The Oregon Department of Environmental Quality (“DEQ”) announced that in March 2017, it will launch a pilot program to take a second look at 25-30 randomly selected sites that received a No Further Action (“NFA”) determination where the owner agreed to institutional or engineering controls in lieu of cleanup. The purpose is to assess the effectiveness of such controls in protecting human health and the environment. DEQ intends to use the pilot to help determine whether a permanent review program is warranted.
Institutional or engineering controls often present a cost-effective alternative to cleanup for contaminated sites to receive a NFA determination. Such controls may allow some contamination to stay in place if measures are taken to prevent exposure to human health or the environment, such as deed restrictions on the use of the property and/or groundwater, or physical controls such as capping or installation of barriers. These controls can be particularly useful where, for example, contamination is inaccessable without removing structures or incurring other material costs. Currently, there are approximately 650 sites in Oregon with institutional or engineering controls.
DEQ will select sites in the Northwest Region with controls put in place before 2010. Property owners will be notified and may be tasked with conducting the review themselves. Other sites will require a DEQ site visit and/or review by a professional engineer. If controls are determined to be ineffective to protect human health and the environment, DEQ could require additional actions by the property owner. Property owners will be invoiced for DEQ’s review costs.
A review of sites considered to be long-settled with DEQ may be a cause of anxiety for some property owners, but NFA letters are by their nature DEQ’s judgment at that moment, subject to their periodic inspection. Because these are older NFAs, it would be a good idea to look at the reopener language in the NFA letter to see the scope of DEQ’s reserved authority. On a positive note, an effective review program could underscore the continued viability of controls to avoid an expensive cleanup and still protect both human health and the environment.