2006 Louisiana Laws - RS 30:2025 — Enforcement

§2025.  Enforcement

A.  General enforcement power.

Any civil action necessary to carry out the provisions of this Subtitle shall be brought by the secretary.  In such suits, the secretary shall be represented by the attorney general.  If the secretary requests that the attorney general bring a civil action to enforce a provision of this Subtitle and the attorney general declines to institute such action or does not respond to the secretary's request for representation within sixty days of such request and agree to institute a civil action, an attorney from the department may, with the concurrence of the attorney general, institute a civil action to carry out the provisions of this Subtitle.

B.  Civil suit for damages.

(1)(a)  The department may bring a civil action in the name of the state to recover any damages or penalties resulting from a violation of any requirement of this Subtitle or any rule, regulation, or order adopted thereunder.  In such suits the department shall be represented by the attorney general and such actions shall be brought in a district court.  Proper venue shall be any parish in which damage has occurred or any parish where the defendant resides, is domiciled, or has his principal place of business.  The attorney general may file a suit for assessment of a penalty or collection of a penalty on those cases referred to him.

(b)  If the court determines that a violation of this Subtitle has occurred, in assessing damages the court shall take into consideration the cost of restoring the affected area to its condition as it existed before the violation and its present market value and shall include therein the costs of all reasonable and necessary investigations made or caused to be made by the state in connection therewith.

(c)  No civil proceedings brought under this Subsection shall limit or prevent any other actions or proceedings which are authorized by Subsections A, C, D, E, and G of this Section or by any other provision of this Subtitle which authorizes any action.

(d)  If the secretary requests that the attorney general bring a civil action in the name of the state to recover any damages or penalties resulting from a violation of any requirement of this Subtitle or any rule, regulation, or order adopted thereunder or file a suit for assessment of a penalty or collection of a penalty on a case referred to him and the attorney general declines to bring a civil action or file a suit or does not respond to the secretary's request for representation within sixty days of such request and agree to institute a civil action or file suit, an attorney from the department may, with the concurrence of the attorney general, bring a civil action or file a suit to recover damages or penalties or assess or collect a penalty resulting from a violation of any requirement of this Subtitle or any rule, regulation, or order adopted thereunder.

(2)  If a penalty is assessed against the violator under Subsection E of this Section, any amount paid by the violator shall be credited toward the amount for which he is held liable to the state in a judgment or settlement in any suit brought under this Subsection and which is based on the same violation or violations.

C.  Compliance orders; emergency cease and desist orders.

(1)  Upon a determination that a violation of this Subtitle is occurring or is about to occur which is endangering or causing damage to public health or the environment, the secretary may issue an emergency cease and desist order.

(2)  Upon determining that a violation of any requirement of this Subtitle has occurred or is about to occur, notice may be given to the respondent of his failure to comply with such requirement or proceed pursuant to Paragraph (3) of this Subsection.  If such violation extends beyond the thirtieth day after notification, the assistant secretary for the office of environmental compliance shall either issue an order requiring compliance within a specified time period, or the secretary shall commence a civil action for appropriate relief, including a temporary or permanent injunction.

(3)  Upon determining that a violation of any requirement of this Subtitle has occurred or is about to occur, the assistant secretary for the office of environmental compliance shall issue an order requiring compliance within a specified time period, or the secretary shall commence a civil action for appropriate relief, including a temporary or permanent injunction.

D.  Expedited enforcement program.

(1)  The secretary may adopt rules and regulations establishing a program for expedited enforcement for minor violations of this Subtitle and regulations adopted pursuant to this Subtitle.  Such citations may include the assessment of civil penalties and orders requiring compliance within a specified time period.  The secretary may delegate the authority to operate such program to the appropriate personnel.  Enforcement actions under this program will not be subject to the requirement for legal review under R.S. 30:2050.1(C).  Citations issued pursuant to this Section are limited to minor or moderate violations not to exceed fifteen hundred dollars per violation or an aggregate total of three thousand dollars per violator.

(2)  For the purpose of this program, the following shall apply:

(a)  The department shall develop a plan for the implementation of a pilot program which shall provide that:

(i)  Persons affected by the program shall have the option to proceed under any other applicable enforcement process, including legal review under R.S. 30:2050.1(C).

(ii)  Enforcement actions shall not be considered a violation until either paid under this Subsection or considered a violation under any other applicable enforcement process.

(iii)  The pilot program shall include one of the following programs administered by the department: water, air, solid waste, hazardous waste, radiation protection, or underground storage tanks.

(b)  The department shall evaluate the pilot program and provide a report on such evaluation to the House Committee on Environment and the Senate Committee on Environmental Quality by March 1, 2004.

E.  Civil penalties.

(1)(a)  Any person found to be in violation of any requirement of this Subtitle may be liable for a civil penalty, to be assessed by the secretary, the assistant secretary of the office of environmental compliance, or the court, of not more than the cost to the state of any response action made necessary by such violation which is not voluntarily paid by the violator, and a penalty of not more than thirty-two thousand five hundred dollars for each day of violation.  However, when any such violation is done intentionally, willfully, or knowingly, or results in a discharge or disposal which causes irreparable or severe damage to the environment or if the substance discharged is one which endangers human life or health, such person may be liable for an additional penalty of not more than one million dollars.

(b)  If the penalty assessed by the department is upheld in full or in part, the department shall be entitled to legal interest as provided in Civil Code Article 2924 from the date of imposition of the fine or penalty until paid.

(c)  Any person found to be in violation of any requirement of this Subtitle may be subject to the revocation or suspension of any permit, license, or variance which has been issued to the person.

(2)  Any person to whom a compliance order or a cease and desist order is issued pursuant to Subsection C of this Section who fails to take corrective action within the time specified in said order shall be liable for a civil penalty to be assessed by the secretary, the assistant secretary of the office of environmental compliance, or the court of not more than fifty thousand dollars for each day of continued violation or noncompliance.

(3)(a)  In determining whether or not a civil penalty is to be assessed and in determining the amount of the penalty or the amount agreed upon in compromise, the following factors shall be considered:

(i)  The history of previous violations or repeated noncompliance.

(ii)  The nature and gravity of the violation.

(iii)  The gross revenues generated by the respondent.

(iv)  The degree of culpability, recalcitrance, defiance, or indifference to regulations or orders.

(v)  The monetary benefits realized through noncompliance.

(vi)  The degree of risk to human health or property caused by the violation.

(vii)  Whether the noncompliance or violation and the surrounding circumstances were immediately reported to the department and whether the violation or noncompliance was concealed or there was an attempt to conceal by the person charged.

(viii)  Whether the person charged has failed to mitigate or to make a reasonable attempt to mitigate the damages caused by his noncompliance or violation.

(ix)  The costs of bringing and prosecuting an enforcement action, such as staff time, equipment use, hearing records, and expert assistance.

(b)  The secretary may supplement such criteria by rule.  In the event that the order with which the person failed to comply was an emergency cease and desist order, no penalty shall be assessed if it appears upon later hearing that said order was issued without reasonable cause.

(c)  The secretary by rule may establish classifications or levels of violations and the appropriate enforcement response.

(4)  Repealed by Acts 1995, No. 947, §3, eff. Jan. 1, 1996.

(5)  After submission for a penalty determination at a hearing, the secretary or assistant secretary shall provide an opportunity for relevant and material public comment relative to any penalty which may be imposed.

(6)  If the penalty assessed by the department is upheld in full or in part, the department shall be entitled to legal interest as provided in Civil Code Article 2924 from the date of imposition of the fine or penalty until paid.  If any penalty assessed by the department under the provisions of this Subtitle is vacated or reduced as the result of an appeal of the assessment, the court shall award to the respondent legal interest as provided in Civil Code Article 2924 on the amount required to be refunded by the department.

F.  Criminal penalties.

Except as otherwise provided by law:

(1)(a)  Any person who willfully or knowingly discharges, emits, or disposes of any substance in contravention of any provision of this Subtitle, of the regulations, or of the permit or license terms and conditions in pursuance thereof, when the substance is one that endangers or that could endanger human life or health, shall be guilty of a felony and shall be fined not more than one million dollars or the cost of any cleanup made necessary by such violation and in addition may be fined not more than one hundred thousand dollars per violation, which may be assessed for each day the violation continues, and costs of prosecution, or imprisoned at hard labor for not more than ten years, or both, provided that a continuous violation extending beyond a single day shall be considered a single violation.

(b)  However, the discharge of air contaminants into the air of this state in violation of the provisions of this Subtitle, of the regulations, or of the permit or license terms and conditions in pursuance thereof, by the incineration of cardboard by a retail or wholesale merchant or by his employee or agent shall not subject such person to the fine herein provided for, unless such incineration would violate an applicable requirement of the federal Clean Air Act (42 U.S.C. 7401 et seq.), as amended and the emission source meets any of the following:

(i)  Emits or has the potential to emit, in the aggregate, ten tons per year or more of any toxic air pollutant listed by the department pursuant to R.S. 30:2060, or twenty-five tons per year or more of any combination of such toxic air pollutants.

(ii)  Emits or has the potential to emit one hundred tons per year of any regulated air pollutant.

(iii)  Is located in an ozone nonattainment area and emits or has the potential to emit one hundred tons per year or more of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or "moderate", fifty tons per year or more in areas classified as "serious", twenty-five tons per year or more in areas classified as "severe", and ten tons per year or more in areas classified as "extreme".

(2)(a)  Any person who willfully or knowingly discharges, emits, or disposes of any substance in contravention of any provision of this Subtitle of the regulations, or of the permit or license terms and conditions in pursuance thereof, when the substance does not endanger or could not endanger human life or health, or who willfully or knowingly violates any fee or filing requirement, or who willfully or knowingly makes any false statement, representation, or certification in any form, application, record, label, manifest, report, plan, or other document filed or required to be maintained under this Subtitle, or under any permit, rule, or regulation issued under this Subtitle, or who willfully or knowingly falsifies, intentionally tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Subtitle, or under any permit, rule, or regulation issued under this Subtitle, shall be guilty of a misdemeanor and may be fined not more than twenty-five thousand dollars per violation, which may be assessed for each day the violation continues, and costs of prosecution, or imprisoned for not more than one year, or both, provided that a continuous violation extending beyond a single day shall be considered a single violation.  A finding that this Paragraph has been violated shall be a responsive verdict when the defendant has been charged with a violation of Paragraph (1) of this Subsection.

(b)  For the purposes of this Section, a person shall not be considered to willfully or knowingly violate a fee requirement if a payment of the fee is made under protest in accordance with R.S. 30:2042.

(c)  For the purposes of this Section, a person shall not be considered to willfully or knowingly violate a fee or filing requirement if such requirement was not complied with through excusable neglect.

(3)  Repealed by Acts 1992, No. 1126, §2.

(4)  Upon a determination that a criminal violation may have occurred, notification shall be given to the district attorney in whose jurisdiction such possible violation has occurred.  The department shall provide the district attorney with any and all information necessary to evaluate the alleged violation for criminal prosecution.  The criminal prosecution of such violations shall be at the direction of the district attorney.  The department shall cooperate fully with the district attorney.

(5)  The court may suspend the execution of a sentence imposed on any offender convicted under this Subtitle of illegally disposing of solid waste as defined under R.S. 30:2153, if the offender is placed on supervised probation for at least two years and, as a condition of probation, cleans up the site or removes the illegally disposed waste from the site to the satisfaction of the Department of Environmental Quality.

G.  Civil actions.

(1)  The attorney general shall have charge of and shall prosecute all civil cases arising out of violation of any provision of this Subtitle including the recovery of penalties.  If the secretary requests that the attorney general take charge of and prosecute a civil case arising out of violation of any provision of this Subtitle and the attorney general declines to prosecute such civil case or does not respond to the secretary's request for representation within sixty days of such request and agrees to prosecute a civil case arising out of violation of any provision of this Subtitle, an attorney from the department may, with the concurrence of the attorney general, prosecute such civil case.

(2)(a)  In all cases wherein the secretary has issued an order assessing a penalty or requiring specific compliance actions to be undertaken, which order has become final but where the penalty assessed has not been paid or the actions undertaken, the attorney general shall file an ex parte petition in the Nineteenth Judicial District Court, in accordance with Code of Civil Procedure Article 2782, attaching a certified copy of the order to the petition, seeking to make the order of the secretary a judgment of the district court and making the judgment executory for all purposes provided by law.

(b)  If the secretary requests that the attorney general file an ex parte petition to make an order of the secretary a judgment of the district court and the attorney general declines to file such petition or does not respond to the secretary's request for representation within sixty days of such request and agree to file such petition, an attorney from the department may, with the concurrence of the attorney general, file a petition seeking to make such order of the secretary a judgment of the district court and making the judgment executory for all purposes provided by law.

(c)  The district court shall grant the relief prayed for and issue a judgment without a trial de novo of the facts supporting the order.  Upon good cause shown and upon the posting of a bond in favor of the state as the court may require, a person against whom a judgment is rendered requiring specific compliance actions to be undertaken may within ten days of service of the judgment seek an extension, modification, or suspension of the judgment by summary proceeding.  The hearing shall be limited to the issue of whether or not compliance has taken place.

(3)  Where the order of the secretary has been appealed to the court of appeal and the court of appeal has affirmed or modified the order without remanding same to the secretary, the petition shall seek execution of the decision of the court of appeal in the same manner as provided in Paragraph (2) of this Subsection.

H.  Time for commencing proceedings.

Except as otherwise expressly provided within this Subsection, an action, suit, or proceeding by the state for the assessment or enforcement of any civil fine or penalty under the Louisiana Environmental Quality Act shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender is found within the United States in order that proper service may be made thereon.  For the purposes of this Subsection, a claim for a civil fine or penalty first accrued when the violation is first reported to the Department of Environmental Quality, in accordance with applicable laws and regulations.

I.  Service of subpoenas; judicial enforcement.

(1)  Subpoenas authorized under R.S. 30:2011(D) may be served by an employee of the department, by the sheriff of the parish where the witness resides or where he may be found, or by any other officer authorized by law to make service of process.

(2)  In the case of a failure or refusal of a person to obey a subpoena issued under this Subtitle or in the case of a refusal of a witness to testify or answer as to a matter regarding which he may be lawfully interrogated, the district court of the district within which the public hearing is held or within which the person is found, resides, or transacts business, on the application of the secretary or an assistant secretary, may issue an order to the person requiring him to comply with the subpoena, to attend the hearing, to produce the desired documents or evidence, or to give his testimony with respect to the matter under consideration.  Any failure to obey such orders of the court may be punished by the court as a contempt thereof.

J.  Reporting.

(1)  No later than January 1, 1990, the Department of Environmental Quality and the Department of Public Safety and Corrections shall jointly establish a uniform reporting procedure and facilities, and shall provide the necessary personnel to be available to receive reports containing the same information on a twenty-four hour per day, three hundred sixty-five day per year basis of all emergency releases and shall be responsible for dissemination of such reports to other state agencies or authorities.

(2)  Any person who discharges, emits, or disposes of any substance in contravention of any provision of this Subtitle or the regulations or of any permit or license terms and conditions issued thereunder, upon learning of the discharge, emission, or disposal, shall immediately, or in accordance with regulations adopted under this Subtitle, provide notification in accordance with the uniform reporting procedures to be established pursuant to Paragraph (J)(1) above, to the proper authorities as to the nature and amount thereof and the circumstances surrounding same, provided that no additional notifications or reports shall be required for emergency releases except as specifically required by law or rules as provided by this Section.

(3)  The secretaries of each department shall jointly adopt and promulgate a single set of rules and regulations establishing procedures for making such notification.

(4)  Any failure to make this notification or any attempt to conceal or actual concealment of the actual discharge or emission or disposal shall be a violation of this Subtitle.

(5)  Each day of failure to give notification required herein shall constitute a separate violation, and shall be in addition to any other violations of this Subtitle.

K.  Recovery of used resources or expended funds.  In any action brought pursuant to this Section, the National Guard or local governmental agency which in an emergency response situation used resources or expended funds for the protection of the health, safety, or welfare of its citizens, for prevention of damage, or for the cleanup or repair of damages caused by or as a result of a violation of this Subtitle, shall, with the concurrence or review of the department, have the right to recover such funds and the value of the resources used from the violator, where such funds or resources used are reasonably considered to be outside the scope of normal activities.  Any such funds recovered from the violator shall be credited toward the amount that he is assessed or held liable for to the state under this Section.  Any action to recover funds or resources expended by the National Guard or a local governmental agency shall be brought within sixty days of the completion of the emergency response situation.

Acts 1979, No. 449, §1, eff. Jan. 1, 1980.  Amended by Acts 1980, No. 194, §4; Acts 1980, No. 748, §3; Acts 1981, No. 521, §1; Acts 1982, No. 146, §1; Acts 1982, No. 265, §1; Acts 1982, No. 300, §1; Acts 1982, No. 322, §1; Acts 1982, No. 379, §1; Acts 1982, No. 671, §1; Acts 1982, No. 797, §1, eff. Aug. 4, 1982; Acts 1983, No. 97, §1, eff. Feb. 1, 1984; Acts 1983, No. 236, §1; Acts 1983, No. 320, §1; Acts 1984, No. 824, §1, eff. July 13, 1984; Acts 1985, No. 246, §1; Acts 1986, No. 942, §1, eff. July 11, 1986; Acts 1987, No. 318, §1, eff. July 6, 1987; Acts 1988, No. 254, §1, eff. July 6, 1988; Acts 1989, No. 200, §1, eff. June 26, 1989; Acts 1989, No. 392, §3, eff. June 30, 1989; Acts 1989, No. 484, §1; Acts 1990, No. 249, §1; Acts 1990, No. 628, §1; Acts 1990, No. 988, §1; Acts 1992, No. 943, §1, eff. July 9, 1992; Acts 1992, No. 965, §1; Acts 1992, No. 1126, §§1, 2; Acts 1993, No. 118, §1; Acts 1993, No. 124, §1, eff. Jan. 1, 1994; Acts 1995, No. 947, §§2, 3, eff. Jan. 1, 1996; Acts 1995, No. 1160, §1; Acts 1999, No. 303, §1, eff. June 14, 1999; Acts 1999, No. 351, §1, eff. June 16, 1999; Acts 1999, No. 791, §1; Acts 2003, No. 1196, §1; Acts 2004, No. 17, §1, eff. May 12, 2004; Acts 2004, No. 52, §1.