Chapter 740 Oregon Laws 1999

Session Law

AN ACT

HB 3616

Relating to hazardous substances; creating new provisions; amending ORS 465.315, 466.065, 466.150 and 468.035; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 465.315 is amended to read:

465.315. (1)(a) Any removal or remedial action performed under the provisions of ORS 465.200 to 465.510 and 465.900 shall attain a degree of cleanup of the hazardous substance and control of further release of the hazardous substance that assures protection of present and future public health, safety and welfare and of the environment.

(b) The Director of the Department of Environmental Quality shall select or approve remedial actions that are protective of human health and the environment. The protectiveness of a remedial action shall be determined based on application of both of the following:

(A) The acceptable risk level for exposures. For protection of humans, the acceptable risk level for exposure to individual carcinogens shall be a lifetime excess cancer risk of one per one million people exposed, and the acceptable risk level for exposure to noncarcinogens shall be the exposure that results in a Hazard Index number equal to or less than one. "Hazard Index number" means a number equal to the sum of the noncarcinogenic risks (hazard quotient) attributable to systemic toxicants with similar toxic endpoints. For protection of ecological receptors, if a release of hazardous substances causes or is reasonably likely to cause significant adverse impacts to the health or viability of a species listed as threatened or endangered pursuant to 16 U.S.C. 1531 et seq. or ORS 496.172, or a population of plants or animals in the locality of the facility, the acceptable risk level shall be the point before such significant adverse impacts occur.

(B) A risk assessment undertaken in accordance with the risk protocol established by the Environmental Quality Commission in accordance with subsection (2)(a) of this section.

(A) Treatment that eliminates or reduces the toxicity, mobility or volume of hazardous substances;

(B) Excavation and off-site disposal;

(D) Institutional controls;

(E) Any other method of protection; or

(F) A combination of the above.

(d) The method of remediation appropriate for a specific facility shall be determined through an evaluation of remedial alternatives and a selection process to be established pursuant to rules adopted by the commission. The director shall select or approve a protective alternative that balances the following factors:

(A) The effectiveness of the remedy in achieving protection;

(B) The technical and practical implementability of the remedy;

(D) Any short term risk from implementing the remedy posed to the community, to those engaged in the implementation of the remedy and to the environment; and

(E) The reasonableness of the cost of the remedy. 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. Subject to the preference for treatment of hot spots, where two or more remedial action alternatives are protective as provided in paragraph (b) of this subsection, the least expensive remedial action shall be preferred unless the additional cost of a more expensive alternative is justified by proportionately greater benefits within one or more of the factors set forth in subparagraphs (A) to (D) of this paragraph. The director shall use a higher threshold for evaluating the reasonableness of the costs for treating hot spots than for remediation of areas other than hot spots.

(e) For contamination constituting a hot spot as defined by the commission pursuant to subsection (2)(b) of this section, the director shall select or approve a remedial action requiring treatment of the hot spot contamination unless treatment is not feasible considering the factors set forth in paragraph (d) of this subsection. For contamination constituting a hot spot under subsection (2)(b)(A) of this section, the director shall evaluate, with the same preference as treatment, the excavation and off-site disposal of the contamination at a facility authorized for such disposal under state or federal law. For excavation and off-site disposal of contamination that is a hazardous waste as described in ORS 466.005, the director shall consider the method and distance for transportation of the contamination to available disposal facilities in selecting or approving a remedial action that is protective under subsection (1)(d) of this section. If requested by the responsible party or recommended by the Department of Environmental Quality, the director may select or approve excavation and off-site disposal as the remedial action for contamination constituting a hot spot under subsection (2)(b)(A) of this section.

(f) The Department of Environmental Quality shall develop or identify generic remedies for common categories of facilities considering the balancing factors set forth in paragraph (d) of this subsection. The department's development of generic remedies shall take into consideration demonstrated remedial actions and technologies and scientific and engineering evaluation of performance data. Where a generic remedy would be protective and satisfy the balancing factors under paragraph (d) of this subsection at a specific facility, the director may select or approve the generic remedy for that site on a streamlined basis with a limited evaluation of other remedial alternatives.

(g) Subject to paragraphs (b) and (d) of this subsection, in selecting or approving a remedial action, the director shall consider current and reasonably anticipated future land uses at the facility and surrounding properties, taking into account current land use zoning, other land use designations, land use plans as established in local comprehensive plans and land use implementing regulations of any governmental body having land use jurisdiction, and concerns of the facility owner, neighboring owners and the community.

(2) Within 18 months after July 18, 1995, the commission shall adopt rules:

(a) Establishing a risk protocol for conducting risk assessments. The risk protocol shall:

(A) Require consideration of existing and reasonably likely future human exposures and significant adverse effects to ecological receptor health and viability, both in a baseline risk assessment and in an assessment of residual risk after a remedial action;

(B) Require risk assessments to include reasonable estimates of plausible upper-bound exposures that neither grossly underestimate nor grossly overestimate risks;

(C) Require risk assessments to consider, to the extent practicable, the range of probabilities of risks actually occurring, the range of size of the populations likely to be exposed to the risk, current and reasonably likely future land uses, and quantitative and qualitative descriptions of uncertainties;

(D) Identify appropriate sources of toxicity information;

(E) Define the use of probabilistic modeling;

(F) Identify criteria for the selection and application of fate and transport models;

(G) Define the use of high-end and central-tendency exposure cases and assumptions;

(H) Define the use of population risk estimates in addition to individual risk estimates;

(I) To the extent deemed appropriate and feasible by the commission considering available scientific information, define appropriate approaches for addressing cumulative risks posed by multiple contaminants or multiple exposure pathways, including how the acceptable risk levels set forth in subsection (1)(b)(A) of this section shall be applied in relation to cumulative risks; and

(J) Establish appropriate sampling approaches and data quality requirements.

(b) Defining hot spots of contamination. The definition of hot spots shall include:

(A) Hazardous substances that are present in high concentrations, are highly mobile or cannot be reliably contained, and that would present a risk to human health or the environment exceeding the acceptable risk level if exposure occurs.

(B) Concentrations of hazardous substances in ground water or surface water that have a significant adverse effect on existing or reasonably likely future beneficial uses of the water and for which treatment is reasonably likely to restore or protect such beneficial use within a reasonable time.

(3) Except as provided in subsection (4) of this section, the director may exempt the on-site portion of any removal or remedial action conducted under ORS 465.200 to 465.510 and 465.900 from any requirement of ORS 466.005 to 466.385 and ORS chapters 459, 468, 468A and 468B. Without affecting substantive requirements, no state or local permit, license or other authorization shall be required for, and no procedural requirements shall apply to, the portion of any removal or remedial action conducted on-site where such removal or remedial action has been selected or approved by the director under this section, unless the permit, license, authorization or procedural requirement is necessary to preserve or obtain federal authorization of a state program or the person performing a removal or remedial action elects to obtain the permit, license or authorization or comply with the procedural requirement. The person performing a removal or remedial action shall notify the appropriate state or local governmental body of the permits, licenses, authorizations or procedural requirements waived under this subsection and, at the request of the governmental body, pay applicable fees. Any costs paid as a fee to a governmental body under this subsection shall not also be recoverable by the governmental body as remedial action costs.

(4) Notwithstanding any provision of subsection (3) of this section, any on-site treatment, storage or disposal of a hazardous substance shall comply with the standard established under subsection (1)(a) of this section and any activities conducted in a public right of way under a removal or remedial action pursuant to this section shall comply with the requirements of the applicable jurisdiction.

(5) Nothing in this section shall affect the authority of the director to undertake, order or authorize an interim or emergency removal action.

(6) Nothing in this section or in rules adopted pursuant to this section shall prohibit the application of rules in effect on July 18, 1995, that use numeric soil cleanup standards to govern remediation of motor fuel and heating oil releases from underground storage tanks.

SECTION 2. Section 3 of this 1999 Act is added to and made a part of ORS 466.005 to 466.385.

SECTION 3. (1) The Department of Environmental Quality may issue a permit modification under ORS 466.005 to 466.385 authorizing a recycling operation at a hazardous waste or PCB treatment or disposal facility located off the site of waste generation and operating on the effective date of this 1999 Act and shall not apply ORS 466.055 or 466.060, provided the owner or operator of the facility obtains a determination from the department that, in accordance with the Federal Resource Conservation and Recovery Act, P.L. 94-580, and the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616 as amended, the recycling operation is legitimate and will produce material that is exempt from the definition of solid waste.

(2) The department shall apply the schedule of fees authorized by ORS 466.045 (5)(c) and (d) to defray the costs of processing the application for authorization for permit modification and making the determination under subsection (1) of this section.

SECTION 4. ORS 466.065 is amended to read:

466.065. As a condition to the issuance of a renewal permit under ORS 466.005 to 466.385 and 466.992, the Environmental Quality Commission may require the applicant to comply with all or some of the criteria set forth in ORS 466.055[.] and 466.060, except that any application for a renewal permit for a treatment or disposal facility located off the site of waste generation and operating on the effective date of this 1999 Act shall not have to comply with ORS 466.055 and 466.060 unless the applicant proposes a different type of treatment or disposal than has been authorized for use at any time at the facility. In issuing any renewal permit for such a facility, the commission shall include in the permit conditions that require all of the following:

(1) The facility is limited to acceptance of hazardous waste or PCB for treatment or disposal in an amount not to exceed 110 percent of the amount of hazardous waste or PCB treated or disposed by the facility under any permit. The Department of Environmental Quality shall approve acceptance of a greater amount of hazardous waste or PCB for treatment or disposal as part of a permit renewal or modification process if the applicant demonstrates that a greater amount of hazardous waste or PCB is necessary either to protect or to provide a higher level of protection of the public health and safety or of the environment.

(2) The facility complies with all applicable federal and Oregon technological requirements for treating and disposing of hazardous waste or PCB.

(3) The facility meets property line setback requirements established by the commission by rule.

(4) The facility owner, any parent company of the owner and the operator comply with all applicable Oregon and federal requirements for financial and technical capability to properly construct and operate the facility.

(5) The facility owner or operator owns or contracts with an emergency response provider or coordinator that can provide for timely response to a spill or release in Oregon of hazardous waste or PCB being transported to the facility by a motor vehicle owned by the owner or operator of the facility.

(6) Any person hired by the owner or operator of the facility to transport hazardous waste or PCB to the facility owns or has a contract with an emergency response provider or coordinator that can provide for timely response to a spill or release in Oregon of hazardous waste or PCB being transported by a motor vehicle to the facility.

(7) Upon arrival at the facility of any motor vehicle transporting hazardous waste or PCB not described in subsection (5) or (6) of this section, the owner or operator of the facility shall request to review the transporter's authorization to transport hazardous waste or PCB in Oregon and the driver's authorization to drive a motor vehicle transporting hazardous waste or PCB in Oregon. The owner or operator of the facility shall report to the department the name of any transporter or driver failing to demonstrate authorization.

SECTION 5. ORS 466.150 is amended to read:

466.150. Each hazardous waste disposal site permittee under ORS 466.005 to 466.385 and 466.992 shall be required to do the following as a condition to holding the permit:

(1) Proceed expeditiously with and complete the project in accordance with the plans and specifications approved therefor pursuant to ORS 466.005 to 466.385 and 466.992 and the rules adopted thereunder.

(2) Commence operation, management or supervision of the hazardous waste disposal site on completion of the project and not to permanently discontinue such operation, management or supervision of the site without the approval of the Department of Environmental Quality.

(3) Maintain sufficient liability insurance or equivalent financial assurance in such amounts as determined by the department to be reasonably necessary to protect the environment, and the health, safety and welfare of the people of this state.

(4) Establish emergency procedures and safeguards necessary to prevent accidents and reasonably foreseeable risks.

(5) Restore, to the extent reasonably practicable, the site to its original condition when use of the area is terminated as a site.

(6) Maintain a cash bond or other equivalent financial assurance in the name of the state and in an amount estimated by the department to be sufficient to cover any costs of closing the site, including corrective actions, and monitoring it or providing for its security after closure[,] and to secure performance of permit requirements [and to provide for any remedial action by the state necessary to protect the public health, welfare and safety and the environment following site closure]. The financial assurance shall remain [on deposit] in effect for the duration of the permit and until the end of the post-closure period, except as the assurance may be released or modified by the department.

(7) Report periodically on the volume of material received at the site, the fees collected therefor and waste minimization activities for any hazardous waste generated on the premises.

(8) Maintain other plans and exhibits and take other actions pertaining to the site and its operation as determined by the department to be reasonably necessary to protect the public health, welfare or safety or the environment.

SECTION 6. ORS 468.035 is amended to read:

468.035. (1) Subject to policy direction by the Environmental Quality Commission, the Department of Environmental Quality:

(a) Shall encourage voluntary cooperation by the people, municipalities, counties, industries, agriculture, and other pursuits, in restoring and preserving the quality and purity of the air and the waters of the state in accordance with rules and standards established by the commission.

(b) May conduct and prepare, independently or in cooperation with others, studies, investigations, research and programs pertaining to the quality and purity of the air or the waters of the state and to the treatment and disposal of wastes.

(c) Shall advise, consult, and cooperate with other agencies of the state, political subdivisions, other states or the Federal Government, in respect to any proceedings and all matters pertaining to control of air or water pollution or for the formation and submission to the legislature of interstate pollution control compacts or agreements.

(d) May employ personnel, including specialists, consultants and hearing officers, purchase materials and supplies, and enter into contracts necessary to carry out the purposes set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

(e) Shall conduct and supervise programs of air and water pollution control education, including the preparation and distribution of information regarding air and water pollution sources and control.

(f) Shall provide advisory technical consultation and services to units of local government and to state agencies.

(g) Shall develop and conduct demonstration programs in cooperation with units of local government.

(h) Shall serve as the agency of the state for receipt of moneys from the Federal Government or other public or private agencies for the purposes of air and water pollution control, studies or research and to expend moneys after appropriation thereof for the purposes given.

(i) Shall make such determination of priority of air or water pollution control projects as may be necessary under terms of statutes enacted by the Congress of the United States.

(j) Shall seek enforcement of the air and water pollution laws of the state.

(k) Shall institute or cause to be instituted in a court of competent jurisdiction, proceedings to compel compliance with any rule or standard adopted or any order or permit, or condition thereof, issued pursuant to ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

(L) Shall encourage the formulation and execution of plans in conjunction with air and water pollution control agencies or with associations of counties, cities, industries and other persons who severally or jointly are or may be the source of air or water pollution, for the prevention and abatement of pollution.

(m) May determine, by means of field studies and sampling, the degree of air or water pollution in various regions of the state.

(n) May perform such other and further acts as may be necessary, proper or desirable to carry out effectively the duties, powers and responsibilities of the department as set forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.745 and ORS chapters 468, 468A and 468B.

(o) Shall coordinate any activities of the department related to a watershed enhancement project approved by the Governor's Watershed Enhancement Board under ORS 541.375 with activities of other cooperating state and federal agencies participating in the project.

(2) Nothing in this section shall affect the authority of the Health Division to make and enforce rules:

(a) Regarding the quality of water for human or animal consumption pursuant to ORS 448.115 to 448.325, 624.010 to 624.120 and 624.310 to 624.440; and

(b) Regarding the quality of water for public swimming places pursuant to ORS 431.110.

(3) Nothing in this section shall prevent the State Department of Agriculture or the State Forestry Department from independently receiving moneys from a public or private agency for the purposes of preventing or controlling air or water pollution resulting from agricultural or silvicultural activities or soil erosion, or for research related to such purposes.

(4)(a) In awarding a public contract under ORS chapter 279 for a removal or remedial action pursuant to ORS 465.200 to 465.510 and 465.517 to 465.545, a corrective action or cleanup action pursuant to ORS 466.005 to 466.385, 466.605 to 466.680 or 466.706 to 466.845 or a removal pursuant to ORS 468B.005 to 468B.030, 468B.035, 468B.048 to 468B.085, 468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the department, and the Oregon Department of Administrative Services, when administering the establishment of such a contract on behalf of the Department of Environmental Quality under ORS 279.712, shall subtract from the amount of any bid or proposal the hazardous waste management fees and solid waste fees that would be required by law to be paid to the department for waste that would be disposed of at a solid waste disposal site or a hazardous waste or PCB disposal facility, based on the bid or proposal. The amount to be subtracted shall be established on the basis of reasonable preprocurement estimates of the amount of waste that would be disposed of under the contract and that would be subject to those fees.

(b) The subtraction for fees under paragraph (a) of this subsection shall apply only to a contract reasonably anticipated to involve the disposal of no less than 50 tons of hazardous waste or no less than 500 tons of solid waste. The Legislative Assembly finds that making accurate advance estimates of amounts of waste that would be disposed of in projects of this character is technically challenging and requires the application of professional discretion. Therefore, no award of a contract under this subsection shall be subject to challenge, under ORS 279.067 or otherwise, on the ground of the inaccuracy or claimed inaccuracy of any such estimate.

(c) The subtraction for fees under paragraph (a) of this subsection shall not apply to the establishment, by or on behalf of the department, of master contracts by which the department engages the services of a contractor over a period of time for the purpose of issuing work orders for the performance of environmental activities on a project or projects for which the amounts of waste to be disposed of were not reasonably identified at the inception of the master contracts. However, the department shall require any contractor under a master contract to apply the subtraction for fees under paragraph (a) of this subsection in the selection of any subcontractor to perform the removal of waste in amounts equaling or exceeding the amounts set forth in paragraph (b) of this subsection. Nothing in this subsection shall be construed to prohibit the department or the Oregon Department of Administrative Services from establishing contracts pursuant to this section through contracting procedures authorized by ORS chapter 279 that do not require the solicitation of bids or proposals.

SECTION 7. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor July 15, 1999

Filed in the office of Secretary of State July 15, 1999

Effective date July 15, 1999

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