Oregon State’s Pending Pilot Program for Environmental Cleanup Site Reopeners

Oregon State’s Pending Pilot Program for Environmental Cleanup Site Reopeners

March 2017 – Program Start 

The State of Oregon has long been a challenging place for insures dealing with environmental claims. This is evident when you see the smile on a Claims Manager’s face when a covered site receives a No Further Action (NFA) letter from the Oregon Department of Environmental Quality (DEQ). However, that may be changing, depending on the outcome of the State’s new pilot program.

The State is implementing a pilot program to take a second look at randomly selected sites that received an NFA determination, where institutional or engineering controls were the implemented cleanup. The purpose of this pilot program is to evaluate the effectiveness of such controls in protecting people and wildlife. The DEQ plans to implement this program in March 2017 to determine whether a permanent review program is needed.

Institutional or engineering controls such as deed restrictions and/or groundwater use restrictions, or physical controls such as capping, are extremely useful in situations where contamination is inaccessible without removing structures or incurring other prohibitive costs. When protective of people and wildlife, institutional or engineering controls are cost-effective remedial alternatives that allow a safe amount of contamination to remain in the environment.

Before beginning a site review, the DEQ will notify the property owner that the review is planned, with explanatory materials, a summary of the expected process, and an estimate of review costs. If controls are determined to be ineffective to protect people and wildlife, the DEQ could require additional actions by the property owner. Click here to review the DEQ Annual Environmental Cleanup Report, containing a summary of the proposed pilot program.

NFAs are the regulatory judgement at the time they are issued. They are typically written for site-specific conditions, but typically contain some kind of reopener language. For Claims Managers, it may be time to take a second look at reopener language in those NFA letters.

If you need further clarification on the upcoming pilot program, Roux can be of assistance.

If you would like to request more information, please click on the link below.