Current through Register Vol. 63, No. 3, March 1, 2024
(1) An ORS Chapter
709 trust company acting as a fiduciary and holding property in a fiduciary
capacity is exempt from personal liability as an "owner or operator" of the
property under ORS 465.255(1)(a) and (b) if:
(a) The contamination of the property
occurred before establishment of the fiduciary relationship and acceptance of
the property by the trust company, and, prior to the establishment of the
fiduciary relationship, the trust company did not participate in management of
the property as defined in OAR
340-122-0120;
or
(b) The contamination of the
property occurred after establishment of the fiduciary relationship and
acceptance of the property by the trust company and the contamination was not
the result of an act or omission of the trust company described in section (2)
of this rule.
(2)
Notwithstanding the exemption in section (1) of this rule, an ORS Chapter 709
trust company acting as a fiduciary may be personally liable regarding a
release at property held in a fiduciary capacity if:
(a) An act or omission of the trust company
constitutes an independent basis for liability under ORS 465.255(1)(c) to (7);
or
(b) The release results from an
act or omission of the trust company occurring outside the scope of its duties
and the standard of care required under ORS 128.057; or
(c) The release otherwise results from an act
or omission of the trust company that is negligent, grossly negligent,
reckless, willful, or intentional.
(3) Notwithstanding the exemption to the
personal liability of the trust company set forth above, this rule does not
prevent claims against:
(a) Assets that are
part of or all of any estate or trust that contains the facility;
(b) Any other estate or trust of the
decedent, grantor, ward, or other person whose estate or trust contains the
facility that is administered by the ORS Chapter 709 trust company;
(c) The assets of a trust or estate remain
subject to any claims for liability pertaining to contaminated property even if
legal title rests with the trust company. Such claims may be asserted against
the trust company in its representative capacity, whether or not the trust
company is personally liable.
(4) The exemption to personal liability of
the trust company set forth above does not apply to ownership or operation of a
facility at property which is:
(a) Acquired
by the trust company for the trust, estate, or principal, in exchange for
assets of the trust, estate, or principal; and
(b) Acquired subsequent to the establishment
of the fiduciary relationship.
(5) This rule applies only to liability under
ORS 465.200 et seq. and does not apply to any right that the state or any
person may have under federal statute, common law, or state statute other than
ORS 465.200 et seq. to recover remedial action costs or to seek any other
relief related to a release.
Stat. Auth.: ORS 465.400, ORS 465.435 & ORS
465.440
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900,
ORS 466.706 - ORS 466.835 & ORS
466.895
