§ 19.4 Oregon Statutory Damages

• Library: Damages (OSBar) (2016 Ed.)

§ 19.4 OREGON STATUTORY DAMAGES

§ 19.4-1 Cleanup Costs: Oregon's Superfund

§ 19.4-1(a) Scope

Oregon has its own hazardous waste cleanup law (ORS 465.200-465.545), which is similar to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and is sometimes referred to as "Oregon's Superfund."

While the basic architecture of both CERCLA and Oregon's equivalent are similar, key differences make the Oregon statute a preferred option for parties seeking to recover cleanup costs for hazardous substances.

Several provisions of Oregon's Superfund arguably make it an easier statute under which to recover costs compared to CERCLA. One example relates to claims involving petroleum. CERCLA excludes claims for damages related to petroleum contamination. See 42 USC § 9601(14) (excluding petroleum products from the definition of hazardous substance). But Oregon's statute includes such claims. See ORS 465.200(16), (19) (including "oil," defined to include all "petroleum-related products," in the definition of hazardous substance).

Another example is National Contingency Plan (NCP) compliance. While proving compliance with the NCP is a necessary—and sometimes nettlesome—element in any CERCLA claim (42 USC § 9607(a)(4)(B); see § 19.2-5), Oregon's statute does not contain a parallel requirement. Rather, a plaintiff need show only that it incurred "remedial action costs . . . attributable to or associated with a facility" before seeking recovery for such costs from liable or potentially liable parties. ORS 465.255(1).

Additionally, contribution claims under the Oregon statute are subject to less procedural rigor than similar claims under CERCLA. For a detailed discussion regarding the elements of and differences between cost-recovery and contribution claims under CERCLA and Oregon law, see Environmental Law Volume 2: Enforcement and Litigation § 6.2 to § 6.2-5 (OSB Legal Pubs 2016).

§ 19.4-1(b) Remedial Action Costs

Under Oregon's statute, a party may recover "remedial action costs" as damages. ORS 465.255(1). The term remedial action cost is defined to encompass those costs incurred in responding to a hazardous substance release. The statute defines remedial action costs as

reasonable costs which are attributable to or associated with a removal or remedial action at a facility, including but not limited to the costs of administration, investigation, legal or enforcement activities, contracts and health studies.

ORS 465.200(24).

COMMENT: Although no Oregon case has interpreted the provision in Oregon's statute that remedial action costs be "reasonable," it is very likely that the courts would require remedial-action costs to be consistent with the Oregon Administrative Rules relating to remedy selection and cleanup standards. See OAR ch 340, div 122.

The terms removal and remedial action both include specific actions that fall within the ambit of each defined term, and closely track the Comprehensive Environmental Response, Compensation, and Liability Act's definitions of the same terms. Removal is defined under ORS 465.200(25) as

the cleanup or removal of a released hazardous substance from the environment, such actions as may be necessary taken [sic] in the event of the threat of release of a hazardous substance into the environment, such actions as may be necessary to monitor, assess and evaluate the release or threat of release of a hazardous substance, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize or mitigate damage to the public health, safety, welfare or to the environment, that may otherwise result from a release or threat of release. "Removal" also includes but is not limited to security fencing or other measures to limit access, provision of alternative drinking and household water supplies, temporary evacuation and housing of threatened individuals and action taken under ORS 465.260.

And remedial action is defined under ORS 465.200(23) as

those actions consistent with a permanent remedial action taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of a hazardous substance so that it does not migrate to cause substantial danger to present or future public health, safety, welfare or the environment. "Remedial action" includes, but is not limited to:
(a) Such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative drinking and household water supplies, and any monitoring reasonably required to assure that the actions protect the public health, safety, welfare and the environment.

(b) Offsite transport and offsite storage, treatment, destruction or secure disposition of hazardous substances and associated, contaminated materials.

(c) Such actions as may be necessary to monitor, assess, evaluate or investigate a release or threat of release.

§ 19.4-1(c) What Is and Is Not a Remedial Action Cost

Far fewer cases have interpreted Oregon's cleanup statute than those arising under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Because Oregon's hazardous substance laws are in large measure based on CERCLA, cases interpreting the federal law may...