Closing Superfund Sites Under Florida’s Risk-Based Corrective Action: The Time is Now!
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), was signed into law by President Jimmy Carter as one of his last acts in office.1 The law, enacted in response to public outrage at man-made environmental disasters, such as Love Canal in upstate New York, addressed contaminated sites that posed a serious threat to public health and the environment.
Nearly four decades after CERCLA’s enactment, better tools, information, and options exist to successfully address problem sites. Technology has advanced, assessment and remedial strategies have improved, and our understanding of the fate and transport of chemicals in the environment has sharpened. Regulators are better positioned to abandon the well-intended but antiquated one-size-fits-all numeric criteria in favor of more efficient and equally protective standards, which consider other important factors. These new methodologies can incorporate site-specific conditions, such as institutional controls and risk assessments. As a result, greater emphasis is placed on assessing and minimizing actual risk to human health and the environment, and concurrently place properties back into beneficial reuse faster. Florida law reflects these improvements. One important Florida example is the use of Risk-Based Corrective Action (RBCA) as an Applicable or Relevant and Appropriate Requirement (ARAR), discussed more fully below.
The goal of CERCLA, and environmental law and policy in general, is the protection of public health and the environment. CERCLA expressly recognizes the essential role of ARARs in the site assessment and cleanup process, with the intent that the most stringent requirements are met prior to regulatory closure approval.2 However, determining which standard is more protective is not always straightforward. It is challenging to compare the stringency of a pre-established numerical federal standard with a hybrid one, like Florida’s RBCA. This may result in an erroneous default to the federal standard, or whichever standard appears to have the lowest numerical concentrations. Unfortunately, this approach can lead to delayed cleanup, unnecessary costs, and extraordinarily long site closure timeframes, without a concomitant benefit to public health or the environment. Florida’s RBCA is universally recognized to have an inherent ability to incorporate other more precise and valuable site-specific information in the decision-making process, with no reduction in human health or environmental protection. This recognition provides a long overdue sufficient legal and public policy justification to allow regulatory closure under CERCLA.
Background
CERCLA is in many ways the most complex and far-reaching of all federal and state environmental laws. In addition to CERCLA’s substantive and procedural requirements, CERCLA included the establishment of a trust fund. This resulted in the synonymous but somewhat inaccurate and interchangeable use of the term “Superfund” to refer to CERCLA. The Superfund trust fund, administered by the U.S. Environmental Protection Agency (EPA), provides temporary emergency funding for assessment and cleanup activities at orphaned sites, or those with recalcitrant potentially responsible parties (PRPs).3 Historically, the trust fund was funded by three dedicated taxes (petroleum, chemical feedstock, and corporate income), as well as interest on the trust. However, the law’s taxing authority expired in 1995, and successive administrations declined to renew the authority.4 As of 2015, approximately $1.26 billion in federal general revenue was allocated annually to the Superfund program.5 As of 2018, EPA lists 1,343 total Superfund sites, including Florida’s 94 sites, in all phases of rehabilitation on the national priorities list (NPL).6 EPA is generally the lead agency responsible for the management of Superfund sites under CERCLA. However, states including Florida, often have an active role in establishment of remedial goals and objectives, and, in some cases, state agencies have been delegated management responsibility by EPA. In Florida, that agency is the Florida Department of Environmental Protection (FDEP).
Historically, Superfund site deletion from the NPL takes an extraordinarily long time. These sites plod through the program in a step-by-step process that can take several decades. Some Florida Superfund sites are in their second decade of cleanup since listing on the NPL, with no real end in sight. The 2017 Superfund Task Force was organized to find obstacles to completion or closure. It is anticipated that task force recommendations will include adoption of managed risk approaches as law in states, including Florida.7
Superfund assessment and cleanup efforts are extremely expensive. Not only are the direct expenses significant, but so are the many indirect and often overlooked expenses associated with keeping a property idle or under utilized for decades. EPA estimates that between $335 to $681 million per year is needed for Superfund cleanup. These yearly costs are for approximately 40 percent of sites where a responsible party does not exist, and about 60 percent that are cleaned up by PRPs.8 Superfund sites’ cleanup efforts generally include short-term emergency removal actions and much longer remedial activities designed to remediate groundwater, sediment, or soil impacted by releases of chemical compounds. Another complex issue under CERCLA, is the assignment and apportionment of contamination cleanup costs among private and public parties.
The 1986 Superfund Amendments and Reauthorization Act (SARA)9 greatly expanded CERCLA. A notable amendment required EPA to consider the standards and requirements found in other state and federal environmental laws and regulations as ARARs. The U.S. Congress also allowed states to impose more stringent cleanup requirements than existing federal ones as part of the SARA Superfund program expansion.
Applicable or Relevant and Appropriate Requirements
ARARs are substantive requirements, such as cleanup standards, standards of control, and other criteria, or limitations promulgated under federal or state environmental laws that specifically address contamination at a CERCLA site. These requirements are applicable to actions or conditions at the site and directly address site circumstances. ARARs do not include administrative requirements that facilitate the substantive requirements of a statute or a regulation, such as permit variances and exemptions, interagency agreements, or definitions.
The following definitions are found in §300.5 of the national contingency plan (NCP), which provide protocols for implementing CERCLA requirements:10
“’Applicable Requirements’: Those cleanup standards, standards of control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or circumstance at a CERCLA site.
“’Relevant and Appropriate Requirements’: Those cleanup standards, standards of control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws that, ‘while not applicable’ to the hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site, address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site.”
These definitions are particularly important to understanding remedial action requirements under CERCLA.
Section 1219(d) of CERCLA requires remedial actions attain or waive federal ARARs, or more stringent state environmental ARARs, upon completion of the remedial action.11 In addition, the NCP also requires compliance with ARARs during removal or remedial actions, to the extent practicable.12 ARARs should be identified early in the cleanup process during site assessment. For example, during a remedial investigation effort, chemical and location-specific ARARs are identified as part of site-assessment activities. Usually, site characterization activities provide federal and state managers with sufficient information to identify ARARs. The process of identifying ARARs requires the recognition of four basic categories: 1) Chemical-specific standards established for specific chemicals found at the site; 2) location-specific restrictions based on the location of the site; 3) action-specific limitations on “actions” associated with a response; and 4) other information to be considered (TBC).
Health, risk, or technology-based chemical-specific standards limit the concentration of a compound or element in various media at a site. An example is the state of Florida groundwater primary standards. Location-specific requirements relate to site geographic or physical location, rather than to the nature of site contamination. These ARARs restrict concentrations of contaminants due to their location in the environment. An example is the Native American Graves Protection and Repatriation Act.13
Action-specific requirements are usually technology or activity-based or limitations on hazardous substance actions. Usually, action-specific requirements determine the implementation of a selected remedial alternative. An example is the Hazardous Materials Transportation Act.14 Non-promulgated advisories or guidance documents issued by state or federal governments do not have the status of potential ARARs. However, the EPA must consider these advisories and guidance documents when determining protective cleanup levels. TBCs generally fall into three categories: health effects information with a high degree of credibility; technical information on how to assess and remediate a site; and agency policy or guidance. An example of TBCs is the FDEP round-down memorandum.15
Several states implement environmental regulations that are different from federal standards. CERCLA §121(d)(2)(ii) requires compliance with state ARARs when they are more stringent than federal rules and have been promulgated at the state level.16 To serve as an ARAR at a Superfund site, a state requirement must be legally enforceable, based on the state’s legal authority, and must be generally applicable, meaning that it must be applied to a broader universe of sites rather than just Superfund sites. One example is total maximum daily loads (TMDLs) regulations implemented by the FDEP.17
Risk-Based Corrective Action
RBCA is a term for remedial strategies that categorize a site according to its actual or potential risk to human health or the environment. RBCA came of age in the mid-1990s as environmental agencies, including the FDEP and EPA, looked for a risk-based framework to streamline the process of decisionmaking, define endpoints, focus finite resources, and achieve site closure.
In general, risk-based corrective actions protect human health and the environment, while maximizing constructive current and future use of a site. RBCA moves sites toward completion and post-remedial management using a well-established process. The RBCA process identifies sensitive-receptors, exposure pathways, determines the level of urgency and response required at a site, incorporates risk analysis to remedial and end-goal decisions, and helps to select appropriate and cost-effective remedial measures. Appropriate institutional or engineering controls ensure exposure pathways remain incomplete over the long term.
Consistent with federal direction, the Florida Legislature directed the FDEP to incorporate RBCA into its cleanup programs.18 The law facilitates risk-based remediation decisions and long-term stewardship of sites. Additionally, the Florida Legislature encourages RBCA use in state and privately funded cleanups to promote cost-effective site characterization and cleanup activities. Florida site closure law requires the FDEP to approve alternative soil and cleanup target levels for groundwater that differs from state standards where health, public safety, and the environment are protected to the same degree, using institutional or engineering controls. The legally responsible party must prove equivalent human health and environmental protection using site-specific data, risk assessment modeling, and other studies.
Risk Management Options
Following Florida’s legislative mandate to incorporate RBCA into its cleanup programs, and after rule streamlining, the FDEP promulgated a single rule implementing contaminated site cleanup into F.A.C. Ch. 62-780. This chapter meets the legislative mandate to implement RBCA in all contaminated site cleanup programs by developing three distinct levels of managing risk and closing a site. The three levels are risk management options (RMOs) Level I to III.19
RMO Level I is site closure used when concentrations of chemical compounds or elements in ground, surface water or soil meet or are below primary or secondary standards, cleanup target levels, anthropogenic, or natural background concentrations. RMO II and III eliminate or reduce risk through institutional and engineering controls, alternative cleanup target levels, and risk assessment to achieve a conditional site closure. It is notable that under RMO III, a site may close without implementing institutional controls by using a different rule-authorized methodology to evaluate risk. Since its inception, RBCA has been consistently applied throughout the FDEP’s cleanup programs.
Florida’s RBCA Stringency
Under CERCLA, Superfund site remedies must be protective of human health and the environment and must comply with ARARs.20 Additionally, CERCLA provides that for any contaminant that remains on site, remedial actions must satisfy state ARARs if such is more stringent than the federal ARAR and is identified in a timely manner.21 Under this federal law, the FDEP’s primary groundwater standards for chemical compounds, such as benzene of 1 microgram per liter, is an ARAR since it is 1) more stringent than its respective federal maximum contaminant level (MCL); 2) is statutorily authorized; 3) has been adopted; 4) is enforceable; and 5) is the concentration aimed for in groundwater restoration. This ARAR is usually identified in the feasibility study stage of Superfund site rehabilitation. Ten Florida Superfund site feasibility studies produced in the 1990s and 2000s show that the FDEP’s primary groundwater standards for benzene, where applicable, were listed as an ARAR. Yet, despite the promulgation of Florida’s RBCA law, EPA-approved Feasibility Studies do not list RBCA as an ARAR.22
EPA recognizes differences in chemical regulation at the federal and state level. EPA also recognizes that a determination of stringency may be difficult.23 In the case of groundwater restoration for benzene at any site (including a Superfund site), a PRP may invoke the applicability of Florida’s RBCA law as an ARAR to close and delete a Superfund site from the NPL. This is true as long as statutorily-required, cost-effective source reduction has been implemented 24 and a completed exposure pathway to residual contamination is addressed by institutional controls. As for the stringency of Florida’s RBCA law, current EPA policy is clear that it is a more stringent requirement because it adds to federal law requirements as RBCA and is specific to the Florida environmental conditions. It also meets federal criteria because it uses a different approach to achieve an identical result: protection of human health and the environment.25
Conclusion
Florida’s RBCA law and its implementing rule are a more sophisticated and advanced approach to site remediation and closure, as well as protection of human health and the environment, than the traditional methods employed since the CERCLA enactment nearly four decades ago. Florida’s law already requires that the source of contamination be abated. Therefore, RBCA can manage residual contamination by incorporating important site-specific information into the decision-making process, such as engineering controls, restrictive covenants, deed restrictions, geologic characteristics, receptor pathways, and distance to close a site. It can also more precisely determine actual and potential risks to human health and the environment and avoid the pitfalls of a one-size-fits-all federal standard. Lastly, it is consistently applied in all FDEP cleanup programs. It is time that RBCA is incorporated as an ARAR in Florida.
1 The Jimmy Carter Presidential Library and Museum: Milestones in President Jimmy Carter Administration, December 11, 1980: Signature of Superfund or the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) Legislation.
2 CERCLA, Compliance with Other Laws Manual: Part II Clean Water Act and Other Environmental Laws and State Requirements, U.S. Environmental Protection Agency Office of Solid Waste and Emergency Response 7-4 (Aug. 1989), available at https://semspub.epa.gov/work/HQ/174077.pdf.
3 U.S. Environmental Protection Agency, Comprehensive Environmental Response, Compensation, and Liability Act (Superfund): Overview,
https://www.epa.gov/superfund/superfund-cercla-overview.
4 John Stephenson letter to Sen. James Jeffords, Superfund Program: Updated Appropriations and Expenditure Data, U.S. Government Accountability Office (Feb. 18, 2004), available at
https://www.gao.gov/new.items/d04475r.pdf.
5 U.S. Government Accountability Office, Superfund Trends in Federal Funding and Cleanup of EPA’s Nonfederal National Priorities List Sites, GAO Report No. GAO-15-812, 58 (Sept. 2015).
6 U.S. EPA, Superfund National Priorities List (Feb. 15, 2018), https://www.epa.gov/superfund/superfund-national-priorities-list-npl.
7 U.S. EPA, Superfund Task Force Recommendations (Jul. 25, 2017), https://www.epa.gov/superfund/superfund-task-force-recommendations.
8 U.S. Government Accountability Office, Superfund: EPA Estimated Cost to Remediate Existing Sites Exceed Current Funding Levels, and More Sites are Expected to be Added to the National Priorities List, GAO-2010-380, available at
https://www.gao.gov/products/GAO-10-380.
9 U.S. House of Representatives. Office of Legal Counsel, Superfund Amendments and Reauthorization Act of 1986, available at https://legcounsel.house.gov/Comps/Superfund%20Amendments%20And%20Reauthorization%20Act%20Of%201986.pdf.
10 Cornell University School of Law, National Oil and Hazardous Substances Pollution Contingency Plan, Code of Federal Reg. Tit. 40, Ch. I, Subch. J, Part 300, available at https://www.law.cornell.edu/cfr/text/40/part-300.
11 CERCLA, Compliance with Other Laws Manual, Overview of ARARs, Focus on ARAR Waivers, U.S. EPA Office of Solid Waste and Emergency Response, Pub. No. 9234-2-03/FS (Dec. 1989).
12 See National Oil and Hazardous Substances Pollution Contingency Plan; Code of Federal Reg. Tit. 40, Ch. I, Subch. J, Part 300.
13 25 U.S.C. §3001, et seq.
14 49 U.S.C. §5101.
15 See Memorandum from Jorge R. Caspary, Director of the Division of Waste Management, Florida Department of Environmental Protection (Nov. 17, 2011), available at
https://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/RoundingAnalyticalDAta_17Nov11.pdf.
16 See U.S. Code Tit. 42, Ch. 103, Subch. I, §9621 (cleanup standards), available at
https://www.law.cornell.edu/uscode/text/42/9621.
17 Fla. Stat. §376.30701, et seq. (2017).
18 F.A.C. §62-780 (2017) (contaminated site cleanup criteria).
19 F.A.C. Ch. 62-304.
20 See note 16.
21 James Woolford Memorandum to Superfund National Program Managers, U.S. EPA Office of Land and Emergency Management, Best Practices for Identifying and Determining State ARARs Status Pilot (Oct. 20, 2017), available at
https://semspub.epa.gov/work/HQ/197017.pdf.
22 The authors reviewed public records available in FDEP’s database regarding active Superfund sites in Florida and could not verify the inclusion of Florida’s RBCA law as an ARAR in any feasibility studies. This absence may simply reflect a lack of discussion between EPA and state counsels in an ARAR identification scoping meeting usually recommended by the U.S. EPA.
23 CERCLA, Compliance with Other Laws Manual: Part II Clean Water Act and Other Environmental Laws and State Requirements, U.S. EPA Office of Solid Waste and Emergency Response 7-7 (Aug. 1989), available at https://semspub.epa.gov/work/HQ/174077.pdf.
24 Fla. Stat. §376.30701 (2), et seq. (2017).
25 See note 23 at 7-8, 7-9.
RALPH A. DEMEO,J.D., is a shareholder in the Tallahassee office of Baker Donelson, where he practices environmental, land use, and administrative law. He received his B.A. and M.A. from Stetson University, and his J.D. from Florida State University School of Law. He is past chair of ELULS.
JOHN K. POWELL,J.D., P.E., is the director of the City of Tallahassee’s Environmental Services and Facilities Department, and an adjunct instructor at the FSU-FAMU College of Engineering. He received his B.S. in engineering and J.D. from the University of Florida Levin College of Law.
JORGE CASPARY,P.G., is an associate with Littlejohn, Mann, and Associates, and is also vice president of WSource Group, a water resources and environmental consulting firm. He received his B.S. in geology from the University of Florida, and a B.S. in civil engineering from Florida State University.
This column is submitted on behalf of the Environmental and Land Use Law Section, Janet E. Bowman, chair, and Susan Martin, editor.
