Bill Text: OR HB3325 | 2011 | Regular Session | Enrolled
Bill Title: Relating to the environment.
Sponsorship: Slight Partisan Bill (Democrat 18-10-1)
Status: (Passed) 2011-06-23 - Chapter 487, (2011 Laws): Effective date January 1, 2012. [HB3325 Detail]
Download: Oregon-2011-HB3325-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 3325
Sponsored by Representative BARKER, Senators SHIELDS, STARR;
Representatives BAILEY, BUCKLEY, CANNON, DEMBROW, GELSER,
GILLIAM, GREENLICK, HARKER, KOTEK, NATHANSON, SHEEHAN, G SMITH,
J SMITH, THOMPSON, TOMEI, WHISNANT, WITT, Senators BEYER,
BOQUIST, DINGFELDER, EDWARDS, GEORGE, KRUSE, MORSE, TELFER (at
the request of Department of Justice)
CHAPTER ................
AN ACT
Relating to the environment; creating new provisions; and
amending ORS 465.320, 465.327, 466.640 and 468B.310.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 465.327 is amended to read:
465.327. (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, { + 466.640 and 468B.310 + } if:
(a) The party is not currently liable under { + :
(A) + } ORS 465.255 for an existing release of hazardous
substance at the facility;
{ + (B) ORS 466.640 for an existing spill or release of oil
or hazardous material at a facility that is subject to ORS
465.200 to 465.545; or
(C) ORS 468B.310 for the prior entry of oil into the waters of
the state from a facility that is subject to ORS 465.200 to
465.545 and 468B.300 to 468B.500; + }
(b) Removal or remedial action is necessary at the facility to
protect human health or the environment;
(c) The proposed redevelopment or reuse of the facility will
not contribute to or exacerbate existing contamination, increase
health risks or interfere with remedial measures necessary at the
facility; and
(d) A substantial public benefit will result from the
agreement, including but not limited to:
(A) The generation of substantial funding or other resources
facilitating remedial measures at the facility in accordance with
this section;
(B) A commitment to perform substantial remedial measures at
the facility in accordance with this section;
(C) Productive reuse of a vacant or abandoned industrial or
commercial facility; or
(D) Development of a facility by a governmental entity or
nonprofit organization to address an important public purpose.
(2) In determining whether to enter an agreement under this
section, the department shall consult with affected land use
Enrolled House Bill 3325 (HB 3325-A) Page 1
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 { + , after opportunity for public notice and
comment pursuant to ORS 465.320, + } in a judicial consent
judgment entered in accordance with ORS 465.325 { + or an
administrative consent order + }. Any such agreement may include
provisions considered necessary by the department, and shall
include:
(a) A commitment to undertake the measures constituting a
substantial public benefit;
(b) If remedial measures are to be performed under the
agreement, a commitment to perform any such measures under the
department's oversight;
(c) A waiver by the party of any claim or cause of action
against the State of Oregon arising from contamination at the
facility existing as of the date of acquisition of ownership or
operation of the facility;
(d) A grant of an irrevocable right of entry to the department
and its authorized representative for purposes of the agreement
or for remedial measures authorized under this section;
(e) A reservation of rights as to an entity not a party to the
agreement; and
(f) A legal description of the property.
(4) { + (a)(A) + } Subject to the satisfactory performance by
the party of its obligations under { - the - } { + an
administrative + } agreement, the party shall not be liable to
the State of Oregon under ORS 465.200 to 465.545 and 465.900 for
any release of a hazardous substance at the facility existing as
of the date of acquisition of ownership or operation of the
facility { + , under ORS 466.640 for the spill or release of oil
or hazardous material at a facility that is subject to ORS
465.200 to 465.545 existing as of the date of acquisition of
ownership or operation of the facility, or under ORS 468B.310 for
the entry of oil into the waters of the state from a facility
that is subject to ORS 465.200 to 465.545 and 468B.300 to
468B.500 before the date of acquisition of ownership or operation
of the facility + }.
{ + (B) Subject to the satisfactory performance by the party
of its obligations under a judicial consent judgment or an
administrative consent order, the party shall not be liable to
the State of Oregon or any person under ORS 465.200 to 465.545
and 465.900 for any release of a hazardous substance at the
facility existing as of the date of acquisition of ownership or
operation of the facility, under ORS 466.640 for the spill or
release of oil or hazardous material at a facility that is
subject to ORS 465.200 to 465.545 existing as of the date of
acquisition of ownership or operation of the facility, or under
ORS 468B.310 for the entry of oil into the waters of the state
from a facility that is subject to ORS 465.200 to 465.545 and
468B.300 to 468B.500 before the date of acquisition of ownership
or operation of the facility.
(b) + }The party shall bear the burden of proving that any
hazardous substance release { + under ORS 465.200 to 465.545 at
the facility + } existed before the date of acquisition of
ownership { + or operation + } of the facility { + , that any
spill or release under ORS 466.640 of oil or hazardous material
at a facility that is subject to ORS 465.200 to 465.545 existed
before the date of acquisition of ownership or operation of the
Enrolled House Bill 3325 (HB 3325-A) Page 2
facility, or that the entry of oil under ORS 468B.310 into the
waters of the state from a facility that is subject to ORS
465.200 to 465.545 and 468B.300 to 468B.500 occurred before the
date of acquisition of ownership or operation of the
facility + }.
{ + (c) + } This release from liability shall not affect a
party's liability for claims arising from any:
{ - (a) - } { + (A)(i) + } Release of a hazardous substance
{ + under ORS 465.200 to 465.545 + } at the facility { + on
or + } after the date of acquisition of ownership or operation
{ + of the facility + };
{ + (ii) Spill or release under ORS 466.640 of oil or
hazardous material at a facility that is subject to ORS 465.200
to 465.545 on or after the date of acquisition of ownership or
operation of the facility; or
(iii) Entry of oil under ORS 468B.310 into the waters of the
state from a facility that is subject to ORS 465.200 to 465.545
and 468B.300 to 468B.500 on or after the date of acquisition of
ownership or operation of the facility. + }
{ - (b) - } { + (B)(i) + } Contribution to { + , + } or
exacerbation of { + , on or after the date of acquisition of
ownership or operation of the facility, + } a release of a
hazardous substance { + at the facility under ORS 465.200 to
465.545 + };
{ + (ii) Contribution to, or exacerbation of, on or after the
date of acquisition of ownership or operation of a facility that
is subject to ORS 465.200 to 465.545, a spill or release under
ORS 466.640 of oil or hazardous material at the facility; or
(iii) Contribution to, or exacerbation of, on or after the date
of acquisition of ownership or operation of a facility that is
subject to ORS 465.200 to 465.545 and 468B.300 to 468B.500, any
entry of oil under ORS 468B.310 into the waters of the state from
the facility. + }
{ - (c) - } { + (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) - } { + (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 { - ; and - }
{ + . + }
{ - (e) - } { + (E) + } Violation of federal, state or
local law { + on or after the date of acquisition of ownership
or operation of the facility + }.
(5) Any agreement entered under this section shall be recorded
in the real property records from the county in which the
facility is located. The benefits and burdens of the agreement,
including the release from liability, shall run with the land,
but the release from liability shall limit or otherwise affect
the liability only of persons who are not potentially
liable { + :
(a) + } Under ORS 465.255 for a release of a hazardous
substance at the facility { + existing + } as of the date of
acquisition of ownership or operation of the facility and who
assume and are bound by terms of the agreement applicable to the
facility as of the date of acquisition of ownership or operation
{ - . - } { + ;
Enrolled House Bill 3325 (HB 3325-A) Page 3
(b) Under ORS 466.640 for any spill or release of oil or
hazardous material at a facility that is subject to ORS 465.200
to 465.545 existing as of the date of acquisition of ownership or
operation of the facility and who assume and are bound by terms
of the agreement applicable to the facility as of the date of
acquisition of ownership or operation; or
(c) Under ORS 468B.310 for the entry of oil into the waters of
the state from a facility that is subject to ORS 465.200 to
465.545 and 468B.300 to 468B.500 that occurred before the date of
acquisition of ownership or operation of the facility and who
assume and are bound by terms of the agreement applicable to the
facility as of the date of acquisition of ownership or
operation. + }
SECTION 2. ORS 465.320 is amended to read:
465.320. 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 { + or providing a
release from liability under ORS 465.327 to a party in a judicial
consent judgment or an administrative consent order + }, the
department shall:
(1) Publish a notice and brief description of the proposed
action in a local paper of general circulation and in the
Secretary of State's Bulletin, and make copies of the proposal
available to the public.
(2) Provide at least 30 days for submission of written comments
regarding the proposed action, and, upon written request by 10 or
more persons or by a group having 10 or more members, conduct a
public meeting at or near the facility for the purpose of
receiving verbal comment regarding the proposed action.
(3) Consider any written or verbal comments before approving
the removal or remedial action { + or providing a release from
liability under ORS 465.327 to a party in a judicial consent
judgment or an administrative consent order + }.
(4) Upon final approval of the remedial action { + or
providing a release from liability under ORS 465.327 to a party
in a judicial consent judgment or an administrative consent
order + }, publish notice, as provided under subsection (1) of
this section, and make copies of the approved action available to
the public.
SECTION 3. ORS 466.640 is amended to read:
466.640. { + (1) + } Any person owning or having control over
any oil or hazardous material spilled or released or threatening
to spill or release shall be strictly liable without regard to
fault for the spill or release or threatened spill or release.
However, in any action to recover damages, the person shall be
relieved from strict liability without regard to fault if the
person can prove that the spill or release of oil or hazardous
material was caused by:
{ - (1) - } { + (a) + } An act of war or sabotage or an act
of God.
{ - (2) - } { + (b) + } Negligence on the part of the
United States Government or the State of Oregon.
{ - (3) - } { + (c) + } An act or omission of a third party
without regard to whether any such act or omission was or was not
negligent.
{ + (2) Notwithstanding the provisions of subsection (1) of
this section:
(a) A person who has entered into, and is in compliance with,
an administrative agreement under ORS 465.327 is not liable to
Enrolled House Bill 3325 (HB 3325-A) Page 4
the State of Oregon for any spill or release of oil or hazardous
material at a facility that is subject to ORS 465.200 to 465.545
existing as of the date of the person's acquisition of ownership
or operation of the facility, to the extent provided in ORS
465.327.
(b) A person who has entered into, and is in compliance with, a
judicial consent judgment or an administrative consent order
under ORS 465.327 is not liable to the State of Oregon or any
person for any spill or release of oil or hazardous material at a
facility that is subject to ORS 465.200 to 465.545 existing as of
the date of the person's acquisition of ownership or operation of
the facility, to the extent provided in ORS 465.327. + }
SECTION 4. ORS 468B.310 is amended to read:
468B.310. (1) Any person owning oil or having control over oil
which enters the waters of the state in violation of ORS 468B.305
shall be strictly liable, without regard to fault, for the
damages to persons or property, public or private, caused by such
entry. However, in any action to recover damages, the person
shall be relieved from strict liability without regard to fault
if the person can prove that the oil to which the damages relate,
entered the waters of the state by causes set forth in ORS
468B.305 (2).
(2) Nothing in this section shall be construed as limiting the
right of a person owning or having control of oil to maintain an
action for the recovery of damages against another person for an
act or omission of such other person resulting in the entry of
oil into the waters of the state for which the person owning or
having control of such oil is liable under subsection (1) of this
section.
{ + (3) Notwithstanding the provisions of subsections (1) and
(2) of this section:
(a) A person who has entered into, and is in compliance with,
an administrative agreement under ORS 465.327 is not liable to
the State of Oregon for any entry of oil into the waters of the
state from a facility that is subject to ORS 465.200 to 465.545
and 468B.300 to 468B.500 that occurred before the date of the
person's acquisition of ownership or operation of the facility,
to the extent provided in ORS 465.327.
(b) A person who has entered into, and is in compliance with, a
judicial consent judgment or an administrative consent order
under ORS 465.327 is not liable to the State of Oregon or any
person for any entry of oil into the waters of the state from a
facility that is subject to ORS 465.200 to 465.545 and 468B.300
to 468B.500 that occurred before the date of the person's
acquisition of ownership or operation of the facility, to the
extent provided in ORS 465.327. + }
SECTION 5. { + The amendments to ORS 465.320, 465.327, 466.640
and 468B.310 by sections 1 to 4 of this 2011 Act apply to written
agreements entered into by the Department of Environmental
Quality with a party on or after the effective date of this 2011
Act. + }
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Enrolled House Bill 3325 (HB 3325-A) Page 5
Passed by House April 27, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate May 26, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 3325 (HB 3325-A) Page 6
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 3325 (HB 3325-A) Page 7
