On September 13th the Florida Department of Environmental Protection (DEP) announced a postponement of the adoption schedule for its “Global RBCA” Rule (Chapter 62-780, F.A.C.). The proposed Rule extends RBCA principles to all sites contaminated as the result of a prohibited discharge of pollutants or hazardous substances. Currently, DEP rules limit the use of risk assessment principles – and the remediation flexibility that arises out of the use of those principles – to sites in one of the DEP’s waste cleanup programs (i.e., Petroleum, Drycleaning, and Brownfields).

     This postponement followed the third in a series of public workshops on this and related rules (i.e., Chapters 62-713, 62-770, 62-777, 62-782, and 62-785, F.A.C.) held on August 3, 2004. Several new provisions common to all of the rules were unveiled for the first time at the workshop and they received a cool reception from the regulated community. DEP also announced an aggressive rule adoption schedule, with a proposed ERC briefing late August and an ERC adoption hearing in September. Because of this compressed adoption schedule, the public comment period was limited to the two weeks following the August 3rd workshop. Even so, DEP received a substantial volume of largely negative comments on the proposed rules.

     So what is all of the fuss about? In 2003, when Governor Bush signed the bill that authorized the DEP to develop a Rule extending RBCA to all contaminated sites in the State, the bill was generally hailed as good news for industry and those in the business of rehabilitating and redeveloping contaminated sites. After all, RBCA allows responsible parties to tailor the level of evaluation and remedial activities to the complexity of the contamination at the site. It also allows the use of engineering and institutional controls – as forms of “remedial activity – because these controls eliminate particular exposure pathways and thus risk to human health and the environment. Unfortunately, a mixed bag of policy and technical issues with the proposed rules has made DEP’s current version of Global RBCA hard for the regulated community to swallow.

     The policy issue that is the most problematic for the regulated community is the strict “notice” provisions that would require responsible parties to provide actual and constructive notice to adjacent property owners when off-site contamination is discovered. In addition, the new notice provisions establish deadlines for providing notice, which range from 3 days, when an “imminent threat of exposure” exists (as defined in the Rule), to 30 days for non-imminent situations. These new provisions were drafted in response to criticism of the Department’s actions in a few high profile cases in which neighboring property owners had not been notified about off-site migration of chemicals from contaminated sites. Many groups and individuals provided comments to the DEP on the legal implications as well as the practical limitations associated with the proposed notice provisions.

     Several of the significant technical issues include: 1) new provisions requiring the “apportionment” (in effect, lowering) of cleanup target levels for all site-related chemicals in order to meet the cumulative risk targets specified in the legislation; 2) new guidelines on the methodology for evaluating how receptors are exposed to soil contamination; 3) new provisions that require the use of a specific and as yet, untested software tool to estimate exposure to contaminated soil; and 4) a new provision that arbitrarily limits the maximum amount of contaminated soil left unaddressed by site rehabilitation activities. Several groups and individuals (including this author) indicated in their comments that collectively, these rule provisions are a disincentive to conducting true risk-based evaluations at many sites because it will be easier to cleanup to the default target levels.

     In an effort to further the dialog on these technical issues, the FDEP convened a meeting of the Contaminated Soils Forum’s Methodology Focus Group on August 30, 2004. At that meeting, the Department accepted several of the proposals offered by stakeholders and expressed a willingness to consider others when revising the rules.

     At the same time that DEP announced the postponement of the Rule adoption schedule, it also announced its intention to schedule a fourth public workshop on Chapter 62-780 and the related Rules. That workshop is tentatively scheduled for Thursday October 28, 2004 in Tallahassee. Copies of the Rules and related materials from workshop materials can be downloaded from the DEP website at: http://www.dep.state.fl.us/waste/categories/wc/pages/
CombinedRuleWorkshopInformation.htm.


Author Bio
Chris Saranko is a Senior Toxicologist with GeoSyntec Consultants in Tampa, Florida. His practice focuses on human and ecological risk assessment and other applied toxicology issues. He received a B.A. in Biological Sciences from Clemson University, a Ph.D. in Toxicology from North Carolina State University, and completed a post-doctoral fellowship at the University of Florida’s Center for Environmental and Human Toxicology. He is also a Diplomate of the American Board of Toxicology (DABT).