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Oregon DEQ Expands Protections For Property Owners

January 4, 2013


The Oregon Department of Environmental Quality ("DEQ") recently expanded a key protection for property owners whose land is polluted by off-site contamination. DEQ's new policy statement clarifies that it does not expect innocent landowners to pay for -- or be responsible for cleaning up -- any contamination that clearly originates from any off-site source.

Since the 1990s, under what was known as the DEQ's "Contaminated Aquifer Policy," property owners have not been required to pay for or clean up groundwater contamination from adjacent or off-site sources. On December 26, 2012, DEQ adopted a new policy, called the "Off-Site Contaminant Migration Policy," which states that owners will not be expected to clean up or pay for contamination that has migrated to their property through any media, not just groundwater. For example, contamination traveling through stormwater runoff, soil vapors, or sediment transport is now included in DEQ's policy.

Washington has similar protections in its Model Toxic Control Act ("MTCA"), but those protections extend to groundwater only. And for those sites falling under federal enforcement jurisdiction, the Environmental Protection Agency has a similar Contaminated Aquifer Policy, but it too applies only to groundwater.

Like the expansion of the Prospective Purchaser Agreement program in 2011, the new policy is another tool designed to facilitate real estate transactions involving contaminated properties in Oregon. The policy should also be incorporated by banks, trusts, and other investors in assessing their risk exposure associated with real estate transactions in Oregon. Depending on the situation, the DEQ's policy should make closing some real estate transactions easier.