2007 Oregon Code - Chapter 465 :: Chapter 465 - Hazardous Waste and Hazardous Materials I
Chapter 465 —
Hazardous Waste and Hazardous Materials I
2007 EDITION
HAZARDOUS WASTE AND HAZARDOUS MATERIALS I
PUBLIC HEALTH AND SAFETY
REDUCTION OF USE OF TOXIC SUBSTANCES AND HAZARDOUS WASTE GENERATION
465.003Â Â Â Â Definitions
for ORS 465.003 to 465.034
465.006Â Â Â Â Policy
465.009Â Â Â Â Rules
465.012Â Â Â Â Technical
assistance to users and generators; priority; restrictions on enforcement
resulting from technical assistance; rules
465.015Â Â Â Â Toxics
use and hazardous waste reduction plan required; composition; exemption; retention
at facility
465.018Â Â Â Â Notification
of Department of Environmental Quality upon completion of plan or system;
implementation summary required; inspection of plan or system
465.021Â Â Â Â Review
of plan or system; notification of inadequacies in plan, system or summary;
revisions; penalty
465.027Â Â Â Â Contract
for assistance with higher education institution
465.032Â Â Â Â Form
of implementation summary; information required
465.034Â Â Â Â Application
of ORS 465.003 to 465.034
465.037Â Â Â Â Short
title
BULK PETROLEUM PRODUCT WITHDRAWAL REGULATION
465.101Â Â Â Â Definitions
for ORS 465.101 to 465.131
465.104Â Â Â Â Fees
for petroleum product delivery or withdrawals; exceptions; registration of
facility operators
465.106Â Â Â Â Amount
of fee to be set by State Fire Marshal
465.111Â Â Â Â Department
of Revenue to collect fee; exemption from fee of protected petroleum products
465.114Â Â Â Â Extension
of time for paying fee; interest on extended payment
465.117Â Â Â Â Records
of petroleum products transactions; inspection by Department of Revenue
465.121Â Â Â Â Rules
465.124Â Â Â Â Application
of ORS chapters 305 and 314 to fee collection
465.127Â Â Â Â Disposition
of fees; administrative expenses; other uses
465.131Â Â Â Â Fee
imposed by ORS 465.104 in addition to fees established by local government
REMOVAL OR REMEDIAL ACTION
(Generally)
465.200Â Â Â Â Definitions
for ORS 465.200 to 465.545
465.205Â Â Â Â Legislative
findings
465.210Â Â Â Â Authority
of department for removal or remedial action
465.215Â Â Â Â List
of facilities with confirmed release
465.220Â Â Â Â Comprehensive
statewide identification program; notice
465.225Â Â Â Â Inventory
of facilities needing environmental controls; preliminary assessment; notice to
operator; criteria for adding facilities to inventory
465.230Â Â Â Â Removal
of facilities from inventory; criteria
465.235Â Â Â Â Public
inspection of inventory; information included in inventory; organization;
report; action plan
465.240Â Â Â Â Inventory
listing not prerequisite to other remedial action
465.245Â Â Â Â Preliminary
assessment of potential facility
465.250Â Â Â Â Accessibility
of information about hazardous substances; entering property or facility;
samples; confidentiality
465.255Â Â Â Â Strict
liability for remedial action costs for injury or destruction of natural
resource; limited exclusions
465.257Â Â Â Â Right
of contribution from other person liable for remedial action costs; allocation
of orphan share
465.260Â Â Â Â Removal
or remedial action; reimbursement of costs; liability; damages
465.265    “Person”
defined for ORS 465.265 to 465.310
465.270Â Â Â Â Legislative
findings and intent
465.275Â Â Â Â Remedial
action and financial assistance program; contracts for implementation
465.280Â Â Â Â Rules;
insuring tax deductibility of interest on bonds
465.285Â Â Â Â Requirements
for financial assistance; contents of agreements
465.290Â Â Â Â Financial
assistance agreement not General Fund obligation; cost estimates; security;
recovery of costs; compromise of obligations
465.295Â Â Â Â Decision
regarding financial assistance not subject to judicial review
465.300Â Â Â Â Records
and financial assistance applications exempt from disclosure as public record
465.305Â Â Â Â Application
fees
465.310Â Â Â Â Accounting
procedure for financial assistance moneys
465.315Â Â Â Â Standards
for degree of cleanup required; Hazard Index; risk protocol; hot spots of
contamination; exemption; rules
465.320Â Â Â Â Notice
of proposed cleanup action; receipt and consideration of comment; notice of
approval
465.325Â Â Â Â Agreement
to perform removal or remedial action; reimbursement; agreement as order and
consent judgment; effect on liability
465.327Â Â Â Â Agreement
to release party from potential liability to state to facilitate cleanup and
reuse of property; eligible parties; terms of agreement
465.330Â Â Â Â State
remedial action costs; payment; effect of failure to pay
465.333Â Â Â Â Recovery
of costs of program development, rulemaking and administrative actions as
remedial action costs; determination of allocable costs
465.335Â Â Â Â Costs,
penalties and damages as lien; enforcement of lien
465.340Â Â Â Â Contractor
liability; indemnification
465.375Â Â Â Â Monthly
fee of operators; amount; use of moneys
465.376Â Â Â Â Special
hazardous waste management fees; use of fees
465.378Â Â Â Â Department
to work with other states to avoid disruption of waste flows
465.381Â Â Â Â Hazardous
Substance Remedial Action Fund; sources; uses; Orphan Site Account; uses
465.386Â Â Â Â Commission
authorized to increase fees; basis of increase; amount of increase
465.391Â Â Â Â Effect
of certain laws on liability of person
465.400Â Â Â Â Rules;
designation of hazardous substance
465.405Â Â Â Â Rules;
“confirmed release”; “preliminary assessment”
465.410Â Â Â Â Ranking
of inventory according to risk; rules
465.420Â Â Â Â Remedial
Action Advisory Committee
465.425    “Security
interest holder” defined for ORS 465.430 to 465.455
465.430Â Â Â Â Legislative
findings
465.435Â Â Â Â Rules
relating to exemption from liability for security interest holder
465.440Â Â Â Â Rules
relating to exemption from liability for fiduciary
465.445Â Â Â Â Advisory
committee
465.450Â Â Â Â Limitation
on commissionÂ’s discretion to adopt rules
465.455Â Â Â Â Construction
of ORS 465.425 to 465.455
(
465.475Â Â Â Â Definitions
for ORS 465.475 to 465.480
465.478Â Â Â Â Legislative
findings
465.479Â Â Â Â Lost
policies; investigation by insurer required; minimum standards for
investigation
465.480Â Â Â Â Insurance
for environmental claims; rules of construction; duty to pay defense or
indemnity costs; allocation
465.482Â Â Â Â Short
title
(Cleanup of Contamination Resulting From Dry
Cleaning Facilities)
465.500Â Â Â Â Purpose
465.503Â Â Â Â Exemption
from administrative or judicial action to compel removal or remedial action;
exemption from liability; exceptions; limitations
465.505Â Â Â Â Waste
minimization requirements for dry cleaning facilities; annual report;
reportable release; rules
465.507Â Â Â Â Dry
cleaning advisory group
465.510Â Â Â Â Dry
Cleaner Environmental Response Account; use; deductible amounts for
expenditures
465.517Â Â Â Â Annual
fee and gross revenue fee for dry cleaning facilities
465.520Â Â Â Â Fee
on sale or transfer of dry cleaning solvent; exemption
465.523Â Â Â Â Fee
on use of dry cleaning solvent
465.525Â Â Â Â Calculation
of fee for partial gallons; refund or credit
465.527Â Â Â Â Reporting
of fees
465.531Â Â Â Â Department
of Environmental Quality may contract for collection of fees
465.536Â Â Â Â Late
charges; enforcement by Department of Revenue
465.545Â Â Â Â Suspension
of dry cleaning fees; recommendation to Legislative Assembly
CHEMICAL AGENTS
465.550Â Â Â Â Definitions
for ORS 465.550 and 465.555
465.555Â Â Â Â County
assessment of effects of major recovery or remedial action at storage or
disposal site for chemical agents; annual fee
CIVIL PENALTIES
465.900Â Â Â Â Civil
penalties for violation of removal or remedial actions
465.992Â Â Â Â 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 directorÂ’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 stateÂ’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
     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 personÂ’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 stateÂ’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
     (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
     (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 personÂ’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
     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 departmentÂ’s
accomplishments during the previous fiscal year and the departmentÂ’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 departmentÂ’s database;
     (b) Facilities with a confirmed release
added to the departmentÂ’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 personÂ’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 facilityÂ’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 personÂ’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 shareÂ’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 directorÂ’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 directorÂ’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
     (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 stateÂ’s remedial action costs and for punitive damages not
to exceed three times the amount of the stateÂ’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
departmentÂ’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
departmentÂ’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 departmentÂ’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 departmentÂ’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 departmentÂ’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 departmentÂ’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 cleanup action; receipt and consideration of comment; notice
of approval. 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, or
adoption of a certification decision under ORS 465.325, 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 StateÂ’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.
     (4) Upon final approval of the remedial
action, publish notice, as provided under subsection (1) of this section, and
make copies of the approved action available to the public. [Formerly 466.575]
     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 directorÂ’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
directorÂ’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 fundÂ’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
     (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 directorÂ’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
     465.327
Agreement to release party from potential liability to state to facilitate
cleanup and reuse of property; eligible parties; terms 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 to
the state under ORS 465.255, if:
     (a) The party is not currently liable
under ORS 465.255 for an existing release of hazardous substance at the
facility;
     (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 consent order or other administrative agreement
or in a judicial consent judgment entered in accordance with ORS 465.325. 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 departmentÂ’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) Subject to the satisfactory
performance by the party of its obligations under the agreement, the party
shall not be liable to the State of
     (a) Release of a hazardous substance at
the facility after the date of acquisition of ownership or operation;
     (b) Contribution to or exacerbation of a
release of a hazardous substance;
     (c) Interference or failure to cooperate
with the department or other persons conducting remedial measures under the
departmentÂ’s oversight at the facility;
     (d) Failure to exercise due care or take
reasonable precautions with respect to any hazardous substance at the facility;
and
     (e) Violation of federal, state or local
law.
     (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 under ORS 465.255 for a release of a hazardous substance
at the facility 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. [1995
c.662 §4; 2003 c.576 §461]
     465.330
State remedial action costs; payment; effect of failure to pay. (1) The Department of Environmental Quality
shall keep a record of the stateÂ’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 stateÂ’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 departmentÂ’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
personÂ’s facility, using generally accepted accounting principles and as
necessary to be charged per facility to recover the departmentÂ’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 stateÂ’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 workersÂ’
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 personÂ’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 plaintiffÂ’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
contractorÂ’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 contractorÂ’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 contractorÂ’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
departmentÂ’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
     (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 departmentÂ’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
     (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 stateÂ’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 facilityÂ’s management of hazardous substance
from activities that might void a security interest holderÂ’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]
     465.450
Limitation on commissionÂ’s discretion to adopt rules. Notwithstanding the discretion otherwise
allowed under ORS 465.435, if federal law is enacted or regulations are adopted
and become effective after May 1, 1991, the Environmental Quality Commission
shall adopt rules under ORS 465.435. [1991 c.680 §7]
     465.455
Construction of ORS 465.425 to 465.455. Nothing in ORS 465.425 to 465.455 or any rule adopted under ORS
465.435 or 465.440 shall be construed to impose liability on a security
interest holder or fiduciary or to expand the liability of a security interest
holder or fiduciary beyond that which might otherwise exist. [1991 c.680 §8]
(
     465.475
Definitions for ORS 465.475 to 465.480. For the purposes of ORS 465.475 to 465.480:
     (1) “Environmental claim” means a claim
for defense or indemnity submitted under a general liability insurance policy
by an insured facing, or allegedly facing, potential liability for bodily
injury or property damage arising from a release of pollutants onto or into
land, air or water.
     (2) “General liability insurance policy”
means any contract of insurance that provides coverage for the obligations at
law or in equity of an insured for bodily injury, property damage or personal
injury to others. “General liability insurance policy” includes but is not
limited to a pollution liability insurance policy, a commercial general
liability insurance policy, a comprehensive general liability policy, an excess
liability policy, an umbrella liability insurance policy or any other kind of
policy covering the liability of an insured for the claims of third parties. “General
liability insurance policy” does not include homeowner or motor vehicle
policies or portions of other policies relating to homeowner or motor vehicle
coverages, claims-made policies or portions of other policies relating to
claims-made policies or specialty line liability coverage such as directors and
officers insurance, errors and omissions insurance or other similar policies.
     (3) “Insured” means any person included as
a named insured on a general liability insurance policy who has or had a
property interest in a site in
     (4) “Lost policy” means any part or all of
a general liability insurance policy that is alleged to be ruined, destroyed,
misplaced or otherwise no longer possessed by the insured.
     (5) “Policy” means the written contract or
agreement, and all clauses, riders, endorsements and papers that are a part of
the contract or agreement, for or effecting insurance. [1999 c.783 §2; 2003
c.799 §1]
     465.478
Legislative findings. The
Legislative Assembly finds that there are many insurance coverage disputes
involving insureds who face potential liability for their ownership of or roles
at polluted sites in this state. The State of
     465.479
Lost policies; investigation by insurer required; minimum standards for
investigation. (1) If, after
a diligent investigation by an insured of the insuredÂ’s own records, including
computer records and the records of past and present agents of the insured, the
insured is unable to reconstruct a lost policy, the insured may provide a
notice of a lost policy to an insurer.
     (2) An insurer must investigate thoroughly
and promptly a notice of a lost policy. An insurer fails to investigate
thoroughly and promptly if the insurer fails to provide all facts known or
discovered during an investigation concerning the issuance and terms of a
policy, including copies of documents establishing the issuance and terms of a
policy, to the insured claiming coverage under a lost policy.
     (3) An insurer and an insured must comply
with the following minimum standards for facilitating reconstruction of a lost
policy and determining the terms of a lost policy as provided in this section:
     (a) Within 30 business days after receipt
by the insurer of notice of a lost policy, the insurer shall commence an
investigation into the insurerÂ’s records, including computer records, to
determine whether the insurer issued the lost policy. If the insurer determines
that it issued the policy, the insurer shall commence an investigation into the
terms and conditions relevant to any environmental claim made under the policy.
     (b) The insurer and the insured shall
cooperate with each other in determining the terms of a lost policy. The
insurer and the insured:
     (A) Shall provide to each other the facts
known or discovered during an investigation, including the identity of any
witnesses with knowledge of facts related to the issuance or existence of a
lost policy.
     (B) Shall provide each other with copies
of documents establishing facts related to the lost policy.
     (C) Are not required to produce material
subject to a legal privilege or confidential claims documents provided to the
insurer by another policyholder.
     (c) If the insurer or the insured
discovers information tending to show the existence of an insurance policy
applicable to the claim, the insurer or the insured shall provide an accurate
copy of the terms of the policy or a reconstruction of the policy, upon the
request of the insurer or the insured.
     (d) If the insurer is not able to locate
portions of the policy or determine its terms, conditions or exclusions, the
insurer shall provide copies of all insurance policy forms issued by the
insurer during the applicable policy period that are potentially applicable to
the environmental claim. The insurer shall state which of the potentially
applicable forms, if any, is most likely to have been issued by the insurer, or
the insurer shall state why it is unable to identify the forms after a good
faith search.
     (4) Following the minimum standards
established in this section does not create a presumption of coverage for an
environmental claim once the lost policy has been reconstructed.
     (5) Following the minimum standards
established in this section does not constitute:
     (a) An admission by an insurer that a
policy was issued or effective; or
     (b) An affirmation that if the policy was
issued, it was necessarily in the form produced, unless so stated by the
insurer.
     (6) If, based on the information
discovered in an investigation of a lost policy, the insured can show by a
preponderance of the evidence that a general liability insurance policy was
issued to the insured by the insurer, then if:
     (a) The insured cannot produce evidence
that tends to show the policy limits applicable to the policy, it shall be
assumed that the minimum limits of coverage, including any exclusions to
coverage, offered by the insurer during the period in question were purchased
by the insured.
     (b) The insured can produce evidence that
tends to show the policy limits applicable to the policy, then the insurer has
the burden of proof to show that a different policy limit, including any exclusions
to coverage, should apply.
     (7) An insurer may claim an affirmative
defense to a claim that the insurer failed to follow the minimum standards
established under this section if the insured fails to cooperate with the
insurer in the reconstruction of a lost policy under this section.
     (8) The Director of the Department of
Consumer and Business Services shall enforce this section and any rules adopted
by the director to implement this section.
     (9) Violation by an insurer of any
provision of this section or any rule adopted under this section is an unfair
claim settlement practice under ORS 746.230.
     (10) As used in this section, “notice of a
lost policy” means written notice of the lost policy in sufficient detail to
identify the person or entity claiming coverage, including information
concerning the name of the alleged policyholder, if known, and material facts
concerning the lost policy known to the alleged policyholder. [2003 c.799 §4]
     465.480
Insurance for environmental claims; rules of construction; duty to pay defense
or indemnity costs; allocation.
(1) As used in this section:
     (a) “Suit” or “lawsuit” includes but is
not limited to formal judicial proceedings, administrative proceedings and
actions taken under
     (b) “Uninsured” means an insured who, for
any period of time after January 1, 1971, that is included in an environmental
claim, failed to purchase and maintain an occurrence-based general liability
insurance policy that would have provided coverage for the environmental claim,
provided that such insurance was commercially available at such time. A general
liability insurance policy is “commercially available” if the policy can be
purchased under the Insurance Code on reasonable commercial terms.
     (2) Except as provided in subsection (7)
of this section, in any action between an insured and an insurer to determine
the existence of coverage for the costs of investigating and remediating
environmental contamination, whether in response to governmental demand or
pursuant to a written voluntary agreement, consent decree or consent order,
including the existence of coverage for the costs of defending a suit against
the insured for such costs, the following rules of construction shall apply in
the interpretation of general liability insurance policies involving
environmental claims:
     (a)
     (b) Any action or agreement by the
Department of Environmental Quality or the United States Environmental
Protection Agency against or with an insured in which the Department of
Environmental Quality or the United States Environmental Protection Agency in
writing directs, requests or agrees that an insured take action with respect to
contamination within the State of Oregon is equivalent to a suit or lawsuit as
those terms are used in any general liability insurance policy.
     (c) Insurance coverage for any reasonable
and necessary fees, costs and expenses, including remedial investigations,
feasibility study costs and expenses, incurred by the insured pursuant to a
written voluntary agreement, consent decree or consent order between the
insured and either the Department of Environmental Quality or the United States
Environmental Protection Agency, when incurred as a result of a written
direction, request or agreement by the Department of Environmental Quality or
the United States Environmental Protection Agency to take action with respect
to contamination within the State of Oregon, shall not be denied the insured on
the ground that such expenses constitute voluntary payments by the insured.
     (3)(a) An insurer with a duty to pay
defense or indemnity costs, or both, to an insured for an environmental claim
under a general liability insurance policy that provides that the insurer has a
duty to pay all sums arising out of a risk covered by the policy, must pay all
defense or indemnity costs, or both, proximately arising out of the risk
pursuant to the applicable terms of its policy, including its limit of
liability, independent and unaffected by other insurance that may provide
coverage for the same claim.
     (b) If an insured who makes an
environmental claim under general liability insurance policies that provide
that an insurer has a duty to pay all sums arising out of a risk covered by the
policy has more than one such general liability insurance policy insurer, the
insured shall provide notice of the claim to all such insurers for whom the
insured has current addresses. If the insuredÂ’s claim is not fully satisfied
and the insured files suit on the claim against only one such insurer, the
insured must choose that insurer based on the following factors:
     (A) The total period of time that an
insurer issued a general liability insurance policy to the insured applicable
to the environmental claim;
     (B) The policy limits, including any
exclusions to coverage, of each of the general liability insurance policies
that provide coverage or payment for the environmental claim; or
     (C) The policy that provides the most
appropriate type of coverage for the type of environmental claim for which the
insured is liable or potentially liable.
     (c) If requested by an insurer chosen by
an insured under paragraph (b) of this subsection, the insured shall provide
information regarding other general liability insurance policies held by the
insured that would potentially provide coverage for the same environmental
claim.
     (d) An insurer chosen by an insured under
paragraph (b) of this subsection may not be required to pay defense or
indemnity costs in excess of the applicable policy limits, if any, on such
defense or indemnity costs, including any exclusions to coverage.
     (4) An insurer that has paid an
environmental claim may seek contribution from any other insurer that is liable
or potentially liable. If a court determines that the apportionment of
recoverable costs between insurers is appropriate, the court shall allocate the
covered damages between the insurers before the court, based on the following
factors:
     (a) The total period of time that each
solvent insurer issued a general liability insurance policy to the insured
applicable to the environmental claim;
     (b) The policy limits, including any
exclusions to coverage, of each of the general liability insurance policies
that provide coverage or payment for the environmental claim for which the
insured is liable or potentially liable;
     (c) The policy that provides the most
appropriate type of coverage for the type of environmental claim; and
     (d) If the insured is an uninsured for any
part of the time period included in the environmental claim, the insured shall
be considered an insurer for purposes of allocation.
     (5) If an insured is an uninsured for any
part of the time period included in the environmental claim, an insurer who
otherwise has an obligation to pay defense costs may deny that portion of
defense costs that would be allocated to the insured under subsection (4) of
this section.
     (6)(a) There is a rebuttable presumption
that the costs of preliminary assessments, remedial investigations, risk
assessments or other necessary investigation, as those terms are defined by
rule by the Department of Environmental Quality, are defense costs payable by
the insurer, subject to the provisions of the applicable general liability
insurance policy or policies.
     (b) There is a rebuttable presumption that
payment of the costs of removal actions or feasibility studies, as those terms
are defined by rule by the Department of Environmental Quality, are indemnity
costs and reduce the insurerÂ’s applicable limit of liability on the insurerÂ’s
indemnity obligations, subject to the provisions of the applicable general
liability insurance policy or policies.
     (7) The rules of construction set forth in
this section do not apply if the application of the rule results in an
interpretation contrary to the intent of the parties to the general liability
insurance policy. [1999 c.783 §4; 2003 c.799 §2]
     465.482
Short title. ORS 465.475 to
465.480 shall be known and may be cited as the Oregon Environmental Cleanup
Assistance Act. [1999 c.783 §6]
(Cleanup of
Contamination Resulting From Dry Cleaning Facilities)
     465.500
Purpose. (1) The purposes of
ORS 465.500 to 465.545 are:
     (a) To create a $1 million cleanup fund
paid for solely by the dry cleaning industry, and to otherwise exempt dry
cleaning owners and dry cleaning operators from cleanup liability; and
     (b) To ensure the cleanup of contamination
resulting from dry cleaning facilities.
     (2) The provisions of ORS 465.200 to
465.545 and 465.900, and rules and programs adopted thereto, shall continue to
apply to the cleanup of releases of hazardous substances from dry cleaning
facilities, including but not limited to provisions and programs for:
     (a) Listing of facilities having a
confirmed release of dry cleaning solvents;
     (b) Prioritizing dry cleaning facilities
with confirmed releases for removal or remedial action;
     (c) Applying standards and methods for
removal and remedial actions selected or approved by the Department of
Environmental Quality; and
     (d) Enforcing or undertaking removal and
remedial actions. [1995 c.427 §3; 2001 c.495 §1; 2003 c.407 §21]
     465.503
Exemption from administrative or judicial action to compel removal or remedial
action; exemption from liability; exceptions; limitations. (1) Except as provided under subsections
(3), (4) and (5) of this section, and except to the extent that property,
liability or other insurance is available to pay remedial action costs, no dry
cleaning owner or dry cleaning operator shall be subject to any administrative
or judicial action to compel a removal or remedial action or to recover
remedial action costs caused by the release or threatened release of dry
cleaning solvent from an active or inactive dry cleaning facility, whether the
action is brought under ORS 465.200 to 465.545 and 465.900 or any other statute
or regulation.
     (2) Except as provided under subsections
(3), (4) and (5) of this section, and except to the extent that property,
liability or other insurance is available, no dry cleaning owner or dry
cleaning operator shall be liable under statutory, common or administrative law
for damage to real or personal property or to natural resources if the damage
is caused by the release or threatened release of dry cleaning solvent from an
active or inactive dry cleaning facility, except upon proof that the release of
dry cleaning solvent was caused by the failure of the dry cleaning owner or dry
cleaning operator to exercise due care. Compliance with applicable federal,
state and local laws and regulations, including waste minimization
requirements, is prima facie evidence that the dry cleaning owner or dry
cleaning operator exercised due care.
     (3) Notwithstanding the date on which the
release occurred, the provisions of subsections (1) and (2) of this section do
not apply to a dry cleaning operator if:
     (a) The release was caused by gross
negligence of the dry cleaning owner or dry cleaning operator;
     (b) The release resulted from an action or
omission that was a violation by the dry cleaning owner or dry cleaning
operator of federal or state laws in effect at the time of the release,
including but not limited to waste minimization requirements imposed under ORS
465.505;
     (c) The dry cleaning owner or dry cleaning
operator willfully concealed a release of dry cleaning solvent contrary to laws
and regulations in effect at the time of the release or did not comply with
release reporting requirements applicable at the time of the release;
     (d) The dry cleaning owner or dry cleaning
operator denies access or unreasonably hinders or delays removal or remedial
action necessary at the facility; or
     (e) The dry cleaning operator of the
facility where the release occurred has failed to pay fees under ORS 465.517,
465.520 and 465.523 in relation to dry cleaning activity at any dry cleaning
facility.
     (4) Notwithstanding the date on which the
release occurred, subsections (1) and (2) of this section do not apply to a dry
cleaning owner if:
     (a) The release was caused by gross
negligence of the dry cleaning owner or dry cleaning operator;
     (b) The release resulted from a violation
by the dry cleaning owner or dry cleaning operator of federal or state laws in
effect at the time of the release, including but not limited to waste
minimization requirements imposed by ORS 465.505;
     (c) The dry cleaning owner or dry cleaning
operator willfully concealed a release of dry cleaning solvent contrary to laws
and regulations in effect at the time of the release or did not comply with the
release reporting requirements applicable at the time of release;
     (d) The dry cleaning owner or dry cleaning
operator denies access or unreasonably hinders or delays removal or remedial
action necessary at the facility;
     (e) The dry cleaning operator of the
facility where the release occurred has failed to pay fees under ORS 465.517,
465.520 and 465.523 in relation to dry cleaning activity at the facility; or
     (f) The dry cleaning facility has been an
inactive dry cleaning facility for a period of 90 days or more immediately
preceding June 30, 1995.
     (5) If hazardous substances are released
as a result of both the release of dry cleaning solvent from dry cleaning
operations and other activities, the exemptions from liability provided under
this section shall apply only to that portion of the removal or remedial action
or damage caused by the release or threatened release of dry cleaning solvent
from the dry cleaning facility. [1995 c.427 §4; 2001 c.495 §2; 2003 c.407 §1]
     465.505
Waste minimization requirements for dry cleaning facilities; annual report; reportable
release; rules. (1) In
addition to any other applicable federal or state law and regulation, the
following waste minimization requirements shall apply to dry cleaning
facilities:
     (a) All wastes meeting the state and
federal criteria for hazardous waste, excluding wastewater, generated at any
dry cleaning facility and containing dry cleaning solvents, including residues
and filters, shall be managed and disposed of, regardless of quantity
generated, as hazardous wastes in accordance with federal and state laws
otherwise applicable to management of hazardous wastes, except that, as to the
cleanup of releases of dry cleaning solvents, ORS 465.503 shall apply rather
than ORS 466.205;
     (b) Wastewater contaminated with dry
cleaning solvents from the water separation process of dry cleaning machines
may not be discharged into any sanitary sewer or septic tank or into the waters
of this state;
     (c) Dry cleaning operators shall manage
solvent contaminated wastewater generated in the water separation process in
accordance with rules adopted by the Environmental Quality Commission;
     (d) A dry cleaning facility may not
include operation of transfer-type dry cleaning equipment using
perchloroethylene;
     (e) All newly installed dry cleaning
systems using perchloroethylene shall be of the dry-to-dry type and be equipped
with integral refrigerated condensers with an outlet temperature sensor for the
control of perchloroethylene emissions;
     (f) All existing dry cleaning systems
using perchloroethylene shall install refrigerated condensers, or an
equivalent;
     (g) Every dry cleaning facility shall
install secondary containment systems capable of containing dry cleaning
solvent under and around each machine or item of equipment in which any dry
cleaning solvent is used, treated or stored; and
     (h) All perchloroethylene dry cleaning
solvent shall be delivered to dry cleaning facilities by means of closed,
direct-coupled delivery systems.
     (2) The Department of Environmental
Quality may authorize the use of alternative measures at a dry cleaning
facility in lieu of one or more of the measures described under subsection (1)
of this section upon proof satisfactory to the department that the alternative
measures can provide equivalent protection for public health and the
environment, can achieve equivalent waste minimization and are consistent with other
applicable laws and regulations.
     (3) Every dry cleaning and dry store
operator shall provide annually to the department on forms to be supplied by
the department, information regarding compliance with the waste minimization
requirements set forth in subsection (1) of this section and any other
information as the department considers necessary for carrying out the purposes
of ORS 465.200 and 465.500 to 465.545.
     (4) Notwithstanding any law to the
contrary, a dry cleaning operator for a facility having a release of dry
cleaning solvents shall immediately report any release exceeding one pound to
the notification system managed by the Office of Emergency Management pursuant
to ORS 401.275.
     (5) The Environmental Quality Commission
shall adopt rules necessary to implement ORS 465.200 and 465.500 to 465.545,
including but not limited to rules implementing the recommendations of the
advisory group established under ORS 465.507 or requiring the implementation of
new waste minimization technologies. [1995 c.427 §5; 1999 c.59 §132; 2001 c.495
§3]
     465.507
Dry cleaning advisory group.
(1) The Director of the Department of Environmental Quality shall appoint an
advisory group comprised of members representing a balance of at least the
following interests:
     (a) Dry cleaning operators;
     (b) Dry cleaning owners;
     (c) Dry cleaning industry members other
than owners and operators;
     (d) Citizens;
     (e) Environmental organizations; and
     (f) Local governments.
     (2) The advisory group shall meet
periodically to review and advise the Department of Environmental Quality
regarding:
     (a) Methods and standards for removal and
remedial actions as applied by the department at dry cleaning facilities;
     (b) Waste minimization rules, guidelines
and requirements as applied to dry cleaning facilities, including new
technologies and industry practices;
     (c) The department’s use of the Dry
Cleaner Environmental Response Account, including use at multiple-source sites;
     (d) The adequacy of revenue generated by
fees assessed under ORS 465.517, 465.520 and 465.523 for meeting the costs of
removal and remedial actions at dry cleaning facilities; and
     (e) Any other matters pertinent to the
purposes of ORS 465.200 and 465.500 to 465.545.
     (3) The advisory group shall develop goals
for the department that relate to the cleanup of contamination resulting from
dry cleaning facilities. In developing the goals, the group may review and
monitor the administrative costs of the department for implementing ORS 465.500
to 465.545 and shall include recommendations for:
     (a) Reducing administrative costs;
     (b) Prioritizing dry cleaning facilities
that have confirmed releases for removal or remedial action;
     (c) Determining and limiting the ultimate
cost of removal or remedial actions at dry cleaning facilities paid from the
Dry Cleaner Environmental Response Account; and
     (d) Determining the ultimate cost of
future liability to the state for removal or remedial actions at dry cleaning
facilities not covered by the Dry Cleaner Environmental Response Account. [1995
c.427 §6; 1999 c.59 §133; 2001 c.495 §4; 2003 c.407 §3]
     465.510
Dry Cleaner Environmental Response Account; use; deductible amounts for
expenditures. (1) The Dry
Cleaner Environmental Response Account is established separate and distinct
from the General Fund in the State Treasury. All moneys collected under ORS
465.517, 465.520 and 465.523, all account expenditures recovered or otherwise
received, penalties assessed under ORS 465.992 and all interest earned on
moneys in the account shall be credited to the account.
     (2) All moneys in the Dry Cleaner
Environmental Response Account are continuously appropriated to the Department
of Environmental Quality and, except as provided under this section, may be
expended solely for the following purposes:
     (a) Remedial action costs incurred by the
department as a result of a release at or from a dry cleaning facility;
     (b) Preapproved remedial action costs
incurred by a person performing removal or remedial action as a result of a
release at or from a dry cleaning facility under a department order or
agreement expressly authorizing reimbursement from the account;
     (c) The department’s costs of program
development, administration, enforcement and cost recovery; and
     (d) The department’s indirect costs
attributable to removal or remedial action due to a release at or from a dry
cleaning facility.
     (3) The department may expend Dry Cleaner
Environmental Response Account moneys only for those remedial action costs
defined in ORS 465.200 (24) that are reasonable in the departmentÂ’s judgment.
The department shall consider at least the following factors, to the extent
relevant information is available, in determining the order in which removals
or remedial actions shall receive funding and the amount of funding:
     (a) The dry cleaning facility’s risk to
public health and the environment. Each facilityÂ’s risk shall be evaluated
relative to the risk posed by other facilities.
     (b) The need for removal or remedial
action at the dry cleaning facility relative to account availability and the
need for removal or remedial actions at other facilities.
     (c) The nature of the activities for which
expenditures are necessary, in the following order of preference:
     (A) Direct cost of cleanup, provided that
adequate technical investigation has been completed;
     (B) Direct cost of technical investigation
and remedy evaluation;
     (C) Administrative and indirect costs; and
     (D) Enforcement, cost recovery and legal
costs.
     (4) If the department takes action at a
facility, location or area where hazardous substances have been released as a
result of both dry cleaning operations and other activities, including but not
limited to laundry operations, account moneys may be used only for that portion
of the removal or remedial action determined by the department to be
necessitated by the release of dry cleaning solvent by the dry cleaning
facility.
     (5) Moneys in the account expended for
remedial action costs may be expended solely for costs in excess of the
following deductible amounts:
     (a) For a release from a dry cleaning
facility employing five or fewer individuals at the time of release, including
any dry cleaning owner, dry cleaning operator or full-time employee, $5,000;
     (b) For a release from a dry cleaning
facility employing more than five individuals at the time of release, including
any dry cleaning owner, dry cleaning operator or full-time employee, $1,000 per
owner, operator or full-time employee up to $10,000; and
     (c) For a release from an inactive site,
$10,000.
     (6) The dry cleaning owner or dry cleaning
operator of the facility shall be responsible for:
     (a) Paying the deductible amount. The
department may bring a civil action to recover any moneys expended from the
account in payment of costs properly payable under this paragraph by the dry
cleaning owner or dry cleaning operator.
     (b) Investigating whether an insurance
policy provides coverage for the costs arising from a release or threatened
release and obtaining payment for those costs. In order to receive an exemption
from administrative action, judicial action or liability under ORS 465.503, the
dry cleaning owner or dry cleaning operator:
     (A) Must initiate all actions reasonably
necessary to obtain coverage from an insurance policy that may be available to
pay costs associated with a release or threatened release; and
     (B) May not take any action that may
prejudice the ownerÂ’s or operatorÂ’s ability to obtain, under an insurance
policy, coverage of or payment of costs associated with a release or threatened
release.
     (7) The department may not expend moneys
out of the Dry Cleaner Environmental Response Account:
     (a) For the payment of any claim or
judgment against the state or its agencies for loss of business, damage or
destruction of property or personal injury arising from removal or remedial
action undertaken under ORS 465.260.
     (b) For remedial action and other costs
under this section if the dry cleaning owner or dry cleaning operator failed to
comply with the waste minimization requirements under ORS 465.505, and the
failure to comply with the requirements is determined by the department to be a
contributing factor in the release. [1995 c.427 §7; 2001 c.495 §5; 2003 c.407 §4]
     465.515 [1995 c.427 §8; 2001 c.495 §6; repealed by
2003 c.407 §29]
     465.517
Annual fee and gross revenue fee for dry cleaning facilities. (1) In addition to any other tax or fee
imposed by law, there is assessed on dry cleaning facilities the following
annual fees:
     (a) For any dry cleaning facility that
utilized any solvent prior to January 1, 1998, $500.
     (b) For any dry cleaning facility that,
after January 1, 1998, has utilized or utilizes, during any part of the annual
fee period, perchloroethylene, $500.
     (2) Notwithstanding subsection (1) of this
section, if the dry cleaning owner or dry cleaning operator has an expanded
preliminary assessment, including field testing, conducted at the facility in a
manner approved by the department and the assessment shows that no release of
solvents has occurred, a dry cleaning facility may:
     (a) Be permanently exempted from payment
of the fee under subsection (1)(a) of this section; and
     (b) Receive a credit of $1,000 for
payments required by subsection (1) of this section.
     (3) In addition to any other tax or fee
imposed by law, there is assessed on an active dry cleaning facility an annual
fee in the amount of one percent of the gross revenue of dry cleaning services
that the facility generates in the annual fee period. Gross revenue does not
include revenues of a dry cleaning facility received for services to a dry store
not owned or operated by the dry cleaning facility.
     (4) The fees assessed shall be due on the
first day of each calendar year that the facility operates as a dry cleaning
facility and shall be prorated for partial year operation.
     (5) A dry cleaning owner or dry cleaning
operator shall pay the fees imposed under this section in a single payment,
payable on March 1. [1995 c.427 §9; 1999 c.1047 §1; 2001 c.495 §7; 2003 c.407 §5]
     465.520
Fee on sale or transfer of dry cleaning solvent; exemption. (1) In addition to any other tax or fee
imposed by law, a fee, payable by the seller or transferor, is imposed on:
     (a) The retail sale or transfer within
this state of dry cleaning solvent on or after January 1, 1996; and
     (b) The transfer of dry cleaning solvent
from an off-site reclamation facility.
     (2) The fee on each gallon of dry cleaning
solvent is the result obtained from multiplying the solvent factor of the dry
cleaning solvent by $10.
     (3) The solvent factor for each dry
cleaning solvent is the amount listed in the following table:
______________________________________________________________________________
Dry Cleaning Solvent            Solvent Factor
Perchloroethylene                  1.00
Any other solvent                  0.20
______________________________________________________________________________
     (4) Notwithstanding subsections (1) and
(2) of this section, no fee shall be imposed on the retail sale or transfer of
any dry cleaning solvent if, prior to the retail sale or transfer, the
purchaser or transferee provides the seller or transferor with a certificate
stating that:
     (a) The dry cleaning solvent will not be
used in a dry cleaning facility; or
     (b) The purchaser or transferee does not
operate a dry cleaning facility. [1995 c.427 §10; 1997 c.249 §161; 2001 c.495 §14;
2003 c.407 §6]
     465.523
Fee on use of dry cleaning solvent. (1) In addition to any other tax or fee imposed by law, a fee is
imposed on the use of dry cleaning solvent at a dry cleaning facility within
this state if:
     (a) The purchaser or transferee of the
solvent did not receive a bill or invoice showing the correct fee imposed under
ORS 465.520 on the retail sale or transfer; or
     (b) No fee was paid with respect to the
retail sale or transfer and the purchaser or transferee had reason to believe
that no fee would be paid.
     (2) The fee imposed by this section equals
the fee that should have been imposed on the retail sale or transfer of the dry
cleaning solvent by ORS 465.520 less the fee, if any, shown on the bill or
invoice. [1995 c.427 §11; 1999 c.59 §134]
     465.525
Calculation of fee for partial gallons; refund or credit. (1) For a fraction of a gallon, the fee
imposed under ORS 465.520 and 465.523 shall be proportionate to the fee imposed
on a whole gallon.
     (2) If the fee is paid pursuant to ORS
465.520 and 465.523 on dry cleaning solvent that is subsequently resold or
exported from this state and not reimported for use in a dry cleaning facility,
the reseller or exporter of the dry cleaning solvent is entitled to claim a
refund or credit for the fee on the dry cleaning solvent that was paid by the
reseller or exporter. The Department of Environmental Quality may require a fee
payer claiming a refund to provide proof that the fee was paid with respect to
the dry cleaning solvent and proof of its use or sale in a manner not subject
to fee assessment. [1995 c.427 §13; 2003 c.407 §7]
     465.527
Reporting of fees. The fees
imposed by ORS 465.517, 465.520 and 465.523 shall be paid pursuant to
information reported on forms supplied by the Department of Environmental Quality.
[1995 c.427 §14; 2001 c.495 §8; 2003 c.407 §8]
     465.530 [1995 c.427 §15; repealed by 2003 c.407 §29]
     465.531
Department of Environmental Quality may contract for collection of fees. The Department of Environmental Quality, in
consultation with the advisory group established under ORS 465.507, may
contract with a private or public entity for the provision of services to
implement the objectives of ORS 465.517 to 465.545. The department may contract
for the collection of fees, charges or interest from dry cleaning owners or dry
cleaning operators, but the department may not delegate its authority to
determine the amount of the fees, charges or interest owed. [2003 c.407 §20]
     465.533 [1995 c.427 §16; 2001 c.495 §9; repealed by
2003 c.407 §29]
     465.535 [1995 c.427 §17; 2001 c.495 §10; repealed by
2003 c.407 §29]
     465.536
Late charges; enforcement by Department of Revenue. (1) If a person fails to submit the fees
imposed by ORS 465.517, 465.520 and 465.523 by the date shown on the form
supplied under ORS 565.527, the Department of Environmental Quality shall
assess a late charge equal to 10 percent of the unpaid amount. An additional
late charge of 10 percent of the unpaid amount shall be assessed for each
30-day period that the fees remain unpaid. If the invoice remains unpaid after
three additional late charges are incurred, the department may not assess
further charges.
     (2) If the department is unable to collect
fees, charges or interest imposed by this section or ORS 465.517, 465.520 or
465.523, the department may authorize the Director of the Department of Revenue
to collect the fees, charges or interest in the manner provided by ORS chapters
305 and 314.
     (3) The Department of Environmental
Quality may request tax information and financial records necessary to perform
audits and examinations to verify fee-related information submitted by persons
who pay fees under ORS 465.517, 465.520 and 465.523. All tax information and
financial records obtained by the department pursuant to this subsection are exempt
from public disclosure under ORS 192.410 to 192.505. [2003 c.407 §10]
     Note: 465.536 was added to and made a part of
465.500 to 465.545 by legislative action but was not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
     465.537 [1995 c.427 §18; 1999 c.1047 §2; 2001 c.495 §11;
repealed by 2003 c.407 §29]
     465.540 [1995 c.427 §19; repealed by 2003 c.407 §29]
     465.543 [1995 c.427 §20; repealed by 2003 c.407 §29]
     465.545
Suspension of dry cleaning fees; recommendation to Legislative Assembly. (1) Upon a determination by the Director of
the Department of Environmental Quality that necessary removal and remedial
action is completed and paid for at all dry cleaning facilities having a
confirmed release of dry cleaning solvent, the director shall report to the
next following session of the Legislative Assembly with a recommendation for
the suspension of the fees, other than the annual license fee, imposed under
ORS 465.517, 465.520 and 465.523.
     (2) The Director of the Department of
Environmental Quality shall give notice of the intent to make the
recommendation described under subsection (1) of this section at least one year
prior to the date recommended by the director as the date of suspension.
     (3) The provisions of ORS 465.500,
465.503, 465.505 and 465.510 apply retroactively to releases of dry cleaning
solvents occurring before June 30, 1995. [1995 c.427 §21; 2001 c.495 §12; 2003
c.407 §22]
     465.546 [1999 c.1047 §4; repealed by 2003 c.407 §29]
     465.548 [1999 c.1047 §5; 2001 c.495 §13; repealed by
2003 c.407 §29]
CHEMICAL AGENTS
     465.550
Definitions for ORS 465.550 and 465.555. As used in ORS 465.550 and 465.555:
     (1) “Chemical agents” means:
     (a) Blister agents, such as mustard gas;
     (b) Nerve agents, such as sarin and VX;
     (c) Residues from demilitarization,
treatment and testing of blister agents; and
     (d) Residues from demilitarization,
treatment and testing of nerve agents.
     (2) “Major recovery action” means a
recovery action that will take more than one year to complete and that will
employ 200 or more individuals.
     (3) “Major remedial action” means a
remedial action that will take more than one year to complete and that will
employ 200 or more individuals.
     (4) “Owner” means a person or the State of
     (5) “Recovery action” means any activity
designed to mitigate the effects of an unintended release of chemical agents
into the air, water or soil of this state.
     (6) “Remedial action” means any activity
intended to prevent the release of chemical agents into the air, water or soil
of this state. “Remedial action” includes controlled destruction of chemical
agents. [1997 c.554 §1]
     Note: 465.550 and 465.555 were enacted into law by
the Legislative Assembly but were 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.
     465.555
County assessment of effects of major recovery or remedial action at storage or
disposal site for chemical agents; annual fee. (1) If a site for the storage or disposal of
chemical agents is located within a county and if a major recovery or major
remedial action is anticipated to occur at the site, the governing body of the
county may conduct an assessment of the social and economic effects on
communities within the county that are likely to occur by reason of the major
recovery or major remedial action.
     (2) When assessing the effects on
communities caused by the major recovery or major remedial action, the county
governing body may consider, among other matters, the following:
     (a) Effects upon roads and streets;
     (b) Effects upon existing sewer and water
systems;
     (c) Effects upon schools;
     (d) Effects upon medical facilities and
services;
     (e) Additional law enforcement
requirements;
     (f) Additional housing requirements; and
     (g) Technical planning requirements.
     (3) After completion of the assessment
required under this section, the county governing body may impose upon the
owner of the site an annual fee reasonably calculated to mitigate the social
and economic effects on communities that are occurring or that are likely to
occur by reason of the major recovery or major remedial action. The annual fee
may be imposed during the first year in which the major recovery or major
remedial action is conducted and in each succeeding year for the duration of
the major recovery or major remedial action. When a fee is imposed under this
section, the fee shall be reviewed in each year and may be adjusted when
circumstances make an adjustment necessary or appropriate. The total aggregate
fee imposed under this section shall not exceed five percent of the total
aggregate cost of the major recovery or major remedial action.
     (4) If the entity responsible for
conducting the major recovery or major remedial action is different from the
owner of the site at which the major recovery or major remedial action is
conducted, the fee authorized by this section may be imposed upon either the
owner or the entity or upon both jointly. [1997 c.554 §2]
     Note: See note under 465.550.
CIVIL PENALTIES
     465.900
Civil penalties for violation of removal or remedial actions. (1) In addition to any other penalty
provided by law, any person who violates a provision of ORS 465.200 to 465.545,
or any rule or order entered or adopted under ORS 465.200 to 465.545, shall
incur a civil penalty not to exceed $10,000 a day for each day that such
violation occurs or that failure to comply continues.
     (2) The civil penalty authorized by
subsection (1) of this section shall be imposed in the manner provided by ORS
468.135, except that a penalty collected under this section shall be deposited
in the Hazardous Substance Remedial Action Fund established under ORS 465.381,
if the penalty pertains to a release at any facility. [Formerly 466.900; 1991
c.734 §34]
     465.990 [Amended by 1953 c.540 §5; repealed by 1989
c.846 §15]
     465.992
Civil penalty for failure to pay fees. (1) Any dry cleaning operator who fails to pay a fee required under
ORS 465.517, 465.520 or 465.523 shall incur a civil penalty of not more than
$5,000. The penalty shall be recovered as provided in subsection (2) of this
section.
     (2) Any person against whom a penalty is
assessed under subsection (1) of this section may appeal to the tax court as
provided in ORS 305.404 to 305.560. If the penalty is not paid within 10 days
after the order of the tax court becomes final, the Department of Revenue may
record the order and collect the amount assessed in the same manner as income
tax deficiencies are recorded and collected under ORS 314.430. [1999 c.1047 §6]
     Note: 465.992 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.
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