Bill Text: OR SB867 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to agreements that implement institutional controls on real property; declaring an emergency.

Sponsorship: Committee Bill

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB867 Detail]

Download: Oregon-2011-SB867-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 117-1

                         Senate Bill 867

Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon Law
  Commission)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Specifies that Department of Environmental Quality may enter
into agreements to implement institutional controls for purposes
related to reducing exposure to hazardous substances. Makes all
conditions imposed under those agreements valid and enforceable
with any conveyance or assignment of interest in real property.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to agreements that implement institutional controls on
  real property; creating new provisions; amending ORS 465.225,
  465.230, 465.235 and 465.315; 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 465.545 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.
  (c) A remedial action may achieve protection of human health
and the environment through:
  (A) Treatment that eliminates or reduces the toxicity, mobility
or volume of hazardous substances;
  (B) Excavation and off-site disposal;
  (C) Containment or other engineering controls;
  (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;
  (C) The long term reliability 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, when 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.
   { +  (h) As used in this subsection, 'institutional control '
means a prohibition, restriction or obligation relating to the
type and extent of activity allowed on real property that is
implemented to reduce the potential of exposure to hazardous
substances. As used in this paragraph, 'activity' includes the
use, maintenance or monitoring of property, the restriction of
access to the property or the allowance of access to the property
for the purpose of implementing or monitoring an institutional
control. + }
  (2) 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 465.545 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 2011 Act is added to and made
a part of ORS 465.200 to 465.545. + }
  SECTION 3.  { + (1) As used in this section:
  (a) 'Agreement' means an easement, equitable servitude,
covenant or similar instrument, or any combination thereof.
  (b) 'Institutional control' has the meaning given that term in
ORS 465.315 (1)(h).
  (2) The Department of Environmental Quality may enter into an
agreement, as grantee of an enforceable interest in real
property, to implement an institutional control.
  (3) An agreement that implements an institutional control must
be signed by the Director of the Department of Environmental
Quality or the director's designee and all other parties to the
agreement.
  (4) After an agreement that implements an institutional control
is signed by the director or the director's designee and all
other parties to the agreement, the department shall file the
agreement in the County Clerk Lien Record for every county within
which a portion of the real property that is subject to the
agreement is located.
  (5) The department may require such conditions in an agreement
as the department determines are necessary to implement an
institutional control, including but not limited to the recovery
of the department's costs for monitoring and enforcing an
institutional control.
  (6) An agreement entered into by the department for the purpose
of implementing an institutional control:
  (a) Transfers with any conveyance or assignment of real
property subject to the agreement; and
  (b) Is valid and enforceable against a person whose interest in
the real property vests after a conveyance or assignment of the
real property even if:
  (A) The condition is not appurtenant to an interest in the real
property;
  (B) The condition imposes a negative burden;
  (C) The condition creates an affirmative obligation;
  (D) The benefit or burden of the condition does not touch or
concern the real property;
  (E) There is no privity of estate or contract between the
department and the person who has the interest in the real
property;
  (F) The condition is not otherwise recognized under common law
as a condition that transfers with the conveyance or assignment
of real property; or
  (G) The department assigns its interest in the real property to
another person, except that such assignment does not make the
condition valid and enforceable against a person whose interest
in the real property vests after the department's assignment
unless all persons that have an interest in the real property
agree to the assignment. + }
  SECTION 4. ORS 465.225 is amended to read:
  465.225. (1) For the purpose of providing public information,
the Director of the Department of Environmental Quality shall
develop and maintain an inventory of all facilities for which:
  (a) A confirmed release is documented by the department; and
  (b) The director determines that additional investigation,
removal, remedial action, long-term environmental controls or
institutional controls are needed to assure protection of present
and future public health, safety, welfare or the environment.
  (2) The determination that additional investigation, removal,
remedial action, long-term environmental controls or
institutional controls are needed under subsection (1) of this
section shall be based upon a preliminary assessment approved or
conducted by the department.
  (3) Before the department conducts a preliminary assessment,
the director shall notify the owner and operator, if known, that
the department is proceeding with a preliminary assessment and
that the owner or operator may submit information to the
department that would assist the department in conducting a
complete and accurate preliminary assessment.
  (4) At least 60 days before the director adds a facility to the
inventory, the director shall notify by certified mail or
personal service the owner and operator, if known, of all or any
part of the facility that is to be included in the inventory. The
decision of the director to add a facility to the inventory is
not appealable to the Environmental Quality Commission or subject
to judicial review under ORS chapter 183.
  (5) The notice provided under subsection (4) of this section
shall include the preliminary assessment and shall inform the
owner or operator that the owner or operator may comment on the
information contained in the preliminary assessment within 45
days after receiving the notice. For good cause shown, the
department may grant an extension of time to comment. The
extension shall not exceed 45 additional days.
  (6) The director shall consider relevant and appropriate
information submitted by the owner or operator in making the
final decision about whether to add a facility to the inventory.
  (7) The director shall review the information submitted and add
the facility to inventory if the director determines that a
confirmed release has occurred and that additional investigation,
removal, remedial action, long-term environmental controls or
institutional controls are needed to assure protection of present
and future public health, safety, welfare or the environment.
   { +  (8) As used in this section, 'institutional control' has
the meaning given that term in ORS 465.315 (1)(h). + }
  SECTION 5. ORS 465.230 is amended to read:
  465.230. (1) According to rules adopted by the Environmental
Quality Commission, the Director of the Department of
Environmental Quality shall remove a facility from the list or
inventory, or both, if the director determines:
  (a) Actions taken at the facility have attained a degree of
cleanup and control of further release that assures protection of
present and future public health, safety, welfare and the
environment;
  (b) No further action is needed to assure protection of present
and future public health, safety, welfare and the environment; or
  (c) The facility satisfies other appropriate criteria for
assuring protection of present and future public health, safety,
welfare and the environment.
  (2) The director shall not remove a facility if continuing
environmental controls or institutional controls are needed to
assure protection of present and future public health, safety,
welfare and the environment, so long as such controls are related
to removal or remedial action.
   { +  (3) As used in this section, 'institutional control' has
the meaning given that term in ORS 465.315 (1)(h). + }
  SECTION 6. ORS 465.235 is amended to read:
  465.235. (1) The Director of the Department of Environmental
Quality shall make the inventory available to the public at the
office of the Department of Environmental Quality.
  (2) The inventory shall include but need not be limited to:
  (a) The following information, if known:
  (A) A general description of the facility;
  (B) Address or location;
  (C) Time period during which a release occurred;
  (D) Name of 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) Levels of a hazardous substance, if any, in ground water,
surface water, air and soils at the facility;
  (H) Hazard ranking and narrative information regarding threats
to the environment and public health;
  (I) Status of removal or remedial actions at the facility; and
  (J) Other items the director determines necessary; 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 judgment under ORS 465.200 to 465.545; or
  (C) An owner or operator or other person under other state or
federal authority.
  (3) The department may organize the inventory into categories
of facilities, including but not limited to the types of
facilities listed in subsection (2) of this section.
  (4) On or before January 15 of each year, the department shall
submit the inventory and a report to the Governor, the
Legislative Assembly and the Environmental Quality Commission.
The annual report shall include a quantitative and narrative
summary of the department's accomplishments during the previous
fiscal year and the department's goals for the current fiscal
year, including but not limited to each of the following areas:
  (a) Facilities with a suspected release added to the
department's database;
  (b) Facilities with a confirmed release added to the
department's list;
  (c) Facilities added to and removed from the inventory;
  (d) Removals initiated and completed;
  (e) Preliminary assessments initiated and completed;
  (f) Remedial investigations initiated and completed;
  (g) Feasibility studies initiated and completed; and
  (h) Remedial actions, including long-term environmental
controls and institutional controls, initiated and completed.
  (5) Beginning in 1991, and every fourth year thereafter, the
report required under subsection (4) of this section shall
include a four-year plan of action for those items under
subsection (4)(e) to (h) of this section. The four-year plan
shall include projections of funding and staffing levels
necessary to implement the four-year plan.
   { +  (6) As used in this section, 'institutional control' has
the meaning given that term in ORS 465.315 (1)(h). + }
  SECTION 7.  { + Section 3 of this 2011 Act applies to any
conveyance or assignment of real property that occurs on or after
the effective date of this 2011 Act. + }
  SECTION 8.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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