Florida Bar Journal

Risk-Based Corrective Action in Florida: How Is it Working?

The Florida Legislature passed Committee Substitute for H.B. 1123, commonly referred to as “Global” RBCA, which was signed into law by then-Governor Jeb Bush on June 20, 2003. A decade has passed since the Florida Legislature enacted Global RBCA. This article highlights recent developments concerning Florida’s RBCA process and forecasts potential future legislative and other regulatory activities, and demonstrates that the Florida RBCA process continues to evolve toward fulfillment of the Florida Legislature’s goals and directives.

Global RBCA extended the use of risk-based corrective action to all contaminated sites resulting from a discharge of pollutants or hazardous substances when legal responsibility for site rehabilitation exists pursuant to other provisions of F.S. Chs. 376 and 403. Prior to 2003, risk-based corrective action in Florida was used at contaminated sites under the supervision of specific Florida Department of Environmental Protection (FDEP) programs, namely: the Petroleum Program, the Brownfield Program, the Drycleaning Facility Restoration Program, and, in rare instances, facility-specific consent orders. Risk-based corrective action utilizes site-specific data, modeling results, risk assessment studies, institutional controls, such as deed restrictions limiting future use to industrial; engineering controls, such as placing an impervious surface over contaminated soils to prevent human exposure; or any combination thereof. These are used to develop a unique remediation strategy for the site that considers the intended use of the property and aims to protect human health, safety, and the environment “under actual circumstances of exposure” as provided in F.S. §376.30701 (2013). Based upon this information, RBCA may incorporate engineering controls, institutional controls, or even alternative cleanup target levels (CTLs) without controls to achieve a “no further action” determination from FDEP. Further, site-specific, naturally occurring background may be used in the RBCA evaluation and recommendations.

Prior to the introduction of risk-based corrective action at nonprogram sites, contamination at a site was typically remediated to the default CTLs contained in F.A.C.R. 62-777.170, at which point, site rehabilitation would typically be deemed complete. Consequently, there was little flexibility to provide for site-specific remediation strategies. For example, the soil CTLs are flexible only to the extent that there are two sets of default CTLs: one set for property used for residential purposes following remediation, and the other for sites used for industrial purposes following remediation. Furthermore, the residential soil CTLs are highly conservative, and were developed based on the assumption that individuals will be at their residence for 350 days per year and live at the same place for 30 years, or in the case of industrial property, that a worker will spend 250 days per year and 25 years at the same workplace. As such, contaminated property was often remediated to conservative residential or industrial levels even though “actual circumstances of exposure” were, in reality, far less than the assumed exposure. Consequently, remediation was often inefficient and overly expensive. Shortly after the statute became effective, FDEP commenced what was to become a lengthy and contentious rulemaking process designed to implement the provisions of the Global RBCA statute. Some of the most vigorous debates during the rulemaking process concerned the notice provisions, which required owners of contaminated property, upon the discovery of contamination beyond their property boundaries, to notify neighboring property owners that pollutants were discovered on or under their property. In 2005, F.A.C. Ch. 62-780, the Global RBCA rule, finally became effective, providing contaminated site cleanup criteria.

The goal of risk-based corrective action in Florida was to provide for a flexible site-specific cleanup process that reflected the intended use of the property following cleanup, while maintaining adequate protection of human health, safety, and the environment through the evaluation of the toxicity of the contamination and exposure pathways by which human and environmental receptors may be exposed. The regulated community’s hope was that Global RBCA would result in significant cost savings during remediation, leading to quicker, more efficient cleanups, and more properties being remediated.

Recent Developments in Florida RBCA
• Waste Cleanup Rule Consolidation — In March 2012, FDEP initiated rulemaking to merge existing rule chapters for the Petroleum, Brownfield, and Drycleaning Facility Restoration programs into F.A.C. Ch. 62-780. The rulemaking purpose was to achieve rule consolidation and consistency across the programs. Concurrently, FDEP proposed repeal of F.A.C. Chs. 62-770 (petroleum), 62-782 (drycleaning), and 62-785 (brownfield sites). At the end, the goal of the rulemaking was to consolidate the then-existing RBCA rule chapters into a single rule chapter to address the criteria and process for conducting site remediation at all types of contaminated sites across Florida in a consistent fashion. FDEP anticipated an easy rulemaking, but had to address a number of comments from the Joint Administrative Procedures Committee (JAPC) before the rulemaking was finally completed in June 2013.

• Rulemaking in Response to Associated Industries of Florida Petition — A variety of important changes were completed in 2014 to modify the contaminated site cleanup criteria rule to address a rulemaking petition filed by the Associated Industries of Florida (AIF) in September 2011. That petition sought clarification and specificity in the rules “to insure consistency of Rule Chapters 62-777 and 62-780, F.A.C. with requirements of Section 376.30701, Florida Statutes.” More specifically, there was a goal of ensuring that risk assessment processes in the state were directed to satisfy the statutory directive that Florida citizens be protected “under actual circumstances of exposure” as expressed in F.S. §376.30701 (2013).

The rule changes ultimately were promulgated by FDEP in February 2014, following multiple meetings and workshops among FDEP and interested stakeholders over the intervening two-and-a-half years. Highlights of the rule language changes include the following specific areas:

• F.A.C.R. 62-780.100 notes that use of referenced guidelines in this chapter are not mandatory.

• F.A.C.R. 62-780.600(5)(c)2 specifies that use of soil properties for alternate CTL development has flexibility.

• F.A.C.R. 62-780.600(8)(b)3 specifies that protective risk levels must be protective to the degree provided by F.S. Ch. 376.

• F.A.C.R. 62-780.650 establishes sources and hierarchy of exposure factors for risk assessment, addresses apportionment for multiple chemicals as applied to alternative CTLs, addresses probabilistic risk assessment (PRA) approaches and identifies available constraints/flexibilities in that process, requires FDEP to specify the basis for rejection of a risk assessment report, if that occurs.

• F.A.C.R. 62-780.680(3) notes that institutional controls (IC) may be required under Risk Management Options Level III and addresses other IC specifics.

• F.A.C.R. 62-780.680(6) requires FDEP to specify the basis for rejection of a no further action proposal, if that occurs.

• Streamlining of Institutional Controls Approval Process — On a parallel track with the AIF rulemaking, FDEP developed additional revisions to its Institutional Controls Procedures Guidance (ICPG). The ICPG provides important information on the processes to be followed in developing appropriate institutional controls which, upon review and approval by FDEP, become the basis for conditional closure of a contaminated site. The most recent ICPG changes addressed JAPC nonrule policy concerns with the prescriptive tone of the guidance document as well as additional clarification regarding engineering control maintenance plans, and additional notice requirements to recorded interest holders and for hazardous waste cleanup sites. FDEP issued a revised ICPG in November 2013. FDEP continues to consider additional revisions to its ICPG.

• Reestablishment and Activities of the Contaminated Media Forum — In November 2013, FDEP convened a second iteration of the Contaminated Soils Forum (now called the Contaminated Media Forum or CMF) to initiate stakeholder dialog to explore policy changes for Florida’s RBCA process, potential toxicological updates, and other revisions to FDEP’s RBCA-related rules. In the late 1990s and early 2000s, the former Contaminated Soils Forum assisted FDEP by providing valuable input in what ultimately became global application of the Florida risk-based corrective action program to all contaminated sites in the state. The CMF is currently considering a number of topics, including ecological risk assessments, soil cleanup target level direct exposure and leachability considerations, institutional and engineering control issues, soil and groundwater background determinations, and potential updates to the cleanup target levels in F.A.C. Ch. 62-777. After its November organizational meeting, CMF work groups conducted a series of telephone conference calls and, subsequently, presented their findings and recommendations for agency consideration at the last CMF meeting in February 2014. CMF and CMF work group activities continue and additional CMF meetings are expected.

• November 2013 FDEP Guidance on Site Closure with Conditions — FDEP issued a memorandum clarifying some important points regarding conditional site closure. The memorandum emphasized that site closure, with conditions, is codified in F.A.C. Ch. 62-780, and is a form of site closure strictly based on voluntary acceptance by the property owner. It was important to specify that FDEP cannot and will not obligate or force a site owner to close a site with conditions. The memorandum also clarified that, in addition to restrictive covenants, acceptable institutional controls may include local ordinances and other governmental controls that impose restrictions on land use or resource use.¹

• June 2014 FDEP DOT Memorandum of Understanding — In June 2014, FDEP announced its completion of an agreement with the Florida Department of Transportation (DOT) addressing how petroleum contamination in DOT rights-of-way are to be addressed by FDEP and those responsible for conducting site cleanup that are seeking closure of a contaminated site. The agreement provides FDEP with the flexibility to close a petroleum cleanup site when contaminated media exists below state roadways, as long as the contaminant plume below the state road has not migrated beyond the right-of-way and into private property, wherein certain notification requirements between both agencies must take place. While currently limited to petroleum contamination, the agreement may provide valuable regulatory precedent for future application to nonpetroleum cleanup sites.

• Notable FDEP Site Decisions — Shortly after posting its November 2013 guidance on site closure with conditions, FDEP issued a site rehabilitation completion order with conditions for a cleanup site in Palm Beach County that relied upon local government ordinances, resolutions, and development orders that prohibited the use or withdrawal of groundwater for potable or nonpotable uses.²

In addition, FDEP has issued at least two written site determinations concluding that arsenic concentrations in soil at specific sites were naturally occurring and that site rehabilitation requirements under F.A.C. Ch. 62-780, did not apply.³ Until very recently, the agency had not issued such written determinations for sites when FDEP did not have regulatory cleanup jurisdiction.

What’s on the Horizon?
A number of risk assessment proposals for development of site-specific CTLs were filed with FDEP since promulgation of the F.A.C. Ch. 62-780 rule changes in February 2014. These proposals included important chemical substances, such as arsenic and polychlorinated dibenzodioxins, and have been prepared using criteria and procedures defined in the revised rule. It is anticipated that these and other proposals to FDEP will be undergoing review and comment prior to site-specific implementation. The principal impetus for these proposals was to address potential risks under actual circumstances of exposure as outlined in F.S. §376.30701 (2013), and to implement the flexibility now laid out in sections of the Contaminated Site Cleanup Criteria Rule.

• FDEP Rulemaking to Implement CMF Recommendations — Additional rulemaking is one potential outcome of the recent CMF meetings convened by FDEP. The principal CMF workgroups are working to prepare recommendations that may address further conceptual changes to F.A.C. Ch. 62-780, such as institutional controls, apportionment for multiple chemicals, hierarchy of toxicity values, or may seek to modify the way in which CTLs are calculated and articulated in F.A.C. Ch. 62-777, as described in the following section.

• Updates to CTLs in F.A.C. Ch. 62-777 — Given that nearly a decade has passed since the most recent revisions to F.A.C. Ch. 62-777, CTLs for soils and groundwater, there has been significant recent discussion regarding schedule and scope for updating of the CTLs. It now appears likely that such rulemaking may occur in 2015, and that rulemaking may address a variety of elements that are inherent to values presented in F.A.C. Ch. 62-777. These important elements include the following, all of which have been the subject of ongoing technical and policy discussions among members of the CMF.

• F.A.C. Ch. 62-777 pertains to eight chemicals (of ~475 total) specifically for acute toxicity, for which seven were the subject of default SCTLs based on acute toxicity considerations, assuming single-event exposure by a small child to a relatively large soil quantity (10 grams). This has the effect of dramatically decreasing the soil CTLs for those substances, well below levels that apply under standard chronic exposure considerations. Possible changes include elimination of the acute toxicity-based SCTLs, or revision of those values based upon modified exposure assumptions.

• CTLs now are calculated using deterministic (point estimate) approaches in which a single value is used for each variable in the calculation. It also is possible to use probabilistic approaches in which statistical distributions of values are used for some or all of the variables in deriving default and/or site-specific CTLs, a process that is identified explicitly in F.A.C. Ch. 62-780. A concern with the deterministic approach is that it can compound conservative assumptions and may not be well-suited to address F.S. §376.30701 (2013) requirements regarding risks under actual circumstances of exposure. Possible changes include development of guidance on deriving CTLs using PRA methods, or fully revising F.A.C. Ch. 62-777 defaults using probabilistic approaches and selected exposure distributions.

• Toxicity values for some chemicals are available from multiple sources, and sources vary in their basis and extent of peer review. The choice for source of a toxicity value for a chemical can influence the CTL. F.A.C. Rules 62-777 and 62-780.650, and the U.S. Environmental Protection Agency regional screening levels (RSLs) are each different with respect to preferred sources for toxicity values. Different preferences for toxicity value sources leads to inconsistencies in potential cleanup criteria. Possible changes include adoption of a hierarchy of toxicity value sources that is consistent within FDEP and/or consistent with EPA.

• CTLs are calculated using formulas that account for various routes of exposure and toxicity of the chemical. Formulas used to calculate F.A.C. Ch. 62-777 CTLs may be different from those used by EPA. For example, the existing FDEP formula for groundwater captures only ingestion, while EPA considers inhalation and dermal exposure. For soil, formulas used by FDEP and EPA calculate aggregate residential exposure differently. Possible changes include leaving formulas as they are, or modifying some/all formulas in F.A.C. Ch. 62-777 to be consistent with EPA.

• Some of the exposure assumptions underlying F.A.C. Ch. 62-777 CTLs have changed since 2005. Also, groundwater CTLs do not explicitly consider childhood exposure. It was suggested that F.A.C. Ch. 62-777 CTLs may no longer reflect timely exposure information. Possible changes include leaving assumptions as they are, or reevaluation of the exposure assumptions used in CTL derivation.

• Potential for Statutory Changes by 2015 Florida Legislature — In addition to the further rulemaking activities that may be designed to define and clarify existing regulations, it is possible that there will be proposed legislative actions to address other elements of RBCA in Florida. Some areas that have been discussed include:

• Implementation of a risk range (e.g., 10:4 to 10:6, or 1-in-10,000 to 1-in-1,000,000) to replace the current specification of a single-risk target of 10:6. There may be options to include the noncarcinogenic hazard index (HI) endpoint in such statutory approaches.

• Additional flexibility for consideration of anthropogenic (human-caused) background concentrations of contaminants in environmental media when it is demonstrated to be unrelated to the site contamination being addressed, such as in urban areas with diffuse industrial and vehicular impacts.

• Allowing, under certain specified circumstances, contaminated site regulatory closure in instances in which the only cleanup target levels being exceeded are those for groundwater, which are derived from nuisance, organoleptic, or aesthetic considerations under limited circumstances.

As discussed above, there has been tremendous activity in the area of risk-based corrective action in Florida. The conclusion that most substantially affected parties agree upon is that while these developments have been largely welcome and constructive, there is still a long way to go to achieve fair and balanced remediation of contamination resulting from a discharge of pollutants or hazardous substances in Florida. Stakeholders should continue to monitor the efforts of FDEP through workshops, rulemaking, and other activities, as well as continue to watch the Florida Legislature in upcoming sessions.

¹ Jorge R. Caspary, Site Closure with Conditions, FDEP Memorandum (Nov. 1, 2013), available at http://www.dep.state.fl.us/waste/quick_topics/publications/pss/ SiteClosureConcernsMemo_01Nov13.pdf.

² See Jill S. Creech, FDEP, Amended Conditional Site Rehabilitation Completion Order Appolonia Property (Jan. 10, 2014).

³ See John M. Inglehart, FDEP, Determination of Background Conditions and the Applicability of Site Rehabilitation Requirements Fifth Third Bank-Cattlemen Road Property (Oct. 11, 2013); Jorge R. Caspary, FDEP, Determination of Background Conditions and the Applicability of Site Rehabilitation Requirements Highland Dunes Property (June 16, 2014). All of the above FDEP determinations are available on FDEP’s website, www.dep.state.fl.us.

Ralph A. DeMeo is a shareholder in the Tallahassee law firm of Hopping Green & Sams. He received his B.A. and M.A. from Stetson University and his J.D. from Florida State University. He is past chair of ELULS and of The Florida Bar Journal Editorial Board, and current chair of the Animal Law Committee.

Michael P. Petrovich is a shareholder in the Tallahassee law firm of Hopping Green & Sams. He received his B.A. from Indiana University and his J.D. from Florida State University.

Christopher M. Teaf received his B.S. from Penn State University, M.S. from Florida State University, and Ph.D. from the University of Arkansas Medical School. He is associate director of the FSU Center for Biomedical and Toxicological Research, as well as director of toxicology for hazardous substance and waste management research.

This column is submitted on behalf of the Environmental and Land Use Law Section, Kelly Kathleen Samek, chair, and Susan Roeder Martin, editor.