OAR 340-122-0140: Exemption for ORS Chapter 709 Trust Companies Acting as Fiduciaries

(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 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.