OAR 340-040-0050: Selection of the Remedial Action

(1) Requirements: After opportunity for public review and comment, the Director shall select a remedial action. Such remedial action shall meet the following requirements: (a) Be protective of present and future public health, safety, and welfare and the environment; and (b) To the maximum extent practicable: (A) Be cost effective; (B) Use permanent solutions and alternative technologies or resource recovery technologies; (C) Be implementable; and (D) Be effective. (2) Remedial Action Concentration Limit: The remedial action shall attain the concentration limit specified under OAR 340-040-0030(3) for permitted operations or OAR 340-040-0060(2) for non-permitted activities for the contaminant substances, unless the Director determines that the specified concentration limit does not satisfy the requirement set forth in subsection (1)(b) of this rule, in which case the Director shall select a remedial action that attains the lowest concentration level of the contaminant substances that satisfies the requirements set forth in section (1) of this rule. (3) Other Measures to Supplement Cleanup: The Director may require other measures (e.g., institutional controls, environmental hazard notice, alternate drinking water supply, caps, security measures, etc.) to supplement cleanup of contaminant substances to the remedial action concentration limit in accordance with section (2) of this rule, where such supplementary measures are necessary to satisfy the requirements set forth in section (1) of this rule. (4) Other Measures to Substitute for Cleanup: The Director may require other measures to substitute for cleanup of contaminant substances to the remedial action concentration limit under section (2) of this rule, provided that: (a) The Director finds that there is no remedial action under section (2) of this rule, combined with supplementary measures under section (3) of this rule, that satisfies the requirements of section (1) of this rule; (b) Any such substitute measures, as appropriate, include provision for long-term care and management, including monitoring and operation and maintenance, and periodic review, to determine whether a remedial action satisfying the requirements of section (1) of this rule has become available. (5) Protection: (a) In determining whether a remedial action assures protection of the present and future public health, safety, and welfare and the environment under subsection (1)(a) of this rule, only the concentration limit specified under OAR 340-040-0030(3) for permitted operations or OAR 340-040-0060(2) for non-permitted activities shall be presumed to be protective. This presumption may be rebutted by information showing that a higher concentration level is also protective; (b) In determining whether a concentration level higher than the specified concentration limit is protective, the Director shall consider: (A) The characterization of contaminant substances and the facility, and the endangerment assessment; (B) Other relevant cleanup or health standards, criteria, or guidance; (C) Relevant and reasonably available scientific information; and (D) Any other information relevant to the protectiveness of a remedial action. (c) When comparing between potential concentration levels, a concentration level lower than another shall generally be considered to be more protective and preferable. This presumption may be rebutted by information showing that a higher concentration level is also protective; (d) Any person responsible for undertaking the remedial action who proposes that the remedial action attain a concentration level higher than the specified concentration limit on the basis of protection shall have the burden of demonstrating to the Director that such concentration level is protective. (6) Cost-Effectiveness: In determining whether a remedial action is cost-effective under subsection (1)(b) of this rule, the Director may consider: (a) Costs of the remedial action relative to the costs of another remedial action option, if any, that achieves the same concentration level; (b) Extent to which the remedial action’s incremental costs are proportionate to its incremental results; (c) Extent to which the remedial actions total costs are proportionate to its total results; (d) Any other criterion relevant to cost-effectiveness of the remedial action; and (e) Costs that may be considered include but are not limited to: (A) Capital costs; (B) Operation and maintenance costs; (C) Costs of periodic reviews, where required; (D) Net present value of capital and operation and maintenance costs; and (E) Potential future remedial action costs. (7) Permanent Solutions and Alternative or Resource Recovery Technologies: In determining whether a remedial action uses a permanent solution and alternative or resource recovery technologies under subsection (1)(b) of this rule: (a) Remedial action options that use permanent solutions shall be preferred over other remedies; (b) Remedial action options in which resource recovery or alternative technology is a principal element shall be preferred over remedial action options not involving such technology; (c) Subject to subsection (7)(e) of this rule, the offsite transport and secure disposition of contaminated materials without treatment may be preferred where practicable alternative treatment technologies are not available; (d) Subject to subsections (7)(e) and (f) of this rule, and notwithstanding the availability of practicable alternative treatment technologies as provided in subsection (7)(c) of this rule, offsite transport and secure disposition of contaminated materials may be preferred when the disposal method would significantly expedite the cleanup or would achieve a total cleanup, especially at sites with contaminant materials of small quantity or low toxicity; (e) The transport and secure disposition offsite of a hazardous waste under ORS 466.005 in a treatment, storage, or disposal facility shall meet the requirements of section 3004(c) to (g), (m), (o), (p), (u) and (v) and 3005(c) of the federal Solid Waste Disposal Act, as amended, P.L. 96-482 and P.L. 98-616; (f) The transport and secure disposition of contaminated materials, other than hazardous wastes, at an offsite facility may be allowed provided that the transport and secure disposition of such contaminated materials, in the Director’s determination, is adequate to protect the public health, safety, and welfare and the environment. (8) Implementability: In determining whether a remedial action is implementable under subsection (1)(b) of this rule, the Director may consider: (a) Degree of difficulty associated with implementing the technology; (b) Expected operational reliability of the technology; (c) Need to coordinate with and obtain necessary approvals or permits from other agencies; (d) Availability of necessary equipment and specialists; (e) Available capacity and location of needed treatment, storage, and disposal services; and (f) Any other criterion relevant to implementability of the remedial action. (9) Effectiveness of the Remedial Action: In determining whether a remedial action is effective under subsection (1)(b) of this rule, the Director shall consider the following unless immediate action is needed to protect public health, safety and welfare and the environment: (a) Expected reduction in toxicity, mobility, and volume of the contaminant substances; (b) Short-term risks that might be posed to community, workers, and the environment during implementation, including potential threats to human health and the environment associated with excavation, transport, and re-disposal or containment; (c) Length of time until full protection is achieved; (d) Magnitude of residual risks in terms of amounts and concentrations of contaminant substances remaining following implementation of a remedial action, including consideration of the persistence, toxicity, mobility, and propensity to bioaccumulate of such contaminant substances and their constituents; (e) Type and degree of long-term management required, including monitoring, operation and maintenance; (f) Long-term potential for exposure of human and environmental receptors to remaining contaminants; (g) Long-term reliability of engineering and institutional controls, including long-term uncertainties associated with land disposal, treated or untreated waste, and residuals; (h) Potential for failure of the remedial action or potential need for replacement of the remedy; and (i) Any other criterion relevant to effectiveness of the remedial action. (10) Any person responsible for undertaking the remedial action who proposes one remedial action option over another on the basis of one or more of the elements of subsection (1)(b) of this rule shall have the burden of demonstrating to the Director that such remedial action option fulfills the requirements of subsections (1)(a) and (b) of this rule.