Responsible Persons, no matter the magnitude or basis of their liability under Oregon’s hazardous substance cleanup law, and innocent persons (those who purchased without knowledge after AAI or who purchased under a Prospective Purchaser Agreement) who voluntarily cleanup contaminated properties may continue to have their contribution rights against other Responsible Persons nullified by the Oregon Department of Environmental Quality under recent amendments to ORS 465.325. Effective, June 13, 2013, SB 476A (aka the Lucas Bill, named for Oregon property developer Patrick Lucas), creates a new right for persons who enter into a Prospective Purchaser Agreement pursuant to ORS 465.327 “to participate in any negotiations” for a settlement agreement between the State of Oregon and one or more Potentially Responsible Persons and to intervene in any action for a Consent Judgment sanctioning the settlement agreement. However, while requiring the court to determine that the “contribution protection” afforded by the Consent Judgment be “fair, reasonable and consistent” with the statute and be “in the public interest”, the amendments reaffirm that the Oregon DEQ can continue to take payouts from some RP’s in exchange for nullifying the contribution rights of non-settling RP’s and innocent persons who have voluntarily moved forward with cleanup (even those persons who proceeded under a Voluntary Agreement with the agency). The Oregon DEQ will tell you that the power to afford “contribution protection” to settling parties is an important “cleanup tool” but there really is no data to support that argument. In my opinion, the potential for DEQ to undercut the cost recovery efforts of persons who proceed with cleanup in good faith does far more to discourage cleanup than it does to promote it. If you find yourself cleaning up contaminated property you may need the assistance of experienced environmental counsel to protect your contribution rights (sadly) from the avarice of the State. Environmental Compliance stands ready to help.
