Current through Register Vol. 63, No. 3, March 1, 2024
(1) Based on the administrative record, the
Director shall select or approve a remedial action that:
(a) Is protective of present and future
public health, safety and welfare and of the environment, as specified in OAR
340-122-0040;
(b) Is based on balancing of remedy selection
factors, as specified in section (3) of this rule; and
(c) Satisfies the requirements for hot spots
of contamination, as specified in section (4) of this rule.
(2) A remedial action may achieve
protection through:
(a) Treatment;
(b) Excavation and offsite
disposal;
(c) Engineering
controls;
(d) Institutional
controls;
(e) Any other method of
protection; or
(f) A combination of
the above.
(3) In
determining the appropriate method of remediation for a specific facility, the
Director shall select or approve a protective remedial action that balances the
following factors:
(a)
Effectiveness. Each remedial
action alternative shall be assessed for its effectiveness in achieving
protection, by considering the following, as appropriate:
(A) Magnitude of risk from untreated waste or
treatment residuals remaining at the facility absent any risk reduction
achieved through onsite management of exposure pathways, as determined in OAR
340-122-0084(4)(a).
The characteristics of the residuals shall be considered to the degree that
they remain hazardous, taking into account their volume, toxicity, mobility,
propensity to bioaccumulate, and propensity to degrade;
(B) Adequacy of any engineering and
institutional controls necessary to manage the risk from treatment residuals
and untreated hazardous substances remaining at the facility, as determined in
OAR
340-122-0084(4)(b);
(C) With respect to hot spots of
contamination in water, the extent to which the remedial action restores or
protects existing and reasonably likely future beneficial uses of
water;
(D) Adequacy of treatment
technologies in meeting treatment objectives;
(E) Time until the remedial action objectives
would be achieved; and
(F) Any
other information relevant to effectiveness.
(b)
Long-term reliability. Each
remedial action alternative shall be assessed for its long-term reliability, by
considering the following, as appropriate:
(A)
Reliability of treatment technologies in meeting treatment
objectives;
(B) Reliability of
engineering and institutional controls necessary to manage the risk from
treatment residuals and untreated hazardous substances, taking into
consideration the characteristics of the hazardous substances to be managed and
the effectiveness and enforceability over time of engineering and institutional
controls in preventing migration of contaminants and in managing risks
associated with potential exposure;
(C) Nature, degree, and certainties or
uncertainties of any necessary long-term management (e.g., operation,
maintenance, and monitoring); and
(D) Any other information relevant to
long-term reliability.
(c)
Implementability. Each
remedial action alternative shall be assessed for the ease or difficulty of
implementing the remedial action, by considering the following, as appropriate:
(A) Practical, technical, and legal
difficulties and unknowns associated with the construction and implementation
of a technology, engineering control, or institutional control, including
potential scheduling delays;
(B)
The ability to monitor the effectiveness of the remedy;
(C) Consistency with federal, state and local
requirements; activities needed to coordinate with other agencies; and the
ability and time required to obtain any necessary authorization from other
governmental bodies;
(D)
Availability of necessary services, materials, equipment, and specialists,
including the availability of adequate offsite treatment, storage, and disposal
capacity and services, and availability of prospective technologies;
and
(E) Any other information
relevant to implementability.
(d)
Implementation Risk. Each
remedial action alternative shall be assessed for the risk from implementing
the remedial action, by considering the following, as appropriate:
(A) Potential impacts on the community during
implementation of the remedial action and the effectiveness and reliability of
protective or mitigative measures;
(B) Potential impacts on workers during
implementation of the remedial action and the effectiveness and reliability of
protective or mitigative measures;
(C) Potential impacts on the environment
during implementation of the remedial action and the effectiveness and
reliability of protective or mitigative measures;
(D) Time until the remedial action is
complete; and
(E) Any other
information related to implementation risk.
(e)
Reasonableness of Cost. Each
remedial action alternative shall be assessed for the reasonableness of the
cost of the remedial action, by considering the following, as appropriate:
(A) Cost of the remedial action including:
(i) Capital costs, including both direct and
indirect costs;
(ii) Annual
operation and maintenance costs;
(iii) Costs of any periodic review
requirements; and
(iv) Net present
value of all of the above;
(B) Degree to which the costs of the remedial
action are proportionate to the benefits to human health and the environment
created through risk reduction or risk management;
(C) With respect to hot spots of
contamination in water, the degree to which the costs of the remedial action
are proportionate to the benefits created through restoration or protection of
existing and reasonably likely future beneficial uses of water;
(D) The degree of sensitivity and uncertainty
of the costs; and
(E) Any other
information relevant to cost-reasonableness.
(4) The Director shall select or approve a
protective remedial action in accordance with the following:
(a) For hot spots of contamination in water,
the Director shall select or approve treatment to the extent treatment is
feasible considering the treatment criteria in OAR
340-122-0085(5)
and the factors set forth in OAR
340-122-0090(3);
(b) For hot spots of contamination in media
other than water, the Director shall select or approve treatment or excavation
and offsite disposal at an authorized disposal facility or the combination of
treatment or excavation, to the extent such measures are feasible considering
the criteria in OAR
340-122-0085(7)
and the factors set forth in OAR
340-122-0090(3).
(c) The cost of a remedial action shall not
be considered reasonable if the costs are disproportionate to the benefits
created through risk reduction or risk management;
(d) A higher threshold shall be applied in
evaluating the reasonableness of costs for treating hot spots of contamination,
whether such treatment occurs onsite or in conjunction with excavation and
offsite disposal, when compared to other remedial action alternatives;
and
(e) Subject to the preference
for treatment of hot spots of contamination and subject to the preferences for
treatment and excavation of hot spots of contamination in media other than
water, where two or more remedial action alternatives are protective, the least
expensive alternative shall be preferred, unless the additional cost of a more
expensive remedial action alternative is justified by proportionately greater
benefits within one or more of the factors set forth in OAR
340-122-0090(3).
(f) If contamination (A) is a hot spot in
media other than water; (B) will be excavated and disposed of at an offsite
location; and (C) meets the definition of a hazardous waste pursuant to ORS
466.005, the Director shall consider the method, route, and distance for
transportation of the contaminants to available disposal facilities in
selecting or approving the remedial action.
(5) Any person responsible for undertaking
the remedial action who proposes one remedial action alternative over another
shall have the burden of demonstrating to the Director through the remedial
investigation and feasibility study that such remedial action alternative
fulfills the requirements of OAR
340-122-0090.
(6) Subject to the remedy selection factors
specified in section (3) of this rule, in selecting or approving a protective
remedial action alternative, the Director shall consider current and reasonably
anticipated future land uses at the facility and surrounding properties, taking
into account:
(a) Current land use
zoning;
(b) Other land use
designations;
(c) Land use plans as
established in local comprehensive plans and land use implementing regulations
of any governmental body having land use jurisdiction; and
(d) Concerns of the facility owner,
neighboring owners, and the community.
(7) The Director may incorporate into the
selection or approval of a remedial action:
(a) Such periodic review or inspections as
are necessary to ensure protection of present and future public health, safety
and welfare and of the environment;
(b) A delineation of the extent to which the
remedial action occurs onsite, for purposes of ORS 465.315(3); and
(c) Designation of points of compliance for
measuring attainment of any remedial action objective. Designation of points of
compliance shall consider proximity to the source of the release and exposure
pathways evaluated in the baseline risk assessment. Points of compliance shall
be established as close as possible to the source of the release, and may also
be established at other points relevant to exposure pathways and
receptors.
Stat. Auth.: ORS 465.400(1), ORS 466 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900,
ORS 466.706 - ORS 466.835 & ORS
466.895