What’s New In Risk Based Corrective Action In Florida?

by Carlton Fields
Contact

Over the last several years, under the direction of Governor Rick Scott, the Florida Department of Environmental Protection (FDEP) has embarked on an aggressive program to streamline regulatory processes across program areas, while maintaining protection of human health and the environment. Some of the most exciting developments relate to the process of site assessment and remediation under Florida’s risk based corrective action program, now consolidated in a single rule, Chapter 62-780, FAC (Rule).

Rule Making to Facilitate Development of Alternative Soil Cleanup Target Levels
In response to a petition filed by the Associated Industries of Florida in December 2013, FDEP implemented changes to the Rule that facilitate the derivation of Alternative Cleanup Target Levels (CTLs) for soils by responsible parties under the “actual circumstances of exposure” as originally contemplated by the Legislature when Chapter 376.30701, FS was adopted in 2003. In practice, the changes allow the use of probabilistic risk assessment, as well as use alternative toxicity values and scientifically valid ranges of exposure to derive ACTLs for a site (approved by the Department), although the responsible party must use the FDEP’s equations to derive the ACTL.

The anticipated practical effect is that direct exposure alterative soil CTLs could increase approximately twofold in the residential context and 50 percent in the industrial/commercial context for carcinogens (for example, arsenic, pesticides, dioxin, PCBs, chlorinated solvents), which often drive cleanup costs. The expected benefit is not as great for non-carcinogens (TRPH, lead, copper) because the calculation is driven by daily exposure (soil ingestion). Once a responsible party has had an ACTL derived for a particular contaminant of concern approved by the Department that will likely be more broadly used by the regulated community, in essence as an alternative number to the direct exposure SCTL now set forth in Chapter 62-777, FAC.

Some of the most exciting developments, however, have taken place in the form of policy and guidance changes. These have been significant and are ongoing.

Use of Non-Recorded Institutional Controls as Basis for Closure with Conditions
On November 1, 2013, the Department issued a memorandum (Memo) with the somewhat understated title, “Site Closure with Conditions.” It confirmed the Department’s newly found willingness to rely on non-recorded institutional controls (ICs) in certain circumstances as an alternative to requiring a recorded restrictive covenant as a condition of closure. This change was embraced by the Department following many years of urging by the regulated community, including, notably, the Florida Brownfields Association (FBA). Although the Memo discusses a variety of non-recorded ICs that might be appropriate for the Department’s reliance, to date, the Memo has been used in only a handful of situations, all involving sites where the only remaining impacts above unrestricted use standards are to groundwater, and a local ordinance is in place that either restricts well installation or requires connection to municipal water.

The Department is in the process of developing additional guidance to flesh out the policy’s implementation. Other concerns being considered, which are expected to be addressed in subsequent guidance, include how the policy will address concerns related to potential exposure in the case of future dewatering or construction activities, as well as the effect of existing or potential irrigation wells on the property. The approval process may ultimately involve a “weight of evidence” approach, where a variety of factors are considered, such as:

  • Size and location of the plume relative to existing improvements
  • Nature and concentration of contaminants of concern (COCs) in the plume
  • Scope and coverage of the local ordinance
    • requirement for connection for both potable and irrigation
    • prohibition on installation of new wells
  • Status of site development and existing infrastructure for provision of water/irrigation
  • Potential for additional construction and impact of construction activities such as dewatering on impacted area, potential for exposure, discharge, etc.

Facilitating Change to Policy and Rule
To facilitate consideration of possible policy changes, after a 10-year hiatus, the Department has reconvened the Contaminated Media Forum (CMF), a group of industry, consulting, legal, and Department professionals tasked by the Department to identify areas for potential rule and policy change, starting with the “low hanging fruit”—changes that can be implemented relatively simply through policy in Spring 2014—to be followed by those that will require rulemaking. This process is expected to address a wide variety of longstanding issues under existing guidance and the Rule including updates to: fundamental approaches, inputs, and derivation of Cleanup Target Levels under Chapter 62-777, FAC, site assessment requirements and alternatives (e.g., incremental soil sampling and delineation requirements), alternative methods of background determination, considering human-influenced background conditions and establishing regional background for some naturally occurring contaminants, ecological risk assessment, vapor intrusion, the institutional controls procedures guidance, and reliance on non-recorded institutional controls.

The CMF has been broken into four working groups that are tackling the following general areas for potential policy change or rulemaking:

  • Direct Exposure/Leachability and Institutional and Engineering Controls
  • Eco-Risk
  • Background Determination
  • Chapter 62-777, FAC, Cleanup Target Levels

A brief summary of the concepts and alternative approaches under consideration by the Direct Exposure/Leachability/Institutional and Engineering Controls Working Group of the CMF follows. NOTE: the concepts discussed on the following pages are just that—concepts. They have not been embraced as the final recommendation of the CMF, nor have they been endorsed or accepted by the Department. They do provide a sense of the options on the table, and the willingness of the Department to “think outside the box” to further refine the cleanup program in a manner that is both protective of human health and the environment and more cost-effective and efficient for the regulated community.

Delineation “Requirements”
Much of the time and expense connected with site rehabilitation is associated with the often protracted assessment process. There are several areas where guidance might result in a more efficient, streamlined, and cost-effective process.

  • Rely on the Conceptual Site Model (CSM)—the site history, timing and location of discharge, timing of installation of any existing “cap”, the vertical depth of samples relative to depth of the water table—to shape the scope of delineation during the assessment process.
  • Relax the requirements for delineation to unrestricted use concentrations (as well as leachability), when the responsible party is willing to restrict future use of the property, or to memorialize reliance on de facto existing engineering controls, such as paving or building foundation.
  • Clarify off-site delineation obligations (particularly for soil) for sites where the current owner of the “source” property did not cause or contribute to offsite soil impacts.
  • Clarify soil intervals required for delineation—what flexibility can be afforded between two feet and the top of the water table?

Soil Leachability Issues
Leachabilty CTLs (LCTLs) are generally interpreted as point not-to-exceed values and may result in overly restrictive cleanup requirements. In reality, LCTLs are only a “surrogate” for anticipated exceedances in groundwater under appropriate circumstances. A revised approach would allow reliance on other equally reliable models or methods of predicting impacts.

  • There must be some spatial consideration or averaging allowed when looking at soil concentrations greater than leachability CTLs (horizontally or vertically).
  • Look at max flux or other criteria to help define acceptable parameters for delineation?
  • Clarify requirements for delineation based on soil leachability exceedances when no groundwater impacts have been detected:
    • options when the area has (or has not) been capped for some period of time;
    • options to the “requirement” for one year of supporting groundwater data—if the concern is obtaining data from high versus low water table conditions, or the site has been in “steady state” for a significant period of time.
  • Identify certain COCs (such as PAHs) that may be amenable for more “relaxed” treatment based on historical information over a broad number of sites that suggests that notwithstanding LCTL exceedances, leaching is unlikely.
  • Acknowledge that use of alternative models for leachability evaluation (to the SPLP or soil concentration) is permitted and provide examples and references
  • Acknowledge that alternative fate and transport models may be used for leachability calculation as alternatives to SPLP (Vleach, csoil, vs2dt, DAF)

Direct Exposure Related Issues

  • Should ACTLs be developed for other “common” alterative exposure scenarios (such as trespasser, recreator, utility worker, landscape contractor, construction work) or is that likely to gravitate to numbers based on the most restrictive set of assumptions and conditions?
  • As an alternative, could a variety of resources for alternative exposure assumptions be made available for use/consideration by the regulated community?
  • FDEP currently uses the NAICS codes (successor to the SIC codes) to define “non-residential uses” in its model Declaration of Restrictive Covenant, even though the actual conditions of exposure for most sectors are much less than what is considered residential/unrestricted use (30 years, 350 days/year, ages 1-31). Can an alternative approach be developed that would allow the responsible party to propose alternative descriptions for uses permitted or prohibited on the property that would be consistent with the degree and nature of the cleanup conducted and actual conditions of exposure?
  • Current policy has been to require either two feet of clean fill or an impermeable surface to limit direct exposure. Guidance should be developed for acceptable alternatives such as use of materials other than soil, the use of visual cues and barriers, and vegetative cover.
  • An asphalt or paved cap is the most common engineering control. Could FDEP develop a template Engineering Control Maintenance Plan for paved engineering controls that could be used by the regulated community?

Institutional Controls Procedure Guidance (ICPG)
There are likely to be several areas where the current ICPG requires revision in response to the ongoing changes. These are expected to be in the following areas:

  • Implementation of the November 1, 2013 Memorandum, “Site Closure with Conditions” (described above):
    • Where existing ICs do not prohibit well installation, could a weight of evidence approach be used to determine suitability of reliance for closure (factors such as: size/location of plume, location of existing improvements, nature and concentration of COCs, status of site development and existing infrastructure, potential for additional construction and impact of construction activities, location of existing irrigation wells (if any) relative to plume)?
    • Should the Memo’s applicability (at this time) be limited to closure for groundwater impacts only based on local ordinances, or should reliance on other non-recorded governmental controls alluded to in the Memo be implemented at this time (such as Water Management District delineated areas under Chapter 62-524, FAC, prohibition of installation of wells under Chapter 62-521, FAC)?
  • Implement changes to capture potential for alternative descriptions of permitted/prohibited uses that are not so broadly defined and that dovetail with the risk based closure that has been implemented

The Department and the Contaminated Media Forum have established an ambitious schedule and agenda for the next eight months. Practitioners should expect significant streamlining and clarification to FDEP’s cleanup rules to be made through policy changes and directives. To the extent any of the contemplated changes require rulemaking to implement, the final result may well depend on November 2014 election results. If Governor Scott is not reelected, the future of any pending initiatives will be uncertain.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.