Florida Expands Risk-Based Corrective Action
October 24, 2003
On June 20, 2003, Governor Jeb Bush approved House Bill
1123 (hereinafter the Act), which extends risk-based corrective action
principles to all contaminated sites resulting from a discharge of pollutants or
hazardous substances. This important legislation provides the Department of
Environmental Protection (DEP) greater flexibility to clean up and restore
Florida’s natural resources. Prior to the passage of this bill, only
petroleum-contaminated sites, brownfields sites in designated brownfields areas,
and dry-cleaning solvent contaminated sites (often referred to as “program
sites”) applied risk-based corrective action (RBCA) principles. This
legislation, which allows for clean up of contaminated sites based upon
environmental and health risks, is often referred to as “Global Rebecca.” It
provides a common-sense, cost-effective, and flexible approach to waste site
clean up, while at the same time ensuring a high level of public protection.
The new law uses a one-in-one-million cancer risk level for cleaning up all
contaminated sites.
The Act states that prior to July 1, 2004, the Secretary of
the DEP shall adopt cost-effective rules that tailor site rehabilitation tasks
to site-specific conditions and risks. Section 2(f) of the Act requires that
DEP take into consideration individual site characteristics, including: the
current and projected use of the affected groundwater and surface water in the
vicinity of the site; current and projected land uses of the area affected by
the contamination; the exposed population; the degree and extent of
contamination; the rate of contaminant migration; the apparent or potential rate
of contaminant degradation through natural attenuation processes; the location
of the plume; and the potential for further migration in relation to site
property boundaries.
Section 2 further requires that the rules include protocols
for the use of natural attenuation, the use of institutional and engineering
controls, and the issuance of “No Further Action” orders. The newly adopted
global RBCA principles also provide the DEP with clear authority to adopt
Cleanup Target Levels (CTLs) and to allow for Alternative Cleanup Target Levels
(ACTLs) as determined by a site-specific risk assessment. Section 2(g)(3) of
the Act states that the DEP shall approve ACTLs in conjunction with
institutional and engineering controls based upon an applicant’s demonstration –
through use of site-specific data, modeling results, risk assessment studies,
risk reduction techniques, or combination thereof – that human health, public
safety and the environment are protected. In determining whether it is
appropriate to establish ACTLs at a site, the department must consider, among
other variables, the effectiveness of source removal that has been completed at
the site and the current and projected use of the affected groundwater in the
vicinity of the site; provided that human health, public safety, and the
environment are protected.
The Act, and any rules adopted pursuant thereto, is to be
applied retroactively, except for those sites where cleanup target levels have
been accepted by the DEP in an approved technical letter or a “No Further
Action” order. However, Section 1(d) of the Act allows the person responsible
for site rehabilitation to elect to have the provisions of the Act apply in lieu
of those in any approved technical document or other agreement.
Additionally, the Act provides certain conditions under
which further rehabilitation may be required. Section 4 of the Act states that
upon completion of site rehabilitation, additional site rehabilitation is not
required unless it is demonstrated that:
(a) Fraud was committed in demonstrating site
conditions or completion of site rehabilitation.
(b) New information confirms the existence of an area
of previously unknown contamination which exceeds the site-specific
rehabilitation, or which otherwise poses the threat of real and substantial harm
to public health, safety, or the environment.
(c) The remediation efforts failed to achieve the
site rehabilitation criteria established under this section.
(d) The level of risk is increased beyond the
acceptable risk established due to substantial changes in exposure conditions,
such as a change in land use from nonresidential to residential use. Moreover,
any person who changes the land use of the site, thereby causing the level of
risk to increase, may be required by the department to undertake additional
remediation measures to ensure that human health, public safety, and environment
are protected.
(e) A new discharge of pollutants or hazardous
substances occurs at the site subsequent to the issuance of a “No Further
Action” order associated with the original contamination being addressed
pursuant to this section.
Lastly, the Act contains several provisions relating to tax
credits that are beyond the scope of this article. Those provisions include:
clarifying who may apply for tax credits and the time period for use of tax
credits, allowing a tax credit applicant to claim credit on a consolidated
return up to the amount of the consolidated group’s tax liability, and
converting the tax credit application time period to a calendar year.
For more information, e-mail Rory Ryan at
rory.ryan@hklaw.com or call toll free, 1-888-688-8500.
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