Chapter 407 Oregon Laws 2003

AN ACT

SB 419

Relating to dry cleaning establishments; creating new provisions; amending ORS 465.200, 465.500, 465.503, 465.507, 465.510, 465.517, 465.520, 465.525, 465.527, 465.545 and 468.035; repealing ORS 465.515, 465.530, 465.533, 465.535, 465.537, 465.540, 465.543, 465.546 and 465.548 and sections 16, 20 and 21, chapter 495, Oregon Laws 2001; and prescribing an effective date.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 465.503 is amended to read:

465.503. (1) Except as provided under subsections (3), (4) and (5) of this section, and except to the extent that property, liability or other insurance is available to pay remedial action costs, no dry cleaning owner or dry cleaning operator shall be subject to any administrative or judicial action to compel a removal or remedial action or to recover remedial action costs caused by the release or threatened release of dry cleaning solvent from an active or inactive dry cleaning facility, whether the action is brought under ORS 465.200 to 465.510 and 465.900 or any other statute or regulation.

(2) Except as provided under subsections (3), (4) and (5) of this section, and except to the extent that property, liability or other insurance is available, no dry cleaning owner or dry cleaning operator shall be liable under statutory, common or administrative law for damage to real or personal property or to natural resources if the damage is caused by the release or threatened release of dry cleaning solvent from an active or inactive dry cleaning facility, except upon proof that the release of dry cleaning solvent was caused by the failure of the dry cleaning owner or dry cleaning operator to exercise due care. Compliance with applicable federal, state and local laws and regulations, including waste minimization requirements, is prima facie evidence that the dry cleaning owner or dry cleaning operator exercised due care.

(3) Notwithstanding the date on which the release occurred, the provisions of subsections (1) and (2) of this section do not apply to a dry cleaning operator if:

(a) The release was caused by gross negligence of the dry cleaning owner or dry cleaning operator;

(b) The release resulted from an action or omission that was a violation by the dry cleaning owner or dry cleaning operator of federal or state laws in effect at the time of the release, including but not limited to waste minimization requirements imposed under ORS 465.505;

(c) The dry cleaning owner or dry cleaning operator willfully concealed a release of dry cleaning solvent contrary to laws and regulations in effect at the time of the release or did not comply with release reporting requirements applicable at the time of the release;

(d) The dry cleaning owner or dry cleaning operator denies access or unreasonably hinders or delays removal or remedial action necessary at the facility; or

(e) The dry cleaning operator of the facility where the release occurred has failed to pay fees under ORS 465.517 [to], 465.520 and 465.523 in relation to dry cleaning activity at any dry cleaning facility.

(4) Notwithstanding the date on which the release occurred, subsections (1) and (2) of this section do not apply to a dry cleaning owner if:

(a) The release was caused by gross negligence of the dry cleaning owner or dry cleaning operator;

(b) The release resulted from a violation by the dry cleaning owner or dry cleaning operator of federal or state laws in effect at the time of the release, including but not limited to waste minimization requirements imposed by ORS 465.505;

(c) The dry cleaning owner or dry cleaning operator willfully concealed a release of dry cleaning solvent contrary to laws and regulations in effect at the time of the release or did not comply with the release reporting requirements applicable at the time of release;

(d) The dry cleaning owner or dry cleaning operator denies access or unreasonably hinders or delays removal or remedial action necessary at the facility;

(f) The dry cleaning facility has been an inactive dry cleaning facility for a period of 90 days or more immediately preceding June 30, 1995.

(5) If hazardous substances are released as a result of both the release of dry cleaning solvent from dry cleaning operations and other activities, the exemptions from liability provided under this section shall apply only to that portion of the removal or remedial action or damage caused by the release or threatened release of dry cleaning solvent from the dry cleaning facility.

SECTION 2. The amendments to ORS 465.503 by section 1 of this 2003 Act apply to costs or damages incurred as a result of a release or threatened release before, on or after the effective date of this 2003 Act.

SECTION 3. ORS 465.507 is amended to read:

465.507. (1) The Director of the Department of Environmental Quality shall appoint an advisory group comprised of members representing a balance of at least the following interests:

(a) Dry cleaning operators;

(b) Dry cleaning owners;

(d) Citizens;

(e) Environmental organizations; and

(f) Local governments.

(2) The advisory group shall meet periodically to review and advise the Department of Environmental Quality regarding:

(a) Methods and standards for removal and remedial actions as applied by the department at dry cleaning facilities;

(b) Waste minimization rules, guidelines and requirements as applied to dry cleaning facilities, including new technologies and industry practices;

(d) The adequacy of revenue generated by fees assessed under ORS 465.517 [to], 465.520 and 465.523 for meeting the costs of removal and remedial actions at dry cleaning facilities; and

(e) Any other matters pertinent to the purposes of ORS 465.200 and 465.500 to 465.548.

(3) The advisory group shall develop goals for the department that relate to the cleanup of contamination resulting from dry cleaning facilities. In developing the goals, the group may review and monitor the administrative costs of the department for implementing ORS 465.500 to 465.548 and shall include recommendations for:

(a) Reducing administrative costs;

(b) Prioritizing dry cleaning facilities that have confirmed releases for removal or remedial action;

(c) Determining and limiting the ultimate cost of removal or remedial actions at dry cleaning facilities paid from the Dry Cleaner Environmental Response Account; and

(d) Determining the ultimate cost of future liability to the state for removal or remedial actions at dry cleaning facilities not covered by the Dry Cleaner Environmental Response Account.

SECTION 4. ORS 465.510 is amended to read:

465.510. (1) The Dry Cleaner Environmental Response Account is established separate and distinct from the General Fund in the State Treasury. All moneys collected under ORS 465.517 [to], 465.520 and 465.523, all account expenditures recovered or otherwise received, penalties assessed under ORS 465.992 and all interest earned on moneys in the account shall be credited to the account.

(2) All moneys in the Dry Cleaner Environmental Response Account are continuously appropriated to the Department of Environmental Quality and, except as provided under this section, may be expended solely for the following purposes:

(a) Remedial action costs incurred by the department as a result of a release at or from a dry cleaning facility;

(b) Preapproved remedial action costs incurred by a person performing removal or remedial action as a result of a release at or from a dry cleaning facility under a department order or agreement expressly authorizing reimbursement from the account;

(d) The department’s indirect costs attributable to removal or remedial action due to a release at or from a dry cleaning facility.

(3) The department may expend Dry Cleaner Environmental Response Account moneys only for those remedial action costs defined in ORS 465.200 [(23)] (24) that are reasonable in the department’s judgment. The department shall consider at least the following factors, to the extent relevant information is available, in determining the order in which removals or remedial actions shall receive funding and the amount of funding:

(a) The dry cleaning facility’s risk to public health and the environment. Each facility’s risk shall be evaluated relative to the risk posed by other facilities.

(b) The need for removal or remedial action at the dry cleaning facility relative to account availability and the need for removal or remedial actions at other facilities.

(A) Direct cost of cleanup, provided that adequate technical investigation has been completed;

(B) Direct cost of technical investigation and remedy evaluation;

(D) Enforcement, cost recovery and legal costs.

(4) If the department takes action at a facility, location or area where hazardous substances have been released as a result of both dry cleaning operations and other activities, including but not limited to laundry operations, account moneys may be used only for that portion of the removal or remedial action determined by the department to be necessitated by the release of dry cleaning solvent by the dry cleaning facility.

(5) Moneys in the account expended for remedial action costs may be expended solely for costs in excess of the following deductible amounts:

(a) For a release from a dry cleaning facility employing five or fewer individuals at the time of release, including any dry cleaning owner, dry cleaning operator or full-time employee, $5,000;

(b) For a release from a dry cleaning facility employing more than five individuals at the time of release, including any dry cleaning owner, dry cleaning operator or full-time employee, $1,000 per owner, operator or full-time employee up to $10,000; and

(6) The dry cleaning owner or dry cleaning operator of the facility shall be responsible for:

(a) Paying the deductible amount. The department may bring a civil action to recover any moneys expended from the account in payment of costs properly payable under this [subsection] paragraph by the dry cleaning owner or dry cleaning operator.

(b) Investigating whether an insurance policy provides coverage for the costs arising from a release or threatened release and obtaining payment for those costs. In order to receive an exemption from administrative action, judicial action or liability under ORS 465.503, the dry cleaning owner or dry cleaning operator:

(A) Must initiate all actions reasonably necessary to obtain coverage from an insurance policy that may be available to pay costs associated with a release or threatened release; and

(B) May not take any action that may prejudice the owner’s or operator’s ability to obtain, under an insurance policy, coverage of or payment of costs associated with a release or threatened release.

(7) The department may not expend moneys out of the Dry Cleaner Environmental Response Account:

(a) For the payment of any claim or judgment against the state or its agencies for loss of business, damage or destruction of property or personal injury arising from removal or remedial action undertaken under ORS [465.500 to 465.510] 465.260.

(b) For remedial action and other costs under this section if the dry cleaning owner or dry cleaning operator failed to comply with the waste minimization requirements under ORS 465.505, and the failure to comply with the requirements is determined by the department to be a contributing factor in the release.

SECTION 5. ORS 465.517 is amended to read:

465.517. [(1) In addition to any other tax or fee imposed by law, there is imposed on the privilege of operating an active dry cleaning facility within this state a base annual fee of:]

[(a) $250 for each dry store plus, if a dry cleaning solvent was ever used at the dry store, an additional fee equal to the larger of the following:]

[(A) $200, if perchloroethylene was ever used at the dry store; or]

[(B) $100, if any other dry cleaning solvent was ever used at the dry store; and]

[(b) $500 for each dry cleaning facility.]

[(2) In addition to any other tax or fee imposed by law, there is assessed on an active dry cleaning facility the following annual risk fees:]

[(a) $100, for using a solvent other than perchloroethylene at the facility during the fee period;]

[(b) $200, for using perchloroethylene at the facility at any time prior to, but not during, the fee period; and]

[(c) $400, for using perchloroethylene at the facility during the fee period.]

(1) In addition to any other tax or fee imposed by law, there is assessed on dry cleaning facilities the following annual fees:

(a) For any dry cleaning facility that utilized any solvent prior to January 1, 1998, $500.

(b) For any dry cleaning facility that, after January 1, 1998, has utilized or utilizes, during any part of the annual fee period, perchloroethylene, $500.

(2) Notwithstanding subsection (1) of this section, if the dry cleaning owner or dry cleaning operator has an expanded preliminary assessment, including field testing, conducted at the facility in a manner approved by the department and the assessment shows that no release of solvents has occurred, a dry cleaning facility may:

(a) Be permanently exempted from payment of the fee under subsection (1)(a) of this section; and

(b) Receive a credit of $1,000 for payments required by subsection (1) of this section.

(3) In addition to any other tax or fee imposed by law, there is assessed on an active dry cleaning facility [an environmental] an annual fee [based on] in the amount of one percent of the gross revenue of dry cleaning services that the facility generates in the annual fee period. Gross revenue does not include revenues of a dry cleaning facility received for services to a dry store not owned or operated by the dry cleaning facility. [, in the following amounts:]

[(a) For facilities with less than $100,000 in gross revenue, $250.]

[(b) For facilities with gross revenues between $100,000 and $199,999, $500.]

[(c) For facilities with gross revenues between $200,000 and $299,999, $750.]

[(d) For facilities with gross revenues between $300,000 and $399,999, $1,000.]

[(e) For facilities with gross revenues of $400,000 or more, $1,250.]

(4) The fees assessed shall be due on the first day of each calendar year that the facility operates as a dry cleaning facility and shall be prorated for partial year operation.

(5) A dry cleaning owner or dry cleaning operator shall pay the fees imposed under this section in a single payment, payable on [January] March 1.

[(6) Beginning January 1, 2003, and annually thereafter, the risk and environmental fees specified in this section shall be increased by 25 percent if the fees and deductibles paid under ORS 465.500 to 465.548 failed to generate $1 million or more during the preceding calendar year.]

SECTION 6. ORS 465.520 is amended to read:

465.520. (1) In addition to any other tax or fee imposed by law, a fee, payable by the seller or transferor, is imposed on:

(a) The retail sale or transfer within this state of dry cleaning solvent on or after January 1, 1996; and

(b) The transfer of dry cleaning solvent from an off-site reclamation facility. [The fee shall be paid by the seller or transferor.]

(2) The fee on each gallon of dry cleaning solvent is the result obtained from multiplying the solvent factor of the dry cleaning solvent by $10.

(3) The solvent factor for each dry cleaning solvent is the amount listed in the following table:

______________________________________________________________________________

Dry Cleaning Solvent Solvent Factor

Perchloroethylene 1.00

Any other solvent 0.20

______________________________________________________________________________

(4) Notwithstanding subsections (1) and (2) of this section, no fee shall be imposed on the retail sale or transfer of any dry cleaning solvent if, prior to the retail sale or transfer, the purchaser or transferee provides the seller or transferor with a certificate stating that:

(a) The dry cleaning solvent will not be used in a dry cleaning facility; or

(b) The purchaser or transferee does not operate a dry cleaning facility.

SECTION 7. ORS 465.525 is amended to read:

465.525. (1) For a fraction of a gallon, the fee imposed under ORS 465.520 and 465.523 shall be proportionate to the fee imposed on a whole gallon.

(2) If the fee is paid pursuant to ORS 465.520 and 465.523 on dry cleaning solvent that is subsequently resold or exported from this state and not reimported for use in a dry cleaning facility, the reseller or exporter of the dry cleaning solvent is entitled to claim a refund or credit for the fee on the dry cleaning solvent that was paid by the reseller or exporter. The Department of [Revenue] Environmental Quality may require a fee payer claiming a refund to provide proof that the fee was paid with respect to the dry cleaning solvent and proof of its use or sale in a manner not subject to fee assessment.

SECTION 8. ORS 465.527 is amended to read:

465.527. [(1)] The fees imposed by ORS 465.517 [to], 465.520 and 465.523 shall be [reported on forms supplied] paid pursuant to information reported on forms supplied by the Department of [Revenue] Environmental Quality.

[(2) The department for good cause may extend for not to exceed 30 days the time for paying any fee required under ORS 465.517 to 465.523. The extension may be granted at any time if a request therefor is filed with the department on or before the due date of the fee payment.]

[(3) Any person to whom an extension is granted shall pay, in addition to the fee, interest at the rate established under ORS 305.220 for each month, or fraction thereof, from the date on which the fee would have been due without the extension to the date of payment.]

SECTION 9. Section 10 of this 2003 Act is added to and made a part of ORS 465.500 to 465.548.

SECTION 10. (1) If a person fails to submit the fees imposed by ORS 465.517, 465.520 and 465.523 by the date shown on the form supplied under ORS 565.527, the Department of Environmental Quality shall assess a late charge equal to 10 percent of the unpaid amount. An additional late charge of 10 percent of the unpaid amount shall be assessed for each 30-day period that the fees remain unpaid. If the invoice remains unpaid after three additional late charges are incurred, the department may not assess further charges.

(2) If the department is unable to collect fees, charges or interest imposed by this section or ORS 465.517, 465.520 or 465.523, the department may authorize the Director of the Department of Revenue to collect the fees, charges or interest in the manner provided by ORS chapters 305 and 314.

(3) The Department of Environmental Quality may request tax information and financial records necessary to perform audits and examinations to verify fee-related information submitted by persons who pay fees under ORS 465.517, 465.520 and 465.523. All tax information and financial records obtained by the department pursuant to this subsection are exempt from public disclosure under ORS 192.410 to 192.505.

TRANSFER

SECTION 11. The duties, functions and powers of the Department of Revenue relating to the collection of fees from dry cleaning owners and dry cleaning operators and other responsibilities of the Department of Revenue under ORS 465.517 to 465.548 are imposed upon, transferred to and vested in the Department of Environmental Quality.

RECORDS, PROPERTY, EMPLOYEES

SECTION 12. (1) The Director of the Department of Revenue shall:

(a) Deliver to the Department of Environmental Quality all records and property within the jurisdiction of the director that relate to the duties, functions and powers transferred by section 11 of this 2003 Act; and

(b) Transfer to the Department of Environmental Quality those employees engaged primarily in the exercise of the duties, functions and powers transferred by section 11 of this 2003 Act.

(2) The Director of the Department of Environmental Quality shall take possession of the records and property, and shall take charge of the employees and employ them in the exercise of the duties, functions and powers transferred by section 11 of this 2003 Act, without reduction of compensation but subject to change or termination of employment or compensation as provided by law.

(3) The Governor shall resolve any dispute between the Department of Revenue and the Department of Environmental Quality relating to transfers of records, property and employees under this section, and the Governor’s decision is final.

UNEXPENDED REVENUES

SECTION 13. (1) The unexpended balances of amounts authorized to be expended by the Department of Revenue for the biennium beginning July 1, 2003, from revenues dedicated, continuously appropriated, appropriated or otherwise made available for the purpose of administering and enforcing the duties, functions and powers transferred by section 11 of this 2003 Act are appropriated and transferred to and are available for expenditure by the Department of Environmental Quality for the biennium beginning July 1, 2003, for the purpose of administering and enforcing the duties, functions and powers transferred by section 11 of this 2003 Act.

(2) The expenditure classifications, if any, established by Acts authorizing or limiting expenditures by the Department of Revenue remain applicable to expenditures by the Department of Environmental Quality under this section.

ACTION, PROCEEDING, PROSECUTION

SECTION 14. The transfer of duties, functions and powers to the Department of Environmental Quality by section 11 of this 2003 Act does not affect any action, proceeding or prosecution involving or with respect to such duties, functions and powers begun before and pending at the time of the transfer, except that the Department of Environmental Quality is substituted for the Department of Revenue in the action, proceeding or prosecution.

LIABILITY, DUTY, OBLIGATION

SECTION 15. (1) Nothing in sections 11 to 17 of this 2003 Act or the amendments to ORS 465.525 and 465.527 by sections 7 and 8 of this 2003 Act relieves a person of a liability, duty or obligation accruing under or with respect to the duties, functions and powers transferred by section 11 of this 2003 Act. The Department of Environmental Quality may undertake the collection or enforcement of any such liability, duty or obligation.

(2) The rights and obligations of the Department of Revenue legally incurred under contracts, leases and business transactions executed, entered into or begun before the effective date of this 2003 Act and accruing under or with respect to the duties, functions and powers transferred by section 11 of this 2003 Act are transferred to the Department of Environmental Quality. For the purpose of succession to these rights and obligations, the Department of Environmental Quality is a continuation of the Department of Revenue and not a new authority.

RULES

SECTION 16. Notwithstanding the transfer of duties, functions and powers by section 11 of this 2003 Act, the rules of the Department of Revenue with respect to such duties, functions or powers that are in effect on the effective date of this 2003 Act continue in effect until superseded or repealed by rules of the Department of Environmental Quality. References in such rules of the Department of Revenue to the Department of Revenue or an officer or employee of the Department of Revenue are considered to be references to the Department of Environmental Quality or an officer or employee of the Department of Environmental Quality.

SECTION 17. Whenever, in any uncodified law or resolution of the Legislative Assembly or in any rule, document, record or proceeding authorized by the Legislative Assembly, in the context of the duties, functions and powers transferred by section 11 of this 2003 Act, reference is made to the Department of Revenue or an officer or employee of the Department of Revenue whose duties, functions or powers are transferred by section 11 of this 2003 Act, the reference is considered to be a reference to the Department of Environmental Quality or an officer or employee of the Department of Environmental Quality who by this 2003 Act is charged with carrying out such duties, functions and powers.

SECTION 18. The unit captions used in this 2003 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2003 Act.

SECTION 19. Section 20 of this 2003 Act is added to and made a part of ORS 465.517 to 465.548.

SECTION 20. The Department of Environmental Quality, in consultation with the advisory group established under ORS 465.507, may contract with a private or public entity for the provision of services to implement the objectives of ORS 465.517 to 465.548. The department may contract for the collection of fees, charges or interest from dry cleaning owners or dry cleaning operators, but the department may not delegate its authority to determine the amount of the fees, charges or interest owed.

SECTION 21. ORS 465.500 is amended to read:

465.500. (1) The purposes of ORS [465.503 to 465.540] 465.500 to 465.548 are:

(a) To create a $1 million cleanup fund paid for solely by the dry cleaning industry, and to otherwise exempt dry cleaning owners and dry cleaning operators from cleanup liability; and

(b) To ensure the cleanup of contamination resulting from dry cleaning facilities.

(2) The provisions of ORS 465.200 to 465.510 and 465.900, and rules and programs adopted thereto, shall continue to apply to the cleanup of releases of hazardous substances from dry cleaning facilities, including but not limited to provisions and programs for:

(a) Listing of facilities having a confirmed release of dry cleaning solvents;

(b) Prioritizing dry cleaning facilities with confirmed releases for removal or remedial action;

(c) Applying standards and methods for removal and remedial actions selected or approved by the Department of Environmental Quality; and

(d) Enforcing or undertaking removal and remedial actions.

SECTION 22. ORS 465.545 is amended to read:

465.545. (1) Upon a determination by the Director of the Department of Environmental Quality that necessary removal and remedial action is completed and paid for at all dry cleaning facilities having a confirmed release of dry cleaning solvent, the director shall report to the next following session of the Legislative Assembly with a recommendation for the suspension of the fees, other than the annual license fee, imposed under ORS 465.517 [to], 465.520 and 465.523.

(2) The Director of the Department of Environmental Quality shall give notice of the intent to make the recommendation described under subsection (1) of this section at least one year prior to the date recommended by the director as the date of suspension.

(3) The provisions of ORS 465.500 [to], 465.503, 465.505 and465.510 [shall] apply retroactively to releases of dry cleaning solvents occurring before June 30, 1995.

SECTION 23. ORS 465.200 is amended to read:

465.200. As used in ORS 465.200 to 465.510 and 465.900:

(1) “Claim” means a demand in writing for a sum certain.

(2) “Commission” means the Environmental Quality Commission.

(3) “Department” means the Department of Environmental Quality.

(4) “Director” means the Director of the Department of Environmental Quality.

(5) “Dry Cleaner Environmental Response Account” means the account [created] established under ORS 465.510.

(6) “Dry cleaning facility” means any active or inactive facility located in this state that is or was engaged in dry cleaning apparel and household fabrics for the general public, and dry stores, other than a:

(a) Facility located on a United States military base;

(b) Uniform service or linen supply facility; or

[(d) Facility engaged in dry cleaning operations only as a dry store and selling less than $50,000 per year of dry cleaning services].

(7) “Dry cleaning operator” means a person who has, or had, a business license to operate a dry cleaning facility or a business operation that a dry cleaning facility is a part of. If a dry cleaning facility is operated without a business license, both the dry cleaning owner and any person directing the operations shall be considered the dry cleaning operator and shall be jointly and severally liable for the fees and duties imposed on dry cleaning operators.

(8) “Dry cleaning owner” means a person who owns or owned the real property underlying a dry cleaning facility.

(9) “Dry cleaning service” means:

(a) The cleaning of garments or fabrics at a dry cleaning facility using a dry cleaning solvent and the pressing or alteration of garments or fabrics if those services are not charged for separately from cleaning; and

(b) The services of a dry store.

[(9)] (10) “Dry cleaning solvent” means any nonaqueous solvent for use in the cleaning of garments or other fabrics at a dry cleaning facility, including but not limited to perchloroethylene and petroleum based solvents and the products into which dry cleaning solvents degrade.

[(10)] (11) “Dry store” means a facility that does not include machinery using dry cleaning solvents, including but not limited to a pickup store, dropoff store, call station, agency for dry cleaning, press shop, and pickup and delivery service not otherwise operated by a dry cleaning facility.

[(11)] (12) “Environment” includes the waters of the state, any drinking water supply, any land surface and subsurface strata and ambient air.

[(12)] (13) “Facility” means any building, structure, installation, equipment, pipe or pipeline including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, above ground tank, underground storage tank, motor vehicle, rolling stock, aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located and where a release has occurred or where there is a threat of a release, but does not include any consumer product in consumer use or any vessel.

[(13)] (14) “Fund” means the Hazardous Substance Remedial Action Fund established by ORS 465.381.

[(14)] (15) “Guarantor” means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under ORS 465.200 to 465.510 and 465.900.

[(15)] (16) “Hazardous substance” means:

(a) Hazardous waste as defined in ORS 466.005.

(b) Any substance defined as a hazardous substance pursuant to section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act, P.L. 96-510, as amended, and P.L. 99-499.

(d) Any substance designated by the commission under ORS 465.400.

[(16)] (17) “Inactive dry cleaning facility” means property formerly used, but not currently used, for providing dry cleaning services.

[(17)] (18) “Natural resources” includes but is not limited to land, fish, wildlife, biota, air, surface water, ground water, drinking water supplies and any other resource owned, managed, held in trust or otherwise controlled by the State of Oregon or a political subdivision of the state.

[(18)] (19) “Oil” includes gasoline, crude oil, fuel oil, diesel oil, lubricating oil, oil sludge or refuse and any other petroleum-related product, or waste or fraction thereof that is liquid at a temperature of 60 degrees Fahrenheit and pressure of 14.7 pounds per square inch absolute.

[(19)] (20) “Owner or operator” means any person who owned, leased, operated, controlled or exercised significant control over the operation of a facility. “Owner or operator” does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect a security interest in the facility.

[(20)] (21) “Person” means an individual, trust, firm, joint stock company, joint venture, consortium, commercial entity, partnership, association, corporation, commission, state and any agency thereof, political subdivision of the state, interstate body or the federal government including any agency thereof.

[(21)] (22) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance, or threat thereof, but excludes:

(a) Any release that results in exposure to a person solely within a workplace, with respect to a claim that the person may assert against the person’s employer under ORS chapter 656;

(b) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine;

(c) Any release of source, by-product or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, as amended, if the release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of the Atomic Energy Act of 1954, as amended, or, for the purposes of ORS 465.260 or any other removal or remedial action, any release of source by-product or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978; and

(d) The normal application of fertilizer.

[(22)] (23) “Remedial action” means 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.

[(23)] (24) “Remedial action costs” means 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.

[(24)] (25) “Removal” means the cleanup or removal of a released hazardous substance from the environment, such actions as may be necessary taken 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.

[(25)] (26) “Retail sale or transfer” means a transfer of title or possession, exchange or barter, conditional or otherwise, for a purpose other than resale in the ordinary course of business.

[(26)] (27) “Transport” means the movement of a hazardous substance by any mode, including pipeline and in the case of a hazardous substance that has been accepted for transportation by a common or contract carrier, the term “transport” shall include any stoppage in transit that is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract carrier, and any such stoppage shall be considered as a continuity of movement and not as the storage of a hazardous substance.

[(27)] (28) “Underground storage tank” has the meaning given that term in ORS 466.706.

[(28)] (29) “Waters of the state” has the meaning given that term in ORS 468B.005.

SECTION 24. ORS 465.200, as amended by section 19, chapter 495, Oregon Laws 2001, is amended to read:

465.200. As used in ORS 465.200 to 465.510 and 465.900:

(1) “Claim” means a demand in writing for a sum certain.

(2) “Commission” means the Environmental Quality Commission.

(3) “Department” means the Department of Environmental Quality.

(4) “Director” means the Director of the Department of Environmental Quality.

(5) “Dry Cleaner Environmental Response Account” means the account established under ORS 465.510.

[(5)] (6) “Dry cleaning facility” means any active or inactive facility located in this state that is or was engaged in dry cleaning apparel and household fabrics for the general public, and dry stores, other than a:

(a) Facility located on a United States military base;

(b) Uniform service or linen supply facility; or

[(d) Facility engaged in dry cleaning operations only as a dry store and selling less than $50,000 per year of dry cleaning services].

[(6)] (7) “Dry cleaning operator” means a person who has, or had, a business license to operate a dry cleaning facility or a business operation that a dry cleaning facility is a part of. If a dry cleaning facility is operated without a business license, both the dry cleaning owner and any person directing the operations shall be considered the dry cleaning operator and shall be jointly and severally liable for the fees and duties imposed on dry cleaning operators.

[(7)] (8) “Dry cleaning owner” means a person who owns or owned the real property underlying a dry cleaning facility.

(9) “Dry cleaning service” means:

(b) The services of a dry store.

[(8)] (10) “Dry cleaning solvent” means any nonaqueous solvent for use in the cleaning of garments or other fabrics at a dry cleaning facility, including but not limited to perchloroethylene and petroleum based solvents and the products into which dry cleaning solvents degrade.

[(9)] (11) “Dry store” means a facility that does not include machinery using dry cleaning solvents, including but not limited to a pickup store, dropoff store, call station, agency for dry cleaning, press shop, and pickup and delivery service not otherwise operated by a dry cleaning facility.

[(10)] (12) “Environment” includes the waters of the state, any drinking water supply, any land surface and subsurface strata and ambient air.

[(11)] (13) “Facility” means any building, structure, installation, equipment, pipe or pipeline including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, above ground tank, underground storage tank, motor vehicle, rolling stock, aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located and where a release has occurred or where there is a threat of a release, but does not include any consumer product in consumer use or any vessel.

[(12)] (14) “Fund” means the Hazardous Substance Remedial Action Fund established by ORS 465.381.

[(13)] (15) “Guarantor” means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under ORS 465.200 to 465.510 and 465.900.

[(14)] (16) “Hazardous substance” means:

(a) Hazardous waste as defined in ORS 466.005.

(d) Any substance designated by the commission under ORS 465.400.

[(15)] (17) “Inactive dry cleaning facility” means property formerly used, but not currently used, for providing dry cleaning services.

[(16)] (18) “Natural resources” includes but is not limited to land, fish, wildlife, biota, air, surface water, ground water, drinking water supplies and any other resource owned, managed, held in trust or otherwise controlled by the State of Oregon or a political subdivision of the state.

[(17)] (19) “Oil” includes gasoline, crude oil, fuel oil, diesel oil, lubricating oil, oil sludge or refuse and any other petroleum-related product, or waste or fraction thereof that is liquid at a temperature of 60 degrees Fahrenheit and pressure of 14.7 pounds per square inch absolute.

[(18)] (20) “Owner or operator” means any person who owned, leased, operated, controlled or exercised significant control over the operation of a facility. “Owner or operator” does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect a security interest in the facility.

[(19)] (21) “Person” means an individual, trust, firm, joint stock company, joint venture, consortium, commercial entity, partnership, association, corporation, commission, state and any agency thereof, political subdivision of the state, interstate body or the federal government including any agency thereof.

[(20)] (22) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance, or threat thereof, but excludes:

(a) Any release that results in exposure to a person solely within a workplace, with respect to a claim that the person may assert against the person’s employer under ORS chapter 656;

(b) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine;

(d) The normal application of fertilizer.

[(21)] (23) “Remedial action” means 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:

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

[(22)] (24) “Remedial action costs” means 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.

[(23)] (25) “Removal” means the cleanup or removal of a released hazardous substance from the environment, such actions as may be necessary taken 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.

[(24)] (26) “Retail sale or transfer” means a transfer of title or possession, exchange or barter, conditional or otherwise, for a purpose other than resale in the ordinary course of business.

[(25)] (27) “Transport” means the movement of a hazardous substance by any mode, including pipeline and in the case of a hazardous substance that has been accepted for transportation by a common or contract carrier, the term “transport” shall include any stoppage in transit that is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract carrier, and any such stoppage shall be considered as a continuity of movement and not as the storage of a hazardous substance.

[(26)] (28) “Underground storage tank” has the meaning given that term in ORS 466.706.

[(27)] (29) “Waters of the state” has the meaning given that term in ORS 468B.005.

SECTION 25. ORS 468.035, as amended by section 17, chapter 495, Oregon Laws 2001, is amended to read:

468.035. (1) Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality:

(a) Shall encourage voluntary cooperation by the people, municipalities, counties, industries, agriculture, and other pursuits, in restoring and preserving the quality and purity of the air and the waters of the state in accordance with rules and standards established by the commission.

(b) May conduct and prepare, independently or in cooperation with others, studies, investigations, research and programs pertaining to the quality and purity of the air or the waters of the state and to the treatment and disposal of wastes.

(c) Shall advise, consult, and cooperate with other agencies of the state, political subdivisions, other states or the federal government, in respect to any proceedings and all matters pertaining to control of air or water pollution or for the formation and submission to the legislature of interstate pollution control compacts or agreements.

(d) May employ personnel, including specialists and consultants, purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(e) Shall conduct and supervise programs of air and water pollution control education, including the preparation and distribution of information regarding air and water pollution sources and control.

(f) Shall provide advisory technical consultation and services to units of local government and to state agencies.

(g) Shall develop and conduct demonstration programs in cooperation with units of local government.

(h) Shall serve as the agency of the state for receipt of moneys from the federal government or other public or private agencies for the purposes of air and water pollution control, studies or research and to expend moneys after appropriation thereof for the purposes given.

(i) Shall make such determination of priority of air or water pollution control projects as may be necessary under terms of statutes enacted by the Congress of the United States.

(j) Shall seek enforcement of the air and water pollution laws of the state.

(k) Shall institute or cause to be instituted in a court of competent jurisdiction, proceedings to compel compliance with any rule or standard adopted or any order or permit, or condition thereof, issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(L) Shall encourage the formulation and execution of plans in conjunction with air and water pollution control agencies or with associations of counties, cities, industries and other persons who severally or jointly are or may be the source of air or water pollution, for the prevention and abatement of pollution.

(m) May determine, by means of field studies and sampling, the degree of air or water pollution in various regions of the state.

(n) May perform such other and further acts as may be necessary, proper or desirable to carry out effectively the duties, powers and responsibilities of the department as set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.

(o) Shall coordinate any activities of the department related to a watershed enhancement project approved by the Oregon Watershed Enhancement Board under ORS 541.375 with activities of other cooperating state and federal agencies participating in the project.

(2) Nothing in this section shall affect the authority of the Department of Human Services to make and enforce rules:

(a) Regarding the quality of water for human or animal consumption pursuant to ORS 448.115 to 448.325, 624.010 to 624.120 and 624.310 to 624.430; and

(b) Regarding the quality of water for public swimming places pursuant to ORS 431.110.

(3) Nothing in this section shall prevent the State Department of Agriculture or the State Forestry Department from independently receiving moneys from a public or private agency for the purposes of preventing or controlling air or water pollution resulting from agricultural or silvicultural activities or soil erosion, or for research related to such purposes.

(4)(a) In awarding a public contract under ORS chapter 279 for a removal or remedial action pursuant to ORS 465.200 to 465.510 and 465.517 to 465.548, a corrective action or cleanup action pursuant to ORS 466.005 to 466.385, 466.605 to 466.680 or 466.706 to 466.882 or a removal pursuant to ORS 468B.005 to 468B.030, 468B.035, 468B.048 to 468B.085, 468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the department, and the Oregon Department of Administrative Services, when administering the establishment of such a contract on behalf of the Department of Environmental Quality under ORS 279.712, shall subtract from the amount of any bid or proposal the hazardous waste management fees and solid waste fees that would be required by law to be paid to the department for waste that would be disposed of at a solid waste disposal site or a hazardous waste or PCB disposal facility, based on the bid or proposal. The amount to be subtracted shall be established on the basis of reasonable preprocurement estimates of the amount of waste that would be disposed of under the contract and that would be subject to those fees.

(b) The subtraction for fees under paragraph (a) of this subsection shall apply only to a contract reasonably anticipated to involve the disposal of no less than 50 tons of hazardous waste or no less than 500 tons of solid waste. The Legislative Assembly finds that making accurate advance estimates of amounts of waste that would be disposed of in projects of this character is technically challenging and requires the application of professional discretion. Therefore, no award of a contract under this subsection shall be subject to challenge, under ORS 279.067 or otherwise, on the ground of the inaccuracy or claimed inaccuracy of any such estimate.

(c) The subtraction for fees under paragraph (a) of this subsection shall not apply to the establishment, by or on behalf of the department, of master contracts by which the department engages the services of a contractor over a period of time for the purpose of issuing work orders for the performance of environmental activities on a project or projects for which the amounts of waste to be disposed of were not reasonably identified at the inception of the master contracts. However, the department shall require any contractor under a master contract to apply the subtraction for fees under paragraph (a) of this subsection in the selection of any subcontractor to perform the removal of waste in amounts equaling or exceeding the amounts set forth in paragraph (b) of this subsection. Nothing in this subsection shall be construed to prohibit the department or the Oregon Department of Administrative Services from establishing contracts pursuant to this section through contracting procedures authorized by ORS chapter 279 that do not require the solicitation of bids or proposals.

SECTION 26. ORS 468.035, as amended by section 103, chapter 849, Oregon Laws 1999, and section 18, chapter 495, Oregon Laws 2001, is amended to read:

468.035. (1) Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality:

(d) May employ personnel, including specialists, consultants and hearing officers, purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.