ORS 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 (Rules relating to exemption from liability for fiduciary).(d)
An authority that becomes the owner or operator of the facility as authorized in ORS 465.609 (General powers).(e)
A receiver appointed under ORS 37.020 (Receivership described) to 37.410 (Termination of receivership).(4)
Notwithstanding the exclusions from liability provided for specified persons in subsections (2) and (3) of this section such persons shall be liable for remedial action costs incurred by the state or any other person that are attributable to or associated with a facility, and for damages for injury to or destruction of any natural resources caused by a release, to the extent that the person’s acts or omissions contribute to such costs or damages, if the person:(a)
Obtained actual knowledge of the release and then failed to promptly notify the Department of Environmental Quality and exercise due care with respect to the hazardous substance concerned, taking into consideration the characteristics of the hazardous substance in light of all relevant facts and circumstances; or(b)
Failed to take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the reasonably foreseeable consequences of such acts or omissions.(5)
Intentionally left blank —Ed.(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 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 465.900 (Civil penalties for violation of removal or remedial actions).(c)
Nothing in ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 465.900 (Civil penalties for violation of removal or remedial actions) 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)
Intentionally left blank —Ed.(a)
Except as provided in paragraph (b) of this subsection, no person shall be liable under ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 465.900 (Civil penalties for violation of removal or remedial actions) 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 (Rules) 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 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 465.900 (Civil penalties for violation of removal or remedial actions) 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; 2015 c.631 §9; 2017 c.358 §44]
Source:
Section 465.255 — Strict liability for remedial action costs for injury or destruction of natural resource; limited exclusions, https://www.oregonlegislature.gov/bills_laws/ors/ors465.html.
Notes of Decisions
Private parties are not authorized to recover litigation costs as legal expenses in addition to remedial action costs. McDonald’s Corp. v. Wilson, 814 F Supp 935 (1993)
Statute applies retroactively to persons responsible for contamination occurring prior to enactment of statute. Newell v. Weston, 150 Or App 562, 946 P2d 691 (1997), Sup Ct review denied
Exception for persons whose acts or omissions were in material compliance with applicable laws, standards, regulations, licenses or permits applies only to persons other than owners or operators. Newell v. Weston, 150 Or App 562, 946 P2d 691 (1997), Sup Ct review denied
Liability for hindering or delaying entry to, investigation of or removal or remedial action at facility extends to persons denying access to property other than property where facility is located. Department of Environmental Quality v. Baney Corp., 153 Or App 289, 956 P2d 1060 (1998), Sup Ct review denied
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