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DEPARTMENT OF ENVIRONMENTAL QUALITY

 

DIVISION 130

ENVIRONMENTAL HAZARD NOTICES

 

340-130-0001

Purpose and Policies

(1) These rules implement ORS 466.360 to 466.385 (Notice of Environmental Hazards).

(2) Recognizing that sites with waste or contamination exist in the state that, if altered, are potentially hazardous to the health, safety and welfare of Oregon's citizens, the Commission declares that:

(a) Locations of potentially hazardous sites should be made known to local governments, property owners and occupants, and neighbors and future purchasers of property;

(b) Use restrictions implemented through city and county comprehensive plans and land use regulations may be necessary on potentially hazardous sites to protect the public health, safety and the environment;

(c) Changes in uses of potentially hazardous sites should be reviewed; and

(d) An environmental hazard notice is a long-term tool to ensure a potentially hazardous site is not altered without first considering the impacts of the activity on the public health, safety and the environment.

(3) An environmental hazard notice is not required for every site. An environmental hazard notice shall be issued by the Commission to protect the public health, safety and the environment. The factors of OAR 340-130-0015 shall be considered by the Commission when it determines whether to issue an environmental hazard notice for a particular site.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.360 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

 

340-130-0005

Definitions

For the purposes of this Division, the following definitions apply:

(1) "Commission" means the Environmental Quality Commission.

(2) "Council" means the Energy Facility Siting Council.

(3) "Department" means the Department of Environmental Quality.

(4) "Director" means the Director of the Department of Environmental Quality.

(5) "Dispose" or "Disposal" has the meaning contained in ORS 466.005(4).

(6) "Environmental Hazard Notice" means a document prepared by the Department and issued to a city and/or a county by the Commission containing:

(a) The legal description of the lot or parcel, or lots or parcels, where the potential hazardous site is located;

(b) A specific description of the site, if different than the legal description of subsection (a) of this section, for which the notice applies;

(c) A general map of the area where the site is located;

(d) A description of the types of waste and levels of contamination identified or known to be present at the site;

(e) The use restrictions that apply to the site; and

(f) Findings which support the decision to issue an environmental hazard notice for the site.

(7) "Hazardous Substance" has the meaning contained in ORS 466.540(9).

(8) "Hazardous Waste" has the meaning contained in OAR 340-100-0010(o).

(9) "Hazardous Waste Disposal Site" means the geographical site in which or upon which hazardous waste is disposed.

(10) "Land Disposal Site" means a disposal site in which the method of disposing of solid waste is by landfill, dump, pit, pond or lagoon.

(11) "Person" means the United States, the state or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity.

(12) "Potentially Hazardous Site" means a site where an alteration could create a condition which is hazardous to the public health, safety or welfare.

(13) "Radioactive Waste" has the meaning contained in ORS 469.300(17).

(14) "Recorded Interest" means any interest of a person in a site as recorded in the deed or mortgage records or the miscellaneous documents of the county.

(15) "Release" has the meaning contained in ORS 466.540(14).

(16) "Site" means a land disposal site, a hazardous waste disposal site, a disposal site containing radioactive waste, or an area where a hazardous substance has been released.

(17) "Solid Waste" has the meaning contained in OAR 340-093-0030.

Stat. Auth.: ORS 183, ORS 466 & ORS 468.020 
Stats. Implemented: ORS 466.360 & ORS 466.365 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88; DEQ 9-1996, f. & cert. ef. 7-10-96

 

340-130-0010

Exclusions

(1) Subject to section (2) of this rule, an environmental hazard notice shall not be issued for a site:

(a) Where investigation or cleanup activities are occurring or where the Department has determined will occur; or

(b) Which presently is regulated by a disposal, discharge, or management permit or an order requiring remedial action, closure or corrective action issued by the Department or Commission; or

(c) Where spills and releases have been or are being cleaned up pursuant to ORS 466.205, 466.645, 468.795, or the cleanup standards provided in OAR 340-108-0030.

(2) An exception to section (1) of this rule may be made by the Commission if it finds that an environmental hazard notice is necessary to protect the public health, safety or the environment. This finding shall be included with the findings which support the decision to issue an environmental hazard notice for a site.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.365 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

 

340-130-0015

Factors for Issuing a Notice

(1) One or more of the following factors shall be considered by the Commission when determing whether to issue an environmental hazard notice for a particular site:

(a) The likelihood that the site could threaten public health, safety or the environment if altered;

(b) Population at risk;

(c) Routes of exposure;

(d) The amount, concentration and hazardous, toxic and radioactive properties of the waste or contamination present at the site;

(e) The environmental impact of the waste or contamination (including, but not limited to, the impact on air and water quality, flora, and fauna) if the site is altered;

(f) Surface water and groundwater hydrological factors (including, but not limited to, soil permeability, depth to saturated zone, hydrologic gradients, proximity to drinking water aquifers, floodplains and wetlands proximity);

(g) Current and potential surface water and groundwater impacts and use;

(h) Climate;

(i) The requirements which were or are part of the closure and post-closure program for the site (including, but not limited to, final cover and cap, liners, leachate or gas collection, control or treatment systems, surface water control systems, any other components of containment, control or monitoring systems);

(j) The need to be consistent with any deed or recording which already provides notice or is required to provide notice of environmental hazards at a site.

(k) Level of regulatory control during the active life of the site;

(l) History of impacts to the public health, safety or the environment resulting from the waste or contamination at the site.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.365 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

 

340-130-0020

Use Restrictions to Accompany a Notice

(1) The Commission shall include use restrictions when it issues an environmental hazard notice. Use restrictions are included with a notice to ensure that uses at a potentially hazardous site do not cause the site to be altered in a manner that threatens the public health, safety or the environment.

(2) Subject to section (3) of this rule, the list of use restrictions contained in section (4) of this rule shall accompany an environmental hazard notice issued by the Commission.

(3) When the Commission issues an environmental hazard notice, it may:

(a) Delete or modify one or more use restrictions of section (4) of this rule if it finds that the public health, safety, and the environment are sufficiently protected; and

(b) Add or modify one or more use restrictions of section (4) of this rule if it finds that the public health, safety or the environment is not sufficiently protected.

(4) Use Restrictions:

(a) No cover relocation or penetration through the cover;

(b) No modifications of surface drainage;

(c) No installation of surface water impoundments;

(d) No removal of waste or contaminated materials;

(e) No disturbance of gas or leachate collection, control or treatment systems or monitoring wells;

(f) No construction of enclosed structures;

(g) No disturbance of or penetration through an engineered liner or cap;

(h) No borings, pilings or well construction through the cover or an engineered liner or cap.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.370 & ORS 466.375 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

340-130-0025

Procedure for Issuing a Notice

(1) In additional to sites identified by the Department, any person may request, in writing, that the Department ask the Commission to issue an environmental hazard notice for a particular site. The request must include information which supports the request. Following receipt of a request, the Department shall review it an act upon the request. Within 30 days of receiving the request, the Department shall notify the person making the request when the Department plans to consider the request.

(2) Any request from the Oregon Department of Energy to issue an environmental hazard notice for a site, and any subsequent Department and Commission action in response to the request, shall conform to an interagency agreement consistent with these rules and approved by the Department of Energy and the Department.

(3) At least 90 days before the Commission considers issuance of an environmental hazard notice for a site, the Department shall notify the site owner of the lot or parcel, or lots or parcels, where the site is located of the proposed action. This notification shall include preliminary proposed findings which would be used to support a decision to issue an environmental hazard notice for the site.

(4) Within 30 days following the notification of section (3) of this rule, an owner desiring to clean up a site or more clearly define the waste or contamination at a site may submit a proposed plan to the Department. The Department may extend the 30 day period for submission of the plan if the Department is satisfied that the owner needs more time to complete the plan. The Commission shall not issue an environmental hazard notice for a site during implementation of a plan approved by the Department for cleanup or more accurate definition of the waste or contamination, if the plan is being followed.

(5) The Department shall issue a public notice as to its intent to request that the Commission issue an environmental hazard notice, allowing at least 30 days for written comment. The public notice shall be sent to at least the following persons:

(a) The owner of the lot or parcel, or lots or parcels, where the site is located;

(b) Property owners within 250 feet of the site;

(c) Any water right holders on the site;

(d) Any person with a recorded interest in the site;

(e) The affected city and/or county;

(f) Other interested persons who have requested in writing that the Department notify them.

(6) The Department shall hold a public hearing before the Commission considers issuance of the environmental hazard notice if:

(a) Ten or more persons or a group having a membership of 10 or more persons request a public hearing in writing within 20 days of issuance of the public notice; or

(b) In the Department's judgment, significant issues are raised during the public comment period.

(7) The Commission shall include findings in an environ-mental hazard notice for each factor of OAR 340-130-0015 used to justify issuance of an environmental hazard notice for a particular site.

(8) The Department shall notify those persons submitting comments in response to the public notice of section (5) of this rule, and those persons listed in subsections (5)(a) to (e) of this rule, of the Commission's decision to issue an environmental hazard notice. The Department shall notify the owner of the site by certified mail. The notification shall:

(a) Include a copy of the environmental hazard notice;

(b) Explain that the notice will be sent to the appropriate city and/or county with land use jurisdiction over the lot or parcel;

(c) Advise the persons of the procedure for requesting a hearing under section (9) of this rule.

(9) The site owner, and any person who in the Commission's judgment has an interest that would be adversely affected when the Commission issues or declines to issue an environmental hazard notice may request a hearing before the Commission. The request shall be in writing and must be submitted to the Department within 20 days following mailing of the notification under section (8) of this rule. The hearing shall be conducted according to the provisions for a contested case hearing under ORS Chapter 183 and OAR Chapter 340, Division 11.

(10) The Department shall file the environmental hazard notice with the appropriate city and/or county and mail a copy of the notice to those persons receiving notice of section (8) of this rule:

(a) If no hearing is requested within 20 days after notification under section (8) of this rule; or

(b) Upon resolution of the hearing or hearings request undersection (9) of this rule; if the final decision is to issue the notice.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.365, ORS 466.370, ORS 466.375 & ORS 466.380 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

340-130-0030

Procedures for Rescinding or Modifying a Notice

(1) Except as provided by sections (2) through (5) of this rule, any modification or rescission of an environmental hazard notice shall follow the requirements for issuance of an environmental hazard notice in OAR 340-130-0025.

(2) The owner of a site for which an environmental hazard notice has been issued and who is proposing an alteration or change of use on the site may request that the Department delete or modify one or more use restrictions contained in the environmental hazard notice. The request shall be in writing and include any information which aids the Department in acting upon the request.

(3) The Department shall issue a public notice as to its intent to modify or delete one or more use restrictions contained in an environmental hazard notice, allowing at least 30 days for written comment. The public notice shall be sent to at least the following persons:

(a) The owner of the lot or parcel, or lots or parcels, where the site is located;

(b) Property owners within 250 feet of the site;

(c) Any water right holders on the site;

(d) Any person with a recorded interest in the site;

(e) The affected city and/or county;

(f) Other interested persons who have requested in writing that the Department notify them.

(4) The Department shall hold a public hearing before modifying or rescinding one or more use restrictions if:

(a) Ten or more persons or a group having a membership of ten or more persons requested a public hearing in writing within 20 days of issuance of the public notice; or

(b) In the Department's judgment, significant issues are raised during the public comment period.

(5) The Department may delete or modify one or more use restrictions contained in an environmental hazard notice for a site if it finds that a proposed alteration or change or use:

(a) Will not increase the potential hazard to human health and the environment; or

(b) Is necessary to reduce a threat to human health or the environment; or

(c) Is necessary to complete a cleanup approved by the Department.

(6) The Department may require plans, studies and mitigation measures to be completed and approved before deleting or modifying one or more use restrictions contained in an environmental hazard notice.

(7) The Department shall notify, in writing, the appropriate city and/or county, those persons listed in subsections (3)(a) to (e) of this rule and those persons submitting comments in response to the public notice of section (3) of this rule of any action it takes to delete or modify use restrictions. The Department shall notify the owner of the site by certified mail.

(8) The site owner, and any person who in the Commission's judgment has an interest that woould be adversely affected by the Department's actions to delete or modify one or more use restrictions may request a hearing before the Commission. The request shall be in writing and must be submitted to the Department within 20 days following mailing of the notification under section (7) of this rule. The hearing shall be conducted according to the provisions for a contested case hearing under ORS Chapter 183 and OAR Chapter 340, Division 11.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.365, ORS 466.370, ORS 466.375 & ORS 466.380 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

340-130-0035

Procedures for Cities and Counties

(1) Following the adoption of OAR Chapter 340, Division 130 by the Commission, the Department shall notify all cities and counties of their potential responsibilities to carry out the provisions of ORS 466.360 to 466.385 and this rule. The notification shall include:

(a) A copy and a brief summary explaining the requirements of ORS 466.360 to 466.385 and OAR Chapter 340, Division 130;

(b) Model language for amending comprehensive plans and land use regulations to incorporate procedures to implement environmental hazard notices; and

(c) Information describing how to obtain technical assistance from the Department of Land Conservation and Development and the Department of Environmental Quality to assist cities and counties in complying with this rule.

(2) All cities and counties receiving an environmental hazard notice issued by the Commission shall amend their comprehensive plans and land use regulations, including zoning maps, in accordance with the requirements of ORS 466.385, section (3) of this rule and the requirements and use restrictions specified in the environmental hazard notice. This amendment shall occur:

(a) By the first periodic review under ORS 197.640 following adoption of these rules, if the city or county receives an environmental hazard notice prior to the first periodic review; or

(b) Within 120 days of receiving an environmental hazard notice, if the city or county receives the environmental hazard notice after its first periodic review following adoption of these rules.

(3) A city or county shall not approve a proposed use of a site, parcel or lot for which the city or county has received an environmental hazard notice until the Department has been notified and provided the city or county with comments on the proposed use. The Department shall be notified not less than 21 days before the final date established by the city or county for submission of information. If no comment is received before final action is taken by the city or county, the department shall be deemed to have no comment on the application.

(4) The Department may appeal to the state Land Use Board of Appeals any final land use decision by a city or county which conflicts with ORS 466.385, sections (2) and (3) of this rule or any requirement or use restriction specified in on environmental hazard notice issued to a city or county.

Stat. Auth.: ORS 183ORS 466 & ORS 468 
Stats. Implemented: ORS 466.385 
Hist.: DEQ 1-1988, f. & cert. ef. 1-27-88

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