Removal or remedial action
- reimbursement of costs
(1)The Director of the Department of Environmental Quality may undertake any removal or remedial action necessary to protect the public health, safety, welfare and the environment.
(2)The director may authorize any person to carry out any removal or remedial action in accordance with any requirements of or directions from the director, if the director determines that the person will commence and complete removal or remedial action properly and in a timely manner.
(3)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 prevent the director from taking any emergency removal or remedial action necessary to protect public health, safety, welfare or the environment.
(4)The director may require a person liable under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) to conduct any removal or remedial action or related actions necessary to protect the public health, safety, welfare and the environment. The director’s action under this subsection may include but need not be limited to issuing an order specifying the removal or remedial action the person must take.
(5)The director may request the Attorney General to bring an action or proceeding for legal or equitable relief, in the circuit court of the county in which the facility is located or in Marion County, as may be necessary:
(a)To enforce an order issued under subsection (4) of this section; or
(b)To abate any imminent and substantial danger to the public health, safety, welfare or the environment related to a release.
(6)Notwithstanding any provision of ORS chapter 183, and except as provided in subsection (7) of this section, any order issued by the director under subsection (4) of this section shall not be appealable to the Environmental Quality Commission or subject to judicial review.
(7)Intentionally left blank —Ed.
(a)Any person who receives and complies with the terms of an order issued under subsection (4) of this section may, within 60 days after completion of the required action, petition the director for reimbursement from the fund for the reasonable costs of such action.
(b)If the director refuses to grant all or part of the reimbursement, the petitioner may, within 30 days of receipt of the director’s refusal, file an action against the director seeking reimbursement from the fund in the circuit court of the county in which the facility is located or in the Circuit Court of Marion County. To obtain reimbursement, the petitioner must establish by a preponderance of the evidence that the petitioner is not liable under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) and that costs for which the petitioner seeks reimbursement are reasonable in light of the action required by the relevant order. A petitioner who is liable under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) may also recover reasonable remedial action costs to the extent that the petitioner can demonstrate that the director’s decision in selecting the removal or remedial action ordered was arbitrary and capricious or otherwise not in accordance with law.
(8)If any person who is liable under ORS 465.255 (Strict liability for remedial action costs for injury or destruction of natural resource) fails without sufficient cause to conduct a removal or remedial action as required by an order of the director, the person shall be liable to the department for the state’s remedial action costs and for punitive damages not to exceed three times the amount of the state’s remedial action costs.
(9)Nothing in this section is intended to interfere with, limit or abridge the authority of the State Fire Marshal or any other state agency or local unit of government relating to an emergency that presents a combustion or explosion hazard. [Formerly 466.570]
Section 465.260 — Removal or remedial action; reimbursement of costs; liability; damages,
Notes of Decisions
Site cleanup not undertaken or required by Department of Environmental Quality is not remedial action. McDonald v. Sun Oil Company, 423 F. Supp. 2d 1114 (D. Or. 2006)