Oregon Administrative Rules|Section 340-122-0090 - Selection or Approval of the Remedial Action

                                                
Current through Register Vol. 60, No. 12, December 1, 2021 
(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.
 
 
Or. Admin. R. 340-122-0090
DEQ 26-1988, f. & cert. ef. 9-16-89; DEQ 12-1992, f. & cert. ef. 6-9-92; DEQ 2-1997, f. & cert. ef. 2-7-97; DEQ 12-2000, f. & cert. ef. 7-27-00
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