Except for transporters of radioactive materials, there shall be no liability under OAR 837-120-0090 if the responsible person(s) can establish by a preponderance of the evidence that the release, or threat of release, of hazardous materials which led to the emergency response costs was caused solely by:

1. (1) An Act of God;
2. (2) An act of war; or

3. (3) An act or omission of a third person, other than an employee or agent of the responsible person(s) or one whose act or omission occurred in connection with a contractual relationship, existing directly or indirectly, with the responsible person(s) if the defendant can establish by a preponderance of the evidence that:

   1. (a) The responsible person(s) exercised due care with respect to the hazardous material concerned, taking into consideration the characteristics of such hazardous materials, in light of all relevant facts and circumstances; and
   2. (b) The responsible person(s) took precautions against foreseeable acts and omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.
4. (4) Liability for radioactive material incidents is established in ORS 469.615 and OAR 345-060-0045.

Statutory/Other Authority

ORS 453.367

Statutes/Other Implemented

ORS 453.382

History

FM 8-1992, f. 7-15-92, cert. ef. 8-15-92