The Oregon Administrative Rules contain OARs filed through November 15, 2015
QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION
DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION 122
HAZARDOUS SUBSTANCE REMEDIAL ACTION RULES
340-122-0010
Purpose
(1) These rules establish the standards and procedures to be used under ORS 465.200 through 465.455 and 465.900 for the determination of removal and remedial action necessary to assure protection of the present and future public health, safety and welfare, and the environment in the event of a release or threat of a release of a hazardous substance.
(2) These rules also establish the standards and procedures to be used under ORS 465.200 to 465.455 and 465.900 and ORS 466.706 to 466.835 and 466.895 for the determination of remedial action or corrective action of releases of petroleum from underground storage tanks necessary to assure protection of the present and future public health, safety and welfare, and the environment in the event of a release or threat of a release of petroleum.
(3) These rules further establish the procedures for implementation of a site discovery program for hazardous substance releases pursuant to ORS 465.215 through 465.245 and 465.405, including a process for evaluation and preliminary assessment of releases of hazardous substances, and a process for developing and maintaining a statewide list of confirmed releases and an inventory of sites requiring investigation, removal, remedial action, or related long-term engineering or institutional controls.
Stat. Auth.: ORS 465.400(1), ORS 465.405, 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
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-89; DEQ 29-1988, f. & cert. ef. 11-9-89; DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0030
Scope and Applicability
These rules apply to the release or threat of release of hazardous substances into the environment, except as provided below:
(1) Exempted Releases. These rules shall not apply to releases exempted pursuant to ORS 465.200(21)(a), (b), (c), and (d).
(2) Conditional Exemption of Permitted Releases. These rules do not apply to permitted or authorized releases of hazardous substances, unless the Director determines that application of these rules might be necessary in order to protect public health, safety or welfare, or the environment. These rules may be applied to the deposition, accumulation, or migration resulting from otherwise permitted or authorized releases.
(3) Relationship to Other Cleanup Actions:
(a) Except as provided under subsection (3)(b) of this rule, these rules do not apply to releases where one of the following actions has been completed:
(A) Spill response pursuant to ORS 466.605 to 466.680;
(B) Oil spill cleanup on surface waters pursuant to ORS 468B.300 to 468B.500;
(C) Corrective action of a release of a hazardous waste pursuant to ORS 466.005 to 466.357;
(D) Cleanup pursuant to ORS 468B.005 to 468B.095.
(b) Where hazardous substances remain after completion of one of the actions referred to in subsection (3)(a), these rules apply if the Director determines that a preliminary assessment or additional investigation or remediation may be necessary to protect public health, safety, or welfare, or the environment.
(4) Corrective Action for Petroleum Releases from Underground Storage Tanks. OAR 340-122-0205 to 340-122-0360 shall apply to corrective action for releases of petroleum from underground storage tanks that are subject to ORS 466.706 to 466.835 and 466.895, except as provided under OAR 340-122-0215(2), authorizing the Director to order the remedial action or corrective action under OAR 340-122-0010 to 340-122-0110.
(5) Nothing in these rules regarding listing on the Confirmed Release List or the Inventory, OAR 340-122-0073 through 340-122-0079, shall be construed to be a prerequisite to or otherwise affect the liability of any person or the authority of the Director to undertake, order, or authorize a removal, remedial action, or other activities under ORS Chapter 465 or other applicable law.
(6) Any determination of current or reasonably likely future land uses or beneficial uses of water pursuant to these rules shall apply only for the purpose of selecting or approving removal or remedial actions under these rules.
Stat. Auth.: ORS 465.400(1), ORS 465.405, ORS 466 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-89; DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 12-1992, f. & cert. ef. 6-9-92; DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0040
Standards
(1) Any removal or remedial action shall address a release or threat of release of hazardous substances in a manner that assures protection of present and future public health, safety, and welfare, and the environment.
(2) In the event of a release of a hazardous substance, remedial actions shall be implemented to achieve:
(a) Acceptable risk levels defined in OAR 340-122-0115, as demonstrated by a residual risk assessment; or
(b) Numeric cleanup standards developed as part of an approved generic remedy identified or developed by the Department under OAR 340-122-0047, if applicable; or
(c) For areas where hazardous substances occur naturally, the background level of the hazardous substances, if higher than those levels specified in subsections (2)(a) through (2)(b) of this rule.
(3) In the event of a release of methane from a historic solid waste landfill, removal or remedial actions shall be implemented to prevent concentrations of methane exceeding or likely to exceed 1.25% by volume in confined spaces and structures, other than in equipment, piping, wells, or other structures designed for the collection and management of methane and approved by the Department.
(4) In the event of a release of hazardous substances to groundwater or surface water constituting a hot spot of contamination, treatment shall be required in accordance with OAR 340-122-0085(5) and 340-122-0090.
(5) A removal or remedial action shall prevent or minimize future releases and migration of hazardous substances in the environment. A removal or remedial action and related activities shall not result in greater environmental degradation than that existing when the removal or remedial action commenced, unless short-term degradation is approved by the Director under OAR 340-122-0050(4).
(6) A removal or remedial action shall provide long-term care or management, as necessary and appropriate, including but not limited to monitoring, operation, maintenance, and periodic review.
Stat. Auth.: ORS 465.400(1), 466 & 468.020
Stats. Implemented: ORS 465.200 - 465.455 & 465.900
Hist.: 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 3-2002(Temp), f. 2-21-02 thru 8-20-02; DEQ 9-2002, f. & cert. ef. 8-22-02; DEQ 3-2006, f. & cert. ef. 3-17-06
340-122-0047
Generic Remedies
(1) The Department may identify or develop generic remedies for common categories of facilities, hazardous substances, or impacted media. For purposes of this rule, a "generic remedy" means a potential remedial technology or method developed or identified by the Department for use at eligible facilities on a streamlined basis with limited evaluation of other remedial action alternatives. Generic remedies may be used as follows:
(a) A generic remedy that has been developed or identified by the Department may be proposed for use at an eligible facility. When evaluating a generic remedy proposed for use at a specific facility, the specific requirements of the remedial investigation or feasibility study may be focused or eliminated, with Department approval.
(b) Any generic remedy which allows for elimination of the requirement for conducting a site-specific feasibility study shall be based on a generic feasibility study documenting the Department's conclusions with respect to the manner in which facilities eligible for use of the generic remedy will meet the requirements of OAR 340-122-0085 and OAR 340-122-0090.
(c) Any generic remedy which includes numeric cleanup standards as a component of the remedy shall be based on a generic risk assessment documenting the Department's conclusions with respect to how facilities eligible for use of the generic remedy will achieve acceptable risk levels and other requirements of OAR 340-122-0084 through OAR 340-122-0090.
(2) In developing generic remedy guidance, the Department will provide opportunities for public participation regarding the scope and content of the guidance.
(3) Remedial actions proposed under this rule are subject to the public participation requirements provided under ORS 465. 320 and OAR 340-122-0100.
(4) The Department may select or approve use of a generic remedy at a specific facility upon a facility-specific demonstration that the generic remedy is consistent with Department generic remedy guidance and in compliance with OAR 340-122-0090(1).
Stat. Auth.: ORS 465.315 & ORS 465.400
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0050
Activities
(1) The Director may perform or require to be performed the following activities:
(a) Preliminary Assessment;
(b) Removal;
(c) Remedial Investigation;
(d) Risk Assessment;
(e) Feasibility Study; or
(f) Other investigations and remedial action.
(2) These activities, and the scope of these activities, are to be determined by the Director on a case-by-case basis. The Director may determine that all, a combination of less than all, or only one of the above activities are necessary at a facility. (For example, based upon the results of the preliminary assessment, the Director might find that a remedial investigation and feasibility study are not necessary.) The Director may also determine that performance of the above activities shall overlap or occur in an order different than that set forth in section (1) of this rule. (For example, the Director might find that a removal must be undertaken during a remedial investigation.)
(3) Removals, remedial actions, preliminary assessments, remedial investigations, feasibility studies, and related activities shall be performed by any person who is ordered or authorized to do so by the Director, or may be performed by the Department.
(4) The Director may allow short-term degradation of the environment during a removal or remedial action or related activities, provided that the Director finds:
(a) Such short-term degradation cannot practicably be avoided during implementation of the removal or remedial action or related activities;
(b) The removal or remedial action or related activity is being implemented in accordance with a schedule approved by the Department; and
(c) The short-term degradation does not present an imminent and substantial endangerment to the public health, safety or welfare, or the environment.
Stat. Auth.: ORS 465
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-89; DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0070
Removal
(1) Based upon the Preliminary Assessment or other information, the Director may perform, require to be performed, or approve a removal that the Director determines is consistent with the standards set forth under OAR 340-122-0040 and is necessary to prevent, minimize, or mitigate damage to the public health, safety and welfare, and the environment that might result from the release or threat of release of hazardous substances. A removal may address potential harm posed by the toxicity, corrosivity, flammability, ignitability, and other threats to public health, safety and welfare, and the environment from a release or threat of release. A removal may include, but is not limited to, offsite transport and disposal of hazardous substances if such action would be consistent with and expedite completion of remedial action or would minimize the need for onsite engineering or institutional controls.
(2) The performance of a removal shall not affect the Director's authority to perform or require to be performed a remedial action in addition to the removal, if such remedial action will permanently or more fully address a release or threat of release of hazardous substances. The Director may undertake or require that a removal be undertaken at any time from the discovery of a release or threat of a release through the completion of a remedial action.
Stat. Auth.: ORS 465.400(1) & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: 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
340-122-0071
Site Evaluation
(1) When the Department receives information about a release or potential release of a hazardous substance, the Department shall evaluate the information and document its conclusions. The purpose of the site evaluation is to determine whether a release has or might have occurred and whether the release may pose a significant threat to public health, safety and welfare, or the environment.
(2) The Department may request or gather additional information to complete the site evaluation. When evaluating the potential for human health and ecological impacts, the Department may consider, but is not limited to considering, the potential presence in the locality of the facility, of:
(a) Human populations;
(b) Any sensitive human subpopulations;
(c) Threatened and endangered species or their critical habitat;
(d) Ecological receptors, including any terrestrial or aquatic habitat(s);
(e) Exposure pathways potentially connecting receptors with hazardous substances; and
(f) Current and reasonably likely future land and water uses.
(3) After a site evaluation is completed, the Department will determine whether a preliminary assessment, removal, remedial action, other action, or no further action is needed at the facility.
Stat. Auth.: ORS 465.315 & ORS 465.400
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0425
340-122-0072
Preliminary Assessments
(1) The Department shall conduct a preliminary assessment or approve a preliminary assessment conducted by another person in accordance with section (4) of this rule if the Department determines that a release of a hazardous substance poses a significant threat to public health, safety or welfare, or the environment. The Department may conduct or approve a preliminary assessment without such determination. The Department may determine that existing information constitutes the equivalent of all or part of a preliminary assessment.
(2) Prior to conducting a preliminary assessment, the Director shall notify the owner and operator of the facility, if known, of the Department's intent to conduct the assessment, and allow the owner or operator to submit relevant information to the Department or to request to conduct the preliminary assessment. The Department may accept or deny any such request.
(3) The purpose of a preliminary assessment is to develop sufficient information to determine whether additional investigation, removal, remedial action, or long-term engineering or institutional controls related to removal or remedial action are needed at a facility to assure protection of present and future public health, safety and welfare, and the environment.
(4) A preliminary assessment shall include sufficient onsite observations, maps, facility data, sampling, and other information to accomplish the purposes of a preliminary assessment as described in section (3) of this rule including, as appropriate:
(a) Description of historical operations at the facility, including past and present generation, management, and use of hazardous substances; compliance with relevant environmental requirements; and investigations or cleanups of releases of hazardous substances;
(b) Identification and characterization of hazardous substances that are being or might have been released and, if available, an estimate of the quantities released, the concentrations in the environment, and extent of migration;
(c) Documentation of releases of hazardous substances to the environment;
(d) Identification of present and past owners and operators of the facility;
(e) Description of the facility, including its name, and a site map identifying property boundaries, the location of known or suspected releases of hazardous substances, and significant topographic, terrestrial, and aquatic habitat features;
(f) Description of potential pathways for migration of known or suspected releases of hazardous substances, including surface water, groundwater, air, soils, and direct contact;
(g) Description of human and ecological receptors potentially affected by releases of hazardous substances;
(h) Description of any other physical factors that might be relevant to assessing short and long-term exposure to releases of hazardous substances; and
(i) Evaluation of present and reasonably likely future threats to public health, safety and welfare, and the environment. During the preliminary assessment, the Department may consider the following information:
(A) Concentrations of hazardous substances in environmental media;
(B) The documented presence, in the locality of the facility, of any of the following:
(i) Human populations;
(ii) Any sensitive human subpopulations;
(ii) Threatened and endangered species or their critical habitat;
(iv) Ecological receptors including any terrestrial or aquatic habitat;
(v) Exposure pathways potentially connecting receptors with released hazardous substances;
(vi) Current and reasonably likely future land uses; and
(vii) Current and reasonably likely future beneficial uses of water.
(5) After completion of a preliminary assessment, the Director shall make one or more of the following determinations regarding a facility:
(a) Additional investigation, removal, remedial action, or long-term engineering or institutional controls related to removal or remedial action are needed to assure protection of present and future public health, safety and welfare, and the environment;
(b) Current regulatory action under another state or federal agency program is adequate to protect public health, safety and welfare, and the environment;
(c) Other actions are necessary to assure protection of present and future public health, safety and welfare and the environment; or
(d) Based on available information, no further action is needed to assure protection of present and future public health, safety and welfare, and the environment.
(6) When the preliminary assessment is completed, the Director shall provide a copy to the owner and operator, if known, and shall notify them of any determination made pursuant to section (5) of this rule.
Stat. Auth.: ORS 465.315 & ORS 465.400
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-89; Renumbered from 340-122-0060; DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0426
340-122-0073
Confirmation of a Release
(1) The Director shall determine that a release of a hazardous substance has been confirmed for the purposes of listing a facility on the Confirmed Release List or the Inventory if the Director determines that the release meets the criteria in subsections (a) and (b) of this section:
(a) The release has been documented by:
(A) An observation made and documented by a qualified government inspector or agent;
(B) A written statement or report from an owner, operator, or representative authorized by an owner or operator stating that the release has occurred; or
(C) Laboratory data indicating the hazardous substance has been detected at levels greater than background levels.
(b) The release is not excluded under section (2) of this rule.
(2) A release shall not be defined as a "confirmed release" pursuant to section (1) of this rule if, based on the information available at the time a final listing decision is made, the Director determines that the release meets any of the following criteria:
(a) The release is a de minimis release;
(b) The release by its nature rapidly dissipates to undetectable or insignificant levels and poses no significant threat;
(c) The release is a permitted or authorized release, but not including deposition, accumulation, or migration of substances resulting from an otherwise-permitted or authorized release;
(d) The release is a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136) and applied for its intended purpose in accordance with label directions, but not including deposition, accumulation, or migration of substances resulting from an otherwise-authorized release;
(e) The release has been cleaned up to a level that is consistent with rules adopted by the Commission under ORS 465.400 or ORS Chapter 466 or that poses no significant threat to present or future public health, safety, welfare, or the environment; or
(f) The release otherwise requires no additional investigation, removal, remedial action, or long-term environmental or institutional controls related to removal or remedial action to assure protection of present and future public health, safety, welfare, and the environment.
(3) A release shall not be excluded pursuant to section (2) of this rule if continuing environmental or institutional controls related to removal or remedial action are required to assure protection of present and future public health, safety, welfare, and the environment.
[Publications: Publications referenced in this rule are available from the agency.]
Stat. Auth.: ORS 465.400(1), ORS 465.405 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0427
340-122-0074
Development of Confirmed Release List
(1) For the purpose of providing public information, the Director shall develop and maintain a Confirmed Release List of all facilities for which the Director has confirmed a release of a hazardous substance in accordance with OAR 340-122-0073.
(2) The list shall include, at a minimum, the following items, if known:
(a) A general description of the facility;
(b) Address or location;
(c) Time period during which a release occurred;
(d) Name of the current owner and operator and names of any past owners and operators during the time period of a release of a hazardous substance;
(e) Type and quantity of a hazardous substance released at the facility;
(f) Manner of release of the hazardous substance;
(g) Concentration, distribution, and characteristics of a hazardous substance, if any, in groundwater, surface water, air, and soils at the facility; and
(h) Status of removal or remedial actions at the facility.
(3)(a) At least 60 days before adding a facility to the Confirmed Release List, the Director shall notify the owner and operator, if known, of all or any part of the proposed facility by certified mail or personal service, and shall provide an opportunity to comment on the proposed listing within 45 days after receiving the notice. For good cause shown, the Department may grant an extension of up to 45 days for comment;
(b) The Director shall consider relevant and appropriate information submitted to the Department in determining whether to add a facility to the Confirmed Release List. Whenever the Director makes a decision to add a facility to the List, the Director shall make a written response to each substantive comment and any material new data submitted during the comment period.
Stat. Auth.: ORS 465.400(1), ORS 465.405 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0430; DEQ 9-1998, f. & cert. ef. 6-18-98
340-122-0075
Development of Inventory
(1) For the purpose of providing public information, the Director shall develop and maintain an Inventory of facilities for which the Director:
(a) Has confirmed a release of a hazardous substance in accordance with OAR 340-122-0073; and
(b) Based on a preliminary assessment approved or conducted by the Department, has determined that additional investigation, removal, remedial action, or long-term environmental or institutional controls related to removal or remedial action are required to assure protection of present and future public health, safety and welfare, and the environment.
(2) The Inventory shall include, at a minimum, the items required for the Confirmed Release List, described in OAR 340-122-0074(2), and the following items, if known:
(a) Hazard ranking and narrative information regarding threats to the environment and public health; and
(b) Information that indicates whether the remedial action at the facility will be funded primarily by:
(A) The Department through the use of moneys in the Hazardous Substance Remedial Action Fund;
(B) An owner or operator or other person under an agreement, order, or consent decree under ORS Chapter 465; or
(C) An owner or operator or other person under other state or federal authority.
(3)(a) At least 60 days before a facility is added to the Inventory the Director shall notify the owner and operator, if known, of all or any part of the facility of the proposed listing by certified mail or personal service. The notice shall include a copy of the preliminary assessment on which the listing is based, and the documentation used to calculate a site score in accordance with OAR 340-122-0076(1)(a). The notice may reference these documents if they have been previously provided. The notice shall inform the owner and operator of the opportunity to comment on the information contained in the preliminary assessment and on the proposed site score within 45 days after receiving the notice. For good cause shown, the Department may grant an extension of up to 45 days for comment.
(b) The Director shall consider relevant and appropriate information submitted to the Department in determining whether to add a facility to the Inventory. Whenever the Director makes a decision to add a facility to the Inventory, the Director shall make a written response to each substantive comment and any material new data submitted during the comment period.
(4) At least quarterly, the Department shall publish notice of updates to the Inventory. The notice shall include a brief description of the facilities added or removed, and shall be published in the Secretary of State's Bulletin and submitted to local newspapers of general circulation in locations affected by the listings and to interested persons or community organizations.
Stat. Auth.: ORS 465.000(1), ORS 465.400(1), ORS 465.405, ORS 465.410 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 5-1991, f. & cert. ef. 3-18-91; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0440; DEQ 9-1998, f. & cert. ef. 6-18-98
340-122-0076
Inventory Ranking
(1)(a) The Department will score facilities placed on the Inventory in accordance with the Site Scoring Procedure set forth in Appendix 1. The Site Scoring Procedure provides criteria for scoring facilities based on the short-term and long-term risks they pose to present and future public health, safety, welfare or the environment;
(b) The Department will place facilities in the following categories on the Inventory based on their status in the remedial process:
(A) Phase I: Facilities where remedial investigation and feasibility studies have not been initiated;
(B) Phase II: Facilities where remedial investigation or feasibility studies are underway;
(C) Phase III: Facilities where the remedial investigation and feasibility studies have been completed and remedial design, removal or remedial action is underway;
(D) Phase IV: Facilities where all necessary removal and remedial action have been completed except for continuing operation and maintenance or other environmental or institutional controls necessary to protect public health, safety, welfare, and the environment.
(E) The Department will move facilities from one category to the next in quarterly updates of the Inventory as remedial activities progress.
(2) Prior to publishing a facility's score on the Inventory, the Department will notify the owners and operators of the facility, if known, and provide an opportunity for them to comment on the facility score and supporting documentation as described in OAR 340-122-0075(4).
(3) The Department will consider facility scores, among other factors, in prioritizing sites for further investigation, removal, or remedial action at the conclusion of the preliminary assessment or its equivalent. Prior to initiating such action, the Department may rescore a facility if the Department receives additional information that may significantly change a facility's score.
Stat. Auth.: ORS 465.000(1), ORS 465.410 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 5-1991, f. & cert. ef. 3-18-91; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0450
340-122-0077
Initiation of Process for Delisting Facilities from the Confirmed Release List and Inventory
(1) An owner or operator of a facility listed on the Confirmed Release List or Inventory, or any other person adversely affected by the listing, may request the Director to remove a facility from the Confirmed Release List or Inventory. The Department may propose to remove a facility on its own initiative.
(2)(a) The owner, operator, or other person requesting that a facility be removed from the Confirmed Release List or the Inventory shall submit a written petition to the Director setting forth the basis for such request. The petition shall include sufficient information and documentation to support a determination that:
(A) The petitioner is an owner, operator, or person adversely affected by the listing; and
(B) The facility meets the respective criteria for delisting from the Confirmed Release List or from the Inventory set forth in OAR 340-122-0079(1).
(b) A petition to remove from the Confirmed Release List or from the Inventory a facility for which a delisting petition has previously been denied shall demonstrate new information or changed circumstances to support the request.
Stat. Auth.: ORS 465.400(1), ORS 465.405 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0460
340-122-0078
Inventory Delisting -- Public Notice and Participation
(1) Prior to the approval or denial of a petition to remove a facility from the Inventory submitted pursuant to OAR 340-122-0077, the Department shall:
(a) Publish a notice and brief description of the proposed action in the Secretary of State's Bulletin, notify a local paper of general circulation, and make copies of the proposed action available to the public;
(b) Make a reasonable effort to identify and notify interested persons or community organizations;
(c) Provide at least 30 days for submission of written comments regarding the proposed action;
(d) Upon written request received within 15 days after agency notice, postpone the date of its intended action no less than ten or more than 90 days in order to allow the requesting person an opportunity to submit information or comments on the proposed action; and
(e) Upon written request by ten or more persons or by a group having ten or more members, conduct a public meeting at or near the facility for the purpose of receiving oral comment regarding the proposed action, except for a petition submitted by an owner pursuant to a cleanup action completed in accordance with these rules.
(2) Where possible, the Department shall combine public notification procedures for delisting from the Inventory with the public notification procedures for the proposed certification of completion of a removal or remedial action conducted pursuant to ORS Chapter 465.
(3) Agency records concerning the removal of a facility from the Inventory shall be made available to the public in accordance with ORS 192.410 to 192.505, subject to exemptions to public disclosure, if any, under ORS 192.501 and 192.502. The Department shall maintain and make available for public inspection and copying a record of pending and completed delisting actions. The records shall be located at the headquarters and regional offices of the Department.
Stat. Auth.: ORS 465.400(1), ORS 465.405 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0465
340-122-0079
Delisting -- Determination by Director
(1) The Director shall consider requests or proposals to remove facilities from the Confirmed Release List or the Inventory submitted in accordance with OAR 340-122-0077. The Director shall delist a facility from the Confirmed Release List if the Director determines that a facility does not meet the criteria for inclusion on the Confirmed Release List set forth in OAR 340-122-0074(1). The Director shall remove a facility from the Inventory if the Director determines the facility does not meet the criteria for inclusion on the Inventory set forth in OAR 340-122-0075(1).
(2) In determining whether to remove a facility from the Confirmed Release List or from the Inventory, the Director shall consider:
(a) Any relevant Confirmed Release List or Inventory delisting petitions submitted pursuant to OAR 340-122-0077;
(b) Any public comments submitted on the proposed action pursuant to OAR 340-122-0078; and
(c) Any other relevant information available.
(3) The Director shall not remove a facility from the Confirmed Release List or from the Inventory if continuing environmental controls or institutional controls related to removal or remedial action (e.g., alternative drinking water supply, caps, security measures) are needed to assure protection of present and future public health, safety, welfare, and the environment.
(4)(a) The Director shall document the basis for approving or denying a request or proposal to remove a facility from the Confirmed Release List or the Inventory;
(b) If the Director relies on information described in subsection (2)(a) of this rule to make such determination, the Director shall reference such information in the record.
(5) The removal of a facility from the Confirmed Release List or from the Inventory shall be effective immediately upon the Director's determination.
Stat. Auth.: ORS 465.400(1), ORS 465.405 & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97; Renumbered from 340-122-0470
340-122-0080
Remedial Investigation
(1) If, based upon the Preliminary Assessment, the results of a removal, or other information, the Director determines that remedial action might be necessary to protect public health, safety or welfare, or the environment, the Director may perform or require to be performed a remedial investigation to develop information to determine the need for remedial action.
(2) Remedial investigation may include, but is not limited to, characterization of hazardous substances, characterization of the facility, performance of baseline human health and ecological risk assessments, and collection and evaluation of information relevant to the identification of hot spots of contamination.
(3) In the remedial investigation, characterization of the facility may include, but is not limited to, information regarding:
(a) Waste management history and other past practices that could have led to a release of hazardous substances;
(b) Geological and hydrogeologic factors, including, but not limited to, information regarding topography, soils, sediments, drainage controls, and water resources;
(c) Climatologic and meteorologic factors;
(d) Ambient air quality;
(e) Current and reasonably anticipated future land use in the locality of the facility, considering:
(A) Current land use zoning and other land use designations;
(B) Land use plans as established in local comprehensive plans and land use implementing regulations of any governmental body having land use jurisdiction;
(C) Concerns of the facility owner, neighboring owners, and the community; and
(D) Any other relevant information such as development patterns and population projections.
(f) Current and reasonably likely future beneficial uses of groundwater and surface water in the locality of the facility, considering:
(A) Federal, state, and local regulations governing the appropriation and/or use of water;
(B) Nature and extent of current groundwater and surface water uses;
(C) Suitability of groundwater and surface water for beneficial uses;
(D) The contribution of water to the maintenance of aquatic or terrestrial habitat;
(E) Any beneficial uses of water which the Water Resources Department or other federal state or local programs is managing in the locality of the facility; and
(F) Reasonably likely future uses of groundwater and surface water based on:
(i) Historical land and water uses;
(ii) Anticipated future land and water uses;
(iii) Community and nearby property owners' concerns regarding future water use;
(iv) Regional and local development patterns;
(v) Regional and local population projections; and
(vi) Availability of alternate water sources including, but not limited to, public water supplies, groundwater sources, and surface water sources.
(g) Identification of ecological receptors, terrestrial habitats, and aquatic habitats in the locality of the facility; and
(h) Other relevant information, as appropriate.
(4) In the remedial investigation, characterization of hazardous substances may include, but is not limited to, information regarding:
(a) Identification and characterization of the source of the release or the threatened release of a hazardous substance;
(b) The nature, extent, and concentration of hazardous substances;
(c) The propensity for the hazardous substance to bioaccumulate;
(d) The propensity for the hazardous substance to persist or degrade;
(e) The toxicity of the hazardous substances;
(f) The transport and fate of the hazardous substances;
(g) The proximity of contamination to surface water, groundwater, wetlands, and sensitive environments; and
(h) Other relevant information, as appropriate.
(5) In the remedial investigation, characterization of current and reasonably likely future risks posed by hazardous substances shall be based on baseline human health and ecological risk assessments conducted in accordance with OAR 340-122-0084, unless the Department determines through screening of available information that no exceedance of acceptable risk levels could occur taking into consideration the nature, extent and toxicity of contamination, the types of human and ecological receptors potentially at risk, and pathways and routes of exposure present or potentially present.
(6) The remedial investigation shall identify hazardous substances having a significant adverse effect on beneficial uses of water or waters to which the hazardous substances would be reasonably likely to migrate.
(7) The remedial investigation shall identify hot spots of contamination for media other than water.
Stat. Auth.: ORS 465.400(1) & ORS 468.020
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: 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
340-122-0084
Risk Assessment
This rule establishes a risk protocol for performance of human health and ecological risk assessments, including: General requirements for risk assessments and specific requirements for baseline human health risk assessments, baseline ecological risk assessments, residual risk assessments, and probabilistic risk assessments.
(1) General requirements for risk assessments include:
(a) Risks assessments shall consider existing and reasonably likely future human exposures and significant adverse effects to ecological receptors in the locality of the facility.
(b) Risk assessments may be conducted using either deterministic or probabilistic risk assessment methodologies at the discretion of the party conducting the risk assessment, provided the risk assessment requirements of this rule are met.
(c) Sources of toxicity information to be used in a risk assessment may include the following information to the extent it is available and acceptable to the Department at the time a human health or ecological risk assessment is prepared:
(A) For human health risk assessments:
(i) U.S. EPA IRIS Data Base;
(ii) U.S. EPA HEAST Data Base;
(iii) HEAST alternative method;
(iv) U.S. EPA-NCEA Superfund Health Risk Technical Support Center;
(v) Other U.S. EPA documents or databases;
(vi) ATSDR Toxicological Profiles; or
(vii) Other refereed technical publications.
(B) For ecological risk assessments:
(i) U.S. EPA AQUIRE Data Base;
(ii) U.S. EPA IRIS Data Base;
(iii) U.S. EPA HEAST Data Base;
(iv) U.S. EPA ASTER Data Base;
(v) U.S. EPA PHYTOTOX Data Base;
(vi) U.S. EPA Terrestrial Toxicity Data Base (TERRATOX);
(vii) U.S. Fish and Wildlife Service Technical Reports;
(viii) Oak Ridge National Laboratory Toxicological Benchmark Technical Reports;
(ix) Other U.S. EPA documents or databases;
(x) ATSDR Toxicological Profiles; or
(xi) Other refereed technical publications.
(C) In the absence of toxicity information that is available and acceptable to the Department under paragraph (A) or (B), the Department may require the development of acceptable site-specific toxicity information.
(d) Risk assessments may include use of transport and fate models, subject to Department approval of the model and the data to be used for the parameters specified in the model. The Department shall ensure than any transport and fate model approved for use is capable of simulating all site conditions and contaminant properties that might have a significant impact on site-specific contaminant transport or fate.
(e) The Department shall require appropriate sampling approaches and data quality requirements to support the risk assessment and remedy selection processes.
(f) A plausible upper-bound or high-end exposure for both human health and ecological risk assessments is the 90th percentile upper confidence limit on the arithmetic mean of concentrations of hazardous substances that would be contacted by an exposed receptor and reasonable maximum estimates of the exposure factors used in the risk calculations, unless a greater or lesser best estimate is acceptable to the Department.
(g) The central tendency exposure for both human health and ecological risk assessments is the arithmetic mean of concentrations that would be contacted by an exposed receptor and mean estimates of the exposure factors used in the risk calculations. Risk assessments utilizing only deterministic methods shall provide both central tendency and upper-bound estimates of exposure and risk.
(h) The use of population risk estimates in addition to individual risk estimates is provided for as follows:
(A) For human health risk assessments, risk estimates shall be made only at the level of the individual;
(B) For ecological risk assessments, risk estimates shall be made:
(i) At the level of the individual for species present in the locality of the facility if the species is listed as threatened or endangered species pursuant to 16 U.S.C. 1531 et seq. or ORS 496.172; or
(ii) At the level of the population for all other plants or animals in the locality of the facility.
(i) Cumulative risk from multiple hazardous substances will be assessed by assuming additivity of the risk posed separately by individual non-carcinogenic and carcinogenic hazardous substances in the locality of the facility, unless the Department determines that an assumption of synergism, antagonism, or other toxic response is appropriate or it is demonstrated to the satisfaction of the Department that an assumption other than additivity is appropriate.
(j) Appropriate sources of exposure factor information may include, but are not limited to, the following information, to the extent it is available and acceptable to the Department at the time human health and ecological risk assessments are prepared:
(A) U.S. EPA Risk Assessment Guidance for Superfund. Volume 1. Human Health Evaluation Manual, Part A, 1989;
(B) U.S. EPA Risk Assessment Guidance for Superfund Volume 2. Environmental Evaluation Manual, 1989;
(C) U.S. EPA Risk Assessment Guidance for Superfund. Volume 1. Human Health Evaluation Manual, Supplemental Guidance -- Standard Default Exposure Factors, 1991;
(D) U.S. EPA Wildlife Exposure Factors Handbook. Volumes 1 and 2, 1993; and
(E) U.S. EPA Exposure Factors Handbook, 1990.
(2) Baseline human health risk assessments shall include, but are not limited to, the following information:
(a) A conceptual site model describing contaminant sources, release mechanisms, transport routes and media, potential human receptor populations, and relevant exposure scenarios based on current and reasonably likely future land and water uses;
(b) Data quality objectives for the human health risk assessment based on the conceptual site model;
(c) Exposure analysis including identification and selection of contaminants of concern, a detailed description of potentially exposed populations and exposure routes, and a quantitative estimate of exposure for both current and reasonably likely future land and water use scenarios;
(d) Toxicity analysis including a summary of current information regarding the carcinogenic effects, noncarcinogenic effects, bioconcentration potential, bioaccumulation potential, biomagnification potential, and persistence of the identified contaminants of concern as well as current slope factors and reference doses;
(e) Risk characterization presenting the quantitative human health risks potentially associated with the facility, a discussion of any available facility-specific human health studies, an explicit discussion of risks associated with the bioconcentration potential, bioaccumulation potential, biomagnification potential, and persistence of each contaminant, and consideration of any other available, published, and peer-reviewed scientific information on other sources of stress as appropriate; and
(f) Quantitative and qualitative uncertainty analysis as appropriate for each element of the risk assessment.
(3) Baseline ecological risk assessments shall include, but are not limited to, the following information:
(a) Problem formulation to include identification of contaminants of ecological interest, potential ecological effects, ecological receptors, relevant exposure pathways, initial definition of assessment and measurement endpoints, all with respect to current and reasonably likely future land and water uses, and described in a conceptual site model;
(b) Data quality objectives for the ecological risk assessment based on the conceptual site model, with emphasis on analytical detection limits appropriate for ecological receptors;
(c) Exposure analysis to include identification and selection of potential contaminants of ecological concern, identification and selection of target ecological receptors, an exposure pathway model relating target receptors, exposure routes and measurement endpoints, and a quantitative estimate of exposure for both current and reasonably likely future land and water use scenarios;
(d) Ecological response analysis including a summary of current information regarding the toxicological effects, ecological effects, bioconcentration potential, bioaccumulation potential, biomagnification potential, and persistence of the identified contaminants of ecological concern, as well as ecological benchmark values;
(e) Risk characterization presenting the quantitative ecological risks potentially associated with the facility, identification of contaminants of ecological concern, a discussion of any available facility-specific ecological studies, an explicit discussion of risks associated with the bioconcentration potential, bioaccumulation potential, biomagnification potential, and persistence of each contaminant, and consideration of any other available, published and peer-reviewed scientific information on other sources of stress as appropriate;
(f) As appropriate, the potential for significant adverse effects on the health or viability of individual ecological receptors or local populations may be evaluated with a weight-of-evidence analysis or population viability analysis, respectively. These analyses may utilize field studies, laboratory investigations, appropriate population models, or any combination of these or other methods acceptable to the Department; and
(g) Quantitative and qualitative uncertainty analysis as appropriate for each element of the risk assessment.
(4) Residual risk assessments shall be conducted prior to selection or approval of the remedial action, and shall include:
(a) A quantitative assessment of the risk resulting from concentrations of untreated waste or treatment residuals remaining at the facility at the conclusion of any treatment or excavation and offsite disposal activities taking into consideration current and reasonably likely future land and water use scenarios and the exposure assumptions used in the baseline risk assessment; and
(b) A qualitative or quantitative assessment of the adequacy and reliability of any institutional or engineering controls to be used for management of treatment residuals and untreated hazardous substances remaining at the facility.
(c) The combination of (a) and (b) constitute a residual risk assessment that must demonstrate to the Department that acceptable levels of risk as defined by OAR 340-122-0115 would be attained in the locality of the facility.
(5) Probabilistic techniques may be applied to human health and ecological risk assessments. The purpose of this rule is to establish a minimum level of technical performance for probabilistic risk assessments submitted to the Department.
(a) Before the commencement of a probabilistic risk assessment, the following issues shall be addressed:
(A) Current and reasonably likely future land and water uses in the locality of the facility;
(B) A site-specific preliminary conceptual site model that relates potential receptors, hazardous substances, and exposure pathways;
(C) Preliminary assessment endpoints for any ecological risk assessment; and
(D) Sources and characteristics of the distributions proposed for use in the assessment.
(b) Based on consideration of the items specified in subsection (5)(a) of this rule, a probabilistic risk assessment may be performed in accordance with a work plan approved by the Department.
(c) The Department is not obligated to accept the results of a probabilistic risk assessment, unless the information requirements set forth in subsection (5)(d) of this rule or otherwise specified by the Department have been addressed in a manner acceptable to the Department.
(d) The probabilistic risk assessment shall include, but not be limited to, information regarding:
(A) All formulae used to estimate exposure point values, toxicity (cancer slope factor, reference dose) values, ecological benchmark values, hazard indices, and incremental lifetime cancer risks;
(B) The probabilistic risk assessment's use of input parameters expressed as either point estimates or distributions. For each input parameter expressed as a distribution, the following information shall be provided:
(i) The shape of the full distribution;
(ii) To the extent practicable, the mean, standard deviation, minimum, 5th percentile, 10th percentile, median, 90th percentile, 95th percentile, and maximum of the specified distribution;
(iii) Justification for the use of each distribution explaining the rationale for its use and the rejection of other relevant distributions. Justification shall be based on one or more of the following:
(I) Distributions presented in a refereed or peer-reviewed publication;
(II) Distributions available from the U.S. Environmental Protection Agency or other state or federal government agency, the American Society for Testing and Materials (ASTM), or any distributions designated by the Department as default distributions;
(III) Expert or professional judgment; or
(IV) Parametric distributions of input variables fit quantitatively to measured data. For such distributions, the following information shall be provided: parametric fits and the data on the same axes; appropriate goodness-of-fit statistics; implications of any important differences between the parametric fits and the data; and influence of the statistical process or underlying mechanism creating the random variable on the selection of the distribution used.
(iv) The extent to which input distributions and their parameters capture and separately represent both stochastic variability and knowledge uncertainty. This information shall comprise a portion of, but not be a replacement for, a comprehensive discussion in the body of the baseline risk assessment of the qualitative and quantitative sources of uncertainty.
(C) Any correlations between or among input variables that are known or expected to have the practical effect of significantly affecting the risk assessment;
(D) For each output distribution resulting from the probabilistic risk assessment, the following information:
(i) The shape of the full distribution and location of the acceptable risk level; and
(ii) To the extent practicable, the mean, standard deviation, minimum, 5th percentile, 10th percentile, median, 90th percentile, 95th percentile, and maximum of the specified distribution.
(E) A probabilistic sensitivity analysis for all key input distributions conducted so as to distinguish, to the extent possible, the effects of variability from the effects of uncertainty in the input variables; and
(F) Justification for the selection of any point estimate value incorporated into the probabilistic assessment explaining the rationale for its selection and for the rejection of other relevant point estimate values. Such justification for use shall be based on one or more of the sources specified in subparagraph (5)(d)(B)(iii) of this rule.
(e) Probabilistic methods may be applied to:
(A) Environmental media contaminant concentration data;
(B) Transport and fate modeling;
(C) Exposure estimation;
(D) Human toxicity estimation;
(E) Ecological response estimation; or
(F) Risk characterization.
Stat. Auth.: ORS 465.315 & ORS 465.400
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0085
Feasibility Study
(1) If, based upon the remedial investigation, the results of a removal, or other information, the Director determines that remedial action might be necessary to protect public health, safety or welfare or the environment, the Director may perform or require to be performed a feasibility study to develop information for selection or approval of a remedial action.
(2) A feasibility study shall develop and evaluate a range of remedial action alternatives acceptable to the Department, including any or all of the following:
(a) No action;
(b) Remedial action utilizing engineering and/or institutional controls;
(c) Remedial action utilizing treatment;
(d) Remedial action utilizing excavation and transportation to an offsite disposal facility; and
(e) Any combination of the above, as appropriate.
(3) Remedial action alternatives may be eliminated from development or evaluation in the feasibility study if, based on the remedial investigation and consideration of factors specified in OAR 340-122-0090, the Department determines one or more remedial action alternatives are not protective, feasible or appropriate for the facility.
(4) For each remedial action option developed under section (2) of this rule, the feasibility study shall evaluate:
(a) The protectiveness of the alternative based upon the standards set forth in OAR 340-122-0040;
(b) The feasibility of the alternative based upon a balancing of the remedy selection factors set forth in OAR 340-122-0090(3) and (4); and
(c) The extent to which the remedial action alternative remediates hot spots of contamination based upon the criteria set forth in sections (5) and (7) of this rule and OAR 340-122-0090(4).
(5) For groundwater or surface water in which a significant adverse effect on existing or reasonably likely future beneficial uses has been identified under OAR 340-122-0080(6):
(a) The feasibility study shall evaluate treatment to concentrations that ensure such significant adverse effects will not occur. Specifically, the following shall be evaluated:
(A) Whether treatment is reasonably likely to restore or protect a beneficial use within a reasonable time; and
(B) The extent to which treatment is feasible, considering the remedy selection factors set forth in OAR 340-122-0090, including application of the higher threshold for evaluating the reasonableness of the cost of treating hot spots of contamination.
(b) Where a concentration identified in subsection (5)(a) of this rule is not equivalent to an acceptable risk level:
(A) The feasibility study shall evaluate the feasibility of treatment to the concentration identified in subsection (5)(a), regardless of whether that level is more or less stringent than the acceptable risk level, applying the higher threshold for reasonableness of the cost of treatment; and
(B) Where the acceptable risk level is more stringent than the concentration identified in subsection (5)(a), the feasibility study shall also evaluate the feasibility of treatment to the acceptable risk level, without application of the higher threshold for reasonableness of the cost of treatment. If treatment to a more stringent acceptable risk level is not feasible, the feasibility study shall evaluate other remedial measures providing protection while allowing beneficial use of the water.
(6) For contamination of media other than groundwater or surface water, the feasibility study shall evaluate the extent to which the hazardous substances cannot be reliably contained.
(7) For hot spots of contamination in media other than groundwater or surface water that have been identified under OAR 340-122-0080(7) or section (6) of this rule, the feasibility study shall evaluate the feasibility of treatment, and the feasibility of excavation and offsite disposal at an authorized disposal facility, to a point where the concentration or condition making the hazardous substance a hot spot would no longer occur at the facility, based upon a balancing of the remedy selection factors set forth in OAR 340-122-0090 and an application of the higher threshold for evaluating the reasonableness of the cost of treatment and of the cost of excavation and offsite disposal of hot spots of contamination.
(8) For contaminant concentrations in media other than water that would remain after treatment or excavation and off-site disposal pursuant to section (7) of this rule, the feasibility study shall evaluate the feasibility of a range of remedial action alternatives to achieve the acceptable risk level. The evaluation shall be based upon a balancing of the remedy selection factors in OAR 340-122-090 without application of the higher thresholds, under section (7), for reasonableness of the cost of the treatment and excavation and offsite disposal of hot spots of contamination.
(9) The feasibility study should recommend a protective and feasible remedial action from the remedial action alternatives developed and evaluated in the feasibility study. For any recommended remedial action, the feasibility study shall:
(a) Identify the extent to which the remedial action alternative would be conducted onsite;
(b) Identify all state or local permits, licenses, or other authorizations or procedural requirements that would be exempted pursuant to ORS 465.315(3);
(c) Describe any consultation with affected state or local government bodies; and
(d) Identify applicable substantive requirements of the affected state or local laws and how they would be addressed.
Stat. Auth.: ORS 465.315 & ORS 465.400
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 2-1997, f. & cert. ef. 2-7-97; DEQ 12-2000, f. & cert. ef. 7-27-00
340-122-0090
Selection or Approval of the Remedial Action
(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
Hist.: 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
340-122-0100
Public Notice and Participation
(1) The Department may solicit public input for any of the activities specified in OAR 340-122-0050. Such input may include, but is not limited to, information related to:
(a) Current and reasonably likely land use;
(b) Current and reasonably likely beneficial uses of water;
(c) Ecological assessment endpoints; and
(d) Remedial action goals.
(2) The Department shall, prior to selection or approval of a remedial action:
(a) Provide notice and opportunity for comment and a public meeting regarding the proposed remedial action, in accordance with ORS 465.320; and
(b) Make a reasonable effort to identify and notify interested and affected community organizations and other parties.
(3) Any notice under section (2) of this rule shall include but not be limited to a brief description of the Department's proposed remedial action alternative, if known, and information regarding where a copy of the full proposal may be inspected and copied.
(4) The Director shall consider any comments received during the public comment period and any public meeting before approving the remedial action.
(5) In the Director's discretion, the Department may provide public notice and opportunity for comment and a public meeting regarding a proposed removal and shall consider any comments received during such public comment period or public meeting.
(6) Agency records concerning removal or remedial actions and related investigations shall be made available to the public in accordance with ORS 192.410 to 192.505, subject to exemptions to public disclosure, if any, under ORS 192.501 and 192.502. The Department shall maintain and make available for public inspection and copying a record of pending and completed removals, remedial actions, and related investigations, to be located at the headquarters or regional offices of the Department.
Stat. Auth.: ORS 465.400(1), ORS 465.405, 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
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-88; DEQ 29-1990, f. & cert. ef. 7-13-90; DEQ 2-1997, f. & cert. ef. 2-7-97
340-122-0110
Administrative Record
(1) For purposes of the Director's selection of a removal or remedial action, and enforcement, cost recovery, or review, if any, related to the Director's action, the administrative record shall consist of the following types of documents generated for a facility up to the time of the Director's action:
(a) Factual information, data, and analyses that form a basis for the Director's action;
(b) The Preliminary Assessment and Remedial Investigational and Feasibility Study, as applicable;
(c) Orders, consent decrees, settlement agreements, work plans, and other decision documents;
(d) Guidance documents and technical literature that form a basis for the Director's action; and
(e) Public comments and other information received by the Department prior to the Director's action, and Department responses to significant comments.
(2) Unless expressly designated part of the administrative record by the Director, the administrative record shall not include:
(a) Draft documents and internal memoranda;
(b) Documents relating to the liability of persons potentially liable under ORS 465.255;
(c) Documents relating to state remedial action costs; and
(d) Documents privileged under law or confidential under ORS 192.501 or 192.502.
Stat. Auth.: ORS 465.400(1), ORS 465.405, 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
Hist.: DEQ 26-1988, f. & cert. ef. 9-16-88; DEQ 29-1990, f. & cert. ef. 7-13-90
340-122-0115
Definitions
Terms not defined in this rule have the meanings set forth in ORS 465.200. Additional terms are defined as follows unless the context requires otherwise:
(1) "Acceptable risk level" with respect to the toxicity of hazardous substances has the meaning set forth in ORS 465.315 (1)(b)(A) and (B) and is comprised of the acceptable risk level definitions provided for carcinogenic exposures, noncarcinogenic exposures, and ecological receptors in sections (2) through (6) of this rule.
(2) "Acceptable risk level for human exposure to individual carcinogens" means:
(a) For deterministic risk assessments, a lifetime excess cancer risk of less than or equal to one per one million for an individual at an upper-bound exposure; or
(b) For probabilistic risk assessments, a lifetime excess cancer risk for each carcinogen of less than or equal to one per one million at the 90th percentile, and less than or equal to one per one hundred thousand at the 95th percentile, each based upon the same distribution of lifetime excess cancer risks for an exposed individual.
(3) "Acceptable risk level for human exposure to multiple carcinogens" means the acceptable risk level for human exposure to individual carcinogens and:
(a) For deterministic risk assessments, a cumulative lifetime excess cancer risk for multiple carcinogens and multiple exposure pathways of less than or equal to one per one hundred thousand at an upper-bound exposure; or
(b) For probabilistic risk assessments, a cumulative lifetime excess cancer risk for multiple carcinogens and multiple exposure pathways of less than or equal to one per one hundred thousand at the 90th percentile and less than or equal to one per ten thousand at the 95th percentile, each based upon the same distribution of cumulative lifetime excess cancer risks for an exposed individual.
(4) "Acceptable risk level for human exposure to noncarcinogens" means:
(a) For deterministic risk assessments, a hazard index less than or equal to one for an individual at an upper-bound exposure; or
(b) For probabilistic risk assessments, a hazard index less than or equal to one at the 90th percentile, and less than or equal to ten at the 95th percentile, each based upon the same distribution of hazard index numbers for an exposed individual.
(5) "Acceptable risk level for individual ecological receptors" applies only to species listed as threatened or endangered pursuant to 16 USC 1531 et seq. or ORS 465.172, and means:
(a) For deterministic risk assessments, a toxicity index less than or equal to one for an individual ecological receptor at an upper-bound exposure, where the toxicity index is the sum of the toxicity quotients attributable to systemic toxicants with similar endpoints for similarly-responding species and the toxicity quotient is the ratio of the exposure point value to the ecological benchmark value; or
(b) For probabilistic risk assessments, a toxicity index less than or equal to one at the 90th percentile and less than or equal to 10 at the 95th percentile, each based on the same distribution of toxicity index numbers for an exposed individual ecological receptor; or
(c) The probability of important changes in such factors as growth, survival, fecundity, or reproduction related to the health and viability of an individual ecological receptor that are reasonably likely to occur as a consequence of exposure to hazardous substances is de minimis.
(6) "Acceptable risk level for populations of ecological receptors" means a 10 percent chance, or less, that more than 20 percent of the total local population will be exposed to an exposure point value greater than the ecological benchmark value for each contaminant of concern and no other observed significant adverse effects on the health or viability of the local population.
(7) "Assessment endpoint" means an explicit expression of a specific ecological receptor and an associated function or quality that is to be maintained or protected. Assessment endpoints represent ecological receptors directly or as their surrogates for the purposes of an ecological risk assessment.
(8) "Background level" means the concentration of hazardous substance, if any, existing in the environment in the location of the facility before the occurrence of any past or present release or releases.
(9) "Beneficial uses of water" means any current or reasonably likely future beneficial uses of groundwater or surface water by humans or ecological receptors.
(10) "Carcinogen" means any substance or agent that produces or tends to produce cancer in humans.
(11) "Cleanup level", means the residual concentration of a hazardous substance in a medium that is determined to be protective of public health, safety and welfare, and the environment under specified exposure conditions.
(12) "Commission" means the Environmental Quality Commission.
(13) "Confirmed release" means a release of a hazardous substance into the environment that has been confirmed by the Department in accordance with OAR 340-122-0073.
(14) "Confirmed release list" means a list of facilities for which the Director has confirmed a release of a hazardous substance.
(15) "Contaminant of concern" means a hazardous substance that is present in such concentrations that the contaminant poses a threat or a potentially unacceptable risk to public health, safety or welfare, or the environment considering:
(a) The toxicological characteristics of the hazardous substance that influence its ability to affect adversely human health, ecological receptors or the environment relative to the concentration of the hazardous substance at the facility;
(b) The chemical and physical characteristics of the hazardous substance that govern its tendency to persist in the environment, move through environmental media, or accumulate through food webs;
(c) The background level of the hazardous substances;
(d) The thoroughness of the testing for the hazardous substance at the facility;
(e) The frequency that the hazardous substance has been detected at the facility; and
(f) Degradation by-products of the hazardous substances.
(16) "Critical endpoint" or "Critical effect" means the adverse health effect used as the basis for the derivation of the reference dose (RfD). Exposure to a given chemical may result in a variety of toxic effects (e.g., liver defects, kidney defects, or blood defects). The critical endpoint is selected from the different adverse health effects produced by a given chemical, and is the adverse health effect with the lowest dose level that produced toxicity.
(17) "Department" means the Oregon Department of Environmental Quality.
(18) "Deterministic risk assessment" means a risk assessment that produces a point value estimate of risk for a specific set of exposure assumptions.
(19) "De minimis release" means a release of a hazardous substance that, because of the quantity or characteristics of the hazardous substance released and the potential for migration and exposure of human or environmental receptors, can reasonably be considered to pose no significant threat to public health, safety or welfare, or the environment.
(20) "Director" means the Director of the Department of Environmental Quality or the Director's authorized representative.
(21) "Ecological benchmark value" means the highest no-observed-adverse-effect-level (NOAEL) for individual ecological receptors considering effects on reproductive success or the median lethal dose or concentration (LD50 or LC50) for populations of ecological receptors. If a NOAEL, LD50 or LC50, as applicable, is not available for ecological receptors considered in the risk assessment, the ecological benchmark value may be derived from other toxicological endpoints for those receptors or appropriate surrogates for those receptors, adjusted with uncertainty factors to equate to a NOAEL, LD50 or LC50. The ecological benchmark value shall be based, to the extent practicable, on studies whose routes of exposure and duration of exposure were commensurate with the expected routes and duration of exposure for ecological receptors considered in the risk assessment, or appropriate surrogates for those receptors.
(22) "Ecological receptor" means a population of plants or animals (excluding domestic animals and cultivated plants) or an individual member of any species listed as threatened or endangered pursuant to 16 U.S.C. 1532 et seq. or ORS 496.172.
(23) "Engineering control" means a remedial method used to prevent or minimize exposure to hazardous substances, including technologies that reduce the mobility or migration of hazardous substances. Engineering controls may include, but are not limited to, capping, horizontal or vertical barriers, hydraulic controls, and alternative water supplies.
(24) "Environment" includes ecological receptors, the waters of the state, any drinking water supply, any land surface and subsurface strata, sediments, saturated soils, subsurface gas, or ambient air or atmosphere.
(25) "Exposure point value" means the concentration or dose of a hazardous substance occurring at a location of potential contact between a human receptor and the hazardous substance, or between an ecological receptor and the hazardous substance.
(26) "Facility" or "Site" means any building, structure, installation, equipment, pipe or pipeline including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, above ground tank, underground storage tank, motor vehicle, rolling stock, aircraft, or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located and where a release has occurred or where there is a threat of a release, but does not include any consumer product in consumer use or any vessel.
(27) "Groundwater" means any water, except capillary moisture, beneath the land surface or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries of the state, whatever may be the geological formation or structure in which such water stands, flows, percolates or otherwise moves.
(28) "Hazard index" means a number equal to the sum of the hazard quotients attributable to systemic toxicants with similar toxic endpoints.
(29) "Hazard quotient" means the ratio of the exposure point value to the reference dose, where the reference dose is typically the highest dose causing no adverse effects on survival, growth or reproduction in human populations.
(30) "Hazardous substance" means:
(a) Hazardous waste as defined in ORS 466.005;
(b) Any substance defined as a hazardous substance pursuant to section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act, P.L. 96-510, as amended, and P.L. 99-499;
(c) Oil as defined in ORS 465.200(18); and
(d) Methane generated at a historic solid waste landfill; and
(e) Any substance designated by the commission under ORS 465.400.
(31) "Historic solid waste landfill" means:
(a) A solid waste landfill that was never permitted for disposal of solid waste, including landfills that received solid waste prior to adoption of permit requirements under ORS 459.205;
(b) A solid waste landfill that was previously permitted for disposal of solid waste pursuant to ORS 459.205, if operational and post-closure permits for management of the facility have expired, or have been terminated or revoked by the Department; and
(c) A permitted solid waste landfill, if the Department determines that permit requirements for management of methane will not be implemented by the permittee including determinations by the Department that the permittee is financially unable to implement applicable permit requirements.
(32) "Hot spots of contamination" means:
(a) For groundwater or surface water, hazardous substances having a significant adverse effect on beneficial uses of water or waters to which the hazardous substances would be reasonably likely to migrate and for which treatment is reasonably likely to restore or protect such beneficial uses within a reasonable time, as determined in the feasibility study; and
(b) For media other than groundwater or surface water, (e.g., contaminated soil, debris, sediments, and sludges; drummed wastes; "pools" of dense, non-aqueous phase liquids submerged beneath groundwater or in fractured bedrock; and non-aqueous phase liquids floating on groundwater), if hazardous substances present a risk to human health or the environment exceeding the acceptable risk level, the extent to which the hazardous substances:
(A) Are present in concentrations exceeding risk-based concentrations corresponding to:
(i) 100 times the acceptable risk level for human exposure to each individual carcinogen;
(ii) 10 times the acceptable risk level for human exposure to each individual noncarcinogen; or
(iii) 10 times the acceptable risk level for exposure of individual ecological receptors or populations of ecological receptors to each individual hazardous substance.
(B) Are reasonably likely to migrate to such an extent that the conditions specified in subsection (a) or paragraphs (b)(A) or (b)(C) would be created; or
(C) Are not reliably containable, as determined in the feasibility study.
(33) "Institutional control" means a legal or administrative tool or action taken to reduce the potential for exposure to hazardous substances. Institutional controls may include, but are not limited to, use restrictions, environmental monitoring requirements, and site access and security measures.
(34) "Inventory" means a list of facilities for which the Director has confirmed a release of a hazardous substance and, based on a preliminary assessment or equivalent information, has determined that additional investigation, removal, remedial action, or long term engineering or institutional controls related to removal or remedial action are required to assure protection of the present and future public health, safety and welfare, and the environment.
(35) "Locality of the facility" means any point where a human or an ecological receptor contacts, or is reasonably likely to come into contact with, facility-related hazardous substances, considering:
(a) The chemical and physical characteristics of the hazardous substances;
(b) Physical, meteorological, hydrogeological, and ecological characteristics that govern the tendency for hazardous substances to migrate through environmental media or to move and accumulate through food webs;
(c) Any human activities and biological processes that govern the tendency for hazardous substances to move into and through environmental media or to move and accumulate through food webs; and
(d) The time required for contaminant migration to occur based on the factors described in subsections (35)(34)(a) through (c) of this rule.
(36) "Measurement endpoints for ecological receptors" are quantitative expressions of an observed or measured response in ecological receptors exposed to hazardous substances.
(37) "Noncarcinogen" means hazardous substances with adverse health effects on humans other than cancer.
(38) "Onsite", for purposes of ORS 465.315(3), means the areal extent of contamination and all suitable areas in close proximity to the contamination necessary for implementation of a removal or remedial action.
(39) "Permitted or authorized release" means a release that is from an active facility and that is subject to and in substantial compliance with a current and legally enforceable permit issued by an authorized public agency.
(40) "Population" and "Local population", for purposes of evaluating ecological receptors, means a group of individual plants, animals, or other organisms of the same species that live together and interbreed within a given habitat, including any portion of a population of a transient or migratory species that uses habitat in the locality of the facility for only a portion of the year or for a portion of their lifecycle.
(41) "Practical quantification limit" or "PQL" means the lowest concentration that can be reliably measured within specified limits of precision, accuracy, representativeness, completeness, and comparability when testing field samples under routine laboratory operating conditions using Department-approved methods.
(42) "Preliminary assessment" means an investigation conducted in accordance with OAR 340-122-0072 for the purpose of determining whether additional investigation, removal, remedial action, or related engineering or institutional controls are needed to assure protection of public health, safety and welfare, and the environment.
(43) "Probabilistic risk assessment" means a risk assessment that produces a credible range or distribution of possible risk estimates by taking into consideration the variability and uncertainty in the exposure and toxicity data used to make the assessment.
(44) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance, or any threat thereof, but excludes:
(a) Any release which results in exposure to a person solely within a workplace, with respect to a claim that the person may assert against the person's employer under ORS chapter 656;
(b) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine;
(c) Any release of source, by product or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, as amended, if such release is subject to the requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 170 of the Atomic Energy Act of 1954, as amended, or, for the purposes of ORS 465.260 or any other removal or remedial action, any release of source by product special nuclear material from any processing site designated under Section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978; and
(d) The normal application of fertilizer.
(45) "Remedial action" and "Removal" have the meanings set forth in ORS 465.200(22) and (24), respectively, and, for purposes of these rules, may include investigations, treatment, excavation and offsite disposal, engineering controls, institutional controls, any combination thereof.
(46) "Remediated" means implementation of a removal or remedial action.
(47) "Residual risk assessment" means both:
(a) A quantitative assessment of the risk resulting from concentrations of untreated waste or treatment residuals remaining at the conclusion of any treatment and offsite disposal taking into consideration current and reasonably likely future land and water use scenarios and the exposure assumptions used in the baseline risk assessment; and
(b) A qualitative or quantitative assessment of the adequacy and reliability of any institutional or engineering controls to be used for management of treatment residuals and untreated hazardous substances.
(48) "Risk" means the probability that a hazardous substance, when released into the environment, will cause adverse effects in exposed humans or ecological receptors.
(49) "Risk assessment" means the process used to determine the probability of an adverse effect due to the presence of hazardous substances. A risk assessment includes identification of the hazardous substances present in the environmental media; assessment of exposure and exposure pathways; assessment of the toxicity of the hazardous substances; characterization of human health risks; and characterization of the impacts or risks to the environment.
(50) "Sensitive environment", for purposes of OAR 340-122-0045, means an area of particular environmental value where a hazardous substance could pose a greater threat than in other non-sensitive areas. Sensitive environments include but are not limited to: Critical habitat for federally endangered or threatened species; National Park, Monument, National Marine Sanctuary, National Recreational Area, National Wildlife Refuge, National Forest Campgrounds, recreational areas, game management areas, wildlife management areas; designated federal Wilderness Areas; wetlands (freshwater, estuarine, or coastal); wild and scenic rivers; state parks; state wildlife refuges; habitat designated for state endangered species; fishery resources; state designated natural areas; county or municipal parks; and other significant open spaces and natural resources protected under Goal 5 of Oregon's Statewide Planning Goals.
(51) "Significant adverse effect on beneficial uses of water" means current or reasonably likely future exceedance of:
(a) Applicable or relevant federal, state or local water quality standards, criteria, or guidance;
(b) In the absence of applicable or relevant water quality standards, criteria, or guidance, the acceptable risk level; or
(c) If subsections (a) and (b) of this section do not apply, the concentration of a hazardous substance indicated by available published peer-reviewed scientific information to have a significant adverse effect on a current or reasonably likely future beneficial use of water.
(52) "Soil" means a mixture of organic and inorganic solids, air, water, and biota which exists on the earth surface above bedrock, including materials of anthropogenic sources such as slag and sludge.
(53) "Solid waste" means all useless or discarded putrescible and nonputrescible materials, including but not limited to garbage, rubbish, refuse, ashes, paper and cardboard, sewage sludge, septic tank and cesspool pumpings or other sludge, useless or discarded commercial, industrial, demolition and construction materials, discarded or abandoned vehicles or parts thereof, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid materials, dead animals and infectious waste as defined in ORS 459.386. "Solid waste" does not include:
(a) Hazardous waste as defined in ORS 466.005.
(b) Materials used for fertilizer or for other productive purposes or which are salvageable as such materials are used on land in agricultural operations and the growing or harvesting of crops and the raising of animals.
(54) "Solid waste landfill" means a facility for the disposal of solid waste involving the placement of solid waste on or beneath the land surface.
(55) "Surface water" means lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, wetlands, inlets, canals, the Pacific Ocean within the territorial limits of the State of Oregon, and all other bodies, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface waters), which are wholly or partially within or bordering the state or within its jurisdiction.
(56) "Total excess cancer risk" means the upper bound on the estimated excess cancer risk associated with exposure to multiple hazardous substances and multiple exposure pathways.
(57) "Treatment" means to permanently and substantially eliminate or reduce the toxicity, mobility or volume of hazardous substances with the use of either in-situ or ex-situ remedial technologies.
Stat. Auth.: ORS 465.315 & 465.400
Stats. Implemented: ORS 465.200-455, 465.900, 466.706-835 & 466.895
Hist.: DEQ 2-1997, f. & cert. ef. 2-7-97; DEQ 11-1999(Temp), f. & cert. ef. 7-6-99 thru 1-2-2000; Administrative correction 6-12-01; DEQ 3-2002(Temp), f. 2-21-02 thru 8-20-02; DEQ 9-2002, f. & cert. ef. 8-22-02; DEQ 3-2006, f. & cert. ef. 3-17-06
340-122-0120
Security Interest Exemption
(1) Pre-foreclosure. A person or "holder" who maintains indicia of ownership primarily to protect a security interest in a facility, and who does not participate in the management of the facility, is not an "owner or operator" of such facility under ORS 465.255(1)(a) and (b). Whether a transaction falls within this exemption will depend on the facts and on the law otherwise applicable to the transaction:
(a) "Holder" for the purposes of ORS 465.200 et seq. and this rule means a person who maintains indicia of ownership (as defined below) primarily to protect a security interest (as defined below). A holder includes the initial holder (such as a loan originator), any subsequent holder (such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market), a guarantor of an obligation, a surety, or any other person who holds ownership indicia primarily to protect a security interest, or a receiver or other person who acts on behalf or for the benefit of a holder;
(b) "Indicia of Ownership" as used in ORS 465.200 et seq. and this rule means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in real or personal property securing a loan or other obligation, including any legal or equitable title to real or personal property acquired incident to foreclosure or its equivalents. Evidence of such interests include, but are not limited to, mortgages, deeds of trust, liens, judgment liens, statutory liens, surety bonds and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased property (hereinafter "lease financing transaction"), legal or equitable title obtained pursuant to foreclosure, and their equivalents. Evidence of such interests also include, but are not limited to, assignments, pledges, or other rights to or other forms of encumbrance against property that are held primarily to protect a security interest. A person is not required to hold title or a security interest in order to maintain indicia of ownership;
(c) "Primarily to Protect a Security Interest" as used in ORS 465.200 et seq. and this rule means that the holder's indicia of ownership are held primarily for the purpose of securing payment or performance of an obligation. The term "primarily to protect a security interest" does not include indicia of ownership held primarily for investment purposes, nor ownership indicia held primarily for purposes other than as protection for a security interest;
(d) "Security Interest" as used in ORS 465.200 et seq. and this rule means an interest in a facility created or established for the purpose of securing a loan or other obligation. Security interests include, but are not limited to, mortgages, deeds of trusts, liens, judgment liens, statutory liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, assignments, factoring agreements, accounts receivable financing arrangements, and consignments, if the transaction creates or establishes an interest in a facility for the purpose of securing a loan or other obligation;
(e) "Participating in the Management of a Facility" as used in ORS 465.200 et seq. and this rule means that the holder is engaging or has engaged in acts of facility management, as defined herein:
(A) Actions that Are Participation in Management. Participation in the management of a facility means actual participation in the management or operational affairs of the facility by the holder, and does not include the mere capacity to influence, or ability to influence, or the unexercised right to control facility operations. Whether the holder has participated in management sufficiently to void the exemption is a fact-sensitive inquiry. In all cases, the determination of whether a holder is participating in management depends on the holder's actions with respect to the facility rather than the outcomes associated with such actions. A holder is participating in management, while the borrower is still in possession of the facility encumbered by the security interest, only if the holder either:
(i) Exercises decision-making control over the borrower's environmental compliance, such that the holder has undertaken responsibility for the borrower's hazardous substance handling or disposal practices; or
(ii) Exercises control at a level comparable to that of a manager of the borrower's enterprise, such that the holder has assumed or manifested responsibility for the overall management of the enterprise encompassing the day-to-day operational (as opposed to financial or administrative) decision-making of the enterprise. Operational aspects of the enterprise include, but are not limited to, functions typically performed by positions such as that of facility or plant manager, operations manager, chief operating officer, or chief executive officer. Financial or administrative aspects include, but are not limited to, functions typically performed by positions such as that of credit manager, accounts payable/receivable manager, personnel manager, controller, or chief financial officer.
(B) Actions That are not Participation in Management:
(i) Actions at the Inception of the Loan or Other Transaction. No act or omission prior to the time that indicia of ownership are held primarily to protect a security interest constitutes evidence of participation in management. A prospective holder who undertakes or requires an environmental inspection of the facility in which indicia of ownership is to be held, or requires a prospective borrower to clean up a facility or to comply or come into compliance (whether prior or subsequent to the time that indicia of ownership are held primarily to protect a security interest) with any applicable law or regulation, is not by such action considered to be participating in the facility's management. Neither the statute nor this rule requires a holder to conduct or require an inspection to qualify for the exemption, and the liability of a holder cannot be based on or affected by the holder not conducting or requiring an inspection.
NOTE: A person who desires to preserve or claim a defense under ORS 465.255(2)(a) must undertake the appropriate inquiry described in ORS 465.255(6).
(ii) Policing the Security Interest or Loan. A holder who engages in policing activities prior to foreclosure or its equivalents will remain within the exemption provided that the holder does not by such actions participate in the management of the facility. Such policing actions include, but are not limited to, requiring the borrower to clean up the facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, rules, and regulations during the term of the security interest; securing or exercising authority to monitor or inspect the facility (including on-site inspections) in which indicia of ownership are maintained, or the borrower's business or financial condition during the term of the security interest; or taking other actions to adequately police the loan or security interest (such as requiring a borrower to comply with any warranties, covenants, conditions, representations, or promises from the borrower);
(iii) Work Out. A holder who engages in work out activities prior to foreclosure or its equivalent will remain within the exemption provided that the holder does not by such action participate in the management of the facility. For purposes of this rule, "work out" refers to those actions by which a holder, at any time prior to foreclosure or its equivalents, seeks to prevent, cure, or mitigate a default by the borrower or obligor; or to preserve, or prevent the diminution of, the value of the security. Work out activities include, but are not limited to, restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights pursuant to an assignment of accounts or other amounts owing to an obligor; requiring or exercising rights pursuant to an escrow agreement pertaining to amounts owing to an obligor; providing specific or general financial or other advice, suggestions, counseling, or guidance relating to work out activities; and exercising any right or remedy the holder is entitled to by law or under any warranties, convenants, conditions, representations, or promises from the borrower;
(iv) Actions Taken Under ORS 465.255(7)(a). A holder does not participate in the management of a facility merely by taking a response action in accordance with ORS 465.255(7)(a).
(2) Post-foreclosure. A person who holds indicia of ownership after foreclosure or its equivalents primarily to protect a security interest is not an "owner or operator" of such facility under ORS 465.255(1)(a) and (b) provided that the holder undertakes to sell, re-lease property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of the property in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the facility, taking all facts and circumstances into consideration, and provided that the holder did not participate in management prior to foreclosure or its equivalents:
(a) "Foreclosure or its equivalents" as used in this rule include, but are not limited to, purchase at foreclosure sale; acquisition or assignment of title in lieu of foreclosure; termination of a lease financing transaction or other repossession; acquisition of a right to title or possession; an agreement in satisfaction of the obligation; or any other formal or informal manner (whether pursuant to law or under warranties, covenants, conditions, representations, or promises from the borrower) by which the holder acquires title to or possession of the secured property. Indicia of ownership that are held primarily to protect a security interest include legal or equitable title acquired through or incident to foreclosure or its equivalents;
(b) A holder who did not participate in management prior to foreclosure or its equivalents, may sell, release property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), liquidate, maintain business activities, wind up operations, undertake any response action in accordance with ORS 465.255(7)(a), and take measures to preserve, protect, or prepare the secured asset prior to sale or other disposition without voiding the exemption, provided that the holder undertakes to sell, re-lease property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest the facility in a reasonably expeditious manner. To show that the holder has acted in a "reasonably expeditious manner," the holder may:
(A) Use whatever commercially reasonable means to sell, re-lease, or divest as are relevant or appropriate with respect to the facility; or
(B) Establish that the ownership indicia maintained following foreclosure or its equivalents continue to be held primarily to protect a security interest if, within 12 months following foreclosure, the holder lists the facility with a broker, dealer, or agent who deals with the type of property in question, or advertises the facility as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the facility in question, or a newspaper of general circulation (defined as one with a circulation over 10,000, or one suitable under any applicable federal, state, or local rules of court for publication required by court order or rules of civil procedure) covering the area whether the property is located. For purposes of this provision, the 12-month period begins to run from the time that the holder acquires marketable title, provided that the holder, after the expiration of any redemption or other waiting period provided by law, acts diligently to acquire marketable title. If the holder fails to act diligently to acquire marketable title, the 12-month period begins to run on the date of the foreclosure or its equivalents.
(c) A holder that outbids, rejects, or fails to act upon an offer of fair consideration for the facility establishes that the ownership indicia in the secured property are not held primarily to protect the security interest, unless the holder is required, in order to avoid liability under federal or state law, to make a higher bid, to obtain a higher offer, or to seek or obtain an offer in a different manner:
(A) "Fair consideration," in the case of a holder maintaining indicia of ownership primarily to protect a senior security interest in the facility, is the value of the security interest calculated as follows:
(i) An amount equal to or in excess of the sum of the outstanding principal (or comparable amount in the case of a lease that constitutes a security interest) owed to the holder immediately preceding the acquisition of full title (or possession in the case of property subject to a lease financing transaction) pursuant to foreclosure or its equivalents; plus
(ii) Any unpaid interest, rent, or penalties (whether arising before or after foreclosure or its equivalents); plus
(iii) All reasonable and necessary costs, fees, or other charges incurred by the holder incident to work out, foreclosure or its equivalents, retention, maintaining the business activities of the enterprise, preserving, protecting and preparing the facility prior to sale, re-lease of property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or other disposition; plus
(iv) Remedial action costs incurred under ORS 465.255(7)(a); less
(v) Any amounts received by the holder in connection with any partial disposition of the property, gross revenues received as a result of maintaining the business activities of the enterprise, and any amounts paid by the borrower subsequent to the acquisition of full title (or possession in the case of property subject to a lease financing transaction) pursuant to foreclosure or its equivalents.
(B) In the case of a holder maintaining indicia of ownership primarily to protect a junior security interest, fair consideration is the value of all outstanding higher priority security interests plus the value of the security interest held by the junior holder, each calculated as set forth above;
(C) "Outbids, rejects, or fails to act upon an offer" of fair consideration means that the holder outbids, rejects, or fails to act upon within 90 days of receipt of a written, bona fide, firm offer of fair consideration for the property received at any time after six months following foreclosure and its equivalents. A "written, bona fide, firm offer" means a legally enforceable, commercially reasonable, cash offer solely for the foreclosed facility, including all material terms of the transaction, from a ready, willing, and able purchaser who demonstrates the ability to perform. For purposes of this provision, the six-month period begins to run from the time that the holder acquires marketable title, provided that the holder, after the expiration of any redemption or other waiting period provided by law, acts diligently to acquire marketable title. If the holder fails to act diligently to acquire marketable title, the six-month period begins to run on the date of foreclosure or its equivalents.
(3) Holder's Basis of Liability Independent of Status as Owner or Operator:
(a) Notwithstanding this rule, a holder may incur liability in connection with its activities under the independent bases of liability set forth in ORS 465.255(1)(d) to (7);
(b) A holder who obtains actual knowledge of a release at a facility acquired by the holder through foreclosure or its equivalent and then subsequently transfers ownership or operation of the facility to another person without disclosing such knowledge shall not be entitled to the security interest exemption and shall be considered an "owner or operator" under ORS 465.255(1)(c);
(c) 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.
Stat. Auth.: ORS 465.400, ORS 465.435 & ORS 465.440
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1992, f. & cert. ef. 12-17-92
340-122-0130
Involuntary Acquisition of Property by the Government
(1) State or local government ownership or control of property by involuntary acquisition or involuntary transfers within the meaning of ORS 465.255(3)(a)(A) includes, but is not limited to:
(a) Involuntary acquisitions by or transfers to a state or local government entity in its capacity as a sovereign, including transfers or acquisitions pursuant to abandonment proceedings, or as the result of tax delinquency, bankruptcy, or escheat, or other circumstances in which the government involuntarily obtains ownership or control of property by virtue of its function as sovereign;
(b) Acquisitions by or transfers to a state or local government entity or its agent (including governmental lending and credit institutions, loan guarantors, loan insurers, and financial regulatory entities that acquire security interests or properties of failed private lending or depository institutions) acting as a conservator or receiver pursuant to statutory mandate or regulatory authority;
(c) Acquisitions or transfers of assets through foreclosure or its equivalents or other means by a state or local government entity in the course of administering a governmental loan or loan guarantee or loan insurance program; and
(d) Acquisitions by or transfers to a state or local government entity pursuant to seizure or forfeiture authority.
(2) Nothing in this rule affects the applicability of OAR 340-122-0120 to any security interest, property, or asset acquired by a state or local governmental entity pursuant to an involuntary acquisition or transfer.
(3) Notwithstanding the exemptions in section (1) of this rule, a governmental entity may be subject to the independent bases of liability set forth in ORS 465.255.
(4) 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.
Stat. Auth.: ORS 465.400, ORS 465.435 & ORS 465.440
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1992, f. & cert. ef. 12-17-92
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 Chapter 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.
Stat. Auth.: ORS 465.400, ORS 465.435 & ORS 465.440
Stats. Implemented: ORS 465.200 - ORS 465.455, ORS 465.900, ORS 466.706 - ORS 466.835 & ORS 466.895
Hist.: DEQ 29-1992, f. & cert. ef. 12-17-92
Cleanup Rules for Leaking Petroleum UST Systems
340-122-0205
Purpose
These rules establish the standards and process for the investigation, monitoring, and remedial activities necessary to protect public health, safety, and welfare and the environment in the event of a release or threat of a release from a petroleum UST system subject to ORS 466.705 through 466.835, 466.994, 465.200 through 465.455, and 465.900.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1991, f. & cert. ef. 8-14-91; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0210
Definitions
Terms not defined in this rule have the meanings set forth in ORS 465.200 and 466.706. Additional terms are defined as follows unless the context requires otherwise:
(1) "Above-Ground Release" means any release to the land surface or to surface water. This includes, but is not limited to, releases from the above ground portion of a petroleum UST system and releases associated with overfills and transfer operations during petroleum deliveries to or dispensing from a petroleum UST system.
(2) "Acceptable Risk Level" has the meanings set forth in OAR 340-122-0115(1) through (6).
(3) "Ancillary Equipment" means any device, including but not limited to, piping, fittings, flanges, valves and pumps used to distribute, meter or control the flow of petroleum to and from a petroleum UST system.
(4) "Aquatic Sediments" means any collection of fine-, medium-, and coarse-grained minerals and organic particles that are found within aquatic habitats.
(5) "Below-Ground Release" means any release to the land subsurface having concentrations detected by the Northwest Total Petroleum Hydrocarbon Identification Analytical Method (NWTPH-HCID, DEQ, December 1996) or to groundwater having concentrations detected by any appropriate analytical method specified in OAR 340-122-0218. This includes, but is not limited to, releases from the below ground portion of a petroleum UST system and releases to the land subsurface or groundwater associated with overfills and transfer operations as the petroleum is delivered to or dispensed from a petroleum UST system.
(6) "Buildings" means any structure occupied by residents, workers or visitors, including convenience stores for retailing of food. For purposes of these rules, "buildings" does not include service station kiosks less than 45 square feet in size if the kiosk is exclusively dedicated to services for motor vehicles.
(7) "Certified Drinking Water Protection Area" means an area that has been delineated by the Oregon Health Division in accordance with OAR 333-061-0057 and certified by the department in accordance with OAR 340-040-0180.
Note: To obtain information about certified drinking water protection areas, contact the Oregon Health Division's Drinking Water Program (503-731-4010).
(8) "Confirmed Release" means petroleum contamination observed in soil or groundwater as a sheen, stain or petroleum odor, or petroleum contamination detected in soil by the Northwest Total Petroleum Hydrocarbon Identification Analytical Method (NWTPH-HCID, DEQ, December 1996) or detected in groundwater by any appropriate analytical method specified in OAR 340-122-0218.
(9) "Contaminant of Concern" means a hazardous constituent contained in petroleum present at a concentration posing a potentially unacceptable risk to public health, safety or welfare or the environment.
(10) "Engineering Control" means a remedial method used to prevent or minimize exposure to petroleum and hazardous substances, including technologies that reduce the mobility or migration of petroleum and hazardous substances. Engineering controls may include, but are not limited to, capping, horizontal or vertical barriers, hydraulic controls and alternative water supplies.
(11) "Excavation Zone" means an area containing a petroleum UST system and backfill material bounded by the ground surface, walls and floor of the pit and trenches into which the petroleum UST system is placed at the time of installation.
(12) "Free Product" means nonaqueous phase liquid petroleum.
(13) "Gasoline" means any petroleum distillate used primarily for motor fuel of which more than 50 percent of its components have hydrocarbon numbers of C10 or less. For purposes of OAR 340-122-0205 through 340-122-0360, the concentration of gasoline in soil or groundwater is the level determined by the Northwest Total Petroleum Hydrocarbon Method NWTPH-Gx.
(14) "Groundwater" means any water, except capillary moisture, beneath the land surface or beneath the bed of any stream, lake, reservoir, or other body of surface water within the boundaries of the state, whatever may be the geological formation or structure in which such water stands, flows, percolates or otherwise moves.
(15) "Hazardous Substance" has the meaning set forth in OAR 340-122-0115(30).
(16) "Heating Oil" means petroleum that is No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, or No. 6 technical grades of fuel oil; other residual fuel oils (including Navy Special Fuel Oil and Bunker C); or other fuels when used as substitutes for one of these fuel oils.
(17) "Heating Oil Tank" means any one or combination of underground tanks and above ground or underground pipes connected to the tank, which is used to contain heating oil used for space heating a building with human habitation, or water heating not used for commercial processing.
(18) "Institutional Control" means a remedial method such as a legal or administrative tool or action used to reduce the potential for exposure to petroleum and hazardous substances. Institutional controls may include, but are not limited to, use restrictions and site access and security measures.
(19) "Motor Fuel" means petroleum or a petroleum-based substance that is motor gasoline, aviation gasoline, No. 1 or 2 diesel fuel or any grade of gasohol, typically used in the operation of a motor engine.
(20) "Native Soil" means the soil outside of the immediate boundaries of the pit that was originally excavated for the purpose of installing an underground storage tank.
(21) "NonGasoline Fraction" means diesel and any other petroleum distillate used for motor fuel or heating oil, of which more than 50 percent of its components have hydrocarbon numbers of C11 or greater. For purposes of OAR 340-122-0205 through 340-122-0360, the concentration of nongasoline fraction in soil or groundwater is the level determined by the Northwest Total Petroleum Hydrocarbon Method NWTPH-Dx.
(22) "Petroleum" or "oil" means gasoline, crude oil, fuel oil, diesel oil, lubricating oil, oil sludge, oil refuse and crude oil fractions and refined petroleum fractions, including gasoline, kerosene, heating oils, diesel fuels and any other petroleum-related product or waste or fraction thereof that is liquid at a temperature of 60 degrees Fahrenheit and a pressure of 14.7 pounds per square inch absolute. "Petroleum" does not include any substance identified as a hazardous waste under 40 CFR Part 261.
(23) "Petroleum UST System" has the same meaning as given in OAR 340-150-0010(55).
(24) "Remediation" or "Remedial Measures" include "remedial action" as defined in ORS 465.200(22), "removal" as defined in 465.200(24) and "corrective action" as defined in 466.706(3).
(25) "Remediation Level" means a concentration of petroleum or petroleum constituents in environmental media such as soil and groundwater that alone, or in combination with institutional controls or engineering controls, is determined to be protective of public health, safety and welfare and the environment in accordance with this division.
(26) "Residential Heating Oil Tank" means a heating oil tank used primarily for single family dwelling purposes.
(27) "Responsible Person" includes "owner" as defined in OAR 340-150-0010(51), "permittee" as defined in 340-150-0010(52), "owner or operator" as defined in ORS 465.200(19) and any other person liable for or voluntarily undertaking remediation under 465.200, et seq. or 466.706, et seq.
(28) "Risk-Based Concentration" means a concentration of petroleum or petroleum constituents in environmental media such as soil and groundwater that is determined to be protective of public health, safety and welfare and the environment in accordance with these rules without requiring institutional controls or engineering controls.
(29) "Soil" means any unconsolidated geologic materials including, but not limited to, clay, loam, loess, silt, sand, gravel and tills or any combination of these materials.
(30) "Surface Water" means lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, wetlands, inlets, canals, the Pacific Ocean within the territorial limits of the State of Oregon and all other bodies, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface waters), which are wholly or partially within or bordering the state or within its jurisdiction.
(31) "Suspected Release" means those conditions described in OAR 340-150-0500.
(32) "Underground storage tank" or "UST" means any one or combination of tanks (including connected underground pipes) that contains or used to contain a regulated substance and the volume of which (including the volume of connected underground pipes) is 10 percent or more beneath the ground surface or otherwise covered by earthen materials.
NOTE: OAR 340-150-0500 requires owners and permittees of UST systems to report suspected releases to the department. Owners and permittees must refer to OAR 340, division 150 for complete information on requirements for underground storage tanks.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 465.400 & 466.746
Stats. Implemented: ORS 465.200 - 465.455, 466.706 - 466.83
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1991, f. & cert. ef. 8-14-91; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98; DEQ 6-2003, f. & cert. ef. 2-14-03; DEQ 3-2008, f. 2-29-08, cert. ef. 3-10-08
340-122-0215
Scope and Applicability
(1) OAR 340-122-0205 through 340-122-0360 of these rules apply to remediation of leaking petroleum UST systems required or undertaken in accordance with ORS 465.200 et seq. or ORS 466.706, et seq.
(2) Notwithstanding section (1) of this rule and OAR 340-122-0360(3), the Department may require that remediation of a release from a petroleum UST system be governed by OAR 340-122-0010 through 340-122-0115, if, based on the magnitude or complexity of the release or other considerations, the Department determines that application of OAR 340-122-0010 through 340-122-0115 is necessary to protect the public health, safety, and welfare or the environment.
(3) Remediation of releases from UST systems containing regulated substances, as defined in ORS 466.706(16), other than petroleum are governed by OAR 340-122-0010 through 340-122-0115 or as otherwise provided under applicable law.
(4) Notwithstanding section (1) of this rule, remediation of releases from residential heating oil tanks are governed by OAR 340-177-0001 through 340-177-0120.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 15-1991, f. & cert. ef. 8-14-91; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0217
Requirements and Remediation Options
(1) For a release of petroleum from an UST system, the responsible person must complete the following requirements:
(a) Perform initial response, abatement, and site characterization in accordance with OAR 340-122-0220 through 340-122-0230.
(b) Remove free product to the maximum extent practicable in accordance with OAR 340-122-0235.
(c) Where results of the initial site characterization indicate that the magnitude and extent of soil contamination have not been fully delineated, or that groundwater contamination may extend beyond the tank pit, complete additional site investigation in accordance with OAR 340-122-0240.
(d) Based on site investigations, perform one of the following remediation approaches:
(A) Remediation in accordance with OAR 340-122-0320 through 340-122-0360 for motor fuel and heating oil in soils;
(B) Closure or remediation in accordance with OAR 340-122-0243 for low-impact sites;
(C) Remediation pursuant to a corrective action plan developed in accordance with OAR 340-122-0244 and 340-122-0250;
(D) Remediation pursuant to a generic remedy developed in accordance with OAR 340-122-0252; or
(E) Any appropriate combination of subsections (A), (C), and (D) of this rule.
(e) Submit all reports, plans, laboratory data, and other documentation required in these rules or otherwise requested by the Department during the course of investigation and remedial measures.
(2) The measures described in section (1) of this rule are subject to Department review and approval as specified in these rules, and to public review and comment as specified in OAR 340-122-0260.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0218
Sampling and Analysis
(1) To streamline the investigation of petroleum UST release sites, a responsible person may use expedited site assessment methods (e.g., push probe samplers) for sample collection and analysis as long as all methods and results are documented in subsequent reports to the Department. However, samples used to demonstrate compliance with remediation levels must be collected and analyzed in accordance with this section.
(a) Sample collection, preservation, storage, and handling methods must conform with appropriate procedures in "Test Methods for Evaluating Solid Waste," SW-846, 3rd Edition, Final Updates I, II, IIA, IIB and III, Revised May 1997 (U.S. EPA).
(b) Samples must be tested for all reasonably likely contaminants of concern relevant to the petroleum released, the age of the release, and the medium contaminated taking into account appropriate remediation levels. The following must be considered and, where appropriate, sampled:
(A) Total Petroleum Hydrocarbons (TPH) in the gasoline range and TPH in the diesel/lube oil range, as appropriate;
(B) For gasoline releases, benzene, toluene, ethylbenzene and total xylenes (BTEX); naphthalene, lead, ethylene dibromide (EDB), ethylene dichloride (EDC), and methyl t-butyl ether (MTBE);
(C) For diesel or heating oil releases, BTEX and polynuclear aromatic hydrocarbons (PAHs); and
(D) For waste oil releases, BTEX, PAHs, volatile chlorinated hydrocarbons, and leachable concentrations of cadmium, chromium, and lead.
(c) Groundwater samples collected for the purpose of testing for lead must be filtered immediately upon collection using a 0.45 micron filter and analyzed for dissolved lead.
(d) The following analytical methods must be employed.
(A) Total Petroleum Hydrocarbons must be analyzed by the Northwest Total Petroleum Hydrocarbon Methods (DEQ, December 1996) including, as appropriate:
(i) Hydrocarbon Identification by NWTPH-HCID;
(ii) Gasoline Range Hydrocarbons by Method NWTPH-Gx; and
(iii) Diesel/Lube Oil Range Hydrocarbons by Method NWTPH-Dx.
(B) Leachable concentrations of cadmium, chromium, and lead must be analyzed by EPA Method 1311 (Toxicity Characteristic Leaching Procedure).
(C) All other contaminants of concern must be analyzed by appropriate procedures described in "Test Methods for Evaluating Solid Waste," SW-846, 3rd Edition, Final Updates I, II, IIA, IIB and III, Revised May 1997 (U.S. EPA).
(e) The Department may accept alternative sampling and analytical methods that have been shown to be appropriate for the contaminants of concern and the media of interest, and that have acceptable quality control measures, and limits of detection.
(2) The Department may request additional tests if site-specific conditions warrant additional information.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0220
Initial Response
For a suspected or confirmed release from a petroleum UST system, the responsible person must perform the following initial response actions within 24 hours:
(1) Report the following releases to the Department:
(a) All below-ground releases;
(b) All above-ground releases to the land surface in excess of 25 gallons, or releases of less than 25 gallons if the responsible person is unable to contain or clean up the release within 24 hours; and
(c) All above-ground releases to surface water that result in a sheen on the water.
(2) Take immediate action to prevent any further release of the petroleum into the environment.
(3) Identify and mitigate fire, explosion, and vapor hazards.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1991, f. & cert. ef. 8-14-91; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0225
Initial Abatement Measures and Site Check
(1) Unless directed to do otherwise by the Department, a responsible person must perform the following abatement measures:
(a) Remove as much of the petroleum from the UST system as is necessary to prevent further release to the environment;
(b) Visually inspect any above-ground releases or exposed below-ground releases and prevent further migration of the released petroleum into surrounding soils and groundwater;
(c) Monitor and mitigate any fire and safety hazards posed by vapors or free product that have migrated from the UST excavation zone and entered into subsurface structures;
(d) Remediate hazards posed by contaminated soils that are excavated or exposed during confirmation, site investigation, abatement, or remedial activities. For remedial measures including treatment or disposal of soils, the responsible person must comply with applicable state and local requirements;
(e) Measure for the presence of a release where contamination is most likely to be present at the UST site. In selecting sample types, sample locations, and measurement methods, the responsible person must consider the nature of the stored petroleum, type of backfill, depth to groundwater, and other factors as appropriate for identifying the presence and source of the release; and
(f) Investigate to determine the possible presence of free product, and begin free product removal as soon as practicable in accordance with OAR 340-122-0235.
(2) Contaminated soil shall be managed in accordance with solid waste regulations.
(3) Within 20 days after release confirmation, or within a longer period of time approved by the Department, the responsible person shall submit a report to the Department summarizing the steps taken under OAR 340-122-0220 and 340-122-0225 and any resulting information or data.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0230
Initial Site Characterization
(1) Unless directed to do otherwise by the Department, a responsible person must collect information about the site and the nature of the release, including information obtained while confirming the release or completing initial abatement measures under OAR 340-122-0225(1). This information must include the following, as appropriate:
(a) Data on the nature and estimated quantity of the release;
(b) Data from available sources and/or site investigations regarding use and approximate locations of wells potentially affected by the release, presence of a certified drinking water protection area, distance to the nearest surface water, subsurface soil conditions, locations of subsurface sewers, water lines, and other utilities, and land use for all adjacent properties and all properties potentially affected by the release;
(c) Results of the measurements required under OAR 340-122-0225(1)(e);
(d) Results of the free product investigations required under OAR 340-122-0225(1)(f), to be used by the responsible person to determine whether free product must be recovered;
(e) A site map, drawn to scale, showing the location of buildings, current and former locations of UST systems, utility lines, sample locations, and other relevant site information; and
(f) Other information necessary to characterize the site.
(2) Within 45 days of release confirmation, or within a longer period of time approved by the Department, a responsible person must submit the information collected under section (1) of this rule and required under OAR 340-122-0235(5) to the Department.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0235
Free Product Removal
At sites where investigations under OAR 340-122-0225(1)(f) indicate the presence of free product, the responsible person must remove the free product to the maximum extent practicable while continuing, as necessary, any actions initiated under OAR 340-122-0220 through 340-122-0230, or while preparing for actions required under OAR 340-122-0240 through 340-122-0250. In meeting the requirements of this rule, the responsible person must:
(1) Initiate free product removal as soon as practicable.
(2) Conduct free product removal in a manner that minimizes the spread of contamination into previously uncontaminated zones by using recovery and disposal techniques appropriate to the hydrogeologic conditions at the site, and that properly treats, discharges, or disposes of recovery byproducts in compliance with applicable local, state, and federal regulations.
(3) Use abatement of free product migration as a minimum objective for the design of the free product removal system.
(4) Handle any flammable products in a safe manner to prevent fires or explosions.
(5) Include in the report submitted under OAR 340-122-0230(2) a summary of free product removal activities, describing:
(a) The name of the contractor or responsible person performing the free product removal measures;
(b) The estimated quantity, type, and thickness of free product observed or measured in wells, boreholes, and excavations;
(c) The type of free product recovery system used;
(d) The location of any on-site or off-site wastewater discharge associated with the recovery operation;
(e) The type of treatment applied to, and the effluent quality from, any wastewater discharge;
(f) The steps that have been or are being taken to obtain necessary permits for any wastewater discharge; and
(g) The disposition of recovered free product; and
(h) Other information relevant to the recovery of free product at the site.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0240
Investigation for Magnitude and Extent of Contamination
(1) If data collected during the initial site characterization do not identify the full nature, magnitude, and extent of soil and groundwater contamination, the responsible person must conduct an investigation for this purpose.
(a) The areal and vertical extent of soil contamination must be determined.
(b) The areal extent of groundwater contamination must be determined, including an estimate of groundwater velocity and flow direction.
(c) Representative samples of all affected media must be analyzed for reasonably likely contaminants of concern based on the nature of the release and applicable remedial options under OAR 340-122-0217.
(d) Expedited site assessment tools (e.g., push-probe samplers) may be used to provide a preliminary measure of the magnitude and extent of groundwater contamination.
(e) If groundwater contamination appears to have migrated beyond the immediate vicinity of the tank pit, additional groundwater investigation must be performed in accordance with section (2) of this rule unless the responsible person can demonstrate to the Department that the contamination presents no potential threat to human health or the environment.
(2) Groundwater investigations required by section (1) of this rule, and groundwater monitoring under corrective action plans required by OAR 340-122-0250 must be carried out as follows:
(a) Groundwater monitoring systems must include a minimum of one hydraulically upgradient and two hydraulically downgradient groundwater monitoring wells, capable of adequately characterizing both site hydrogeology and the vertical and horizontal magnitude and extent of groundwater contamination. Additional monitoring wells may be required by the Department if necessary to adequately characterize the site or to establish compliance monitoring points. All monitoring wells must be designed, completed and, when appropriate, removed according to the Water Resources Department's administrative rules, OAR 690-240-0005 through 690-240-0180 (Construction and Maintenance of Monitoring Wells and Other Holes in Oregon).
(b) When the installation of monitoring wells is impractical due to specific site conditions, the responsible person must notify the Department and develop an alternative course of action which must be approved by the Department.
(c) Groundwater sampling events must meet the following minimum requirements:
(A) Initially, samples must be collected at quarterly intervals. After four consecutive quarters of groundwater monitoring, if site conditions warrant more or less frequent sampling, an alternative sampling schedule may be proposed;
(B) Water elevation measurements must be made in all monitoring wells during each sampling event, unless the Department has approved measurements from a reduced number of wells that provide sufficient data for the determination of the groundwater flow direction;
(C) Formal chain-of-custody records must be prepared and maintained for each sample; and
(D) All sampling events for purposes of identifying contaminants of concern, or for verifying either preliminary compliance or final compliance, must include adequate quality assurance and quality control (QA/QC) measures.
(3) The responsible person shall submit the information collected under sections (1) and (2) of this rule to the Department within 45 days of completing field work, or within a longer period of time approved by the Department. Groundwater monitoring reports must be submitted after each monitoring event unless an alternative schedule has been approved by the Department, and must contain the following information:
(a) A site map, drawn to scale, showing the location of all monitoring wells and the direction of groundwater flow;
(b) A summary of all sampling, handling, and chain-of-custody procedures followed, including, as appropriate, a discussion of any routine maintenance procedures performed during the quarter and any problems encountered (e.g., failure of a pump, clogging of a well screen, an unexplained change in the quality of the water, or any other unusual event) and what actions were taken, or will be taken, in response to such occurrences;
(c) A summary of the analytical data, including QA/QC results for the sampling event;
(d) Water elevation measurements from each monitoring well, unless the Department approves elevation measurements from a reduced number of wells; and
(e) A written evaluation of data, describing trends or other pertinent information derived from the sampling event, and specifying the method or methods of statistical analysis used to describe the significance of these trends.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0243
Low-Impact Sites
Upon completion of all applicable requirements of OAR 340-122-0205 through 340-122-0240, a responsible person may propose closure of a facility as a low-impact site if information gathered during site investigations clearly demonstrates that site conditions have stabilized (i.e., significant future migration of contamination is unlikely) and that the site is likely to have low current and potential future impact on the basis of risk or impairment of beneficial land and water uses. The purpose of the low-impact site designation is to provide a streamlined process for operating gas stations or other industrial or commercial properties that allows these facilities to remain in operation while the responsible person manages any potential risk from contamination remaining at the site. If the Department develops a generic remedy for low-impact sites in accordance with OAR 340-122-0252, then the low-impact site requirements specified in this rule (OAR 340-122-0243) will no longer be in effect. Until such time as a low-impact site generic remedy is in effect, the steps for low-impact closure are described below.
(1) The site must meet each of the following conditions:
(a) The source of the release has been repaired or removed, and all tanks, lines, and associated equipment at the site have been upgraded to meet applicable technical and regulatory standards.
(b) The facility must continue to be used as a gas station or other industrial or commercial use precluding potential routine exposure to children.
(c) Other than minimal amounts of petroleum product in the tank pit at the time of tank removal, no measurable free product was found on the groundwater.
(d) Concentrations of gasoline in the contaminated soil should not exceed 1000 ppm TPH, and concentrations of diesel and other non-gasoline fraction hydrocarbon in the contaminated soil should not exceed 10,000 ppm TPH.
(e) Contaminated soil remaining at the site should not be located within 3 feet of the land surface, unless:
(A) Contaminant concentrations do not exceed generic risk-based concentrations for direct contact developed in accordance with OAR 340-122-0252; or
(B) Department-approved institutional or engineering controls have been implemented and will be maintained to prevent direct contact with soils.
(f) Contamination is not located in utility corridors, unless:
(A) The contamination is shown to have been stabilized and is unlikely to result in vapor or groundwater problems;
(B) Contaminant concentrations do not exceed generic risk-based concentrations for a trench worker scenario developed in accordance with OAR 340-122-0252; and
(C) The corresponding utility has been notified of the contamination.
(g) Service station and other nonresidential buildings must not be located over or within 10 lateral feet and residences must not be located over or within 50 lateral feet of contaminated soil, unless:
(A) Contaminant concentrations do not exceed generic risk-based concentrations for volatilization from soils into buildings developed in accordance with OAR 340-122-0252; or
(B) It is demonstrated that potential exposure from volatilization into buildings from this contamination does not exceed acceptable risk levels; or
(C) Department-approved actions have been taken to mitigate potential vapor problems.
(h) If groundwater contamination is found at the site:
(A) There are no water supply wells located within one-quarter mile of the source of contamination;
(B) The groundwater plume is less than 250 feet in length as measured from the center of the source;
(C) Monitoring data are available to demonstrate that the groundwater plume has stabilized, or is diminishing in size;
(D) The groundwater plume does not leave the source property at concentrations exceeding generic risk-based concentrations developed in accordance with OAR 340-122-0252, unless owners of other affected properties consent to institutional or engineering controls necessary to prevent exposure due to the contaminated groundwater; and
(E) Service station and other nonresidential buildings must not be located over or within 10 lateral feet and residences must not be located over or within 50 lateral feet of contaminated groundwater, unless:
(i) Contaminant concentrations within the plume do not exceed generic risk-based concentrations for volatilization from groundwater into buildings developed in accordance with OAR 340-122-0252; or
(ii) It is demonstrated that potential exposure from volatilization into buildings from this contamination does not exceed acceptable risk levels; or
(iii) Department-approved actions have been taken to mitigate potential vapor problems.
(2) The responsible person must implement institutional or engineering controls, in a form acceptable to the Department, necessary to ensure that a site's designation as a low-impact site remains unchanged.
(3) The responsible person must submit a low-impact-site-closure report to the Department that includes the following:
(a) A site summary with appropriate scaled maps, a discussion of current and reasonably likely future land uses for the site and adjacent properties, including information from local government comprehensive planning plans and zoning ordinances, and information on geology, hydrogeology, topography, and other relevant factors on which the low-impact closure is based.
(b) Information about the release, including a history of all actions taken, data from all samples collected at the site, and a description of all contamination, including scaled maps showing the locations of contamination that was treated or removed from the site and contamination remaining at the site at the time of the report.
(c) Sufficient discussion and supporting data to address each of the specific low-impact site requirements listed in section (1) of this rule.
(d) If groundwater contamination is present at concentrations exceeding generic risk-based concentrations, a discussion of current and reasonably likely future water uses.
(e) If groundwater contamination is present at concentrations exceeding generic risk-based concentrations and the site is located within a certified drinking water protection area (DWPA), a description of the DWPA and what additional information has been gathered and measures taken to ensure that there are no current or potential future adverse impacts to the groundwater in the aquifer within the DWPA.
(f) A proposal, subject to Department approval, for any institutional or engineering controls necessary to maintain low-impact site conditions.
(4) Upon review of the low-impact site closure report, the Department may:
(a) Approve the report and, upon receipt of adequate documentation showing that any necessary institutional or engineering controls have been implemented and will be maintained, issue a low-impact site closure letter stipulating the site conditions that must be maintained;
(b) Request that additional information be submitted or work be performed in support of the proposed low-impact closure; or
(c) Determine that the site does not meet the conditions for low-impact closure and require that additional actions be taken under other relevant sections of OAR 340-122-0205 through 340-122-0360.
(5) The Department shall require public notice consistent with applicable requirements of OAR 340-122-0260 for sites proposed for low-impact closure.
(6) The owner of any property requiring controls under this rule must notify the Department of any future changes that might affect the facility's designation as a low-impact site.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0244
Risk-Based Concentrations
This rule describes the requirements for developing risk-based concentrations for use in establishing remediation levels in corrective action plans under OAR 340-122-0250.
(1) A conceptual model must be developed for the site describing how exposure to contaminants is reasonably likely to occur.
(a) The conceptual site model must be based on, at a minimum:
(A) The magnitude and areal and vertical extent of soil and groundwater contamination;
(B) The concentration of applicable contaminants of concern in each contaminated medium;
(C) The likelihood for exposure to occur, given the concentration, location, and mobility of the contaminants in conjunction with factors such as local climate, geology, and hydrogeology; and
(D) Information on current and reasonably likely future land and water uses in the area of potential impact.
(b) Subject to site-specific conditions, the following exposure pathways must be considered in the conceptual site model:
(A) Direct contact with contaminated soils resulting in exposure due to a combination of dermal contact, soil ingestion, vapor inhalation, and particulate inhalation;
(B) Leaching from soils to underlying groundwater with subsequent groundwater ingestion;
(C) Volatilization from soils to outdoor air and subsequent inhalation;
(D) Volatilization from soils to indoor air and subsequent inhalation;
(E) Ingestion or other exposure to contaminated groundwater;
(F) Volatilization from groundwater to outdoor air and subsequent inhalation; and
(G) Volatilization from groundwater to indoor air and subsequent inhalation.
(c) Subject to site-specific conditions, the following exposure scenarios must be considered in the conceptual site model:
(A) Exposure to adults and children as typified by single-family residential living conditions;
(B) Exposure to adults as typified by industrial or commercial working conditions; and
(C) Exposure to adults whose occupation requires increased direct contact with soil as typified by a trench worker.
(d) Depending on conditions found at the site, the Department may require the evaluation of additional exposure pathways and scenarios.
(2) Risk-based concentrations must be developed for contaminants of concern identified during the site characterization or other site investigation activities, including total petroleum hydrocarbons (TPH) when appropriate, for exposure pathways and scenarios identified in the conceptual site model.
(a) The Department shall develop and maintain, in accordance with OAR 340-122-0252, a table of generic risk-based concentrations that may be used for this purpose; or
(b) A responsible person may calculate site-specific risk-based concentrations by employing contaminant fate, transport, and exposure models.
(A) Sources of models and default exposure parameters include:
(i) Applicable Department of Environmental Quality generic remedy guidance documents developed pursuant to OAR 340-122-0252;
(ii) ASTM Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites (ASTM E 1739-95); and
(iii) US EPA Risk Assessment Guidance for Superfund.
(B) The Department may approve the use of other models if they are deemed appropriate for the proposed task.
(C) A responsible person may propose, subject to the Department's approval, the use of site-specific exposure parameters in place of default exposure parameters.
(3) Risk-based concentrations for protection of the environment must be developed if contamination poses a potential risk exceeding the acceptable risk levels for ecological receptors. Unless the Department determines that screening is required for threatened and endangered species, screening for potential ecological impact is not required if:
(a) Contaminated soils are only present at a depth greater than 3 feet below ground surface, or, if present at a shallower depth, such soils cover an area no greater than 0.125 acre;
(b) Surface water has not been affected by the release;
(c) Contaminated groundwater does not and is not reasonably likely to discharge to surface waters or otherwise reach the surface in a manner that might result in contact with ecological receptors; and
(d) Contaminated groundwater does not and is not reasonably likely to come into contact with aquatic sediments.
[Publications: Publications referenced in this rule are available from the agency.]
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0250
Corrective Action Plan
(1) Subject to section (12) of this rule, a responsible person proposing to remediate a site to risk-based remediation levels must submit a corrective action plan for responding to contaminated soil and groundwater.
(2) A remediation level must be proposed for each contaminant of concern in soil and groundwater based on:
(a) Site-specific risk-based concentrations calculated according to OAR 340-122-0244, or generic risk-based concentrations developed under OAR 340-122-0252;
(b) Current or future reasonably likely significant adverse effects to beneficial uses of groundwater or surface water not addressed by risk-based concentrations under subsection (a) of this section; and
(c) Proposed institutional and engineering controls, if any.
(3) The corrective action plan must be submitted to the Department within 45 days of completing field work necessary for its development, or within a longer period of time approved by the Department, and must contain sufficient information to support the proposed remedial measures including, at a minimum:
(a) The site history and a summary of all previous actions taken in response to the release;
(b) A summary and analysis of all sampling data, including site maps, drawn to scale, showing the magnitude and extent of contamination;
(c) The conceptual site model and an explanation for each remediation level proposed under section (2) of this rule;
(d) Land and water use information necessary to support the conceptual site model, including current uses, and comprehensive plan and zoning designations for adjacent properties, and all properties potentially affected by the release; and
(e) A discussion of all remedial measures including institutional and engineering controls, addressing any contamination exceeding acceptable risk levels and non-risk impacts.
(4) A corrective action plan which contains a proposal for groundwater monitoring or remediation must include:
(a) A recommendation for which monitoring well or wells will serve as compliance points for the site based on the following minimum requirements:
(A) Compliance monitoring points must define an area surrounding the source of contamination, outside of which remediation levels must be attained and maintained.
(B) The compliance monitoring points shall establish a vertical boundary extending from the uppermost level of the saturated zone to the lowest depth which could potentially be affected by the release;
(C) Compliance monitoring points must be located close enough to the source of contamination so that they reasonably detect contamination, if present; and
(D) Compliance monitoring points may not be located beyond the source property boundary except as approved by the Department.
(b) At least one monitoring point which measures contaminant concentrations in the source area.
(c) A discussion of all actions being proposed to monitor or remediate the groundwater contamination. These actions might not require sampling from all wells or monitoring for all contaminants detected during the investigation, provided:
(A) Hydrogeological and contamination data, as well as compliance point requirements, support the wells proposed for monitoring;
(B) Appropriate indicator compounds are analyzed at regular intervals during remediation and monitoring;
(C) Analytical parameters are consistent with remediation levels; and
(D) All contaminants of concern detected during the investigation are sampled and analyzed to confirm preliminary and final compliance.
(5) The Department shall approve the corrective action plan only after ensuring that implementation of the plan, including any applicable remediation levels, will adequately protect human health, safety, and welfare and the environment, and after providing any public notice consistent with the requirements of OAR 340-122-0260.
(6) Upon approval of the corrective action plan by the Department, a responsible person must implement the plan, including any modifications to the plan made by the Department. The responsible person must monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the Department.
(7) For remediation of groundwater contamination:
(a) Preliminary compliance is attained when the first sampling event following the installation of all required monitoring wells shows that all samples collected from all compliance monitoring points and out to the edge of the contaminant plume meet the remediation levels for all contaminants of concern. When preliminary compliance has been attained, the responsible person may suspend groundwater treatment system operation at any time. The Department may require that a suspended groundwater treatment system be reactivated if any of the water samples collected at or beyond the compliance monitoring points during the required period of monitoring are found to contain any contaminant concentrations in excess of remediation levels. If the treatment system is reactivated, treatment must be continued until preliminary compliance is again attained.
(b) Final compliance is attained when:
(A) A minimum of four consecutive quarterly groundwater monitoring events has been completed following shutdown of the treatment system, and all samples collected from all compliance monitoring points and out to the edge of the contaminant plume meet the remediation levels for all contaminants of concern. The four consecutive sampling events may include the sampling event at which preliminary compliance is achieved, provided that all contaminants of concern are included in the sampling and analysis;
(B) Site-specific hydrogeologic and contaminant level data are presented in a written report to the Department demonstrating that any remaining contaminants will not migrate beyond the compliance monitoring points at levels exceeding remediation levels; and
(C) A final report containing a summary of all groundwater data collected at the site, an analysis of the data demonstrating that the final compliance requirements have been met, and any other relevant information deemed necessary by the Department to demonstrate that all of the requirements of this rule have been met is submitted to and approved by the Department.
(c) Notwithstanding final compliance, the Department may require continued monitoring of groundwater in situations where site-specific conditions warrant such measures.
(8) The responsible person must submit additional information or develop and submit a modified correction action plan at the Department's request if the Department determines that remedial activities must be modified or that treatment system performance (e.g., rate of cleanup) is not achieving results as projected in the approved corrective action plan.
(9) When all requirements of an approved corrective action plan have been met to the Department's satisfaction, the Department shall issue a no further action letter to the responsible person.
(10) In the event that contamination exceeding risk-based concentrations remains, the Department may require the implementation of institutional or engineering controls necessary to ensure protection of public health, safety, and welfare and the environment.
(11) A responsible person may, in the interest of minimizing environmental contamination and promoting more effective remediation, begin remediation of soil and groundwater before the corrective action plan is approved provided that the responsible person:
(a) Notifies the Department of its intention to begin remediation;
(b) Complies with any conditions imposed by the Department including halting remediation or mitigating adverse consequences from remedial activities; and
(c) Incorporates the self-initiated remedial measures in the corrective action plan that is submitted to the Department for approval.
(12) The requirement that a corrective action plan be used does not apply to low-impact site closures, or to generic remedies unless specified by the Department in generic remedy guidance. However, the Department may require that a corrective action plan be developed and implemented for sites being considered for remediation under the soil matrix cleanup options (OAR 340-122-0320), as low-impact sites (340-122-0243), or under generic remedies (340-122-0252) if, upon review of available information, the Department determines that conditions at the site are not appropriate for the initial proposed remedial option or the proposal does not provide adequate protection to human health, safety, and welfare and the environment.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0252
Generic Remedies
(1) The Department may identify or develop generic remedies for releases from petroleum UST systems.
(a) For purposes of this rule, a generic remedy may include:
(A) Generic risk-based concentrations for use in closure of low-impact sites, or remediation under a corrective action plan; and
(B) Remedial technologies or methods for use at eligible sites on a streamlined basis.
(b) A generic remedy must describe criteria making sites eligible for use of the generic remedy.
(c) Any generic remedy that allows for implementation of specified remedial measures (e.g., treatment technologies, excavation and off-site disposal, engineering controls, institutional controls) must be based on a generic feasibility study evaluating a range of potential remedial measures providing protection of human health and the environment and protection or restoration of beneficial uses of waters.
(d) Any generic remedy that includes risk-based concentrations must be based on a generic risk assessment documenting the Department's conclusions with respect to how sites eligible for use of the generic remedy will achieve acceptable risk levels.
(2) In developing generic remedy guidance, the Department will provide opportunities for public participation regarding the scope and content of the guidance.
(3) The Department may approve use of a generic remedy at a site if site-specific information demonstrates that the proposed generic remedy or the completed generic remedy as implemented at the site is consistent with Department generic remedy guidance.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0260
Public Participation
(1) The Department shall maintain a list of all confirmed releases and ensure that site release and cleanup information are made available to the public for inspection upon request.
(2) For each confirmed release that requires a corrective action plan under OAR 340-122-0250, or that requires implementation of engineering or institutional controls for designation as a low-impact site under OAR 340-122-0243 or as part of a generic remedy under OAR 340-122-0252, the Department shall provide notice to affected property owners and the public. This notice may include but is not limited to public notice in local newspapers, block advertisements, public service announcements, publication in a state register, letters to individual households, or personal contacts by field staff.
(3) For each confirmed release, the Department, upon written request by ten or more persons or by a group having ten or more members, shall conduct a public meeting at or near the facility for the purpose of receiving verbal comment regarding proposed remedial activities, except for those activities conducted under OAR 340-122-0320 through 340-122-0360.
(4) The Department shall ensure that site release information and decisions concerning completed and proposed petroleum UST remedial measures are made available to the public for inspection upon request.
(5) Before approving a corrective action plan, the Department may hold a public meeting to consider comments on the proposed corrective action plan if there is sufficient public interest, or for any other good reason.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 29-1988, f. & cert. ef. 11-9-88; DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0320
Soil Matrix Cleanup Options
A responsible person may elect to clean up petroleum contaminated soils according to the procedures and standards set forth in OAR 340-122-0320 through 340-122-0360. For purposes of the soil matrix cleanup rules, "cleanup" means excavation and offsite disposal, or treatment, of contaminated soils. When using the numeric soil cleanup standards specified in these rules, the responsible person has the option of:
(1) Cleaning up the site as specified in these rules to the numeric soil cleanup standard defined as Level 1 in OAR 340-122-0335(2); or
(2) Evaluating the site as specified in OAR 340-122-0325 to determine the required Matrix cleanup level, and then cleaning up the site as specified in these rules to the numeric soil cleanup standard defined by that Matrix cleanup level.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0325
Evaluation of Matrix Cleanup Level
(1) In order to determine a specific Matrix cleanup level, the site must first be evaluated by:
(a) Assigning a numerical score to each of the five site-specific parameters in OAR 340-122-0330(1)-(5); and
(b) Totaling the parameter scores to arrive at the Matrix Score.
(2) The Matrix Score must then be used to select the appropriate numeric soil cleanup standard as specified in OAR 340-122-0335.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0330
Evaluation Parameters
The site-specific parameters are to be scored as specified in this section. If any of the parameters in sections (1)-(5) of this rule is unknown, that parameter must be given a score of ten:
(1) Depth to Groundwater: This is the vertical distance (rounded to the nearest foot) from the surface of the ground to the highest seasonal elevation of the saturated zone. The score for this parameter is:
(a) > 100 feet, 1;
(b) 51-100 feet, 4;
(c) 25-50 feet, 7;
(d) < 25 feet, 10.
(2) Mean Annual Precipitation: This measurement may be obtained from the nearest appropriate weather station. The score for this parameter is:
(a) < 20 inches, 1;
(b) 20-45 inches, 4;
(c) > 45 inches, 10.
(3) Native Soil or Rock Type: The score for this parameter is:
(a) Low permeability materials such as clays, silty clays, compact tills, shales, and unfractured metamorphic and igneous rocks, 1;
(b) Moderate permeability materials such as fine and silty sands, sandy loams, loamy sands, and clay loams; moderately permeable limestones, dolomites and sandstones; and moderately fractured igneous and metamorphic rocks, 5;
(c) High permeability materials such as sands and gravels, highly fractured igneous and metamorphic rocks, permeable basalts and lavas, and karst limestones and dolomites, 10.
(4) Sensitivity of the Uppermost Aquifer: Due to the uncertainties involved in the Matrix evaluation process, this factor is included to add an extra margin of safety in situations where critical aquifers have the potential to be affected. The score for this parameter is:
(a) Unusable aquifer, either due to water quality conditions such as salinity, etc.; or due to hydrologic conditions such as extremely low yield, 1;
(b) Potable aquifer not currently used for drinking water, but the quality is such that it could be used for drinking water, 4;
(c) Potable aquifer currently used for drinking water; alternate unthreatened sources of water readily available, 7;
(d) Sole source aquifer currently used for drinking water; there are no alternate unthreatened sources of water readily available, 10.
(5) Potential Receptors: The score for potential receptors is based on both the distance to the nearest well and also the number of people at risk. Each of these two components is to be evaluated using the descriptors defined in this section:
(a) The distance to the nearest well is measured from the area of contamination to the nearest well that draws water from the aquifer of concern. If a closer well exists which is known to draw water from a deeper aquifer, but there is no evidence that the deeper aquifer is completely isolated from the contaminated aquifer, then the distance must be measured to the closer, deeper well. The distance descriptors are:
(A) Near, < 1/2 mile;
(B) Medium, 1/2-2 miles;
(C) Far, > 2 miles.
(b) The number of people at risk is to include all people served by drinking water wells which are located within two miles of the contaminated area. For public wells, count the number of users listed with the Oregon Health Division, Drinking Water Systems Section. For private wells, assume three residents per well. In lieu of a door-to-door survey of private wells, it may be assumed that there is one well per residence. The number descriptors are:
(A) Many, > 3000;
(B) Medium, 100-3000;
(C) Few, < 100.
(c) The score for this parameter is taken from the combination of the two descriptors using the following grid: [Grid not included. See ED. NOTE.]
(6) The Matrix Score for a site is the sum of the five parameter scores in sections (1)-(5) of this rule.
[ED. NOTE: The Grid referenced is available from the agency.]
Stat. Auth.: ORS 465.400 & 466.746
Stats. Implemented: ORS 465.200 - 465.455 & 466.706 - 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 23-1998, f. & cert. ef. 11-2-98; DEQ 3-2008, f. 2-29-08, cert. ef. 3-10-08
340-122-0335
Numeric Soil Cleanup Standards
(1) If the Matrix Score evaluated in OAR 340-122-0330 is:
(a) Greater than 40, the site must be cleaned up to at least the Level 1 standards listed in section (2) of this rule;
(b) From 25 to 40, inclusive, the site must be cleaned up to at least the Level 2 standards listed in section (2) of this rule;
(c) Less than 25, the site must be cleaned up to at least the Level 3 standards listed in section (2) of this rule.
(2) The following table contains the required numeric soil cleanup standards based on the level of Total Petroleum Hydrocarbons (TPH) as measured by the analytical methods specified in OAR 340-122-0218. [Table not included. See ED. NOTE.]
(3) A sample of contaminated soil must be collected from each separate release area and used to identify the petroleum product contamination present at that location. The Hydrocarbon Identification test specified in OAR 340-122-0218(1)(c) (NWTPH-HCID) must be used for that purpose. The NWTPH-HCID test is not required for petroleum product identification for releases from residential heating oil tanks. The results of the NWTPH-HCID test must be used to determine which analytical method or methods are required for verifying compliance with the Matrix cleanup levels. At locations where the soil is contaminated with both gasoline and diesel or other non-gasoline fraction hydrocarbons, the gasoline contamination must be shown to meet the appropriate gasoline cleanup standard and the diesel or other non-gasoline fraction contamination must be shown to meet the appropriate diesel cleanup standard.
[ED. NOTE: Tables referenced in this rule are available from the agency.]
Stat. Auth.:ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0340
Sample Number and Location
The collection and analysis of soil samples is required to verify that a site meets the requirements of these rules. These samples must represent the soils remaining at the site and must be collected after contaminated soils have been removed or remediated. Each sample must represent a single location; composite samples are not allowed. The number of soil samples required for a given site and the location at which the samples are to be collected are as follows:
(1) A minimum of two soil samples must be collected from the site:
(a) These samples must be taken from those areas where obviously stained or contaminated soils have been identified and removed or remediated;
(b) If there are two or more distinct areas of soil contamination, then a minimum of one sample must be collected from each of these areas;
(c) The samples must be taken from within the first foot of native soil directly beneath the areas where the contaminated soil has been removed, or from within the area where in-situ remediation has taken place;
(d) A field instrument sensitive to volatile organic compounds may be used to aid in identifying areas that should be sampled, but the field data may not be substituted for laboratory analyses of the soil samples;
(e) If there are no areas of obvious contamination, then samples must be collected from the locations specified in sections (2)-(5) of this rule which are most appropriate for the situation;
(f) If it is being proposed that a pocket of contamination be left in place pursuant to OAR 340-122-0355(4), then sufficient samples must be collected from the site in order to estimate the extent, volume, and level of contamination in this pocket, and the likelihood for the remaining contamination to result in unacceptable risk levels due to volatilization into buildings.
(2) If water is not present in the tank pit:
(a) Soil samples must be collected from the native soils located no more than two feet beneath the tank pit in areas where contamination is most likely to be found;
(b) For the removal of an individual tank, samples must be collected from beneath both ends of the tank. For the removal of multiple tanks from the same pit, a minimum of one sample must be collected for each 150 square feet of area in the pit.
(3) In situations where leaks have been found in the piping, or in which released product has preferentially followed the fill around the piping, samples are to be collected from the native soils directly beneath the areas where obvious contamination has been removed. Samples should be collected at 20 foot intervals.
(4) If water is present in the tank pit, regardless of whether obvious contamination is or is not present, the Department must be notified of this fact. The responsible person shall then either continue the investigation under OAR 340-122-0240, or do the following:
(a) Purge the water from the tank pit and dispose of it in accordance with all currently applicable requirements. This might require obtaining appropriate permits from the Department or local jurisdictions;
(b) If the pit remains dry for 24 hours, testing and cleanup may proceed according to the applicable sections of these soil matrix cleanup rules. If water returns to the pit in less than 24 hours, a determination must be made as to whether contamination is likely to have affected the groundwater outside of the confines of the pit as indicated below:
(A) For the removal of an individual tank, soil samples are to be collected from the walls of the excavation next to the ends of the tank at the original soil/water interface. For the removal of multiple tanks from the same pit, a soil sample is to be collected from each of the four walls of the excavation at the original soil/water interface;
(B) At least one sample must be taken of the water in the pit regardless of whether obvious contamination is or is not present. This sample shall be collected as required by OAR 340-122-0345(4);
(C) The soil samples must be analyzed for TPH and benzene, toluene, ethylbenzene, and xylenes (BTEX). The water sample must be analyzed for BTEX at all sites, and for PAHs where releases of non-gasoline fractions have occurred. Responsible persons may use TPH analyses on groundwater samples as a preliminary screen for PAHs. The TPH method detection limit must be no greater than 0.5 ppm. Any groundwater sample for which TPH is detected must be analyzed for PAHs. These analyses must be made using the methods specified in OAR 340-122-0218. The results of these analyses must be submitted to the Department;
(D) The Department shall then determine how the cleanup shall proceed as specified in OAR 340-122-0355(3).
(5) In situations where tanks, pumps, and lines will remain in place in areas of suspected contamination, the responsible person must submit a specific soil sampling plan to the Department for its approval.
(6) In situations where TPH analysis indicates that contamination is present due to a release from a waste oil tank, at least one sample of the waste oil contaminated soils must be collected and analyzed for volatile chlorinated solvents, volatile aromatic solvents, and leachable metals (Cadmium, Chromium and Lead) using the analytical methods specified in OAR 340-122-0218(1)(c). Analysis for PCBs is also required if the contamination is from a waste oil tank other than one used exclusively for storage of automotive waste oils.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 13-1992, f. 6-9-92, cert. ef. 10-1-92; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0345
Sample Collection Methods
(1) The following information must be kept during the sampling events:
(a) A sketch of the site must be made which clearly shows all of the sample locations and identifies each location with a unique sample identification code;
(b) Each soil and water sample must be clearly labeled with its sample identification code. A written record must be maintained which includes, but is not limited to: the date, time and location of the sample collection; the name of the person collecting the sample; how the sample was collected; and any unusual or unexpected problems encountered during the sample collection which may have affected the sample integrity;
(c) Formal chain-of-custody records must be maintained for each sample.
(2) If soil samples cannot be safely collected from the excavation, a backhoe may be used to remove a bucket of native soil from each of the sample areas. The soil is to be brought rapidly to the surface where samples are to be immediately taken from the soil in the bucket.
(3) The following procedures must be used for the collection of soil samples from open pits or trenches:
(a) Just prior to collecting each soil sample, approximately three inches of soil must be rapidly scraped away from the surface of the sample location;
(b) To minimize the loss of volatile materials, it is recommended that samples be taken using a driven-tube type sampler. A clean brass or stainless steel tube of at least one inch in diameter and three inches in length may be used for this purpose. The tube should be driven into the soil with a suitable instrument such as a wooden mallet or hammer;
(c) The ends of the sample-filled tube must be immediately covered with clean aluminum foil. The foil must be held in place by plastic end caps which are then sealed onto the tube with a suitable tape;
(d) Alternatively, samples may be taken with a minimum amount of disturbance and packed immediately in a clean wide-mouth glass jar leaving as little headspace as possible. The jar must then be immediately sealed with a teflon-lined screw cap;
(e) After the samples are properly sealed, they are to be immediately placed on ice and maintained at a temperature of no greater than 4° C (39° F) until being prepared for analysis by the laboratory. All samples must be analyzed within 14 days of collection.
(4) The following procedures must be used for the collection of water samples from the tank pit:
(a) After the water has been purged from the pit in accordance with OAR 340-122-0340(4)(a), samples shall be collected as soon as sufficient water has returned to the pit to allow representative sampling;
(b) Samples are to be taken with a device designed to reduce the loss of volatile components. A bailer with a sampling port is suitable for this purpose;
(c) The water is to be transferred into two identical glass vials with as little agitation as possible and immediately sealed with a teflon-lined caps. The vials must be filled completely so that no air bubbles remain trapped inside;
(d) After the samples are properly sealed, they are to be immediately placed on ice and maintained at a temperature of no greater than 4° C (39° F) until being prepared for analysis by the laboratory. All samples must be analyzed within 14 days of collection.
(5) The Department may approve alternative sampling methods which have been clearly shown to be at least as effective with respect to minimizing the loss of volatile materials during sampling and storage as the methods listed in sections (1)-(4) of this rule.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0355
Evaluation of Analytical Results
(1) The results of the soil analyses shall be interpreted as follows:
(a) If a sample has a concentration less than or equal to the required matrix level, the area represented by that sample meets the requirements of these rules;
(b) If a sample has a concentration exceeding the required matrix level by more than ten percent, the area represented by that sample does not meet the requirements of these rules. Further remediation, sampling, and testing is necessary until the required level is attained;
(c) If a sample has a concentration exceeding the required matrix level by less than ten percent, the responsible person has the option of collecting and analyzing two more samples from the same area and using the average of all three to determine if the standard has been met; or further remediating the area and then collecting and analyzing one new sample and using the concentration of the new sample to determine if the standard has been met. Alternatively, the Department has the options of approving the cleanup with no further action, requiring that more samples be taken, or requiring further cleanup and subsequent sampling. Such a decision shall be made based upon the analytical results of other samples from the site, best professional judgment made from a visit to the site, the apparent extent of contamination, and other site specific factors deemed appropriate.
(2) A site shall be considered sufficiently clean when all of the sampled areas have concentrations less than or equal to the required matrix cleanup level, and when the possibility of any human contact with the residual soil contamination remaining on the site has been precluded.
(3) If water is present in the tank pit, the Department shall decide if cleanup may proceed under these rules or if further action must be taken pursuant to OAR 340-122-0240. This decision shall be based on, but is not limited to:
(a) The apparent extent of the contamination;
(b) The likelihood that groundwater contamination exists beyond the boundaries of the tank pit;
(c) The likelihood that the BTEX concentrations in the water and the BTEX and TPH concentrations in the soil indicate a situation which poses a threat to public health, safety, and welfare or the environment; and
(d) Any other site-specific factors deemed appropriate by the Department.
(4) If a pocket of contamination exceeding the required Matrix cleanup level is located under a building or other structure where further removal would endanger the structure or be prohibitively expensive, the Department must be notified of this situation. The Department shall then decide whether such contamination can remain without threatening public health, safety, and welfare or the environment. If not, the Department shall require further remediation.
(5) For waste oil contaminated sites, all detectable levels of volatile chlorinated solvents, volatile aromatic hydrocarbons, PCBs, or leachable metals shall be reported to the Department as soon as these results are known. The Department shall then decide whether the cleanup shall continue under these rules or whether further investigation is warranted under OAR 340-122-0205 through 340-122-0260 or 340-122-0010 through 340-122-0115.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 23-1998, f. & cert. ef. 11-2-98
340-122-0360
Reporting Requirements
(1) Within 60 days of completing work at a soil matrix site cleaned up pursuant to OAR 340-122-0320 through 340-122-0360, or within a longer period of time approved by the Department, the responsible person must submit to the Department a final report which must contain:
(a) A narrative section describing how the release was discovered, what initial measures were taken to control the spread of contamination, what was observed when the tank was removed from the pit (e.g., odor, sheen, stained soils, holes in tank or lines), what information was used to score the site, how the cleanup was done, how much contaminated soil was removed, what was done with the contaminated soil and the decommissioned tank and piping, who collected the samples, how the samples were collected, stored, and shipped to the lab, and any problems encountered during the cleanup or sample collection process;
(b) A site map drawn to scale showing relevant information such as the location of tanks, lines, utilities, buildings, and other structures, excavated soils, samples, and any pockets of contamination left pursuant to OAR 340-122-0355(4);
(c) Properly filled out copies of the Department's Matrix Checklist and Matrix Score Sheet;
(d) All of the sampling documentation required in OAR 340-122-0345;
(e) Copies of the laboratory reports and chain of custody forms for all soil and water samples collected at the site;
(f) Copies of all receipts or permits related to the disposal of free product, contaminated soil, contaminated water, and decommissioned tanks and piping;
(g) A brief explanation of what was done in the case of any samples that initially exceeded the required cleanup levels;
(h) A summary of the concentrations measured in the final round of samples from each sampling location;
(i) In cases where groundwater was present in the pit, a summary of the data collected and the decision made by the Department under OAR 340-122-0355(3);
(j) In cases where pockets of excess contamination remain on site in accordance with OAR 340-122-0355(4), a description of this contamination including location, approximate volume and concentration; and
(k) In cases where waste oil contamination required extra sampling and analyses as specified in OAR 340-122-0340(6), a summary of the data collected and, if appropriate, the decision made by the Department under OAR 340-122-0355(5).
(2) The responsible person shall retain a copy of the report submitted to the Department under this section until the time of first transfer of the property, plus ten years.
(3) Upon review of the report, the Department shall:
(a) Provide the responsible person a written statement that, based upon information contained in the report, the soil present at the site has been cleaned up in accordance with OAR 340-122-0320 through 340-122-0360; or
(b) Request the responsible person to submit additional information or perform additional investigation; or
(c) Request the responsible person to conduct additional remedial action in accordance with OAR 340-122-0250 or 340-122-0252.
Stat. Auth.: ORS 465.400 & ORS 466.746
Stats. Implemented: ORS 465.200 - ORS 465.455 & ORS 466.706 - ORS 466.835
Hist.: DEQ 15-1989, f. & cert. ef. 7-28-89 (and corrected 8-3-89); DEQ 46-1990, f. 12-26-90, cert. ef. 3-1-91; DEQ 23-1998, f. & cert. ef. 11-2-98
Solid Waste Orphan Site Account
340-122-0510
Purpose
These rules establish eligibility, selection criteria, and conditions for use of solid waste Orphan Site Account funds. Solid waste Orphan Site Account funds are to be used for investigation and cleanup of hazardous substance releases from solid waste disposal facilities, in accordance with ORS 459.236.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0520
Definitions
Terms not defined in this section have the meanings set forth in ORS 459.005 and 465.200. Additional terms are defined as follows:
(1) "Repayment Plan" means a written agreement between the Department and a local government unit setting forth the terms and schedule for repayment by the local government unit of monies provided by the Department pursuant to ORS 459.236(5). The repayment plan may be incorporated into an agreement or order for removal or remedial action issued by the Department under ORS 465.260.
(2) "Solid Waste Orphan Site Account" means those monies in the Orphan Site Account established under ORS 465.380 to be used to pay certain costs for removal or remedial action at solid waste disposal sites. The solid waste Orphan Site Account consists of monies collected from the solid waste disposal fee imposed under ORS 459.236, monies paid the Department pursuant to a repayment plan, monies originally spent from the solid waste Orphan Site Account and recovered from responsible parties, and proceeds from interest.
(3) "Surcharge" or "Equivalent Funding" means the charge authorized under ORS 459.311 to be imposed on solid waste collection services by a local government unit, or an equivalent amount of funding provided by the local government unit from another source.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0530
Eligible Sites
The terms "disposal site," "hazardous substances" and "release" are defined in ORS 459.005(11), 465.200(9) and 465.200(14), respectively. Within the meaning of these terms, the solid waste Orphan Site Account may be used for investigation and cleanup of a release of hazardous substances at the following types of solid waste disposal sites:
(1) Solid waste disposal sites owned or operated by a local government unit. Examples include:
(a) Sites where the local government unit is conducting a removal or remedial action pursuant to ORS 465.260; and
(b) Sites owned or operated by a local government unit where DEQ is conducting a removal or remedial action.
(2) Privately owned or operated solid waste disposal sites which receive or received domestic solid waste and for which DEQ determines responsible parties are unknown, unwilling, or unable to undertake removal or remedial action. Examples include:
(a) Sites for which a local government unit has liability where DEQ conducts a removal or remedial action;
(b) Sites for which a local government unit has no liability where DEQ conducts a removal or remedial action; and
(c) Sites where a local government unit conducts a removal or remedial action at an orphan site under an ORS 465.260 order or agreement with DEQ.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0540
Funding Factors
DEQ may fund only those remedial action costs defined in ORS 465.200(16) that are reasonable in DEQ's judgement. DEQ shall consider at least the following factors, to the extent relevant information is available, in determining which removals or remedial actions shall receive funding from the solid waste Orphan Site Account and the amount of funding:
(1) The site's risk to public health and the environment, based on consideration of the factors set forth in OAR 340-122-0080(2) and other available hazard ranking or risk assessment information. Each site's risk shall be evaluated relative to the risk posed by other eligible sites.
(2) The need for removal or remedial action at the site relative to fund availability and the need for removal or remedial activities at other sites.
(3) The extent to which other obligations or sources of funding for the same activities exist or will be sufficient over the life of the removal or remedial activity (e.g., ORS Chapter 459 closure financial assurance).
(4) The nature of the activities for which funding is sought, in the following order of preference:
(a) Direct costs for cleanup, provided that adequate technical investigation has been completed;
(b) Direct costs of technical investigation and remedy evaluation;
(c) Indirect costs (e.g., administration and overhead associated with the investigation or cleanup activities);
(d) Legal costs.
(5) The extent to which the removal or remedial action was undertaken before the effective date of these rules. For any such prior activities, DEQ may provide funding from the solid waste Orphan Site Account provided:
(a) The activities were performed pursuant to an order or agreement under ORS 465.260 ensuring that all activities were protective of health and the environment;
(b) The funding is only for amounts exceeding the amount collected, or to be repaid, by the local government unit through surcharge or equivalent funding;
(c) The activities were performed on or after July 24, 1989 (i.e., the effective date of HB 3515); and
(d) The activities are evaluated under and subject to the factors set forth in sections (1) through (4) of this rule.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0550
Grants and Loans
DEQ may provide local government units with solid waste Orphan Site Account funds in the form of:
(1) A grant for remedial action costs exceeding the maximum amount collected by surcharge or equivalent funding; or
(2) A loan for remedial action costs up to the amount raised by surcharge or equivalent funding.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0560
Application Process
(1) Local government unit applicants shall submit a grant or loan application to DEQ on a DEQ-approved form, and additional information deemed necessary by DEQ. Applications for potential funding will be due according to a schedule determined by the Department.
(2) Except for emergency actions to protect public health and the environment, funding decisions about use of the solid waste Orphan Site Account shall be made once a year.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0570
Funding Conditions
(1) For grants under OAR 340-122-0550(1), the local government unit and DEQ shall enter a grant agreement, including provisions regarding:
(a) Specification of removal or remedial activities and DEQ oversight pursuant to an ORS 465.260 order or agreement;
(b) Calculation, collection, and use of local government units' surcharge or equivalent funding obligations under ORS 459.236(4);
(c) Necessary cost documentation, accounting, and auditing procedures; and
(d) Where applicable, recovery of remedial action costs from responsible parties.
(2) For loans under OAR 340-122-0550(2), the local government unit and DEQ shall enter a loan agreement, including provisions regarding:
(a) The same items set forth in subsections (1)(a), (c) and (d) of this rule;
(b) Calculation, collection, and use of local government units' surcharge or equivalent funding obligations under ORS 459.236(5); and
(c) A repayment plan for the amount of solid waste Orphan Site Account monies provided, plus payment of interest, but excluding the first $100,000 spent by the local government on removal or remedial activities.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0580
Application of Surcharge Proceeds
(1) Subject to OAR 340-122-0540, proceeds from surcharge or equivalent funding collected by a local government unit shall be credited by DEQ toward the local government unit's funding obligation under ORS 459.236(4) or (5) if the proceeds are:
(a) Expended for removal or remedial action undertaken by the local government unit at a solid waste disposal site in accordance with an ORS 465.260 order or agreement; or
(b) Paid to DEQ for the costs of removal or remedial action undertaken by DEQ at a solid waste disposal site; or
(c) Paid to a third party for the costs of removal or remedial action undertaken by the third party at a solid waste disposal site in accordance with an ORS 465.260 order or agreement.
(2) Proceeds used for any of the purposes set forth in section (1) of this rule, at one or more solid waste disposal sites, shall be credited toward a local government unit's total funding obligation under ORS 459.236(4) or (5) on a cumulative basis. Any amount of surcharge proceeds retained for collection and accounting costs under ORS 459.311(5), up to five percent of the surcharge, shall be included in the amount credited toward a local government unit's total funding obligation under ORS 459.236(4) or (5).
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
340-122-0590
Limitations
(1) Funding from the solid waste Orphan Site Account under these rules does not substitute for existing obligations, including solid waste disposal site financial assurance requirements of ORS Chapter 459.
(2) DEQ may apply the factors set forth in OAR 340-122-0540 to use solid waste Orphan Site funds for interim removal actions instead of final remedial actions. DEQ is not obligated to use solid waste Orphan Site Account funds to undertake final remedial action or to pay with solid waste Orphan Site Account monies all remedial action costs exceeding surcharge or equivalent funding.
(3) These rules do not provide an exemption or defense to liability to third parties or to a DEQ enforcement or cost recovery action should a local government unit refuse to undertake necessary remedial activities or fail to apply surcharge or equivalent funding as required by a loan or grant agreement with DEQ.
(4) These rules do not preclude multiple local government units or potentially responsible parties from agreeing to apportion responsibility for remedial action costs, which apportionment may be reflected in the amount of solid waste Orphan Site Account funding requested.
(5) These rules do not prevent DEQ from undertaking or requiring emergency removal or remedial activities as necessary to protect public health, safety, and welfare or the environment.
(6) These rules do not require DEQ to spend all available solid waste Orphan Site Account funds during any given funding cycle. DEQ may, for example, retain a portion of funds to be used as a reserve for potential emergency actions or for future use at a prospective higher priority site.
Stat. Auth.: ORS 459.045, ORS 459.236 & ORS 459.311
Stats. Implemented: ORS 459.005, ORS 459.236, ORS 459.311, ORS 465.200 - ORS 465.455 & ORS 465.900
Hist.: DEQ 7-1993, f. & cert. ef. 4-27-93
The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use
