On December 7, 2004, the Florida Department of Environmental Protection (DEP) briefed the Environmental Regulation Commission (ERC) on its controversial proposed cleanup rules including Chapters 62-780 (Global RBCA), 62-713 (HS), 62-770 (Petroleum), 62-777 (Cleanup Criteria), 62-782 (Dry Cleaning), and 62-785, F.A.C. (Brownfields). This ERC Briefing had been delayed several months due to extensive public comments, largely pertaining to the “Notice” provisions written into the rules immediately prior to the August 3, 2004 workshop. Many of the comments on this issue raised concerns about the Department’s authority to develop new notice requirements and the potential for these requirements to attract third party lawsuits.

     Based on the uproar at the August public Rule Workshop on August 3rd the Department revised the “Notice” provisions and also convened a meeting of the Methodology Focus Group of the Contaminated Soils Forum to discuss a number technical comments offered by interested parties. These technical comments focused on the “apportionment” of cleanup target levels to address cumulative risk targets of 1×10-6 for carcinogens and a hazard quotient of 1.0 for non-carcinogens, guidelines on the sampling requirements for soil investigations, and the so-called “3X rule”, which limits the maximum concentrations of soil contaminants left unaddressed by site cleanup activities.

     A fourth Rule Workshop was held on October 28th. Although the crowd of interested parties was smaller, DEP was again regaled with largely negative comments regarding the notice provisions and the many of the same technical issues. However, the Department indicated that it had nearly exhausted the concessions it was willing to make and stated its intention to take the Rules to the ERC for briefing and adoption without any further workshops. Accordingly, changes to the Rules between the October 28th Workshop and the December 7th ERC Briefing were relatively minor.

     At the December 7th ERC Briefing, representatives from the Department gave a slide presentation which provided a historical perspective on the use of RBCA in contaminated site management in Florida, a discussion of the newly incorporated RBCA provisions common to all of the rules, and an overview of the unresolved and/or controversial issues raised by interested parties over the course of the four Rule Workshops. A number of interested parties also took the opportunity to address the commissioners with their concerns related to the proposed Rules.

     During the five hour meeting, the ERC members engaged the Department representatives and other interested parties in discussions about several of the key rule provisions. There was a significant amount of discussion related to the statutory authority for the Notice provisions. The commissioners also queried DEP representatives on the rational behind the selection of a 3-fold bioavailability factor for arsenic, when the Methodology Focus Group had specifically recommended a 4-fold factor based on data from the DEP-funded bioavailability study conducted by Dr. Steve Roberts at the University of Florida. More detail?

     Since the December 7th Briefing, the Department has floated a potential compromise proposal to several industry organizations to allay their concerns over the Notice provisions. This compromise would require responsible parties to provide actual notice to the DEP and the local County Health Department within ten days of the discovery of off-site contamination that has migrated from the source property. The task of notifying adjacent property owners would presumably fall to the Department.

     This late-breaking compromise may clear one of the major hurdles to Rule adoption. However, many interested parties still have concerns over the restrictions placed on specific elements of risk assessment by the proposed Rules. If strictly enforced by Department officials, the Rule provisions related to cleanup target level apportionment, 3X “not to exceed” criteria, and more onerous sampling requirements will provide technical and financial obstacles to legitimate risk-based evaluations, particularly for soil contamination. These obstacles will create uncertainty for responsible parties about a successful outcome from these risk-based evaluations. As a result, responsible parties will increasingly choose the more costly, but more certain, path of managing the site to the default cleanup target levels.

     The ERC Rule Adoption Hearing is currently scheduled for February 2, 2005 in Tallahassee. Copies of the Rules and related materials from the December 7th ERC Briefing can be downloaded from the DEP website at: http://www.dep.state.fl.us/waste/categories/wc/pages/
ERCBriefing120704_Information.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).