Cleanup standard clarified, but panel unanimously votes to hold to stricter standard than proposed

By Craig Breon for Ashland.news

After some linguistic confusion, the Ashland Planning Commission at its meeting on May 9 approved an amendment to a deed restriction on the 20-acre Railroad Property near downtown, which should allow Union Pacific Railroad (UPRR) to begin cleanup of contaminants on the land starting in the summer of 2024 and then to sell one or more parcels to developers once cleanup is complete.

The motion unanimously passed by the commission differed somewhat from the language change as initially proposed by UPRR and city staff. While the UPRR and staff language would have allowed cleanup of the site to either “Urban Residential” or “Occupational” standards—as defined and enforced by the Oregon Department of Environmental Quality (DEQ) — the commission’s approved language would require that the entire site meet the stricter “Urban Residential” standard.

The commission’s motivation clearly derived from Ashland’s pressing need for more, and more affordable, housing. Council Liaison Paula Hyatt mentioned a “housing crisis” while commissioners explained that their changes to the language put forward by UPRR and staff were intended to assure that the entire property could be available for housing in the future, though some mix of retail, office, and housing is most likely for the site. The property is zoned E-1 (Employment-1) with a residential overlay, meant to facilitate a mixed-use development.

The commission’s confusion stemmed from the need to reconcile the disparate levels of contaminants on the property, changes in likely uses for the land, and changes to DEQ cleanup standards over time. In 1999, when the city first imposed a deed restriction on the land as part of a subdivision approval, the remaining, undeveloped land was required to meet the DEQ’s highest standard of “Single Residential Property” before development could proceed.

In 2016, when it became clear that the property would not be developed as single-family units, the city amended the deed restriction to accommodate a more dense level of development. Changes to DEQ standards since then rendered that 2016 language ambivalent, leading to the need for a second amendment.

Properties zoned for single-family units require the strictest standard because it is assumed that residents will be gardening and children may dig into the soil. As DEQ representative Don Hansen stated over Zoom during the meeting, the standard, “assumes that you eat quite a bit of soil.” Townhouses, condominiums and offices, by contrast, tend to have common landscaping, and less of it, and thus less direct contact with potential contaminants.

Hansen further noted, “Cleanup is driven by lead in this particular case,” with standards for arsenic and total petroleum hydrocarbons associated with gasoline, diesel, and oil also applicable. While the majority of the property has only near-surface contamination, a smaller area may contain deeper pockets of pollutants. Soil removal is likely for the shallow contaminants, while some combination of removal, on-site treatment, and capping is likely for the more problematic areas. Hansen ended by assuring the commissioners, “We’ll end up with a protective remedy.”

Whether UPRR will appeal the commission decision to the City Council is unknown. They may want some room for the lower, “Occupational” standard, with UPRR representative Michael Niemet stating that the “Urban Residential” standard “may be difficult” to achieve in one area.

If there is no appeal, the next step would be a summer 2023 City Council study session and public comment opportunity on the cleanup plans as they develop. DEQ would then go through its process to approve a final cleanup design and action plan, including additional opportunities for public comment. Cleanup could start by summer 2024 and be finished a year later.

By the end of 2023, the Ashland City Council may decide to designate the Railroad Property as a “Climate Friendly Area” (CFA) under a new state planning program. If they do, the property could see greater density of development and higher buildings than envisioned in the past, amongst other changes. Ashland Community Development Department Director Brandon Goldman described the CFA designation as the “likely future zoning” for the area

Email Ashland resident, lawyer and former environmental law instructor Craig Breon at ckbtravel@earthlink.net.