Bill Text: OR SB680 | 2013 | Regular Session | Introduced
Bill Title: Relating to claims for contribution.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB680 Detail]
Download: Oregon-2013-SB680-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1267
Senate Bill 680
Sponsored by Senators JOHNSON, GEORGE; Senator SHIELDS
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that certain persons may seek contribution from
persons who have resolved liability to state in administrative or
judicially approved settlement.
A BILL FOR AN ACT
Relating to claims for contribution; creating new provisions; and
amending ORS 465.325.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 465.325 is amended to read:
465.325. (1) The Director of the Department of Environmental
Quality, in the director's discretion, may enter into an
agreement with any person including the owner or operator of the
facility from which a release emanates, or any other potentially
responsible person to perform any removal or remedial action if
the director determines that the actions will be properly done by
the person. Whenever practicable and in the public interest, as
determined by the director, the director, in order to expedite
effective removal or remedial actions and minimize litigation,
shall act to facilitate agreements under this section that are in
the public interest and consistent with the rules adopted under
ORS 465.400. If the director decides not to use the procedures in
this section, the director shall notify in writing potentially
responsible parties at the facility of such decision.
Notwithstanding ORS chapter 183, a decision of the director to
use or not to use the procedures described in this section shall
not be appealable to the Environmental Quality Commission or
subject to judicial review.
(2)(a) An agreement under this section may provide that the
director will reimburse the parties to the agreement from the
fund, with interest, for certain costs of actions under the
agreement that the parties have agreed to perform and the
director has agreed to finance. In any case in which the director
provides such reimbursement and, in the judgment of the director,
cost recovery is in the public interest, the director shall make
reasonable efforts to recover the amount of such reimbursement
under ORS 465.200 to 465.545 and 465.900 or under other relevant
authority.
(b) Notwithstanding ORS chapter 183, the director's decision
regarding fund financing under this subsection shall not be
appealable to the commission or subject to judicial review.
(c) When a remedial action is completed under an agreement
described in paragraph (a) of this subsection, the fund shall be
subject to an obligation for any subsequent remedial action at
the same facility but only to the extent that such subsequent
remedial action is necessary by reason of the failure of the
original remedial action. Such obligation shall be in a
proportion equal to, but not exceeding, the proportion
contributed by the fund for the original remedial action. The
fund's obligation for such future remedial action may be met
through fund expenditures or through payment, following
settlement or enforcement action, by persons who were not
signatories to the original agreement.
(3) If an agreement has been entered into under this section,
the director may take any action under ORS 465.260 against any
person who is not a party to the agreement, once the period for
submitting a proposal under subsection (5)(c) of this section has
expired. Nothing in this section shall be construed to affect
either of the following:
(a) The liability of any person under ORS 465.255 or 465.260
with respect to any costs or damages which are not included in
the agreement.
(b) The authority of the director to maintain an action under
ORS 465.200 to 465.545 and 465.900 against any person who is not
a party to the agreement.
(4)(a) Whenever the director enters into an agreement under
this section with any potentially responsible person with respect
to remedial action, following approval of the agreement by the
Attorney General and except as otherwise provided in the case of
certain administrative settlements referred to in subsection (8)
of this section, the agreement shall be entered in the
appropriate circuit court as a consent judgment. The director
need not make any finding regarding an imminent and substantial
endangerment to the public health, safety, welfare or the
environment in connection with any such agreement or consent
judgment.
(b) The entry of any consent judgment under this subsection
shall not be construed to be an acknowledgment by the parties
that the release concerned constitutes an imminent and
substantial endangerment to the public health, safety, welfare or
the environment. Except as otherwise provided in the Oregon
Evidence Code, the participation by any party in the process
under this section shall not be considered an admission of
liability for any purpose, and the fact of such participation
shall not be admissible in any judicial or administrative
proceeding, including a subsequent proceeding under this section.
(c) The director may fashion a consent judgment so that the
entering of the judgment and compliance with the judgment or with
any determination or agreement made under this section shall not
be considered an admission of liability for any purpose.
(d) The director shall provide notice and opportunity to the
public and to persons not named as parties to the agreement to
comment on the proposed agreement before its submittal to the
court as a proposed consent judgment, as provided under ORS
465.320. The director shall consider any written comments, views
or allegations relating to the proposed agreement. The director
or any party may withdraw, withhold or modify its consent to the
proposed agreement if the comments, views and allegations
concerning the agreement disclose facts or considerations which
indicate that the proposed agreement is inappropriate, improper
or inadequate.
(5)(a) If the director determines that a period of negotiation
under this subsection would facilitate an agreement with
potentially responsible persons for taking removal or remedial
action and would expedite removal or remedial action, the
director shall so notify all such parties and shall provide them
with the following information to the extent the information is
available:
(A) The names and addresses of potentially responsible persons
including owners and operators and other persons referred to in
ORS 465.255.
(B) The volume and nature of substances contributed by each
potentially responsible person identified at the facility.
(C) A ranking by volume of the substances at the facility.
(b) The director shall make the information referred to in
paragraph (a) of this subsection available in advance of notice
under this subsection upon the request of a potentially
responsible person in accordance with procedures provided by the
director. The provisions of ORS 465.250 (5) regarding
confidential information apply to information provided under
paragraph (a) of this subsection.
(c) Any person receiving notice under paragraph (a) of this
subsection shall have 60 days from the date of receipt of the
notice to submit to the director a proposal for undertaking or
financing the action under ORS 465.260. The director may grant
extensions for up to an additional 60 days.
(6)(a) Any person may seek contribution from any other person
who is liable or potentially liable under ORS 465.255. In
resolving contribution claims, the court shall allocate remedial
action costs among liable parties in accordance with ORS 465.257.
(b) A person who has resolved its liability to the state in an
administrative or judicially approved settlement shall not be
liable for claims for contribution regarding matters addressed in
the settlement. { + The provisions of this paragraph do not
apply to claims for contribution against a person described in
this paragraph that are asserted by:
(A) A person who has performed removal or remedial action at
the facility that is subject to the settlement pursuant to an
agreement under subsection (1) of this section and who is not a
party to the settlement.
(B) A party who has entered into a written agreement with the
Department of Environmental Quality under ORS 465.327 regarding
the facility that is subject to the settlement and who is not a
party to the settlement.
(c) + } { - Such - } { + A + } settlement { + described in
this subsection + } 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) - } { + (d)(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 - } { + the + } settlement { - referred
to in paragraph (b) of this subsection - } .
(C) In any action under this paragraph, the rights of any
person who has resolved its liability to the state shall be
subordinate to the rights of the state.
(7)(a) In entering an agreement under this section, the
director may provide any person subject to the agreement with a
covenant not to sue concerning any liability to the State of
Oregon under ORS 465.200 to 465.545 and 465.900, including future
liability, resulting from a release of a hazardous substance
addressed by the agreement if each of the following conditions is
met:
(A) The covenant not to sue is in the public interest.
(B) The covenant not to sue would expedite removal or remedial
action consistent with rules adopted by the commission under ORS
465.400 (2).
(C) The person is in full compliance with a consent judgment
under subsection (4)(a) of this section for response to the
release concerned.
(D) The removal or remedial action has been approved by the
director.
(b) The director shall provide a person with a covenant not to
sue with respect to future liability to the State of Oregon under
ORS 465.200 to 465.545 and 465.900 for a future release of a
hazardous substance from a facility, and a person provided such
covenant not to sue shall not be liable to the State of Oregon
under ORS 465.255 with respect to such release at a future time,
for the portion of the remedial action:
(A) That involves the transport and secure disposition offsite
of a hazardous substance in a treatment, storage or disposal
facility meeting the requirements of section 3004(c) to (g), (m),
(o), (p), (u) and (v) and 3005(c) of the federal Solid Waste
Disposal Act, as amended, P.L. 96-482 and P.L. 98-616, if the
director has rejected a proposed remedial action that is
consistent with rules adopted by the commission under ORS 465.400
that does not include such offsite disposition and has thereafter
required offsite disposition; or
(B) That involves the treatment of a hazardous substance so as
to destroy, eliminate or permanently immobilize the hazardous
constituents of the substance, so that, in the judgment of the
director, the substance no longer presents any current or
currently foreseeable future significant risk to public health,
safety, welfare or the environment, no by-product of the
treatment or destruction process presents any significant hazard
to public health, safety, welfare or the environment, and all
by-products are themselves treated, destroyed or contained in a
manner that assures that the by-products do not present any
current or currently foreseeable future significant risk to
public health, safety, welfare or the environment.
(c) A covenant not to sue concerning future liability to the
State of Oregon shall not take effect until the director
certifies that the removal or remedial action has been completed
in accordance with the requirements of subsection (10) of this
section at the facility that is the subject of the covenant.
(d) In assessing the appropriateness of a covenant not to sue
under paragraph (a) of this subsection and any condition to be
included in a covenant not to sue under paragraph (a) or (b) of
this subsection, the director shall consider whether the covenant
or conditions are in the public interest on the basis of factors
such as the following:
(A) The effectiveness and reliability of the remedial action,
in light of the other alternative remedial actions considered for
the facility concerned.
(B) The nature of the risks remaining at the facility.
(C) The extent to which performance standards are included in
the order or judgment.
(D) The extent to which the removal or remedial action provides
a complete remedy for the facility, including a reduction in the
hazardous nature of the substances at the facility.
(E) The extent to which the technology used in the removal or
remedial action is demonstrated to be effective.
(F) Whether the fund or other sources of funding would be
available for any additional removal or remedial action that
might eventually be necessary at the facility.
(G) Whether the removal or remedial action will be carried out,
in whole or in significant part, by the responsible parties
themselves.
(e) Any covenant not to sue under this subsection shall be
subject to the satisfactory performance by such party of its
obligations under the agreement concerned.
(f)(A) Except for the portion of the removal or remedial action
that is subject to a covenant not to sue under paragraph (b) of
this subsection or de minimis settlement under subsection (8) of
this section, a covenant not to sue a person concerning future
liability to the State of Oregon:
(i) Shall include an exception to the covenant that allows the
director to sue the person concerning future liability resulting
from the release or threatened release that is the subject of the
covenant if the liability arises out of conditions unknown at the
time the director certifies under subsection (10) of this section
that the removal or remedial action has been completed at the
facility concerned; and
(ii) May include an exception to the covenant that allows the
director to sue the person concerning future liability resulting
from failure of the remedial action.
(B) In extraordinary circumstances, the director may determine,
after assessment of relevant factors such as those referred to in
paragraph (d) of this subsection and volume, toxicity, mobility,
strength of evidence, ability to pay, litigative risks, public
interest considerations, precedential value and the inequities
and aggravating factors, not to include the exception referred to
in paragraph (f)(A) of this subsection if other terms, conditions
or requirements of the agreement containing the covenant not to
sue are sufficient to provide all reasonable assurances that
public health, safety, welfare and the environment will be
protected from any future release at or from the facility.
(C) The director may include any provisions allowing future
enforcement action under ORS 465.260 that in the discretion of
the director are necessary and appropriate to assure protection
of public health, safety, welfare and the environment.
(8)(a) Whenever practicable and in the public interest, as
determined by the director, the director shall as promptly as
possible reach a final settlement with a potentially responsible
person in an administrative or civil action under ORS 465.255 if
such settlement involves only a minor portion of the remedial
action costs at the facility concerned and, in the judgment of
the director, both of the following are minimal in comparison to
any other hazardous substance at the facility:
(A) The amount of the hazardous substance contributed by that
person to the facility; and
(B) The toxic or other hazardous effects of the substance
contributed by that person to the facility.
(b) The director may provide a covenant not to sue with respect
to the facility concerned to any party who has entered into a
settlement under this subsection unless such a covenant would be
inconsistent with the public interest as determined under
subsection (7) of this section.
(c) The director shall reach any such settlement or grant a
covenant not to sue as soon as possible after the director has
available the information necessary to reach a settlement or
grant a covenant not to sue.
(d) A settlement under this subsection shall be entered as a
consent judgment or embodied in an administrative order setting
forth the terms of the settlement. The circuit court for the
county in which the release or threatened release occurs or the
Circuit Court of Marion County may enforce any such
administrative order.
(e) A party who has resolved its liability to the state under
this subsection shall not be liable for claims for contribution
regarding matters addressed in the settlement. The settlement
does not discharge any of the other potentially responsible
persons unless its terms so provide, but it reduces the potential
liability of the others by the amount of the settlement.
(f) Nothing in this subsection shall be construed to affect the
authority of the director to reach settlements with other
potentially responsible persons under ORS 465.200 to 465.545 and
465.900.
(9)(a) Notwithstanding ORS chapter 183, except for those
covenants required under subsection (7)(b)(A) and (B) of this
section, a decision by the director to agree or not to agree to
inclusion of any covenant not to sue in an agreement under this
section shall not be appealable to the commission or subject to
judicial review.
(b) Nothing in this section shall limit or otherwise affect the
authority of any court to review, in the consent judgment process
under subsection (4) of this section, any covenant not to sue
contained in an agreement under this section.
(10)(a) Upon completion of any removal or remedial action under
an agreement under this section, or pursuant to an order under
ORS 465.260, the party undertaking the removal or remedial action
shall notify the department and request certification of
completion. Within 90 days after receiving notice, the director
shall determine by certification whether the removal or remedial
action is completed in accordance with the applicable agreement
or order.
(b) Before submitting a final certification decision to the
court that approved the consent judgment, or before entering a
final administrative order, the director shall provide to the
public and to persons not named as parties to the agreement or
order notice and opportunity to comment on the director's
proposed certification decision, as provided under ORS 465.320.
(c) Any person aggrieved by the director's certification
decision may seek judicial review of the certification decision
by the court that approved the relevant consent judgment or, in
the case of an administrative order, in the circuit court for the
county in which the facility is located or in Marion County. The
decision of the director shall be upheld unless the person
challenging the certification decision demonstrates that the
decision was arbitrary and capricious, contrary to the provisions
of ORS 465.200 to 465.545 and 465.900 or not supported by
substantial evidence. The court shall apply a presumption in
favor of the director's decision. The court may award attorney
fees and costs to the prevailing party if the court finds the
challenge or defense of the director's decision to have been
frivolous. The court may assess against a party and award to the
state, in addition to attorney fees and costs, an amount equal to
the economic gain realized by the party if the court finds the
only purpose of the party's challenge to the director's decision
was delay for economic gain.
SECTION 2. { + The amendments to ORS 465.325 by section 1 of
this 2013 Act apply to claims for contribution made by:
(1) Persons who have entered into agreements with the Director
of the Department of Environmental Quality under ORS 465.325 (1)
before, on or after the effective date of this 2013 Act.
(2) Parties who have entered into written agreements under ORS
465.327 with the Department of Environmental Quality before, on
or after the effective date of this 2013 Act. + }
----------
