Chapter 465 — Hazardous
Waste and Hazardous Materials I
2011 EDITION
HAZARDOUS WASTE AND HAZARDOUS MATERIALS
I
PUBLIC HEALTH AND SAFETY
REDUCTION OF USE OF TOXIC SUBSTANCES AND
HAZARDOUS
WASTE GENERATION
465.003 Definitions
for ORS 465.003 to 465.034
465.006 Policy
465.009 Rules
465.012 Technical
assistance to users and generators; priority; restrictions on enforcement
resulting from technical assistance; rules
465.015 Toxics
use and hazardous waste reduction plan required; composition; exemption; retention
at facility
465.018 Notification
of Department of Environmental Quality upon completion of plan or system;
implementation summary required; inspection of plan or system
465.021 Review
of plan or system; notification of inadequacies in plan, system or summary;
revisions; penalty
465.027 Contract
for assistance with higher education institution
465.032 Form
of implementation summary; information required
465.034 Application
of ORS 465.003 to 465.034
465.037 Short
title
BULK PETROLEUM PRODUCT WITHDRAWAL
REGULATION
465.101 Definitions
for ORS 465.101 to 465.131
465.104 Fees
for petroleum product delivery or withdrawals; exceptions; registration of
facility operators
465.106 Amount
of fee to be set by State Fire Marshal
465.111 Department
of Revenue to collect fee; exemption from fee of protected petroleum products
465.114 Extension
of time for paying fee; interest on extended payment
465.117 Records
of petroleum products transactions; inspection by Department of Revenue
465.121 Rules
465.124 Application
of ORS chapters 305 and 314 to fee collection
465.127 Disposition
of fees; administrative expenses; other uses
465.131 Fee
imposed by ORS 465.104 in addition to fees established by local government
REMOVAL OR REMEDIAL ACTION
(Generally)
465.200 Definitions
for ORS 465.200 to 465.545
465.205 Legislative
findings
465.210 Authority
of department for removal or remedial action
465.215 List
of facilities with confirmed release
465.220 Comprehensive
statewide identification program; notice
465.225 Inventory
of facilities needing environmental controls; preliminary assessment; notice to
operator; criteria for adding facilities to inventory
465.230 Removal
of facilities from inventory; criteria
465.235 Public
inspection of inventory; information included in inventory; organization;
report; action plan
465.240 Inventory
listing not prerequisite to other remedial action
465.245 Preliminary
assessment of potential facility
465.250 Accessibility
of information about hazardous substances; entering property or facility;
samples; confidentiality
465.255 Strict
liability for remedial action costs for injury or destruction of natural
resource; limited exclusions
465.257 Right
of contribution from other person liable for remedial action costs; allocation
of orphan share
465.260 Removal
or remedial action; reimbursement of costs; liability; damages
465.265 “Person”
defined for ORS 465.265 to 465.310
465.270 Legislative
findings and intent
465.275 Remedial
action and financial assistance program; contracts for implementation
465.280 Rules;
insuring tax deductibility of interest on bonds
465.285 Requirements
for financial assistance; contents of agreements
465.290 Financial
assistance agreement not General Fund obligation; cost estimates; security;
recovery of costs; compromise of obligations
465.295 Decision
regarding financial assistance not subject to judicial review
465.300 Records
and financial assistance applications exempt from disclosure as public record
465.305 Application
fees
465.310 Accounting
procedure for financial assistance moneys
465.315 Standards
for degree of cleanup required; Hazard Index; risk protocol; hot spots of
contamination; exemption; rules
465.320 Notice
of proposed remedial action or release from liability; receipt and
consideration of comment; notice of approval of remedial action or release from
liability
465.325 Agreement
to perform removal or remedial action; reimbursement; agreement as order and
consent judgment; effect on liability
465.327 Agreement
to release party from potential liability to facilitate cleanup and reuse of
property; eligible parties; terms of agreement; recording of agreement
465.330 State
remedial action costs; payment; effect of failure to pay
465.333 Recovery
of costs of program development, rulemaking and administrative actions as
remedial action costs; determination of allocable costs
465.335 Costs,
penalties and damages as lien; enforcement of lien
465.340 Contractor
liability; indemnification
465.375 Monthly
fee of operators; amount; use of moneys
465.376 Special
hazardous waste management fees; use of fees
465.378 Department
to work with other states to avoid disruption of waste flows
465.381 Hazardous
Substance Remedial Action Fund; sources; uses; Orphan Site Account; uses
465.386 Commission
authorized to increase fees; basis of increase; amount of increase
465.391 Effect
of certain laws on liability of person
465.400 Rules;
designation of hazardous substance
465.405 Rules;
“confirmed release”; “preliminary assessment”
465.410 Ranking
of inventory according to risk; rules
465.420 Remedial
Action Advisory Committee
465.425 “Security
interest holder” defined for ORS 465.430 to 465.455
465.430 Legislative
findings
465.435 Rules
relating to exemption from liability for security interest holder
465.440 Rules
relating to exemption from liability for fiduciary
465.445 Advisory
committee
465.450 Limitation
on commission’s discretion to adopt rules
465.455 Construction
of ORS 465.425 to 465.455
(Oregon Environmental Cleanup
Assistance)
465.475 Definitions
for ORS 465.475 to 465.480
465.478 Legislative
findings
465.479 Lost
policies; investigation by insurer required; minimum standards for
investigation
465.480 Insurance
for environmental claims; rules of construction; duty to pay defense or
indemnity costs; allocation
465.482 Short
title
(Cleanup of Contamination Resulting From
Dry Cleaning Facilities)
465.500 Purpose
465.503 Exemption
from administrative or judicial action to compel removal or remedial action; exemption
from liability; exceptions; limitations
465.505 Waste
minimization requirements for dry cleaning facilities; annual report;
reportable release; rules
465.507 Dry
cleaning advisory group
465.510 Dry
Cleaner Environmental Response Account; use; deductible amounts for
expenditures
465.517 Annual
fee and gross revenue fee for dry cleaning facilities
465.520 Fee
on sale or transfer of dry cleaning solvent; exemption
465.523 Fee
on use of dry cleaning solvent
465.525 Calculation
of fee for partial gallons; refund or credit
465.527 Reporting
of fees
465.531 Department
of Environmental Quality may contract for collection of fees
465.536 Late
charges; enforcement by Department of Revenue
465.545 Suspension
of dry cleaning fees; recommendation to Legislative Assembly
CHEMICAL AGENTS
465.550 Definitions
for ORS 465.550 and 465.555
465.555 County
assessment of effects of major recovery or remedial action at storage or
disposal site for chemical agents; annual fee
CIVIL PENALTIES
465.900 Civil
penalties for violation of removal or remedial actions
465.992 Civil
penalty for failure to pay fees
REDUCTION OF USE OF TOXIC SUBSTANCES AND
HAZARDOUS
WASTE GENERATION
465.003 Definitions for ORS 465.003 to
465.034. As used in ORS 465.003 to 465.034:
(1)
“Conditionally exempt generator” means a generator that generates less than 2.2
pounds of acute hazardous waste as defined by 40 C.F.R. 261 and that generates
less than 220 pounds of hazardous waste in one calendar month.
(2)
“Facility” means all buildings, equipment, structures and other stationary
items located on a single site or on contiguous or adjacent sites and owned or
operated by the same person or by any person that controls, is controlled by or
under common control with any person.
(3)
“Fully regulated generator” means a generator that generates 2.2 pounds or more
of acute hazardous waste as defined by 40 C.F.R. 261, or 2,200 pounds or more
of hazardous waste in one calendar month.
(4)
“Generator” means a person that, by virtue of ownership, management or control,
is responsible for causing or allowing to be caused the creation of hazardous
waste.
(5)
“Hazardous waste” has the meaning given that term in ORS 466.005.
(6)
“Large user” means a facility required to submit a uniform toxic chemical
release form under 42 U.S.C. 11023.
(7)
“Person” includes person, public body, as defined in ORS 174.109, the federal
government or any other legal entity.
(8)
“Small-quantity generator” means a generator that generates between 220 and
2,200 pounds of hazardous waste in one calendar month.
(9)
“Toxic substance” or “toxics” means any substance, other than a substance used
as a pesticide in routine commercial agricultural applications, in a gaseous,
liquid or solid state specified on the list of toxic chemicals generated
pursuant to 42 U.S.C. 11023, or any substance added by the Environmental
Quality Commission under ORS 465.009.
(10)
“Toxics use” means use or production of a toxic substance.
(11)
“Toxics use reduction” means in-plant changes in production or other processes
or operations, products or raw materials that reduce, avoid or eliminate the
use or production of toxic substances without creating substantial new risks to
public health, safety and the environment, through the application of any of
the following techniques:
(a)
Input substitution, achieved by replacing a toxic substance or raw material
used in a production or other process or operation with a nontoxic or less
toxic substance;
(b)
Product reformulation, achieved by substituting for an existing end product, an
end product that is nontoxic or less toxic upon use, release or disposal;
(c)
Production or other process or operation redesign or modifications;
(d)
Production or other process or operation modernization, achieved by upgrading
or replacing existing equipment and methods with other equipment and methods;
(e)
Improved operation and maintenance controls of production or other process or
operation equipment and methods, achieved by modifying or adding to existing
equipment or methods including, but not limited to, techniques such as improved
housekeeping practices, system adjustments, product and process inspections or
production or other process or operation control equipment or methods; or
(f)
Recycling, reuse or extended use of toxics by using equipment or methods that
become an integral part of the production or other process or operation of
concern, including but not limited to filtration and other methods.
(12)
“Toxics user” means a large user, a fully regulated generator or a
small-quantity generator.
(13)
“Waste reduction” means:
(a)
Any activity conducted after hazardous waste is generated that is consistent
with the general goal of reducing present and future threats to public health,
safety and the environment and that results in:
(A)
The reduction of total volume or quantity of hazardous waste generated that
would otherwise be treated, stored or disposed of;
(B)
The reduction of toxicity of hazardous waste that would otherwise be treated,
stored or disposed of; or
(C)
Both the reduction of total volume or quantity and the reduction of toxicity of
hazardous waste.
(b)
On-site or off-site treatment where the treatment can be shown to confer a
higher degree of protection of the public health, safety and the environment
than other technically and economically practicable waste reduction
alternatives. [1989 c.833 §2; 2005 c.206 §3]
465.006 Policy.
(1) In the interest of protecting the public health, safety and the
environment, the Legislative Assembly declares that it is the policy of the
State of Oregon to encourage reduction in the use of toxic substances and to
reduce the generation of hazardous waste whenever technically and economically
practicable, without shifting risks from one part of a process, environmental
media or product to another. Priority shall be given to methods that reduce the
amount of toxics used and, where that is not technically and economically
practicable, methods that reduce the generation of hazardous waste.
(2)
The Legislative Assembly finds that the best means to achieve the policy set
forth in subsection (1) of this section is by:
(a)
Providing toxics users and generators with technical assistance;
(b)
Requiring toxics users to engage in comprehensive planning and develop
measurable performance goals; and
(c)
Monitoring the use of toxic substances and the generation of hazardous waste. [1989
c.833 §3]
465.009 Rules.
The Environmental Quality Commission by rule may:
(1)
Add or remove any toxic substance or hazardous waste from the provisions of ORS
465.003 to 465.034; and
(2)
Modify the definition of “large user” to coincide with the amounts specified in
federal regulations for the reporting of toxic chemical releases. [1989 c.833 §4;
2005 c.206 §4]
465.010
[Amended by 1971 c.743 §371; repealed by 1989 c.846 §15]
465.012 Technical assistance to users and
generators; priority; restrictions on enforcement resulting from technical
assistance; rules. (1) The Department of
Environmental Quality shall provide technical assistance to toxics users and
conditionally exempt generators. In identifying the users and generators to
which the department shall give priority in providing technical assistance, the
department shall consider at least the following:
(a)
Amounts and toxicity of toxics used and amounts of hazardous waste disposed of,
discharged and released;
(b)
Potential for current and future toxics use reduction and hazardous waste
reduction; and
(c)
The toxics related exposures and risks posed to public health, safety and the
environment.
(2)
In providing technical assistance, the department shall give priority to
assisting toxics users and conditionally exempt generators in completing and
implementing an adequate toxics use reduction and hazardous waste reduction
plan under ORS 465.015. The assistance may include but need not be limited to:
(a)
Information clearinghouse activities;
(b)
Telephone hotline assistance;
(c)
Toxics use reduction and hazardous waste reduction training workshops;
(d)
Establishing a technical publications library;
(e)
The development of a system to evaluate the effectiveness of toxics use
reduction and hazardous waste reduction measures;
(f)
The development of a recognition program to publicly acknowledge toxics users
and conditionally exempt generators that complete and implement successful
toxics use reduction and hazardous waste reduction plans; and
(g)
Direct on-site assistance to toxics users and conditionally exempt generators
in completing the plans.
(3)
The department shall:
(a)
Coordinate its technical assistance efforts with industry trade associations
and local colleges and universities as appropriate.
(b)
Follow up with toxics users that receive technical assistance to determine
whether the user or generator implemented a toxics use reduction and hazardous
waste reduction plan.
(c)
Coordinate and work with local agencies to provide technical assistance to
businesses involved in the crushing of motor vehicles concerning the safe
removal and proper disposal of mercury light switches from motor vehicles.
(4)
Technical assistance services provided under this section shall not result in
inspections or other enforcement actions unless there is reasonable cause to
believe there exists a clear and immediate danger to the public health and
safety or to the environment. The Environmental Quality Commission may develop
rules to carry out the intent of this subsection. [1989 c.833 §5; 2001 c.924 §9;
2005 c.206 §5]
465.015 Toxics use and hazardous waste
reduction plan required; composition; exemption; retention at facility.
(1) Except as provided in subsection (2) of this section, a person shall,
within 120 days after notification in writing by the Department of
Environmental Quality that the person meets the definition of a toxics user,
complete a toxics use reduction and hazardous waste reduction plan. At a
minimum, a plan shall include:
(a)
A written policy articulating organizational support for the toxics use
reduction and hazardous waste reduction plan and a commitment by the
organization to implement plan goals.
(b)
A description of its scope and objectives, including the evaluation of
technologies, procedures and personnel training programs to ensure unnecessary
toxic substances are not used and unnecessary waste is not generated.
(c)
Internal analysis and periodic assessment of individual processes for toxics
use and hazardous waste generation.
(d)
Identification of opportunities to reduce or eliminate toxics use and hazardous
waste generation.
(e)
Employee awareness and training programs that involve employees in toxics use
reduction and hazardous waste reduction planning and implementation.
(f)
Institutionalization of the plan by incorporating the plan into management
practices and procedures.
(2)
A person is not required to complete a plan if the person has implemented an
environmental management system, as defined in ORS 468.172.
(3)
A toxics user shall incorporate into the plan and associated decision-making
process, the costs of using toxic substances and generating hazardous waste. The
costs may represent, among other things, the costs of management, liability
insurance, regulatory compliance and oversight.
(4)
As part of each plan, a toxics user shall evaluate technically and economically
practicable toxics use reduction and hazardous waste reduction opportunities
for:
(a)
Any toxic substance for which the toxics user reports as a large user; and
(b)
Any hazardous waste representing 10 percent or more by weight of the cumulative
hazardous waste stream generated per year.
(5)
A toxics user shall explain the rationale for each toxics use reduction and
waste reduction opportunity specified in the plan, including any impediments,
such as technical or economic barriers, to toxics use reduction and hazardous
waste reduction.
(6)
A toxics use reduction and hazardous waste reduction plan developed under this
section or the documentation for an environmental management system shall be
retained at the facility. To the extent that a plan or system may be considered
a public record under ORS 192.410, the information contained in the plan or
system is confidential and is exempt from public disclosure pursuant to ORS
192.502.
(7)
It is the policy of this state that plans developed under this section be kept
current and that the plans reflect changes in toxics use over time. In
furtherance of this policy, a toxics user may update its plan or modify its
environmental management system to reflect any changes. [1989 c.833 §7; 1997
c.384 §1; 2005 c.206 §6]
465.018 Notification of Department of
Environmental Quality upon completion of plan or system; implementation summary
required; inspection of plan or system. (1) Following
completion of a toxics use reduction and hazardous waste reduction plan under
ORS 465.015 or implementation of an environmental management system, a toxics
user shall notify the Department of Environmental Quality in a form determined
by the department that the plan or system is in place.
(2)
Twelve months after notifying the department under subsection (1) of this
section, the toxics user shall provide an implementation summary to the
department.
(3)
Twenty-four months after notifying the department under subsection (1) of this
section, the toxics user shall provide a second implementation summary to the
department.
(4)
A toxics user shall permit the Director of the Department of Environmental
Quality or the director’s designee to inspect a plan or system to allow the
department to:
(a)
Determine the adequacy of the plan or system under ORS 465.021;
(b)
Assess the implementation of the plan or system; and
(c)
Provide technical assistance under ORS 465.012.
(5)
The department shall make implementation summaries submitted to the department
under this section available to the public, including making the summaries
available in a commonly used, electronic format on the World Wide Web. [1989
c.833 §8; 2005 c.206 §7]
465.020
[Amended by 1979 c.284 §151; repealed by 1989 c.846 §15]
465.021 Review of plan or system;
notification of inadequacies in plan, system or summary; revisions; penalty.
(1) The Department of Environmental Quality may review and determine the
adequacy of a toxics use reduction and hazardous waste reduction plan or an
environmental management system.
(2)
If a toxics user fails to complete an adequate plan, implement an adequate
system or submit an adequate implementation summary, the department may notify
the toxics user of the inadequacy, identifying the specific deficiencies. The
department also may specify a reasonable time frame, of not less than 90 days, within
which the toxics user shall modify the plan, system or implementation summary
to address the specified deficiencies. The department also may make technical
assistance available to aid the toxics user in modifying its plan, system or
implementation summary.
(3)
If the department determines that a modified plan, system or implementation
summary is inadequate, the department may require that further modifications be
made within a time frame specified by the department.
(4)
If after having received notice of specified deficiencies from the department,
a toxics user fails to develop an adequate plan, system or summary within a
time frame specified pursuant to subsection (2) or (3) of this section, the
department may assess a civil penalty in the manner provided by ORS 183.745 in
an amount not to exceed $500 for each day that the toxics user fails to develop
an adequate plan, system or summary.
(5)
In reviewing the adequacy of any plan, system or summary, the department shall
base its determination solely on whether the plan, system or summary is
complete and prepared in accordance with ORS 465.015 or 465.032. [1989 c.833 §9;
2005 c.206 §8]
465.024 [1989
c.833 §10; 1997 c.384 §2; repealed by 2005 c.206 §11]
465.027 Contract for assistance with higher
education institution. Subject to available funding,
the Department of Environmental Quality shall contract with an established
institution of higher education to assist the department in carrying out the
provisions of ORS 465.003 to 465.034. The assistance shall emphasize strategies
to encourage toxics use reduction and hazardous waste reduction and shall
provide assistance to facilities under ORS 465.003 to 465.034. The assistance
may include but need not be limited to:
(1)
Engineering internships;
(2)
Engineering curriculum development;
(3)
Applied toxics use reduction and hazardous waste reduction research; and
(4)
Engineering assistance to users and generators. [1989 c.833 §12]
465.030
[Repealed by 1989 c.846 §15]
465.031 [1989
c.833 §14; repealed by 2005 c.206 §11]
465.032 Form of implementation summary;
information required. An implementation summary
submitted to the Department of Environmental Quality under ORS 465.018 shall be
in a form determined by the department and shall include, but not be limited
to:
(1)
A summary of how the toxics use reduction and hazardous waste reduction plan or
environmental management system has been implemented;
(2)
A description of specific successes that the toxics user has had in reducing
the use of toxic substances or the generation of hazardous wastes;
(3)
An estimate of the challenges and impediments to implementing and evaluating
toxics use reduction and hazardous waste reduction opportunities; and
(4)
A description of future plans for toxics use reduction and hazardous waste
reduction. [2005 c.206 §2]
465.034 Application of ORS 465.003 to
465.034. Notwithstanding any provision of ORS
465.003 to 465.034, nothing in ORS 465.003 to 465.034 applies to:
(1)
Hazardous wastes generated from a removal, as defined in ORS 465.200, or from a
one-time event.
(2)
A raw material that contains a naturally occurring toxic substance and that is
used in a process for which there is no substitute. [1989 c.833 §16; 2005 c.206
§9]
465.037 Short title.
ORS 465.003 to 465.034 shall be known as the Toxics Use Reduction and Hazardous
Waste Reduction Act. [1989 c.833 §1]
465.040
[Amended by 1971 c.743 §372; repealed by 1989 c.846 §15]
465.050
[Amended by 1971 c.743 §373; repealed by 1989 c.846 §15]
465.060
[Repealed by 1989 c.846 §15]
465.070 [1989
Repealed by 1989 c.846 §15]
465.090
[Amended by 1971 c.743 §374; repealed by 1989 c.846 §15]
465.100 [1977
c.850 §2; 1985 c.728 §83; 1987 c.914 §26; renumbered 464.430 in 1987]
BULK PETROLEUM PRODUCT WITHDRAWAL
REGULATION
465.101 Definitions for ORS 465.101 to
465.131. As used in ORS 465.101 to 465.131:
(1)
“Bulk facility” means a facility, including pipeline terminals, refinery
terminals, rail and barge terminals and associated underground and aboveground
tanks, connected or separate, from which petroleum products are withdrawn from
bulk and delivered into a cargo tank or barge used to transport those products.
(2)
“Cargo tank” means an assembly used for transporting, hauling or delivering
petroleum products and consisting of a tank having one or more compartments
mounted on a wagon, truck, trailer, truck-trailer, railcar or wheels. “Cargo
tank” does not include any assembly used for transporting, hauling or
delivering petroleum products that holds less than 100 gallons in individual,
separable containers.
(3)
“Department” means the Department of Revenue.
(4)
“Person” means an individual, trust, firm, joint stock company, corporation,
partnership, joint venture, consortium, association, state, municipality,
commission, political subdivision of a state or any interstate body, any
commercial entity and the federal government or any agency of the federal
government.
(5)
“Petroleum product” means a petroleum product that is obtained from distilling
and processing crude oil and that is capable of being used as a fuel for the
propulsion of a motor vehicle or aircraft, including motor gasoline, gasohol,
other alcohol-blended fuels, aviation gasoline, kerosene, distillate fuel oil
and number 1 and number 2 diesel. The term does not include naphtha-type jet
fuel, kerosene-type jet fuel, or a petroleum product destined for use in
chemical manufacturing or feedstock of that manufacturing or fuel sold to
vessels engaged in interstate or foreign commerce.
(6)
“Withdrawal from bulk” means the removal of a petroleum product from a bulk
facility for delivery directly into a cargo tank or a barge to be transported
to another location other than another bulk facility for use or sale in this
state. [1989 c.833 §139]
465.104 Fees for petroleum product
delivery or withdrawals; exceptions; registration of facility operators.
(1) The seller of a petroleum product withdrawn from a bulk facility, on
withdrawal from bulk of the petroleum product, shall collect from the person
who orders the withdrawal a petroleum products withdrawal delivery fee in the
maximum amount of $10.
(2)
Any person who imports petroleum products in a cargo tank or a barge for
delivery into a storage tank, other than a tank connected to a bulk facility,
shall pay a petroleum products import delivery fee in the maximum amount of $10
to the Department of Revenue for each such delivery of petroleum products into
a storage tank located in the state.
(3)
Subsections (1) and (2) of this section do not apply to a delivery or import of
petroleum products destined for export from this state if the petroleum
products are in continuous movement to a destination outside the state.
(4)
The seller of petroleum products withdrawn from a bulk facility and each person
importing petroleum products shall remit payment on a quarterly basis on
January 1, April 1, July 1 and October 1.
(5)
Each operator of a bulk facility and each person who imports petroleum products
shall register with the Department of Revenue at least 30 days prior to operating
a bulk facility or importing a cargo tank of petroleum products. [1989 c.833 §140;
2005 c.22 §340]
465.106 Amount of fee to be set by State
Fire Marshal. The State Fire Marshal shall establish
by rule the amount of the fee required under ORS 465.104 necessary to provide
funding for the state’s oil, hazardous material and hazardous substance
emergency response program, as described in ORS 465.127. [1993 c.707 §3]
465.110
[Amended by 1953 c.540 §5; 1967 c.470 §62; 1969 c.684 §16; 1983 c.470 §6; repealed
by 1989 c.846 §15]
465.111 Department of Revenue to collect
fee; exemption from fee of protected petroleum products.
(1) The Department of Revenue shall collect the fee imposed under ORS 465.104.
(2)
Any petroleum product which the Constitution or laws of the United States
prohibit the state from taxing is exempt from the fee imposed under ORS
465.104. [1989 c.833 §142]
465.114 Extension of time for paying fee;
interest on extended payment. The
Department of Revenue for good cause may extend, for not to exceed one month,
the time for payment of the fee due under ORS 465.101 to 465.131. The extension
may be granted at any time if a written request is filed with the department
within or prior to the period for which the extension may be granted. If the
time for payment is extended at the request of a person, interest at the rate
established under ORS 305.220, for each month, or fraction of a month, from the
time the payment was originally due to the time payment is actually made, shall
be added and paid. [1989 c.833 §143]
465.117 Records of petroleum products
transactions; inspection by Department of Revenue.
(1) Each operator of a bulk facility and each person who imports petroleum
products into this state shall keep at the person’s registered place of
business complete and accurate records of any petroleum products sold,
purchased by or brought in or caused to be brought in to the place of business.
(2)
The Department of Revenue, upon oral or written reasonable notice, may make
such examinations of the books, papers, records and equipment required to be
kept under this section as it may deem necessary in carrying out the provisions
of ORS 465.101 to 465.131. [1989 c.833 §144]
465.120
[Amended by 1979 c.284 §152; repealed by 1989 c.846 §15]
465.121 Rules.
The Department of Revenue is authorized to establish those rules and procedures
for the implementation and enforcement of ORS 465.101 to 465.131 that are
consistent with its provisions and are considered necessary and appropriate. [1989
c.833 §145]
465.124 Application of ORS chapters 305 and
314 to fee collection. The provisions of ORS chapters
305 and 314 as to liens, delinquencies, claims for refund, issuance of refunds,
conferences, appeals to the Oregon Tax Court, stay of collection pending
appeal, cancellation, waiver, reduction or compromise of fees, penalties or
interest, subpoenaing and examining witnesses and books and papers, and the
issuance of warrants and the procedures relating thereto, shall apply to the
collection of fees, penalties and interest by the Department of Revenue under
ORS 465.101 to 465.131, except where the context requires otherwise. [1989
c.833 §146; 1995 c.650 §61]
465.127 Disposition of fees; administrative
expenses; other uses. All moneys received by the
Department of Revenue under ORS 465.101 to 465.131 shall be deposited in the
State Treasury and credited to a suspense account established under ORS
293.445. After payment of administration expenses incurred by the department in
the administration of ORS 465.101 to 465.131 and of refunds or credits arising
from erroneous overpayments, the balance of the money shall be credited to the
appropriate accounts as approved by the Legislative Assembly to carry out the
state’s oil, hazardous material and hazardous substance emergency response
program as it relates to the maintenance, operation and use of the public
highways, roads, streets and roadside rest areas in this state as allowed by
section 3a, Article IX of the Oregon Constitution. [1989 c.833 §147; 1989 c.935
§4; 1993 c.707 §1]
465.130
[Repealed by 1989 c.846 §15]
465.131 Fee imposed by ORS 465.104 in
addition to fees established by local government.
The fee imposed by ORS 465.104 is in addition to all other state, county or
municipal fees on a petroleum product. [1989 c.833 §148]
465.140
[Amended by 1989 c.846 §12; renumbered 105.570 in 1989]
465.150
[Amended by 1953 c.540 §5; repealed by 1989 c.846 §15]
465.155 [1953
c.540 §4; repealed by 1989 c.846 §15]
465.160
[Repealed by 1989 c.846 §15]
465.170 [Repealed
by 1989 c.846 §15]
465.180
[Repealed by 1989 c.846 §15]
REMOVAL OR REMEDIAL ACTION
(Generally)
465.200 Definitions for ORS 465.200 to
465.545. As used in ORS 465.200 to 465.545 and
465.900:
(1)
“Claim” means a demand in writing for a sum certain.
(2)
“Commission” means the Environmental Quality Commission.
(3)
“Department” means the Department of Environmental Quality.
(4)
“Director” means the Director of the Department of Environmental Quality.
(5)
“Dry Cleaner Environmental Response Account” means the account established
under ORS 465.510.
(6)
“Dry cleaning facility” means any active or inactive facility located in this
state that is or was engaged in dry cleaning apparel and household fabrics for
the general public, and dry stores, other than a:
(a)
Facility located on a United States military base;
(b)
Uniform service or linen supply facility; or
(c)
Prison or other penal institution.
(7)
“Dry cleaning operator” means a person who has, or had, a business license to
operate a dry cleaning facility or a business operation that a dry cleaning
facility is a part of. If a dry cleaning facility is operated without a
business license, both the dry cleaning owner and any person directing the
operations shall be considered the dry cleaning operator and shall be jointly
and severally liable for the fees and duties imposed on dry cleaning operators.
(8)
“Dry cleaning owner” means a person who owns or owned the real property
underlying a dry cleaning facility.
(9)
“Dry cleaning service” means:
(a)
The cleaning of garments or fabrics at a dry cleaning facility using a dry
cleaning solvent and the pressing or alteration of garments or fabrics if those
services are not charged for separately from cleaning; and
(b)
The services of a dry store.
(10)
“Dry cleaning solvent” means any nonaqueous solvent for use in the cleaning of
garments or other fabrics at a dry cleaning facility, including but not limited
to perchloroethylene and petroleum based solvents and the products into which
dry cleaning solvents degrade.
(11)
“Dry store” means a facility that does not include machinery using dry cleaning
solvents, including but not limited to a pickup store, dropoff store, call
station, agency for dry cleaning, press shop, and pickup and delivery service
not otherwise operated by a dry cleaning facility.
(12)
“Environment” includes the waters of the state, any drinking water supply, any
land surface and subsurface strata and ambient air.
(13)
“Facility” means any building, structure, installation, equipment, pipe or
pipeline including any pipe into a sewer or publicly owned treatment works,
well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, above
ground tank, underground storage tank, motor vehicle, rolling stock, aircraft,
or any site or area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located and where a release has
occurred or where there is a threat of a release, but does not include any
consumer product in consumer use or any vessel.
(14)
“Fund” means the Hazardous Substance Remedial Action Fund established by ORS
465.381.
(15)
“Guarantor” means any person, other than the owner or operator, who provides
evidence of financial responsibility for an owner or operator under ORS 465.200
to 465.545 and 465.900.
(16)
“Hazardous substance” means:
(a)
Hazardous waste as defined in ORS 466.005.
(b)
Any substance defined as a hazardous substance pursuant to section 101(14) of
the federal Comprehensive Environmental Response, Compensation and Liability
Act, P.L. 96-510, as amended, and P.L. 99-499.
(c)
Oil.
(d)
Any substance designated by the commission under ORS 465.400.
(17)
“Inactive dry cleaning facility” means property formerly used, but not
currently used, for providing dry cleaning services.
(18)
“Natural resources” includes but is not limited to land, fish, wildlife, biota,
air, surface water, ground water, drinking water supplies and any other
resource owned, managed, held in trust or otherwise controlled by the State of
Oregon or a political subdivision of the state.
(19)
“Oil” includes gasoline, crude oil, fuel oil, diesel oil, lubricating oil, oil
sludge or refuse and any other petroleum-related product, or waste or fraction
thereof that is liquid at a temperature of 60 degrees Fahrenheit and pressure
of 14.7 pounds per square inch absolute.
(20)
“Owner or operator” means any person who owned, leased, operated, controlled or
exercised significant control over the operation of a facility. “Owner or
operator” does not include a person, who, without participating in the
management of a facility, holds indicia of ownership primarily to protect a
security interest in the facility.
(21)
“Person” means an individual, trust, firm, joint stock company, joint venture,
consortium, commercial entity, partnership, association, corporation,
commission, state and any agency thereof, political subdivision of the state,
interstate body or the federal government including any agency thereof.
(22)
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the
environment including the abandonment or discarding of barrels, containers and
other closed receptacles containing any hazardous substance, or threat thereof,
but excludes:
(a)
Any release that results in exposure to a person solely within a workplace,
with respect to a claim that the person may assert against the person’s
employer under ORS chapter 656;
(b)
Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft,
vessel or pipeline pumping station engine;
(c)
Any release of source, by-product or special nuclear material from a nuclear
incident, as those terms are defined in the Atomic Energy Act of 1954, as
amended, if the release is subject to requirements with respect to financial
protection established by the Nuclear Regulatory Commission under section 170
of the Atomic Energy Act of 1954, as amended, or, for the purposes of ORS
465.260 or any other removal or remedial action, any release of source
by-product or special nuclear material from any processing site designated
under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation
Control Act of 1978; and
(d)
The normal application of fertilizer.
(23)
“Remedial action” means those actions consistent with a permanent remedial
action taken instead of or in addition to removal actions in the event of a
release or threatened release of a hazardous substance into the environment, to
prevent or minimize the release of a hazardous substance so that it does not
migrate to cause substantial danger to present or future public health, safety,
welfare or the environment. “Remedial action” includes, but is not limited to:
(a)
Such actions at the location of the release as storage, confinement, perimeter
protection using dikes, trenches or ditches, clay cover, neutralization,
cleanup of released hazardous substances and associated contaminated materials,
recycling or reuse, diversion, destruction, segregation of reactive wastes,
dredging or excavations, repair or replacement of leaking containers,
collection of leachate and runoff, on-site treatment or incineration, provision
of alternative drinking and household water supplies, and any monitoring
reasonably required to assure that the actions protect the public health,
safety, welfare and the environment.
(b)
Offsite transport and offsite storage, treatment, destruction or secure
disposition of hazardous substances and associated, contaminated materials.
(c)
Such actions as may be necessary to monitor, assess, evaluate or investigate a
release or threat of release.
(24)
“Remedial action costs” means reasonable costs which are attributable to or
associated with a removal or remedial action at a facility, including but not
limited to the costs of administration, investigation, legal or enforcement
activities, contracts and health studies.
(25)
“Removal” means the cleanup or removal of a released hazardous substance from
the environment, such actions as may be necessary taken in the event of the
threat of release of a hazardous substance into the environment, such actions
as may be necessary to monitor, assess and evaluate the release or threat of
release of a hazardous substance, the disposal of removed material, or the taking
of such other actions as may be necessary to prevent, minimize or mitigate
damage to the public health, safety, welfare or to the environment, that may
otherwise result from a release or threat of release. “Removal” also includes
but is not limited to security fencing or other measures to limit access,
provision of alternative drinking and household water supplies, temporary
evacuation and housing of threatened individuals and action taken under ORS
465.260.
(26)
“Retail sale or transfer” means a transfer of title or possession, exchange or
barter, conditional or otherwise, for a purpose other than resale in the
ordinary course of business.
(27)
“Transport” means the movement of a hazardous substance by any mode, including
pipeline and in the case of a hazardous substance that has been accepted for
transportation by a common or contract carrier, the term “transport” shall
include any stoppage in transit that is temporary, incidental to the
transportation movement, and at the ordinary operating convenience of a common
or contract carrier, and any such stoppage shall be considered as a continuity
of movement and not as the storage of a hazardous substance.
(28)
“Underground storage tank” has the meaning given that term in ORS 466.706.
(29)
“Waters of the state” has the meaning given that term in ORS 468B.005. [Formerly
466.540; 1995 c.427 §1; 2001 c.495 §19; 2003 c.407 §§23,24]
465.205 Legislative findings.
(1) The Legislative Assembly finds that:
(a)
The release of a hazardous substance into the environment may present an
imminent and substantial threat to the public health, safety, welfare and the
environment; and
(b)
The threats posed by the release of a hazardous substance can be minimized by
prompt identification of facilities and implementation of removal or remedial
action.
(2)
Therefore, the Legislative Assembly declares that:
(a)
It is in the interest of the public health, safety, welfare and the environment
to provide the means to minimize the hazards of and damages from facilities.
(b)
It is the purpose of ORS 465.200 to 465.545 and 465.900 to:
(A)
Protect the public health, safety, welfare and the environment; and
(B)
Provide sufficient and reliable funding for the Department of Environmental
Quality to expediently and effectively authorize, require or undertake removal
or remedial action to abate hazards to the public health, safety, welfare and
the environment. [Formerly 466.547]
465.210 Authority of department for removal
or remedial action. (1) In addition to any other
authority granted by law, the Department of Environmental Quality may:
(a)
Undertake independently, in cooperation with others or by contract,
investigations, studies, sampling, monitoring, assessments, surveying, testing,
analyzing, planning, inspecting, training, engineering, design, construction,
operation, maintenance and any other activity necessary to conduct removal or
remedial action and to carry out the provisions of ORS 465.200 to 465.545 and
465.900; and
(b)
Recover the state’s remedial action costs.
(2)
The Environmental Quality Commission and the department may participate in or
conduct activities pursuant to the federal Comprehensive Environmental
Response, Compensation and Liability Act, as amended, P.L. 96-510 and P.L.
99-499, and the corrective action provisions of Subtitle I of the federal Solid
Waste Disposal Act, as amended, P.L. 96-482 and P.L. 98-616. Such participation
may include, but need not be limited to, entering into a cooperative agreement
with the United States Environmental Protection Agency.
(3)
Nothing in ORS 465.200 to 465.545 and 465.900 shall restrict the State of
Oregon from participating in or conducting activities pursuant to the federal
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, P.L. 96-510 and P.L. 99-499. [Formerly 466.550]
465.215 List of facilities with confirmed
release. (1) For the purposes of providing
public information, the Director of the Department of Environmental Quality
shall develop and maintain a list of all facilities with a confirmed release as
defined by the Environmental Quality Commission under ORS 465.405.
(2)
The director shall make the list available for the public at the offices of the
Department of Environmental Quality.
(3)
The list shall include but need not be limited to the following items, if
known:
(a)
A general description of the facility;
(b)
Address or location;
(c)
Time period during which a release occurred;
(d)
Name of the current owner and operator and names of any past owners and
operators during the time period of a release of a hazardous substance;
(e)
Type and quantity of a hazardous substance released at the facility;
(f)
Manner of release of the hazardous substance;
(g)
Levels of a hazardous substance, if any, in ground water, surface water, air
and soils at the facility;
(h)
Status of removal or remedial actions at the facility; and
(i)
Other items the director determines necessary.
(4)
At least 60 days before a facility is added to the list the director shall
notify by certified mail or personal service the owner and operator, if known,
of all or any part of the facility that is to be included in the list. The
notice shall inform the owner and operator that the owner and operator may
comment on the decision of the director to add the facility to the list within
45 days of receiving the notice. The decision of the director to add a facility
to the list is not appealable to the Environmental Quality Commission or
subject to judicial review under ORS chapter 183. [Formerly 466.557]
465.220 Comprehensive statewide
identification program; notice. (1) The
Department of Environmental Quality shall develop and implement a comprehensive
statewide program to identify any release or threat of release from a facility
that may require remedial action.
(2)
The department shall notify all daily and weekly newspapers of general
circulation in the state and all broadcast media of the program developed under
subsection (1) of this section. The notice shall include information about how
the public may provide information on a release or threat of release from a
facility.
(3)
In developing the program under subsection (1) of this section, the department
shall examine, at a minimum, any industrial or commercial activity that
historically has been a major source in this state of releases of hazardous
substances.
(4)
The department shall include information about the implementation and progress
of the program developed under subsection (1) of this section in the report
required under ORS 465.235. [Formerly 466.560]
465.225 Inventory of facilities needing
environmental controls; preliminary assessment; notice to operator; criteria
for adding facilities to inventory. (1) For the
purpose of providing public information, the Director of the Department of Environmental
Quality shall develop and maintain an inventory of all facilities for which:
(a)
A confirmed release is documented by the department; and
(b)
The director determines that additional investigation, removal, remedial
action, long-term environmental controls or institutional controls are needed
to assure protection of present and future public health, safety, welfare or
the environment.
(2)
The determination that additional investigation, removal, remedial action,
long-term environmental controls or institutional controls are needed under
subsection (1) of this section shall be based upon a preliminary assessment
approved or conducted by the department.
(3)
Before the department conducts a preliminary assessment, the director shall
notify the owner and operator, if known, that the department is proceeding with
a preliminary assessment and that the owner or operator may submit information
to the department that would assist the department in conducting a complete and
accurate preliminary assessment.
(4)
At least 60 days before the director adds a facility to the inventory, the
director shall notify by certified mail or personal service the owner and
operator, if known, of all or any part of the facility that is to be included
in the inventory. The decision of the director to add a facility to the
inventory is not appealable to the Environmental Quality Commission or subject
to judicial review under ORS chapter 183.
(5)
The notice provided under subsection (4) of this section shall include the
preliminary assessment and shall inform the owner or operator that the owner or
operator may comment on the information contained in the preliminary assessment
within 45 days after receiving the notice. For good cause shown, the department
may grant an extension of time to comment. The extension shall not exceed 45
additional days.
(6)
The director shall consider relevant and appropriate information submitted by
the owner or operator in making the final decision about whether to add a
facility to the inventory.
(7)
The director shall review the information submitted and add the facility to
inventory if the director determines that a confirmed release has occurred and
that additional investigation, removal, remedial action, long-term
environmental controls or institutional controls are needed to assure
protection of present and future public health, safety, welfare or the
environment. [1989 c.485 §3]
465.230 Removal of facilities from
inventory; criteria. (1) According to rules adopted
by the Environmental Quality Commission, the Director of the Department of
Environmental Quality shall remove a facility from the list or inventory, or
both, if the director determines:
(a)
Actions taken at the facility have attained a degree of cleanup and control of
further release that assures protection of present and future public health,
safety, welfare and the environment;
(b)
No further action is needed to assure protection of present and future public
health, safety, welfare and the environment; or
(c)
The facility satisfies other appropriate criteria for assuring protection of
present and future public health, safety, welfare and the environment.
(2)
The director shall not remove a facility if continuing environmental controls
or institutional controls are needed to assure protection of present and future
public health, safety, welfare and the environment, so long as such controls
are related to removal or remedial action. [1989 c.485 §4]
465.235 Public inspection of inventory;
information included in inventory; organization; report; action plan.
(1) The Director of the Department of Environmental Quality shall make the
inventory available to the public at the office of the Department of
Environmental Quality.
(2)
The inventory shall include but need not be limited to:
(a)
The following information, if known:
(A)
A general description of the facility;
(B)
Address or location;
(C)
Time period during which a release occurred;
(D)
Name of current owner and operator and names of any past owners and operators
during the time period of a release of a hazardous substance;
(E)
Type and quantity of a hazardous substance released at the facility;
(F)
Manner of release of the hazardous substance;
(G)
Levels of a hazardous substance, if any, in ground water, surface water, air
and soils at the facility;
(H)
Hazard ranking and narrative information regarding threats to the environment
and public health;
(I)
Status of removal or remedial actions at the facility; and
(J)
Other items the director determines necessary; and
(b)
Information that indicates whether the remedial action at the facility will be
funded primarily by:
(A)
The department through the use of moneys in the Hazardous Substance Remedial
Action Fund;
(B)
An owner or operator or other person under an agreement, order or consent
judgment under ORS 465.200 to 465.545; or
(C)
An owner or operator or other person under other state or federal authority.
(3)
The department may organize the inventory into categories of facilities,
including but not limited to the types of facilities listed in subsection (2)
of this section.
(4)
On or before January 15 of each year, the department shall submit the inventory
and a report to the Governor, the Legislative Assembly and the Environmental
Quality Commission. The annual report shall include a quantitative and
narrative summary of the department’s accomplishments during the previous
fiscal year and the department’s goals for the current fiscal year, including
but not limited to each of the following areas:
(a)
Facilities with a suspected release added to the department’s database;
(b)
Facilities with a confirmed release added to the department’s list;
(c)
Facilities added to and removed from the inventory;
(d)
Removals initiated and completed;
(e)
Preliminary assessments initiated and completed;
(f)
Remedial investigations initiated and completed;
(g)
Feasibility studies initiated and completed; and
(h)
Remedial actions, including long-term environmental controls and institutional
controls, initiated and completed.
(5)
Beginning in 1991, and every fourth year thereafter, the report required under
subsection (4) of this section shall include a four-year plan of action for
those items under subsection (4)(e) to (h) of this section. The four-year plan
shall include projections of funding and staffing levels necessary to implement
the four-year plan. [1989 c.485 §5; 2003 c.576 §459]
465.240 Inventory listing not prerequisite
to other remedial action. Nothing in ORS 465.225 to
465.240, 465.405 and 465.410 or placement of a facility on the list under ORS
465.215 shall be construed to be a prerequisite to or otherwise affect the
authority of the Director of the Department of Environmental Quality to
undertake, order or authorize a removal or remedial action under ORS 465.200 to
465.545 and 465.900. [1989 c.485 §6]
465.245 Preliminary assessment of
potential facility. When the Department of
Environmental Quality receives information about a release or a threat of
release from a potential facility, the department shall evaluate the
information and document its conclusions and may approve or conduct a
preliminary assessment. However, if the department determines there is a
significant threat to present or future public health, safety, welfare or the
environment, the department shall approve or conduct a preliminary assessment
according to rules of the Environmental Quality Commission. The preliminary
assessment shall be conducted as expeditiously as possible within the budgetary
constraints of the department. [Formerly 466.563]
465.250 Accessibility of information about
hazardous substances; entering property or facility; samples; confidentiality.
(1) Any person who has or may have information, documents or records relevant
to the identification, nature and volume of a hazardous substance generated,
treated, stored, transported to, disposed of or released at a facility and the
dates thereof, or to the identity or financial resources of a potentially
responsible person, shall, upon request by the Department of Environmental
Quality or its authorized representative, disclose or make available for
inspection and copying such information, documents or records.
(2)
Upon reasonable basis to believe that there may be a release of a hazardous
substance at or upon any property or facility, the department or its authorized
representative may enter any property or facility at any reasonable time to:
(a)
Sample, inspect, examine and investigate;
(b)
Examine and copy records and other information; or
(c)
Carry out removal or remedial action or any other action authorized by ORS
465.200 to 465.545 and 465.900.
(3)
If any person refuses to provide information, documents, records or to allow
entry under subsections (1) and (2) of this section, the department may request
the Attorney General to seek from a court of competent jurisdiction an order
requiring the person to provide such information, documents, records or to
allow entry.
(4)(a)
Except as provided in paragraphs (b) and (c) of this subsection, the department
or its authorized representative shall, upon request by the current owner or
operator of the facility or property, provide a portion of any sample obtained
from the property or facility to the owner or operator.
(b)
The department may decline to give a portion of any sample to the owner or
operator if, in the judgment of the department or its authorized
representative, apportioning a sample:
(A)
May alter the physical or chemical properties of the sample such that the
portion of the sample retained by the department would not be representative of
the material sampled; or
(B)
Would not provide adequate volume to perform the laboratory analysis.
(c)
Nothing in this subsection shall prevent or unreasonably hinder or delay the
department or its authorized representative in obtaining a sample at any
facility or property.
(5)
Persons subject to the requirements of this section may make a claim of
confidentiality regarding any information, documents or records, in accordance
with ORS 466.090. [Formerly 466.565]
465.255 Strict liability for remedial
action costs for injury or destruction of natural resource; limited exclusions.
(1) The following persons shall be strictly liable for those remedial action
costs incurred by the state or any other person that are attributable to or
associated with a facility and for damages for injury to or destruction of any
natural resources caused by a release:
(a)
Any owner or operator at or during the time of the acts or omissions that
resulted in the release.
(b)
Any owner or operator who became the owner or operator after the time of the
acts or omissions that resulted in the release, and who knew or reasonably
should have known of the release when the person first became the owner or
operator.
(c)
Any owner or operator who obtained actual knowledge of the release at the
facility during the time the person was the owner or operator of the facility
and then subsequently transferred ownership or operation of the facility to
another person without disclosing such knowledge.
(d)
Any person who, by any acts or omissions, caused, contributed to or exacerbated
the release, unless the acts or omissions were in material compliance with
applicable laws, standards, regulations, licenses or permits.
(e)
Any person who unlawfully hinders or delays entry to, investigation of or
removal or remedial action at a facility.
(2)
Except as provided in subsection (1)(c) to (e) of this section and subsection
(4) of this section, the following persons shall not be liable for remedial
action costs incurred by the state or any other person that are attributable to
or associated with a facility, or for damages for injury to or destruction of
any natural resources caused by a release:
(a)
Any owner or operator who became the owner or operator after the time of the
acts or omissions that resulted in a release, and who did not know and
reasonably should not have known of the release when the person first became
the owner or operator.
(b)
Any owner or operator if the release at the facility was caused solely by one
or a combination of the following:
(A)
An act of God. “Act of God” means an unanticipated grave natural disaster or
other natural phenomenon of an exceptional, inevitable and irresistible
character, the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
(B)
An act of war.
(C)
Acts or omissions of a third party, other than an employee or agent of the
person asserting this defense, or other than a person whose acts or omissions
occur in connection with a contractual relationship, existing directly or
indirectly, with the person asserting this defense. As used in this
subparagraph, “contractual relationship” includes but is not limited to land
contracts, deeds or other instruments transferring title or possession.
(3)
Except as provided in subsection (1)(c) to (e) of this section or subsection
(4) of this section, the following persons shall not be liable for remedial
action costs incurred by the state or any other person that are attributable to
or associated with a facility, or for damages for injury to or destruction of
any natural resources caused by a release:
(a)
A unit of state or local government that acquired ownership or control of a
facility in the following ways:
(A)
Involuntarily by virtue of its function as sovereign, including but not limited
to escheat, bankruptcy, tax delinquency or abandonment; or
(B)
Through the exercise of eminent domain authority by purchase or condemnation.
(b)
A person who acquired a facility by inheritance or bequest.
(c)
Any fiduciary exempted from liability in accordance with rules adopted by the
Environmental Quality Commission under ORS 465.440.
(4)
Notwithstanding the exclusions from liability provided for specified persons in
subsections (2) and (3) of this section such persons shall be liable for
remedial action costs incurred by the state or any other person that are
attributable to or associated with a facility, and for damages for injury to or
destruction of any natural resources caused by a release, to the extent that the
person’s acts or omissions contribute to such costs or damages, if the person:
(a)
Obtained actual knowledge of the release and then failed to promptly notify the
Department of Environmental Quality and exercise due care with respect to the
hazardous substance concerned, taking into consideration the characteristics of
the hazardous substance in light of all relevant facts and circumstances; or
(b)
Failed to take reasonable precautions against the reasonably foreseeable acts
or omissions of a third party and the reasonably foreseeable consequences of
such acts or omissions.
(5)(a)
No indemnification, hold harmless, or similar agreement or conveyance shall be
effective to transfer from any person who may be liable under this section, to
any other person, the liability imposed under this section. Nothing in this
section shall bar any agreement to insure, hold harmless or indemnify a party
to such agreement for any liability under this section.
(b)
A person who is liable under this section shall not be barred from seeking
contribution from any other person for liability under ORS 465.200 to 465.545
and 465.900.
(c)
Nothing in ORS 465.200 to 465.545 and 465.900 shall bar a cause of action that
a person liable under this section or a guarantor has or would have by reason
of subrogation or otherwise against any person.
(d)
Nothing in this section shall restrict any right that the state or any person
might have under federal statute, common law or other state statute to recover
remedial action costs or to seek any other relief related to a release.
(6)
To establish, for purposes of subsection (1)(b) of this section or subsection
(2)(a) of this section, that the person did or did not have reason to know, the
person must have undertaken, at the time of acquisition, all appropriate
inquiry into the previous ownership and uses of the property consistent with
good commercial or customary practice in an effort to minimize liability.
(7)(a)
Except as provided in paragraph (b) of this subsection, no person shall be liable
under ORS 465.200 to 465.545 and 465.900 for costs or damages as a result of
actions taken or omitted in the course of rendering care, assistance or advice
in accordance with rules adopted under ORS 465.400 or at the direction of the
department or its authorized representative, with respect to an incident
creating a danger to public health, safety, welfare or the environment as a
result of any release of a hazardous substance. This paragraph shall not
preclude liability for costs or damages as the result of negligence on the part
of such person.
(b)
No state or local government shall be liable under ORS 465.200 to 465.545 and
465.900 for costs or damages as a result of actions taken in response to an
emergency created by the release of a hazardous substance generated by or from
a facility owned by another person. This paragraph shall not preclude liability
for costs or damages as a result of gross negligence or intentional misconduct
by the state or local government. For the purpose of this paragraph, reckless,
willful or wanton misconduct shall constitute gross negligence.
(c)
This subsection shall not alter the liability of any person covered by
subsection (1) of this section. [Formerly 466.567; 1991 c.680 §9; 1991 c.692 §1]
465.257 Right of contribution from other
person liable for remedial action costs; allocation of orphan share.
(1) Any person who is liable or potentially liable under ORS 465.255 may seek
contribution from any other person who is liable or potentially liable under
ORS 465.255. When such a claim for contribution is at trial and the court
determines that apportionment of recoverable costs among the liable parties is
appropriate, the share of the remedial action costs that is to be borne by each
party shall be determined by the court, using such equitable factors as the
court deems appropriate, including but not limited to the following:
(a)
The amount of hazardous substances contributed to the facility;
(b)
The degree of toxicity or hazard posed by the hazardous substances to public
health, safety and welfare, and to the environment;
(c)
The degree of involvement in the release of the hazardous substance by the
liable persons;
(d)
The relative culpability or negligence of the liable persons;
(e)
The degree of cooperation by the liable persons with the government or with
persons who have a financial interest in the facility;
(f)
The extent of the participation by the liable person in response actions at the
facility;
(g)
The length of time the facility was owned or operated by the liable person
during the time the release occurred;
(h)
Whether the acts or omissions that resulted in a release were in material
compliance with applicable laws, standards, regulations, licenses or permits;
(i)
The economic benefit derived from the facility or from the acts or omissions
that resulted in a release;
(j)
The circumstances and conditions involved in the facility’s conveyance,
including the price paid and any discounts granted; and
(k)
The quality of evidence concerning liability and equitable shares.
(2)
At the time of trial, if a person who is otherwise liable under ORS 465.255 is
no longer subject to a judgment due to bankruptcy, dissolution or death (an
orphan share), the court may, in its discretion, allocate that person’s
equitable share to the other liable persons in proportion to their equitable
shares or on any other equitable basis taking into consideration any
relationship between the orphan share’s liable person and each other liable
person. [1995 c.662 §5]
Note:
465.257 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 465 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
465.260 Removal or remedial action;
reimbursement of costs; liability; damages. (1)
The Director of the Department of Environmental Quality may undertake any
removal or remedial action necessary to protect the public health, safety,
welfare and the environment.
(2)
The director may authorize any person to carry out any removal or remedial
action in accordance with any requirements of or directions from the director,
if the director determines that the person will commence and complete removal
or remedial action properly and in a timely manner.
(3)
Nothing in ORS 465.200 to 465.545 and 465.900 shall prevent the director from
taking any emergency removal or remedial action necessary to protect public
health, safety, welfare or the environment.
(4)
The director may require a person liable under ORS 465.255 to conduct any
removal or remedial action or related actions necessary to protect the public
health, safety, welfare and the environment. The director’s action under this
subsection may include but need not be limited to issuing an order specifying
the removal or remedial action the person must take.
(5)
The director may request the Attorney General to bring an action or proceeding
for legal or equitable relief, in the circuit court of the county in which the
facility is located or in Marion County, as may be necessary:
(a)
To enforce an order issued under subsection (4) of this section; or
(b)
To abate any imminent and substantial danger to the public health, safety,
welfare or the environment related to a release.
(6)
Notwithstanding any provision of ORS chapter 183, and except as provided in
subsection (7) of this section, any order issued by the director under
subsection (4) of this section shall not be appealable to the Environmental
Quality Commission or subject to judicial review.
(7)(a)
Any person who receives and complies with the terms of an order issued under
subsection (4) of this section may, within 60 days after completion of the
required action, petition the director for reimbursement from the fund for the
reasonable costs of such action.
(b)
If the director refuses to grant all or part of the reimbursement, the
petitioner may, within 30 days of receipt of the director’s refusal, file an
action against the director seeking reimbursement from the fund in the circuit
court of the county in which the facility is located or in the Circuit Court of
Marion County. To obtain reimbursement, the petitioner must establish by a
preponderance of the evidence that the petitioner is not liable under ORS
465.255 and that costs for which the petitioner seeks reimbursement are
reasonable in light of the action required by the relevant order. A petitioner
who is liable under ORS 465.255 may also recover reasonable remedial action
costs to the extent that the petitioner can demonstrate that the director’s decision
in selecting the removal or remedial action ordered was arbitrary and
capricious or otherwise not in accordance with law.
(8)
If any person who is liable under ORS 465.255 fails without sufficient cause to
conduct a removal or remedial action as required by an order of the director,
the person shall be liable to the department for the state’s remedial action
costs and for punitive damages not to exceed three times the amount of the
state’s remedial action costs.
(9)
Nothing in this section is intended to interfere with, limit or abridge the
authority of the State Fire Marshal or any other state agency or local unit of
government relating to an emergency that presents a combustion or explosion
hazard. [Formerly 466.570]
465.265 “Person” defined for ORS 465.265
to 465.310. As used in ORS 465.265 to 465.310, “person”
includes but need not be limited to a person liable under ORS 465.255. Except
as provided in ORS 465.275 (2), “person” does not include the state or any
state agency or the federal government or any agency of the federal government.
[1989 c.833 §103]
465.270 Legislative findings and intent.
(1) The Legislative Assembly finds that:
(a)
The costs of cleanup may result in economic hardship or bankruptcy for
individuals and businesses that are otherwise financially viable;
(b)
These persons may be willing to clean up their sites and pay the associated
costs; however, financial assistance from private lenders may not be available
to pay for the cleanup; and
(c)
It is in the interest of the public health, safety, welfare and the environment
to establish a program of financial assistance for cleanups, to help
individuals and businesses maintain financial viability, increasing the share
of cleanup costs paid by responsible persons and ultimately decreasing amounts
paid from state funds.
(2)
Therefore, the Legislative Assembly declares that it is the intent of ORS
465.265 to 465.310:
(a)
To assure that moneys for financial assistance are available on a continuing
basis consistent with the length and terms provided by the financial assistance
agreements; and
(b)
To provide authority to the Department of Environmental Quality to develop and
implement innovative approaches to financial assistance for cleanups conducted
under ORS 465.200 to 465.545 or, at the discretion of the department, under
other applicable authorities. [1989 c.833 §102]
465.275 Remedial action and financial
assistance program; contracts for implementation.
(1) The Department of Environmental Quality may conduct:
(a)
A financial assistance program, including but not limited to loan guarantees,
to assist persons in financing the cost of remedial action.
(b)
Activities necessary to carry out the purpose of ORS 465.381, 468.220, 468.230
and 465.265 to 465.310, including but not limited to entering into contracts or
agreements, making and guaranteeing loans, taking security and instituting
appropriate actions to enforce agreements made under ORS 465.285.
(2)
The department may enter into a contract or agreement for services to implement
a financial assistance program with any person, including but not limited to a
financial institution or a unit of local, state or federal government. The
services may include but need not be limited to evaluating creditworthiness of
applicants, preparing and marketing financial assistance packages and
administering and servicing financial assistance agreements. [1989 c.833 §104]
465.280 Rules; insuring tax deductibility
of interest on bonds. In accordance with the
applicable provisions of ORS chapter 183, the Environmental Quality Commission
may adopt rules necessary to carry out the provisions of ORS 465.381, 468.220,
468.230 and 465.265 to 465.310 and to insure that interest on bonds issued
under ORS 468.195 to be used for removal or remedial action of hazardous
substances is not includable in gross income under the United States Internal
Revenue Code. [1989 c.833 §105]
465.285 Requirements for financial
assistance; contents of agreements. (1) The
Department of Environmental Quality may provide financial assistance only to
persons who meet all of the following eligibility requirements:
(a)
The department has determined that removal or remedial action proposed by the
applicant is necessary to protect the public health, safety and welfare or the environment.
(b)
The applicant demonstrates to the department’s satisfaction that the applicant
either is unable to obtain financing for the removal or remedial action from
other sources or that financing for the removal or remedial action is not
available to the applicant at reasonable rates and terms.
(c)
The applicant demonstrates to the department’s satisfaction that there is a
reasonable likelihood the applicant has the ability to repay.
(d)
The applicant agrees to conduct the removal or remedial action according to an
agreement with the department.
(e)
Any other requirement the department considers necessary or appropriate.
(2)
A financial assistance agreement shall include any provision the department
considers necessary, but shall at least include the following provisions:
(a)
Terms of the financial assistance; and
(b)
A statement that moneys obligated by the department under the agreement are
limited to moneys in the Hazardous Substance Remedial Action Fund expressly
designated by the department for financial assistance purposes. [1989 c.833 §106]
465.290 Financial assistance agreement not
General Fund obligation; cost estimates; security; recovery of costs; compromise
of obligations. (1) The obligation of the
Department of Environmental Quality to provide financial assistance or to
advance money under a financial assistance agreement made under ORS 465.285
shall not constitute an obligation against the General Fund or any other state
fund except against the Hazardous Substance Remedial Action Fund to the extent
moneys in the Hazardous Substance Remedial Action Fund are expressly designated
by the department for such financial assistance purposes.
(2)
The department may provide a remedial action cost estimate for use by the
department, a lender or a guarantor in determining the amount of financial
assistance, evaluating the creditworthiness of a borrower, providing loan
guarantees or as the department considers appropriate.
(3)
When financial assistance is provided to a local governmental unit, the
agreement may be secured as the department requires for adequate security.
(4)
The department may take any action under ORS 465.260, 465.330 or 465.335 or
other applicable authority to recover costs incurred or moneys advanced under a
financial assistance agreement. Costs incurred or money advanced under a
financial assistance agreement entered into under ORS 465.285 shall be remedial
action costs. At the department’s discretion, the department may file a claim
of lien for such remedial action costs in accordance with the procedures set
forth in ORS 465.335 (1), (2)(a) to (c), (3) and (4).
(5)
The department may settle, compromise or release all or part of any obligation
arising under a financial assistance agreement so long as the department’s
action is consistent with the purposes of ORS 465.265 to 465.310. [1989 c.833 §107]
465.295 Decision regarding financial
assistance not subject to judicial review.
Notwithstanding any provision of ORS chapter 183, the decision of the
Department of Environmental Quality to approve or deny financial assistance
under ORS 465.265 to 465.310 or the department’s determination of the amount or
use of a remedial action cost estimate under ORS 465.290 shall not be subject
to appeal to the Environmental Quality Commission or subject to judicial
review. [1989 c.833 §108]
465.300 Records and financial assistance
applications exempt from disclosure as public record.
Financial records and other information that are submitted to the Department of
Environmental Quality as part of an application for financial assistance under
ORS 465.265 to 465.310 shall be exempt from disclosure under ORS 192.410 to
192.505, unless the public interest requires disclosure in a particular
instance. [1989 c.833 §109]
465.305 Application fees.
The Environmental Quality Commission may establish by rule reasonable fees for
applicants for financial assistance sufficient to pay for the costs of the
Department of Environmental Quality of carrying out the provisions of ORS
465.265 to 465.310. [1989 c.833 §110]
465.310 Accounting procedure for financial
assistance moneys. For the purposes of ORS 465.265
to 465.310, the Department of Environmental Quality may place moneys for the
purpose of providing financial assistance in reserve status or subaccounts
within the Hazardous Substance Remedial Action Fund. Moneys placed in reserve
status or subaccounts under this section in connection with a financial
assistance agreement shall not be subject to claims under ORS 465.260 or
otherwise except as provided in the financial assistance agreement. [1989 c.833
§111]
465.315 Standards for degree of cleanup
required; Hazard Index; risk protocol; hot spots of contamination; exemption;
rules. (1)(a) Any removal or remedial action
performed under the provisions of ORS 465.200 to 465.545 and 465.900 shall
attain a degree of cleanup of the hazardous substance and control of further
release of the hazardous substance that assures protection of present and
future public health, safety and welfare and of the environment.
(b)
The Director of the Department of Environmental Quality shall select or approve
remedial actions that are protective of human health and the environment. The
protectiveness of a remedial action shall be determined based on application of
both of the following:
(A)
The acceptable risk level for exposures. For protection of humans, the
acceptable risk level for exposure to individual carcinogens shall be a
lifetime excess cancer risk of one per one million people exposed, and the
acceptable risk level for exposure to noncarcinogens shall be the exposure that
results in a Hazard Index number equal to or less than one. “Hazard Index
number” means a number equal to the sum of the noncarcinogenic risks (hazard
quotient) attributable to systemic toxicants with similar toxic endpoints. For
protection of ecological receptors, if a release of hazardous substances causes
or is reasonably likely to cause significant adverse impacts to the health or
viability of a species listed as threatened or endangered pursuant to 16 U.S.C.
1531 et seq. or ORS 496.172, or a population of plants or animals in the
locality of the facility, the acceptable risk level shall be the point before
such significant adverse impacts occur.
(B)
A risk assessment undertaken in accordance with the risk protocol established
by the Environmental Quality Commission in accordance with subsection (2)(a) of
this section.
(c)
A remedial action may achieve protection of human health and the environment
through:
(A)
Treatment that eliminates or reduces the toxicity, mobility or volume of
hazardous substances;
(B)
Excavation and off-site disposal;
(C)
Containment or other engineering controls;
(D)
Institutional controls;
(E)
Any other method of protection; or
(F)
A combination of the above.
(d)
The method of remediation appropriate for a specific facility shall be
determined through an evaluation of remedial alternatives and a selection
process to be established pursuant to rules adopted by the commission. The
director shall select or approve a protective alternative that balances the
following factors:
(A)
The effectiveness of the remedy in achieving protection;
(B)
The technical and practical implementability of the remedy;
(C)
The long term reliability of the remedy;
(D)
Any short term risk from implementing the remedy posed to the community, to
those engaged in the implementation of the remedy and to the environment; and
(E)
The reasonableness of the cost of the remedy. The cost of a remedial action
shall not be considered reasonable if the costs are disproportionate to the
benefits created through risk reduction or risk management. Subject to the
preference for treatment of hot spots, when two or more remedial action
alternatives are protective as provided in paragraph (b) of this subsection,
the least expensive remedial action shall be preferred unless the additional
cost of a more expensive alternative is justified by proportionately greater
benefits within one or more of the factors set forth in subparagraphs (A) to
(D) of this paragraph. The director shall use a higher threshold for evaluating
the reasonableness of the costs for treating hot spots than for remediation of
areas other than hot spots.
(e)
For contamination constituting a hot spot as defined by the commission pursuant
to subsection (2)(b) of this section, the director shall select or approve a
remedial action requiring treatment of the hot spot contamination unless
treatment is not feasible considering the factors set forth in paragraph (d) of
this subsection. For contamination constituting a hot spot under subsection
(2)(b)(A) of this section, the director shall evaluate, with the same
preference as treatment, the excavation and off-site disposal of the
contamination at a facility authorized for such disposal under state or federal
law. For excavation and off-site disposal of contamination that is a hazardous
waste as described in ORS 466.005, the director shall consider the method and
distance for transportation of the contamination to available disposal
facilities in selecting or approving a remedial action that is protective under
subsection (1)(d) of this section. If requested by the responsible party or
recommended by the Department of Environmental Quality, the director may select
or approve excavation and off-site disposal as the remedial action for
contamination constituting a hot spot under subsection (2)(b)(A) of this
section.
(f)
The Department of Environmental Quality shall develop or identify generic
remedies for common categories of facilities considering the balancing factors
set forth in paragraph (d) of this subsection. The department’s development of
generic remedies shall take into consideration demonstrated remedial actions
and technologies and scientific and engineering evaluation of performance data.
Where a generic remedy would be protective and satisfy the balancing factors
under paragraph (d) of this subsection at a specific facility, the director may
select or approve the generic remedy for that site on a streamlined basis with
a limited evaluation of other remedial alternatives.
(g)
Subject to paragraphs (b) and (d) of this subsection, in selecting or approving
a remedial action, the director shall consider current and reasonably
anticipated future land uses at the facility and surrounding properties, taking
into account current land use zoning, other land use designations, land use
plans as established in local comprehensive plans and land use implementing
regulations of any governmental body having land use jurisdiction, and concerns
of the facility owner, neighboring owners and the community.
(2)
The commission shall adopt rules:
(a)
Establishing a risk protocol for conducting risk assessments. The risk protocol
shall:
(A)
Require consideration of existing and reasonably likely future human exposures and
significant adverse effects to ecological receptor health and viability, both
in a baseline risk assessment and in an assessment of residual risk after a
remedial action;
(B)
Require risk assessments to include reasonable estimates of plausible upper-bound
exposures that neither grossly underestimate nor grossly overestimate risks;
(C)
Require risk assessments to consider, to the extent practicable, the range of
probabilities of risks actually occurring, the range of size of the populations
likely to be exposed to the risk, current and reasonably likely future land
uses, and quantitative and qualitative descriptions of uncertainties;
(D)
Identify appropriate sources of toxicity information;
(E)
Define the use of probabilistic modeling;
(F)
Identify criteria for the selection and application of fate and transport
models;
(G)
Define the use of high-end and central-tendency exposure cases and assumptions;
(H)
Define the use of population risk estimates in addition to individual risk
estimates;
(I)
To the extent deemed appropriate and feasible by the commission considering
available scientific information, define appropriate approaches for addressing
cumulative risks posed by multiple contaminants or multiple exposure pathways,
including how the acceptable risk levels set forth in subsection (1)(b)(A) of
this section shall be applied in relation to cumulative risks; and
(J)
Establish appropriate sampling approaches and data quality requirements.
(b)
Defining hot spots of contamination. The definition of hot spots shall include:
(A)
Hazardous substances that are present in high concentrations, are highly mobile
or cannot be reliably contained, and that would present a risk to human health
or the environment exceeding the acceptable risk level if exposure occurs.
(B)
Concentrations of hazardous substances in ground water or surface water that
have a significant adverse effect on existing or reasonably likely future
beneficial uses of the water and for which treatment is reasonably likely to
restore or protect such beneficial use within a reasonable time.
(3)
Except as provided in subsection (4) of this section, the director may exempt
the on-site portion of any removal or remedial action conducted under ORS
465.200 to 465.545 and 465.900 from any requirement of ORS 466.005 to 466.385
and ORS chapters 459, 468, 468A and 468B. Without affecting substantive
requirements, no state or local permit, license or other authorization shall be
required for, and no procedural requirements shall apply to, the portion of any
removal or remedial action conducted on-site where such removal or remedial
action has been selected or approved by the director under this section, unless
the permit, license, authorization or procedural requirement is necessary to
preserve or obtain federal authorization of a state program or the person
performing a removal or remedial action elects to obtain the permit, license or
authorization or comply with the procedural requirement. The person performing
a removal or remedial action shall notify the appropriate state or local
governmental body of the permits, licenses, authorizations or procedural
requirements waived under this subsection and, at the request of the
governmental body, pay applicable fees. Any costs paid as a fee to a governmental
body under this subsection shall not also be recoverable by the governmental
body as remedial action costs.
(4)
Notwithstanding any provision of subsection (3) of this section, any on-site
treatment, storage or disposal of a hazardous substance shall comply with the
standard established under subsection (1)(a) of this section and any activities
conducted in a public right of way under a removal or remedial action pursuant
to this section shall comply with the requirements of the applicable
jurisdiction.
(5)
Nothing in this section shall affect the authority of the director to
undertake, order or authorize an interim or emergency removal action.
(6)
Nothing in this section or in rules adopted pursuant to this section shall
prohibit the application of rules in effect on July 18, 1995, that use numeric
soil cleanup standards to govern remediation of motor fuel and heating oil
releases from underground storage tanks. [Formerly 466.573; 1993 c.560 §102;
1995 c.662 §1; 1999 c.740 §1; 2003 c.14 §298]
465.320 Notice of proposed remedial action
or release from liability; receipt and consideration of comment; notice of
approval of remedial action or release from liability.
Except as provided in ORS 465.260 (3), before approval of any remedial action
to be undertaken by the Department of Environmental Quality or any other
person, adoption of a certification decision under ORS 465.325 or providing a
release from liability under ORS 465.327 to a party in a judicial consent
judgment or an administrative consent order, the department shall:
(1)
Publish a notice and brief description of the proposed action in a local paper
of general circulation and in the Secretary of State’s Bulletin, and make
copies of the proposal available to the public.
(2)
Provide at least 30 days for submission of written comments regarding the
proposed action, and, upon written request by 10 or more persons or by a group
having 10 or more members, conduct a public meeting at or near the facility for
the purpose of receiving verbal comment regarding the proposed action.
(3)
Consider any written or verbal comments before approving the removal or
remedial action or providing a release from liability under ORS 465.327 to a
party in a judicial consent judgment or an administrative consent order.
(4)
Upon final approval of the remedial action or providing a release from
liability under ORS 465.327 to a party in a judicial consent judgment or an
administrative consent order, publish notice, as provided under subsection (1)
of this section, and make copies of the approved action available to the
public. [Formerly 466.575; 2011 c.487 §2]
465.325 Agreement to perform removal or
remedial action; reimbursement; agreement as order and consent judgment; effect
on liability. (1) The Director of the Department of
Environmental Quality, in the director’s discretion, may enter into an
agreement with any person including the owner or operator of the facility from
which a release emanates, or any other potentially responsible person to
perform any removal or remedial action if the director determines that the
actions will be properly done by the person. Whenever practicable and in the
public interest, as determined by the director, the director, in order to
expedite effective removal or remedial actions and minimize litigation, shall
act to facilitate agreements under this section that are in the public interest
and consistent with the rules adopted under ORS 465.400. If the director
decides not to use the procedures in this section, the director shall notify in
writing potentially responsible parties at the facility of such decision.
Notwithstanding ORS chapter 183, a decision of the director to use or not to
use the procedures described in this section shall not be appealable to the
Environmental Quality Commission or subject to judicial review.
(2)(a)
An agreement under this section may provide that the director will reimburse
the parties to the agreement from the fund, with interest, for certain costs of
actions under the agreement that the parties have agreed to perform and the
director has agreed to finance. In any case in which the director provides such
reimbursement and, in the judgment of the director, cost recovery is in the
public interest, the director shall make reasonable efforts to recover the
amount of such reimbursement under ORS 465.200 to 465.545 and 465.900 or under
other relevant authority.
(b)
Notwithstanding ORS chapter 183, the director’s decision regarding fund
financing under this subsection shall not be appealable to the commission or
subject to judicial review.
(c)
When a remedial action is completed under an agreement described in paragraph
(a) of this subsection, the fund shall be subject to an obligation for any
subsequent remedial action at the same facility but only to the extent that
such subsequent remedial action is necessary by reason of the failure of the
original remedial action. Such obligation shall be in a proportion equal to,
but not exceeding, the proportion contributed by the fund for the original
remedial action. The fund’s obligation for such future remedial action may be
met through fund expenditures or through payment, following settlement or
enforcement action, by persons who were not signatories to the original
agreement.
(3)
If an agreement has been entered into under this section, the director may take
any action under ORS 465.260 against any person who is not a party to the
agreement, once the period for submitting a proposal under subsection (5)(c) of
this section has expired. Nothing in this section shall be construed to affect
either of the following:
(a)
The liability of any person under ORS 465.255 or 465.260 with respect to any
costs or damages which are not included in the agreement.
(b)
The authority of the director to maintain an action under ORS 465.200 to
465.545 and 465.900 against any person who is not a party to the agreement.
(4)(a)
Whenever the director enters into an agreement under this section with any
potentially responsible person with respect to remedial action, following
approval of the agreement by the Attorney General and except as otherwise
provided in the case of certain administrative settlements referred to in
subsection (8) of this section, the agreement shall be entered in the
appropriate circuit court as a consent judgment. The director need not make any
finding regarding an imminent and substantial endangerment to the public
health, safety, welfare or the environment in connection with any such
agreement or consent judgment.
(b)
The entry of any consent judgment under this subsection shall not be construed
to be an acknowledgment by the parties that the release concerned constitutes
an imminent and substantial endangerment to the public health, safety, welfare
or the environment. Except as otherwise provided in the Oregon Evidence Code,
the participation by any party in the process under this section shall not be
considered an admission of liability for any purpose, and the fact of such
participation shall not be admissible in any judicial or administrative
proceeding, including a subsequent proceeding under this section.
(c)
The director may fashion a consent judgment so that the entering of the
judgment and compliance with the judgment or with any determination or
agreement made under this section shall not be considered an admission of
liability for any purpose.
(d)
The director shall provide notice and opportunity to the public and to persons
not named as parties to the agreement to comment on the proposed agreement
before its submittal to the court as a proposed consent judgment, as provided
under ORS 465.320. The director shall consider any written comments, views or
allegations relating to the proposed agreement. The director or any party may
withdraw, withhold or modify its consent to the proposed agreement if the
comments, views and allegations concerning the agreement disclose facts or
considerations which indicate that the proposed agreement is inappropriate,
improper or inadequate.
(5)(a)
If the director determines that a period of negotiation under this subsection
would facilitate an agreement with potentially responsible persons for taking
removal or remedial action and would expedite removal or remedial action, the
director shall so notify all such parties and shall provide them with the
following information to the extent the information is available:
(A)
The names and addresses of potentially responsible persons including owners and
operators and other persons referred to in ORS 465.255.
(B)
The volume and nature of substances contributed by each potentially responsible
person identified at the facility.
(C)
A ranking by volume of the substances at the facility.
(b)
The director shall make the information referred to in paragraph (a) of this
subsection available in advance of notice under this subsection upon the request
of a potentially responsible person in accordance with procedures provided by
the director. The provisions of ORS 465.250 (5) regarding confidential
information apply to information provided under paragraph (a) of this
subsection.
(c)
Any person receiving notice under paragraph (a) of this subsection shall have
60 days from the date of receipt of the notice to submit to the director a
proposal for undertaking or financing the action under ORS 465.260. The
director may grant extensions for up to an additional 60 days.
(6)(a)
Any person may seek contribution from any other person who is liable or
potentially liable under ORS 465.255. In resolving contribution claims, the
court shall allocate remedial action costs among liable parties in accordance
with ORS 465.257.
(b)
A person who has resolved its liability to the state in an administrative or
judicially approved settlement shall not be liable for claims for contribution
regarding matters addressed in the settlement. Such settlement does not
discharge any of the other potentially responsible persons unless its terms so
provide, but it reduces the potential liability of the others by the amount of
the settlement.
(c)(A)
If the state has obtained less than complete relief from a person who has
resolved its liability to the state in an administrative or judicially approved
settlement, the director may bring an action against any person who has not so
resolved its liability.
(B)
A person who has resolved its liability to the state for some or all of a removal
or remedial action or for some or all of the costs of such action in an
administrative or judicially approved settlement may seek contribution from any
person who is not party to a settlement referred to in paragraph (b) of this
subsection.
(C)
In any action under this paragraph, the rights of any person who has resolved
its liability to the state shall be subordinate to the rights of the state.
(7)(a)
In entering an agreement under this section, the director may provide any
person subject to the agreement with a covenant not to sue concerning any
liability to the State of Oregon under ORS 465.200 to 465.545 and 465.900,
including future liability, resulting from a release of a hazardous substance
addressed by the agreement if each of the following conditions is met:
(A)
The covenant not to sue is in the public interest.
(B)
The covenant not to sue would expedite removal or remedial action consistent
with rules adopted by the commission under ORS 465.400 (2).
(C)
The person is in full compliance with a consent judgment under subsection
(4)(a) of this section for response to the release concerned.
(D)
The removal or remedial action has been approved by the director.
(b)
The director shall provide a person with a covenant not to sue with respect to
future liability to the State of Oregon under ORS 465.200 to 465.545 and
465.900 for a future release of a hazardous substance from a facility, and a
person provided such covenant not to sue shall not be liable to the State of
Oregon under ORS 465.255 with respect to such release at a future time, for the
portion of the remedial action:
(A)
That involves the transport and secure disposition offsite of a hazardous
substance in a treatment, storage or disposal facility meeting the requirements
of section 3004(c) to (g), (m), (o), (p), (u) and (v) and 3005(c) of the
federal Solid Waste Disposal Act, as amended, P.L. 96-482 and P.L. 98-616, if
the director has rejected a proposed remedial action that is consistent with
rules adopted by the commission under ORS 465.400 that does not include such
offsite disposition and has thereafter required offsite disposition; or
(B)
That involves the treatment of a hazardous substance so as to destroy,
eliminate or permanently immobilize the hazardous constituents of the substance,
so that, in the judgment of the director, the substance no longer presents any
current or currently foreseeable future significant risk to public health,
safety, welfare or the environment, no by-product of the treatment or
destruction process presents any significant hazard to public health, safety,
welfare or the environment, and all by-products are themselves treated,
destroyed or contained in a manner that assures that the by-products do not
present any current or currently foreseeable future significant risk to public
health, safety, welfare or the environment.
(c)
A covenant not to sue concerning future liability to the State of Oregon shall
not take effect until the director certifies that the removal or remedial
action has been completed in accordance with the requirements of subsection
(10) of this section at the facility that is the subject of the covenant.
(d)
In assessing the appropriateness of a covenant not to sue under paragraph (a)
of this subsection and any condition to be included in a covenant not to sue
under paragraph (a) or (b) of this subsection, the director shall consider
whether the covenant or conditions are in the public interest on the basis of
factors such as the following:
(A)
The effectiveness and reliability of the remedial action, in light of the other
alternative remedial actions considered for the facility concerned.
(B)
The nature of the risks remaining at the facility.
(C)
The extent to which performance standards are included in the order or
judgment.
(D)
The extent to which the removal or remedial action provides a complete remedy
for the facility, including a reduction in the hazardous nature of the
substances at the facility.
(E)
The extent to which the technology used in the removal or remedial action is
demonstrated to be effective.
(F)
Whether the fund or other sources of funding would be available for any
additional removal or remedial action that might eventually be necessary at the
facility.
(G)
Whether the removal or remedial action will be carried out, in whole or in
significant part, by the responsible parties themselves.
(e)
Any covenant not to sue under this subsection shall be subject to the
satisfactory performance by such party of its obligations under the agreement
concerned.
(f)(A)
Except for the portion of the removal or remedial action that is subject to a
covenant not to sue under paragraph (b) of this subsection or de minimis
settlement under subsection (8) of this section, a covenant not to sue a person
concerning future liability to the State of Oregon:
(i)
Shall include an exception to the covenant that allows the director to sue the
person concerning future liability resulting from the release or threatened
release that is the subject of the covenant if the liability arises out of conditions
unknown at the time the director certifies under subsection (10) of this
section that the removal or remedial action has been completed at the facility
concerned; and
(ii)
May include an exception to the covenant that allows the director to sue the
person concerning future liability resulting from failure of the remedial
action.
(B)
In extraordinary circumstances, the director may determine, after assessment of
relevant factors such as those referred to in paragraph (d) of this subsection
and volume, toxicity, mobility, strength of evidence, ability to pay,
litigative risks, public interest considerations, precedential value and the
inequities and aggravating factors, not to include the exception referred to in
paragraph (f)(A) of this subsection if other terms, conditions or requirements
of the agreement containing the covenant not to sue are sufficient to provide
all reasonable assurances that public health, safety, welfare and the
environment will be protected from any future release at or from the facility.
(C)
The director may include any provisions allowing future enforcement action
under ORS 465.260 that in the discretion of the director are necessary and
appropriate to assure protection of public health, safety, welfare and the
environment.
(8)(a)
Whenever practicable and in the public interest, as determined by the director,
the director shall as promptly as possible reach a final settlement with a
potentially responsible person in an administrative or civil action under ORS
465.255 if such settlement involves only a minor portion of the remedial action
costs at the facility concerned and, in the judgment of the director, both of
the following are minimal in comparison to any other hazardous substance at the
facility:
(A)
The amount of the hazardous substance contributed by that person to the
facility; and
(B)
The toxic or other hazardous effects of the substance contributed by that
person to the facility.
(b)
The director may provide a covenant not to sue with respect to the facility
concerned to any party who has entered into a settlement under this subsection
unless such a covenant would be inconsistent with the public interest as
determined under subsection (7) of this section.
(c)
The director shall reach any such settlement or grant a covenant not to sue as
soon as possible after the director has available the information necessary to
reach a settlement or grant a covenant not to sue.
(d)
A settlement under this subsection shall be entered as a consent judgment or
embodied in an administrative order setting forth the terms of the settlement.
The circuit court for the county in which the release or threatened release
occurs or the Circuit Court of Marion County may enforce any such
administrative order.
(e)
A party who has resolved its liability to the state under this subsection shall
not be liable for claims for contribution regarding matters addressed in the
settlement. The settlement does not discharge any of the other potentially
responsible persons unless its terms so provide, but it reduces the potential
liability of the others by the amount of the settlement.
(f)
Nothing in this subsection shall be construed to affect the authority of the
director to reach settlements with other potentially responsible persons under
ORS 465.200 to 465.545 and 465.900.
(9)(a)
Notwithstanding ORS chapter 183, except for those covenants required under
subsection (7)(b)(A) and (B) of this section, a decision by the director to
agree or not to agree to inclusion of any covenant not to sue in an agreement
under this section shall not be appealable to the commission or subject to
judicial review.
(b)
Nothing in this section shall limit or otherwise affect the authority of any
court to review, in the consent judgment process under subsection (4) of this
section, any covenant not to sue contained in an agreement under this section.
(10)(a)
Upon completion of any removal or remedial action under an agreement under this
section, or pursuant to an order under ORS 465.260, the party undertaking the
removal or remedial action shall notify the department and request
certification of completion. Within 90 days after receiving notice, the
director shall determine by certification whether the removal or remedial
action is completed in accordance with the applicable agreement or order.
(b)
Before submitting a final certification decision to the court that approved the
consent judgment, or before entering a final administrative order, the director
shall provide to the public and to persons not named as parties to the
agreement or order notice and opportunity to comment on the director’s proposed
certification decision, as provided under ORS 465.320.
(c)
Any person aggrieved by the director’s certification decision may seek judicial
review of the certification decision by the court that approved the relevant
consent judgment or, in the case of an administrative order, in the circuit
court for the county in which the facility is located or in Marion County. The
decision of the director shall be upheld unless the person challenging the
certification decision demonstrates that the decision was arbitrary and
capricious, contrary to the provisions of ORS 465.200 to 465.545 and 465.900 or
not supported by substantial evidence. The court shall apply a presumption in
favor of the director’s decision. The court may award attorney fees and costs
to the prevailing party if the court finds the challenge or defense of the
director’s decision to have been frivolous. The court may assess against a
party and award to the state, in addition to attorney fees and costs, an amount
equal to the economic gain realized by the party if the court finds the only
purpose of the party’s challenge to the director’s decision was delay for
economic gain. [Formerly 466.577; 1995 c.662 §2; 2003 c.576 §460]
465.327 Agreement to release party from
potential liability to facilitate cleanup and reuse of property; eligible
parties; terms of agreement; recording of agreement.
(1) In order to facilitate cleanup and reuse of contaminated property, the
Department of Environmental Quality may, through a written agreement, provide a
party with a release from potential liability under ORS 465.255, 466.640 and
468B.310 if:
(a)
The party is not currently liable under:
(A)
ORS 465.255 for an existing release of hazardous substance at the facility;
(B)
ORS 466.640 for an existing spill or release of oil or hazardous material at a
facility that is subject to ORS 465.200 to 465.545; or
(C)
ORS 468B.310 for the prior entry of oil into the waters of the state from a facility
that is subject to ORS 465.200 to 465.545 and 468B.300 to 468B.500;
(b)
Removal or remedial action is necessary at the facility to protect human health
or the environment;
(c)
The proposed redevelopment or reuse of the facility will not contribute to or
exacerbate existing contamination, increase health risks or interfere with
remedial measures necessary at the facility; and
(d)
A substantial public benefit will result from the agreement, including but not
limited to:
(A)
The generation of substantial funding or other resources facilitating remedial
measures at the facility in accordance with this section;
(B)
A commitment to perform substantial remedial measures at the facility in
accordance with this section;
(C)
Productive reuse of a vacant or abandoned industrial or commercial facility; or
(D)
Development of a facility by a governmental entity or nonprofit organization to
address an important public purpose.
(2)
In determining whether to enter an agreement under this section, the department
shall consult with affected land use planning jurisdictions and consider
reasonably anticipated future land uses at the facility and surrounding
properties.
(3)
An agreement under this section may be set forth in an administrative agreement
or, after opportunity for public notice and comment pursuant to ORS 465.320, in
a judicial consent judgment entered in accordance with ORS 465.325 or an
administrative consent order. Any such agreement may include provisions
considered necessary by the department, and shall include:
(a)
A commitment to undertake the measures constituting a substantial public
benefit;
(b)
If remedial measures are to be performed under the agreement, a commitment to
perform any such measures under the department’s oversight;
(c)
A waiver by the party of any claim or cause of action against the State of
Oregon arising from contamination at the facility existing as of the date of
acquisition of ownership or operation of the facility;
(d)
A grant of an irrevocable right of entry to the department and its authorized
representative for purposes of the agreement or for remedial measures
authorized under this section;
(e)
A reservation of rights as to an entity not a party to the agreement; and
(f)
A legal description of the property.
(4)(a)(A)
Subject to the satisfactory performance by the party of its obligations under
an administrative agreement, the party shall not be liable to the State of
Oregon under ORS 465.200 to 465.545 and 465.900 for any release of a hazardous
substance at the facility existing as of the date of acquisition of ownership
or operation of the facility, under ORS 466.640 for the spill or release of oil
or hazardous material at a facility that is subject to ORS 465.200 to 465.545
existing as of the date of acquisition of ownership or operation of the
facility, or under ORS 468B.310 for the entry of oil into the waters of the
state from a facility that is subject to ORS 465.200 to 465.545 and 468B.300 to
468B.500 before the date of acquisition of ownership or operation of the
facility.
(B)
Subject to the satisfactory performance by the party of its obligations under a
judicial consent judgment or an administrative consent order, the party shall
not be liable to the State of Oregon or any person under ORS 465.200 to 465.545
and 465.900 for any release of a hazardous substance at the facility existing
as of the date of acquisition of ownership or operation of the facility, under
ORS 466.640 for the spill or release of oil or hazardous material at a facility
that is subject to ORS 465.200 to 465.545 existing as of the date of
acquisition of ownership or operation of the facility, or under ORS 468B.310
for the entry of oil into the waters of the state from a facility that is
subject to ORS 465.200 to 465.545 and 468B.300 to 468B.500 before the date of
acquisition of ownership or operation of the facility.
(b)
The party shall bear the burden of proving that any hazardous substance release
under ORS 465.200 to 465.545 at the facility existed before the date of
acquisition of ownership or operation of the facility, that any spill or
release under ORS 466.640 of oil or hazardous material at a facility that is
subject to ORS 465.200 to 465.545 existed before the date of acquisition of
ownership or operation of the facility, or that the entry of oil under ORS
468B.310 into the waters of the state from a facility that is subject to ORS
465.200 to 465.545 and 468B.300 to 468B.500 occurred before the date of
acquisition of ownership or operation of the facility.
(c)
This release from liability shall not affect a party’s liability for claims
arising from any:
(A)(i)
Release of a hazardous substance under ORS 465.200 to 465.545 at the facility
on or after the date of acquisition of ownership or operation of the facility;
(ii)
Spill or release under ORS 466.640 of oil or hazardous material at a facility
that is subject to ORS 465.200 to 465.545 on or after the date of acquisition
of ownership or operation of the facility; or
(iii)
Entry of oil under ORS 468B.310 into the waters of the state from a facility
that is subject to ORS 465.200 to 465.545 and 468B.300 to 468B.500 on or after
the date of acquisition of ownership or operation of the facility.
(B)(i)
Contribution to, or exacerbation of, on or after the date of acquisition of
ownership or operation of the facility, a release of a hazardous substance at
the facility under ORS 465.200 to 465.545;
(ii)
Contribution to, or exacerbation of, on or after the date of acquisition of
ownership or operation of a facility that is subject to ORS 465.200 to 465.545,
a spill or release under ORS 466.640 of oil or hazardous material at the
facility; or
(iii)
Contribution to, or exacerbation of, on or after the date of acquisition of
ownership or operation of a facility that is subject to ORS 465.200 to 465.545
and 468B.300 to 468B.500, any entry of oil under ORS 468B.310 into the waters
of the state from the facility.
(C)
Interference or failure to cooperate on or after the date of acquisition of
ownership or operation of the facility with the department or other persons
conducting remedial measures under the department’s oversight at the facility.
(D)
Failure to exercise due care or take reasonable precautions on or after the
date of acquisition of ownership or operation of the facility with respect to
any hazardous substance at the facility.
(E)
Violation of federal, state or local law on or after the date of acquisition of
ownership or operation of the facility.
(5)
Any agreement entered under this section shall be recorded in the real property
records from the county in which the facility is located. The benefits and
burdens of the agreement, including the release from liability, shall run with
the land, but the release from liability shall limit or otherwise affect the
liability only of persons who are not potentially liable:
(a)
Under ORS 465.255 for a release of a hazardous substance at the facility
existing as of the date of acquisition of ownership or operation of the
facility and who assume and are bound by terms of the agreement applicable to
the facility as of the date of acquisition of ownership or operation;
(b)
Under ORS 466.640 for any spill or release of oil or hazardous material at a
facility that is subject to ORS 465.200 to 465.545 existing as of the date of
acquisition of ownership or operation of the facility and who assume and are
bound by terms of the agreement applicable to the facility as of the date of
acquisition of ownership or operation; or
(c)
Under ORS 468B.310 for the entry of oil into the waters of the state from a facility
that is subject to ORS 465.200 to 465.545 and 468B.300 to 468B.500 that
occurred before the date of acquisition of ownership or operation of the
facility and who assume and are bound by terms of the agreement applicable to
the facility as of the date of acquisition of ownership or operation. [1995
c.662 §4; 2003 c.576 §461; 2011 c.487 §1]
465.330 State remedial action costs;
payment; effect of failure to pay. (1) The
Department of Environmental Quality shall keep a record of the state’s remedial
action costs.
(2)
Based on the record compiled by the department under subsection (1) of this
section, the department shall require any person liable under ORS 465.255 or
465.260 to pay the amount of the state’s remedial action costs and, if
applicable, punitive damages.
(3)
If the state’s remedial action costs and punitive damages are not paid by the
liable person to the department within 45 days after receipt of notice that
such costs and damages are due and owing, the Attorney General, at the request
of the Director of the Department of Environmental Quality, shall bring an
action in the name of the State of Oregon in a court of competent jurisdiction
to recover the amount owed, plus reasonable legal expenses.
(4)
All moneys received by the department under this section shall be deposited in
the Hazardous Substance Remedial Action Fund established under ORS 465.381 if
the moneys received pertain to a removal or remedial action taken at any
facility. [Formerly 466.580]
465.333 Recovery of costs of program
development, rulemaking and administrative actions as remedial action costs;
determination of allocable costs.
Notwithstanding ORS 291.050 to 291.060, the Department of Environmental Quality
may recover, as remedial action costs, the costs of program development,
rulemaking and other administrative actions required by the provisions of ORS
465.315, 465.325 and 465.327. After July 18, 1995, the department may recover
such costs by requiring any person liable under ORS 465.255 or 465.260 or any
person otherwise undertaking removal or remedial action under the department’s
oversight to pay such costs. Each person shall pay that portion of costs under
ORS 465.315, 465.325 and 465.327 that the department determines to be allocable
to removal or remedial action at the person’s facility, using generally
accepted accounting principles and as necessary to be charged per facility to
recover the department’s costs of implementing ORS 465.315, 465.325 and
465.327. [1995 c.662 §8]
465.335 Costs, penalties and damages as lien;
enforcement of lien. (1) All of the state’s remedial
action costs, penalties and punitive damages for which a person is liable to
the state under ORS 465.255, 465.260 or 465.900 shall constitute a lien upon
any real and personal property owned by the person.
(2)
At the discretion of the Department of Environmental Quality, the department
may file a claim of lien on real property or a claim of lien on personal
property. The department shall file a claim of lien on real property to be
charged with a lien under this section with the recording officer of each
county in which the real property is located and shall file a claim of lien on
personal property to be charged with a lien under this section with the
Secretary of State. The lien shall attach and become enforceable on the day of
such filing. The lien claim shall contain:
(a)
A statement of the demand;
(b)
The name of the person against whose property the lien attaches;
(c)
A description of the property charged with the lien sufficient for identification;
and
(d)
A statement of the failure of the person to conduct removal or remedial action
and pay penalties and damages as required.
(3)
The lien created by this section may be foreclosed by a suit on real and
personal property in the circuit court in the manner provided by law for the
foreclosure of other liens.
(4)
Nothing in this section shall affect the right of the state to bring an action
against any person to recover all costs and damages for which the person is
liable under ORS 465.255, 465.260 or 465.900. [Formerly 466.583]
465.340 Contractor liability;
indemnification. (1)(a) A person who is a
contractor with respect to any release of a hazardous substance from a facility
shall not be liable under ORS 465.200 to 465.545 and 465.900 or under any other
state law to any person for injuries, costs, damages, expenses or other
liability including but not limited to claims for indemnification or
contribution and claims by third parties for death, personal injury, illness or
loss of or damage to property or economic loss that result from such release.
(b)
Paragraph (a) of this subsection shall not apply if the release is caused by
conduct of the contractor that is negligent, reckless, willful or wanton
misconduct or that constitutes intentional misconduct.
(c)
Nothing in this subsection shall affect the liability of any other person under
any warranty under federal, state or common law. Nothing in this subsection
shall affect the liability of an employer who is a contractor to any employee
of such employer under any provision of law, including any provision of any law
relating to workers’ compensation.
(d)
A state employee or an employee of a political subdivision who provides
services relating to a removal or remedial action while acting within the scope
of the person’s authority as a governmental employee shall have the same
exemption from liability subject to the other provisions of this section, as is
provided to the contractor under this section.
(2)(a)
The exclusion provided by ORS 465.255 (2)(b)(C) shall not be available to any
potentially responsible party with respect to any costs or damages caused by
any act or omission of a contractor.
(b)
Except as provided in subsection (1)(d) of this section and paragraph (a) of
this subsection, nothing in this section shall affect the liability under ORS
465.200 to 465.545 and 465.900 or under any other federal or state law of any
person, other than a contractor.
(c)
Nothing in this section shall affect the plaintiff’s burden of establishing liability
under ORS 465.200 to 465.545 and 465.900.
(3)(a)
The Director of the Department of Environmental Quality may agree to hold
harmless and indemnify any contractor meeting the requirements of this
subsection against any liability, including the expenses of litigation or
settlement, for negligence arising out of the contractor’s performance in
carrying out removal or remedial action activities under ORS 465.200 to 465.545
and 465.900, unless such liability was caused by conduct of the contractor
which was grossly negligent, reckless, willful or wanton misconduct, or which
constituted intentional misconduct.
(b)
This subsection shall apply only to a removal or remedial action carried out
under written agreement with:
(A)
The director;
(B)
Any state agency; or
(C)
Any potentially responsible party carrying out any agreement under ORS 465.260
or 465.325.
(c)
For purposes of ORS 465.200 to 465.545 and 465.900, amounts expended from the
fund for indemnification of any contractor shall be considered remedial action
costs.
(d)
An indemnification agreement may be provided under this subsection only if the
director determines that each of the following requirements are met:
(A)
The liability covered by the indemnification agreement exceeds or is not
covered by insurance available, at a fair and reasonable price, to the
contractor at the time the contractor enters into the contract to provide
removal or remedial action, and adequate insurance to cover such liability is
not generally available at the time the contract is entered into.
(B)
The contractor has made diligent efforts to obtain insurance coverage.
(C)
In the case of a contract covering more than one facility, the contractor
agrees to continue to make diligent efforts to obtain insurance coverage each
time the contractor begins work under the contract at a new facility.
(4)(a)
Indemnification under this subsection shall apply only to a contractor
liability which results from a release of any hazardous substance if the
release arises out of removal or remedial action activities.
(b)
An indemnification agreement under this subsection shall include deductibles
and shall place limits on the amount of indemnification to be made available.
(c)(A)
In deciding whether to enter into an indemnification agreement with a
contractor carrying out a written contract or agreement with any potentially
responsible party, the director shall determine an amount which the potentially
responsible party is able to indemnify the contractor. The director may enter
into an indemnification agreement only if the director determines that the
amount of indemnification available from the potentially responsible party is
inadequate to cover any reasonable potential liability of the contractor
arising out of the contractor’s negligence in performing the contract or
agreement with the party. In making the determinations required under this
subparagraph related to the amount and the adequacy of the amount, the director
shall take into account the total net assets and resources of the potentially
responsible party with respect to the facility at the time the director makes
the determinations.
(B)
The director may pay a claim under an indemnification agreement referred to in
subparagraph (A) of this paragraph for the amount determined under subparagraph
(A) of this paragraph only if the contractor has exhausted all administrative,
judicial and common law claims for indemnification against all potentially
responsible parties participating in the cleanup of the facility with respect
to the liability of the contractor arising out of the contractor’s negligence
in performing the contract or agreement with the parties. The indemnification
agreement shall require the contractor to pay any deductible established under
paragraph (b) of this subsection before the contractor may recover any amount
from the potentially responsible party or under the indemnification agreement.
(d)
No owner or operator of a facility regulated under the federal Solid Waste
Disposal Act, as amended, P.L. 96-482 and P.L. 98-616, may be indemnified under
this subsection with respect to such facility.
(e)
For the purposes of ORS 465.255, any amounts expended under this section for
indemnification of any person who is a contractor with respect to any release
shall be considered a remedial action cost incurred by the state with respect
to the release.
(5)
The exemption provided under subsection (1) of this section and the authority
of the director to offer indemnification under subsection (3) of this section
shall not apply to any person liable under ORS 465.255 with respect to the
release or threatened release concerned if the person would be covered by the
provisions even if the person had not carried out any actions referred to in
subsection (6) of this section.
(6)
As used in this section:
(a)
“Contract” means any written contract or agreement to provide any removal or
remedial action under ORS 465.200 to 465.545 and 465.900 at a facility, or any
removal under ORS 465.200 to 465.545 and 465.900, with respect to any release
of a hazardous substance from the facility or to provide any evaluation,
planning, engineering, surveying and mapping, design, construction, equipment
or any ancillary services thereto for such facility, that is entered into by a
contractor as defined in paragraph (b)(A) of this subsection with:
(A)
The director;
(B)
Any state agency; or
(C)
Any potentially responsible party carrying out an agreement under ORS 465.260
or 465.325.
(b)
“Contractor” means:
(A)
Any person who enters into a removal or remedial action contract with respect
to any release of a hazardous substance from a facility and is carrying out
such contract; and
(B)
Any person who is retained or hired by a person described in subparagraph (A)
of this paragraph to provide any services relating to a removal or remedial
action.
(c)
“Insurance” means liability insurance that is fair and reasonably priced, as
determined by the director, and that is made available at the time the
contractor enters into the removal or remedial action contract to provide
removal or remedial action. [Formerly 466.585; 1991 c.692 §2]
465.375 Monthly fee of operators; amount;
use of moneys. (1) Every person who operates a
facility for the purpose of disposing of hazardous waste or PCB that is subject
to interim status or a permit issued under ORS 466.005 to 466.385 and 466.992
shall pay a hazardous waste management fee by the 45th day after the last day
of each month for all waste brought into the facility during that month for
treatment by incinerator or for disposal by landfill at the facility. The
operator of the facility shall provide to every person who disposes of waste at
the facility a statement showing the amount of the hazardous waste management
fee paid by the person to the facility.
(2)
The hazardous waste management fee under subsection (1) of this section shall
be $20 a ton.
(3)
In addition to the fee required under subsection (2) of this section, $10 per
ton shall be included as part of the hazardous waste management fee for waste
described in subsection (1) of this section.
(4)
The additional amounts collected under subsection (3) of this section shall be
deposited in the State Treasury to the credit of an account of the Department
of Environmental Quality. Such moneys are continuously appropriated to the
department to be used to carry out the department’s duties under ORS 466.005 to
466.385 related to the management of hazardous waste.
(5)
At least 50 percent of the fees collected under subsection (3) of this section
shall be used by the department to implement ORS 466.068. [Formerly 466.587;
1991 c.721 §1; 1995 c.552 §1; 2005 c.622 §1]
465.376 Special hazardous waste management
fees; use of fees. (1) Notwithstanding ORS 465.375
(2) and (3), the hazardous waste management fee shall be:
(a)
$7.50 per ton for waste from the primary production of steel in electric
furnaces that is emission control dust or emission control sludge identified as
United States Environmental Protection Agency hazardous waste number K061 in 40
C.F.R. 261.32. The facility that accepts the waste must have a plan and a
schedule approved by the Department of Environmental Quality to develop and
evaluate a treatment process for the waste. The department may withdraw
approval of the plan if the facility does not implement the plan in accordance
with the approved schedule. The approved treatment process shall be designed to
achieve treatment levels similar to the treatment levels that would be required
for the hazardous waste if the waste were delisted in Alaska, Idaho or Washington
under 40 C.F.R. 260.22, adopted under:
(A)
The federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580) and
the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), as amended; or
(B)
A state-authorized Resource Conservation and Recovery Act program.
(b)
For waste received by the facility from the same site, property or hazardous
waste management unit, if the total waste received is:
(A)
Up to 2,500 tons, $20 per ton for all waste received;
(B)
More than 2,500 tons and less than or equal to 12,500 tons, $10 per ton for all
waste received;
(C)
More than 12,500 tons and less than or equal to 25,000 tons, $5 per ton for all
waste received; or
(D)
More than 25,000 tons, $2.50 per ton for all waste received.
(c)
$15 per ton for waste that is hazardous waste when received and treated at the
facility so that the waste is no longer a solid waste as defined in ORS
459.005.
(d)
$2 per ton for waste that is:
(A)
A characteristic hazardous waste at the point of generation and that has been
treated at the facility or at an off-site location so that the waste no longer
exhibits the characteristics of hazardous waste and so that the waste complies
with any applicable land disposal requirements;
(B)
Liquid waste when the waste is received and treated at a wastewater treatment
unit at the facility so that the waste does not exhibit any characteristics of
hazardous waste and so that the resulting liquid is managed at a permitted unit
at the facility;
(C)
Solid waste that results from cleanup activities and that must be disposed of
in a facility for the disposal of hazardous waste as a result of restrictions
imposed under ORS 459.055 (8) or 459.305 (7); or
(D)
Solid waste that is not hazardous waste or PCB under a state or federal law at
the point of generation and that is not a hazardous waste under Oregon law.
(2)
Upon the request of the department, a facility shall allow the department to
review the information relating to waste received by the facility that the
facility used to determine the hazardous waste management fee for the types of
waste described in subsection (1)(b) of this section.
(3)
One-third of the amount collected under subsection (1) of this section shall be
deposited in the State Treasury to the credit of an account of the department.
Such moneys are continuously appropriated to the department to be used to carry
out the department’s duties under ORS 466.005 to 466.385 related to the
management of hazardous waste.
(4)
Two-thirds of the amount collected under subsection (1) of this section shall
be deposited in the State Treasury to the credit of the Hazardous Substance
Remedial Action Fund created under ORS 465.381 to be used for the purposes
described in ORS 465.381 (5).
(5)
For purposes of subsection (1)(b) of this section, “waste” means waste that is:
(a)
PCB under Oregon or federal law;
(b)
Hazardous debris;
(c)
Hazardous waste that becomes subject to regulation solely as a result of
removal or remedial action taken in response to environmental contamination; or
(d)
Hazardous waste that results from corrective action or closure of a regulated
or nonregulated waste management unit. [2005 c.622 §3]
465.378 Department to work with other
states to avoid disruption of waste flows. The
Department of Environmental Quality shall work cooperatively with other states
to avoid disrupting or changing waste flows between states that may be caused
by the establishment or adjustment of state disposal fees. [1995 c.552 §4]
465.380
[Formerly 466.590; 1991 c.703 §47; 1991 c.721 §2; repealed by 1993 c.707 §4
(465.381 enacted in lieu of 465.380)]
465.381 Hazardous Substance Remedial
Action Fund; sources; uses; Orphan Site Account; uses.
(1) The Hazardous Substance Remedial Action Fund is established separate and
distinct from the General Fund in the State Treasury. Interest earned by the
fund shall be credited to the fund.
(2)
The following shall be deposited into the State Treasury and credited to the
Hazardous Substance Remedial Action Fund:
(a)
Fees received by the Department of Environmental Quality under ORS 465.375.
(b)
Moneys recovered or otherwise received from responsible parties for remedial
action costs. Moneys recovered from responsible parties for costs paid by the
department from the Orphan Site Account established under subsection (6) of
this section shall be credited to the Orphan Site Account.
(c)
Moneys received under the schedule of fees established under ORS 453.402 (2)(c)
and 459.236 for the purpose of providing funds for the Orphan Site Account,
which shall be credited to the Orphan Site Account established under subsection
(6) of this section.
(d)
Any penalty, fine or punitive damages recovered under ORS 465.255, 465.260,
465.335 or 465.900.
(e)
Fees received by the department under ORS 465.305.
(f)
Moneys and interest that are paid, recovered or otherwise received under
financial assistance agreements.
(g)
Moneys appropriated to the fund by the Legislative Assembly.
(h)
Moneys from any grant made to the fund by a federal agency.
(3)
The State Treasurer may invest and reinvest moneys in the Hazardous Substance
Remedial Action Fund in the manner provided by law.
(4)
The moneys in the Hazardous Substance Remedial Action Fund are appropriated
continuously to the department to be used as provided in subsection (5) of this
section.
(5)
Moneys in the Hazardous Substance Remedial Action Fund may be used for the
following purposes:
(a)
Payment of the department’s remedial action costs;
(b)
Funding any action or activity authorized by ORS 465.200 to 465.545 and 465.900,
including but not limited to providing financial assistance pursuant to an
agreement entered into under ORS 465.285; and
(c)
Providing the state cost share for a removal or remedial action, as required by
section 104(c)(3) of the federal Comprehensive Environmental Response,
Compensation and Liability Act, P.L. 96-510, and as amended by P.L. 99-499.
(6)(a)
The Orphan Site Account is established in the Hazardous Substance Remedial
Action Fund in the State Treasury. All moneys credited to the Orphan Site
Account are continuously appropriated to the department for:
(A)
Expenses of the department related to facilities or activities associated with
the removal or remedial action where the department determines the responsible
party is unknown or is unwilling or unable to undertake all required removal or
remedial action; and
(B)
Grants and loans to local government units for facilities or activities
associated with the removal or remedial action of a hazardous substance.
(b)
The Orphan Site Account may not be used to pay the state’s remedial action
costs at facilities owned by the state. However, this paragraph does not
prohibit the use of Orphan Site Account moneys for remedial action on submerged
or submersible lands as those terms are defined in ORS 274.005 and tidal
submerged lands as defined in ORS 274.705.
(c)
The Orphan Site Account may be used to pay claims for reimbursement filed and
approved under ORS 465.260 (7).
(d)
If bonds have been issued under ORS 468.195 to provide funds for removal or
remedial action, the department shall first transfer from the Orphan Site
Account to the Pollution Control Sinking Fund, solely from the fees collected
pursuant to ORS 453.402 (2)(c) and under ORS 459.236 for such purposes, any
amount necessary to provide for the payment of the principal and interest upon
such bonds. Moneys from repayment of financial assistance or recovered from a
responsible party shall not be used to provide for the payment of the principal
and interest upon such bonds.
(7)(a)
Of the funds in the Orphan Site Account derived from the fees collected
pursuant to ORS 453.402 (2)(c) and under ORS 459.236, for the purpose of
providing funds for the Orphan Site Account, and of the proceeds of any bond
sale under ORS 468.195 supported by the fees collected pursuant to ORS 453.402
(2)(c) and under ORS 459.236, for the purpose of providing funds for the Orphan
Site Account, no more than 25 percent may be obligated in any biennium by the
department to pay for removal or remedial action at facilities determined by
the department to have an unwilling responsible party, unless the department
first receives approval from the Legislative Assembly.
(b)
Before the department obligates money from the Orphan Site Account derived from
the fees collected pursuant to ORS 453.402 (2)(c) and under ORS 459.236 for the
purpose of providing funds for the Orphan Site Account, or the proceeds of any
bond sale under ORS 468.195 supported by fees collected pursuant to ORS 453.402
(2)(c) and under ORS 459.236, for the purpose of providing funds for the Orphan
Site Account for removal or remedial action at a facility determined by the
department to have an unwilling responsible party, the department must first
determine whether there is a need for immediate removal or remedial action at
the facility to protect public health, safety, welfare or the environment. The
department shall determine the need for immediate removal or remedial action in
accordance with rules adopted by the Environmental Quality Commission. [1993
c.707 §5 (enacted in lieu of 465.380); 1999 c.534 §1]
465.385 [1989
c.833 §§132,171; 1991 c.703 §13; repealed by 1993 c.707 §6 (465.386 enacted in
lieu of 465.385)]
465.386 Commission authorized to increase
fees; basis of increase; amount of increase. (1) Notwithstanding
the totals established in ORS 459.236, the Environmental Quality Commission by
rule may increase the total amount to be collected annually as a fee and
deposited into the Orphan Site Account under ORS 459.236. The commission shall
approve an increase if the commission determines:
(a)
Existing fees being deposited into the Orphan Site Account are not sufficient
to pay debt service on bonds sold to pay for removal or remedial actions at
sites where the Department of Environmental Quality determines the responsible
party is unknown or is unwilling or unable to undertake all required removal or
remedial action; or
(b)
Revenues from the sale of bonds cannot be used to pay for activities related to
removal or remedial action, and existing fees being deposited into the Orphan
Site Account are not sufficient to pay for these activities.
(2)
The increased amount approved by the commission under subsection (1) of this
section:
(a)
Shall be no greater than the amount needed to pay anticipated costs specifically
identified by the Department of Environmental Quality at sites where the
department determines the responsible party is unknown, unwilling or unable to
undertake all required removal or remedial action; and
(b)
Shall be subject to prior approval by the Oregon Department of Administrative
Services and a report to the Emergency Board prior to adopting the fees and
shall be within the budget authorized by the Legislative Assembly as that
budget may be modified by the Emergency Board during the interim period between
sessions. [1993 c.707 §7 (enacted in lieu of 465.385); 1999 c.534 §2; 2007 c.71
§146]
465.390 [1989
c.833 §§133,172; repealed by 1993 c.707 §8 (465.391 enacted in lieu of
465.390)]
465.391 Effect of certain laws on
liability of person. Nothing in ORS 453.396 to
453.408, 453.414, 459.236 and 459.311, including the limitation on the amount a
local government unit must contribute under ORS 459.236 and 459.311, shall be
construed to affect or limit the liability of any person. [1993 c.707 §9
(enacted in lieu of 465.390)]
465.400 Rules; designation of hazardous
substance. (1) In accordance with the applicable
provisions of ORS chapter 183, the Environmental Quality Commission may adopt
rules necessary to carry out the provisions of ORS 465.200 to 465.545 and
465.900.
(2)(a)
Within one year after July 16, 1987, the commission shall adopt rules
establishing the levels, factors, criteria or other provisions for the degree
of cleanup including the control of further releases of a hazardous substance,
and the selection of remedial actions necessary to assure protection of the
public health, safety, welfare and the environment.
(b)
In developing rules pertaining to the degree of cleanup and the selection of
remedial actions under paragraph (a) of this subsection, the commission may, as
appropriate, take into account:
(A)
The long-term uncertainties associated with land disposal;
(B)
The goals, objectives and requirements of ORS 466.005 to 466.385;
(C)
The persistence, toxicity, mobility and propensity to bioaccumulate of such
hazardous substances and their constituents;
(D)
The short-term and long-term potential for adverse health effects from human
exposure to the hazardous substance;
(E)
Long-term maintenance costs;
(F)
The potential for future remedial action costs if the alternative remedial
action in question were to fail;
(G)
The potential threat to human health and the environment associated with
excavation, transport and redisposal or containment; and
(H)
The cost effectiveness.
(3)(a)
By rule, the commission may designate as a hazardous substance any element,
compound, mixture, solution or substance or any class of substances that,
should a release occur, may present a substantial danger to the public health,
safety, welfare or the environment.
(b)
Before designating a substance or class of substances as a hazardous substance,
the commission must find that the substance, because of its quantity,
concentration, or physical, chemical or toxic characteristics, may pose a
present or future hazard to human health, safety, welfare or the environment
should a release occur. [Formerly 466.553]
465.405 Rules; “confirmed release”; “preliminary
assessment.” (1) The Environmental Quality
Commission shall adopt by rule:
(a)
A definition of “confirmed release” and “preliminary assessment”; and
(b)
Criteria to be applied by the Director of the Department of Environmental
Quality in determining whether to remove a facility from the list and inventory
under ORS 465.230.
(2)
In adopting rules under this section, the commission shall exclude from the
list and inventory the following categories of releases to the extent the
commission determines the release poses no significant threat to present or
future public health, safety, welfare or the environment:
(a)
De minimis releases;
(b)
Releases that by their nature rapidly dissipate to undetectable or
insignificant levels;
(c)
Releases specifically authorized by and in compliance with a current and
legally enforceable permit issued by the Department of Environmental Quality or
the United States Environmental Protection Agency; or
(d)
Other releases that the commission finds pose no significant threat to present
and future public health, safety, welfare or the environment.
(3)
The director shall exclude from the list and inventory releases the director
determines have been cleaned up to a level that:
(a)
Is consistent with rules adopted by the commission under ORS 465.400; or
(b)
Poses no significant threat to present or future public health, safety, welfare
or the environment. [1989 c.485 §7]
465.410 Ranking of inventory according to
risk; rules. In addition to the rules adopted under
ORS 465.405, the Environmental Quality Commission shall adopt by rule a
procedure for ranking facilities on the inventory based on the short-term and
long-term risks they pose to present and future public health, safety, welfare
or the environment. [1989 c.485 §8]
465.420 Remedial Action Advisory
Committee. The Director of the Department of
Environmental Quality shall appoint a Remedial Action Advisory Committee in
order to advise the Department of Environmental Quality in the development of
rules for the implementation of ORS 465.200 to 465.545 and 465.900. The
committee shall be comprised of members representing at least the following
interests:
(1)
Citizens;
(2)
Local governments;
(3)
Environmental organizations; and
(4)
Industry. [Formerly 466.555]
465.425 “Security interest holder” defined
for ORS 465.430 to 465.455. As used in ORS 465.430 to
465.455, “security interest holder” means a person who, without participating
in the management of a facility, holds indicia of ownership primarily to
protect a security interest in a facility. [1991 c.680 §2]
465.430 Legislative findings.
(1)(a) The Legislative Assembly finds that existing federal and state law
related to liability of a security interest holder for environmental
contamination is unclear, and that such lack of clarity has created uncertainty
on the part of security interest holders as to whether security interest
holders are liable for environmental contamination caused by their borrowers or
other third parties.
(b)
The Legislative Assembly therefore declares that clarification regarding such
potential liability in a manner consistent with federal statutes and
regulations is desirable in order to provide certainty for security interest
holders and to encourage responsible practices by security interest holders and
borrowers to protect the public health and the environment.
(2)(a)
The Legislative Assembly also finds that uncertainty exists in state law as to
potential liability of certain fiduciaries for environmental contamination at
property held in their fiduciary capacity.
(b)
The Legislative Assembly therefore declares that it is in the public interest
to provide an exemption from such potential liability in certain circumstances.
[1991 c.680 §3]
465.435 Rules relating to exemption from
liability for security interest holder. (1) The
Environmental Quality Commission may adopt rules necessary to clarify the scope
and meaning of the exemption from liability under ORS 465.255 of a security
interest holder. The rules shall:
(a)
Identify activities that are consistent with holding and protecting a security
interest in a facility and therefore exempt from liability under ORS 465.255;
(b)
Identify the extent to which a security interest holder may undertake
activities to oversee the affairs of a borrower for purposes of protecting a
security interest in a facility and continue to be exempt from the liability
imposed under ORS 465.255;
(c)
Identify the activities a security interest holder may undertake in connection
with foreclosure on a security interest in a facility and continue to be exempt
from the liability imposed under ORS 465.255; and
(d)
Allow a security interest holder to encourage and require responsible
environmental management by borrowers.
(2)
In adopting rules under subsection (1) of this section, the commission shall:
(a)
Exclude the mere capacity or unexercised right to influence a facility’s
management of hazardous substance from activities that might void a security
interest holder’s exemption from liability; and
(b)
Distinguish activities that are consistent with holding, protecting and
foreclosing of a security interest, and that are therefore exempt from
liability, from activities that constitute actual participation in the
management of a facility that may be grounds for liability under ORS 465.255.
(3)
In adopting rules under subsection (1) of this section, the commission shall
consider and, to the extent consistent with subsections (1) and (2) of this
section, adopt rules parallel in effect to any federal statute or regulation,
adopted and effective on or after May 1, 1991, pertaining to the scope and
meaning of the exemption from liability under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (P.L. 96-510 and
99-499), of a security interest holder. [1991 c.680 §4]
465.440 Rules relating to exemption from
liability for fiduciary. In accordance with the purposes
of ORS 465.425 to 465.455, the Environmental Quality Commission by rule shall
define the instances in which a person acting under ORS chapter 709 and in a
fiduciary capacity shall be exempt from liability for environmental contamination
at property the fiduciary holds in a fiduciary capacity. In adopting the rules,
the commission shall consider and, to the extent appropriate, provide
exemptions from liability for the fiduciaries that are similar in purpose and
effect to those exemptions provided for security interest holders under rules
adopted under ORS 465.435. [1991 c.680 §5]
465.445 Advisory committee.
The Director of the Department of Environmental Quality shall appoint an
advisory committee to advise the Department of Environmental Quality and the
Environmental Quality Commission in the development of rules under ORS 465.435
and 465.440. [1991 c.680 §6]