2017 ORS 465.327¹
Agreement to release party from potential liability to facilitate cleanup and reuse of property
  • eligible parties
  • terms of agreement
  • recording of agreement

(1) In order to facilitate cleanup and reuse of contaminated property, the Department of Environmental Quality may, through a written agreement, provide a party with a release from potential liability under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource), 466.640 (Strict liability for spill or release) and 468B.310 (Liability for violation of ORS 468B.305) if:

(a) The party is not currently liable under:

(A) ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) for an existing release of hazardous substance at the facility;

(B) ORS 466.640 (Strict liability for spill or release) for an existing spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees); or

(C) ORS 468B.310 (Liability for violation of ORS 468B.305) for the prior entry of oil into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan);

(b) Removal or remedial action is necessary at the facility to protect human health or the environment;

(c) The proposed redevelopment or reuse of the facility will not contribute to or exacerbate existing contamination, increase health risks or interfere with remedial measures necessary at the facility; and

(d) A substantial public benefit will result from the agreement, including but not limited to:

(A) The generation of substantial funding or other resources facilitating remedial measures at the facility in accordance with this section;

(B) A commitment to perform substantial remedial measures at the facility in accordance with this section;

(C) Productive reuse of a vacant or abandoned industrial or commercial facility; or

(D) Development of a facility by a governmental entity or nonprofit organization to address an important public purpose.

(2) In determining whether to enter an agreement under this section, the department shall consult with affected land use planning jurisdictions and consider reasonably anticipated future land uses at the facility and surrounding properties.

(3) An agreement under this section may be set forth in an administrative agreement or, after opportunity for public notice and comment pursuant to ORS 465.320 (Notice of proposed remedial action or release from liability), in a judicial consent judgment entered in accordance with ORS 465.325 (Agreement to perform removal or remedial action) or an administrative consent order. Any such agreement may include provisions considered necessary by the department, and shall include:

(a) A commitment to undertake the measures constituting a substantial public benefit;

(b) If remedial measures are to be performed under the agreement, a commitment to perform any such measures under the department’s oversight;

(c) A waiver by the party of any claim or cause of action against the State of Oregon arising from contamination at the facility existing as of the date of acquisition of ownership or operation of the facility;

(d) A grant of an irrevocable right of entry to the department and its authorized representative for purposes of the agreement or for remedial measures authorized under this section;

(e) A reservation of rights as to an entity not a party to the agreement; and

(f) A legal description of the property.

(4)(a)(A) Subject to the satisfactory performance by the party of its obligations under an administrative agreement, the party shall not be liable to the State of Oregon under ORS 465.200 (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 any release of a hazardous substance at the facility existing as of the date of acquisition of ownership or operation of the facility, under ORS 466.640 (Strict liability for spill or release) for the spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) existing as of the date of acquisition of ownership or operation of the facility, or under ORS 468B.310 (Liability for violation of ORS 468B.305) for the entry of oil into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan) before the date of acquisition of ownership or operation of the facility.

(B) Subject to the satisfactory performance by the party of its obligations under a judicial consent judgment or an administrative consent order, the party shall not be liable to the State of Oregon or any person under ORS 465.200 (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 any release of a hazardous substance at the facility existing as of the date of acquisition of ownership or operation of the facility, under ORS 466.640 (Strict liability for spill or release) for the spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) existing as of the date of acquisition of ownership or operation of the facility, or under ORS 468B.310 (Liability for violation of ORS 468B.305) for the entry of oil into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan) before the date of acquisition of ownership or operation of the facility.

(b) The party shall bear the burden of proving that any hazardous substance release under ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) at the facility existed before the date of acquisition of ownership or operation of the facility, that any spill or release under ORS 466.640 (Strict liability for spill or release) of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) existed before the date of acquisition of ownership or operation of the facility, or that the entry of oil under ORS 468B.310 (Liability for violation of ORS 468B.305) into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan) occurred before the date of acquisition of ownership or operation of the facility.

(c) This release from liability shall not affect a party’s liability for claims arising from any:

(A)(i) Release of a hazardous substance under ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) at the facility on or after the date of acquisition of ownership or operation of the facility;

(ii) Spill or release under ORS 466.640 (Strict liability for spill or release) of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) on or after the date of acquisition of ownership or operation of the facility; or

(iii) Entry of oil under ORS 468B.310 (Liability for violation of ORS 468B.305) into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan) on or after the date of acquisition of ownership or operation of the facility.

(B)(i) Contribution to, or exacerbation of, on or after the date of acquisition of ownership or operation of the facility, a release of a hazardous substance at the facility under ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees);

(ii) Contribution to, or exacerbation of, on or after the date of acquisition of ownership or operation of a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees), a spill or release under ORS 466.640 (Strict liability for spill or release) of oil or hazardous material at the facility; or

(iii) Contribution to, or exacerbation of, on or after the date of acquisition of ownership or operation of a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan), any entry of oil under ORS 468B.310 (Liability for violation of ORS 468B.305) into the waters of the state from the facility.

(C) Interference or failure to cooperate on or after the date of acquisition of ownership or operation of the facility with the department or other persons conducting remedial measures under the department’s oversight at the facility.

(D) Failure to exercise due care or take reasonable precautions on or after the date of acquisition of ownership or operation of the facility with respect to any hazardous substance at the facility.

(E) Violation of federal, state or local law on or after the date of acquisition of ownership or operation of the facility.

(5) Any agreement entered under this section shall be recorded in the real property records from the county in which the facility is located. The benefits and burdens of the agreement, including the release from liability, shall run with the land, but the release from liability shall limit or otherwise affect the liability only of persons who are not potentially liable:

(a) Under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) for a release of a hazardous substance at the facility existing as of the date of acquisition of ownership or operation of the facility and who assume and are bound by terms of the agreement applicable to the facility as of the date of acquisition of ownership or operation;

(b) Under ORS 466.640 (Strict liability for spill or release) for any spill or release of oil or hazardous material at a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) existing as of the date of acquisition of ownership or operation of the facility and who assume and are bound by terms of the agreement applicable to the facility as of the date of acquisition of ownership or operation; or

(c) Under ORS 468B.310 (Liability for violation of ORS 468B.305) for the entry of oil into the waters of the state from a facility that is subject to ORS 465.200 (Definitions for ORS 465.200 to 465.545) to 465.545 (Suspension of dry cleaning fees) and 468B.300 (Definitions for ORS 468B.300 to 468B.500) to 468B.500 (Contents of plan) that occurred before the date of acquisition of ownership or operation of the facility and who assume and are bound by terms of the agreement applicable to the facility as of the date of acquisition of ownership or operation. [1995 c.662 §4; 2003 c.576 §461; 2011 c.487 §1]

1 Legislative Counsel Committee, CHAPTER 465—Hazardous Waste and Hazardous Materials I, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors465.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.