, implementation, and monitoring of the restoration plan.

C. The responsible party shall reimburse each state trustee's assessment costs.

D. If a responsible party is entitled to a limitation of natural resource damages liability, then any recovery under R.S. 30:2480 shall be limited as provided in R.S. 30:2479.

E. In the event that the responsible party does not reimburse state natural resource trustees, the state natural resource trustees shall be reimbursed from the Oil Spill Contingency Fund pursuant to Paragraph 3 of this Subsection. If the responsible party fails to pay, the Oil Spill Contingency Fund is liable for all natural resource damages assessed as the result of injuries caused by an unauthorized discharge of oil.

1. State Trustee Costs

a. State trustees may recover from the Oil Spill Contingency Fund all costs incurred responding to an unauthorized discharge of oil and in assessing damages resulting from injuries to natural resources caused by an unauthorized discharge of oil under the jurisdiction of the coordinator.

b. State natural resource trustees must submit directly to the coordinator satisfactory proof of costs incurred. Satisfactory proof of costs is compliance with the procedures prescribed by and according to the rules of the comptroller of public accounts of the state of Louisiana. The coordinator will recommend that the comptroller make payment to the state natural resource trustees for their assessment costs.

2. In the event the responsible party fails to pay a natural resource damage assessment claim, the state natural resource trustees may present the claim to the Oil Spill Contingency Fund for the costs of actions to restore, rehabilitate, replace and/or acquire the equivalent of injured natural resources and for the costs to diminish injuries to natural resources resulting from an unauthorized discharge of oil pursuant to this Subsection.

3. Oil Spill Contingency Fund Liability and Limitation

a. The Oil Spill Contingency Fund is liable when:

i. the federal fund denies the claim; or

ii. the amount of the claim paid by the federal fund is not sufficient to restore, rehabilitate, replace and/or acquire the equivalent of the injured natural resources.

b. If Subparagraph a of this Paragraph applies, then the Oil Spill Contingency Fund shall be liable for further damages for the following:

i. restoration, rehabilitation, replacement and/or acquisition of the equivalent natural resources; and

ii. for the diminution of injuries to natural resources for a period of 2 years from the date the federal fund grants or denies the claim.

4. The coordinator shall diligently seek reimbursement to the Oil Spill Contingency Fund. The coordinator shall seek reimbursement from the responsible parties, the federal fund, and any other person who is liable under OSPRA for all expenditures from the Oil Spill Contingency Fund, when the Oil Spill Contingency Fund has paid a natural resource damage assessment claim. When state natural resource trustees have recovered damages from the Oil Spill Contingency Fund, the coordinator shall be subrogated to all rights or causes of action of the state natural resource trustees.

F. The state natural resource trustees shall present the assessment claim to the responsible party via hand delivery or United States Postal Service return receipt requested certified mail.

G. Within 60 days of the presentation of an assessment claim by the coordinator or state natural resource trustees, the responsible party shall make full payment or initiate restoration, rehabilitation, replacement, or mitigation of damages unless the assessment is in dispute and referred to mediation pursuant to R.S. 30:2480.G. In the case of successful mediation, payment of the assessment claim shall be made within 60 days of the completion of the mediation unless otherwise agreed.

H. The coordinator shall ensure that there is no double recovery for natural resource damages resulting from an unauthorized discharge of oil.

La. Admin. Code tit. 43, § XXIX-129

Promulgated by the Office of the Governor, Oil Spill Coordinator's Office, LR 25:506 (March 1999), Amended by the Office of the Governor, Coastal Protection and Restoration Authority, LR 431535 (8/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2451 et seq.