Oregon Statutes - Chapter 465 - Hazardous Waste and Hazardous Materials I - Section 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 departmentís 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 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. The party shall bear the burden of proving that any hazardous substance release existed before the date of acquisition of ownership of the facility. This release from liability shall not affect a partyís liability for claims arising from any:

(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 departmentís 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]

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Last modified: August 7, 2008