Florida Adopts Global RBCA Rule
August 15, 2005
As we reported in our previous newsletter, the Florida Department of Environmental Protection (DEP) has adopted a new rule regarding risk-based corrective actions (RBCA). In promulgating the rule, DEP cited the need for “greater flexibility” to conduct cost-effective cleanup while “ensuring a high level of protection for public health.” The new rule sets forth the parameters for risk-based corrective action at all sites in Florida with a discharge of pollutants or hazardous substances that are not otherwise in a cleanup program, hence the nickname “Global RBCA” (pronounced Rebecca). The Rule became effective April 17, 2005, and is codified in Chapter 62-780, Florida Administrative Code.
Since 1996, DEP’s rules have contained risk-based principles for based corrective action or site cleanup for petroleum sites. Over time, those principles have been expanded to drycleaning and brownfield sites. The petroleum, drycleaning and brownfield programs account for nearly 95 percent of all contaminated sites in Florida. Of approximately 17,600 contaminated sites in Florida, more than 1,300 are “non-program” sites and will be subject to the new rule. Adoption of the rule is none too soon. Legislation enacted in June, 2003, Florida Statute § 376.30701, called for the new rule by July 1, 2004.
Prior to the approval of the Rule, these non-program sites were generally governed by DEP’s guidance or policy document, Corrective Actions for Contaminated Site Cases (CACSC), which set forth the requirements for Contamination Assessment Plan/Remediation Action Plan Process. The CACSC was deemed an umpromulgated rule by Florida’s Fifth District Court of Appeal in March, 2005, in the case of Thomas Kerper and All Salvaged Auto Parts, Inc. v. DEP. The Court also found that there was insufficient evidence for DEP’s determination that Kerper was required to clean up contamination caused by spilled oil. The Court did not discuss whether the CACSC could be a valid basis for a free-form or policy-type decision by DEP.
Now that the Rule has been implemented, it promises (in the face of some skepticism) to provide consistency among site cleanups and provide much needed guidance for the cleanup of non-program sites. Like the other programs, Global RBCA applies the following principles in designing the corrective action:
• take into account the planned and expected property uses
• take into account site-specific conditions and applications
• reduce the level of contamination to the appropriate and acceptable level for that site and use
• approach cleanup in a way that results in a more flexible, potentially less costly, route to no further action
• define soil quality standards based on site-specific factors
The Rule sets forth the parameters for the following:
• interim source removal
• alternative cleanup target levels as determined by a site-specific risk assessment
• the development of alternative soil and groundwater cleanup target levels by cross-reference to Chapter 62-777
• averaging of soil contaminant concentrations
• a temporary point of compliance beyond the site’s boundary, subject to certain notice requirements
• the use of institutional and engineering controls to control exposure
Unlike the other programs, the Rule expressly requires an emergency response action to be commenced “within 24-hours of discovery of an unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action to alleviate a threat to human health, public safety, or the environment.” The term “commence” is defined as authorizing “a response action contractor to begin work to evaluate, design, plan, engineer, construct, implement and complete the requirements of the emergency response action.”
The Rule also sets forth the parameters for designing the site-specific remedy, including No Further Action (Level I), No Further Action with Controls (Levels II and III) and Monitored Natural Attenuation. Site rehabilitation will not be deemed completed until the No Further Action Proposal is approved.
Significantly, the Rule also sets forth the following notice provisions, some of which were the subject of much debate during the rulemaking process:
• Written Notice of Field Activities
• Initial Notice of Contamination Beyond Property Boundaries
• Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance; a Status Update must be provided every five years to property owners and residents with a TPOC, unless they have been notified that the contamination no longer affects their property
The Rule also requires warning signs to be posted at hazardous waste sites where a risk of exposure to the public exists due to contamination of the soil, sediment or surface water with hazardous waste.
“Contamination” is defined as “the presence of free product or any contaminant in surface water, groundwater, soil, sediment, or upon the land, in concentrations that exceed the applicable CTL’s specified in Chapter 62-777, F.A.C., or water quality standards in Chapter 62-302 or 62-520, F.A.C., or in concentrations that may result in contaminated sediment… .” This same definition of contamination was also added to the other rules addressing risk-based corrective actions: 62-782 (Drycleaning Solvent Cleanup Criteria), 62-785 (Brownfields
Cleanup Criteria Rule), 62-777 (Contaminant Cleanup Target Levels).
For more information, e-mail Stacy Watson May at
stacy.watsonmay@hklaw.com or call toll free, 1-888-688-8500.
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