Barring the possibility of a rule challenge, the final act of the long-running Global RBCA rulemaking saga played out in Tallahassee on February 3rd when Florida’s Environmental Regulation Commission (ERC) held an adoption hearing for Chapters 62 780 (Global RBCA), 62 770 (Petroleum), 62 777 (Cleanup Criteria), 62 782 (Dry Cleaning), and 62 785 (Brownfields), F.A.C. All the rules were adopted.

During the period between the December ERC Briefing and the February ERC Adoption hearing the FDEP modified the “Notice” provisions of each of the rules to avert a potential rule challenge. The new notice provisions require responsible parties to provide actual notice only to FDEP and the local County Health Department within ten days of the discovery of off-site contamination. The revisions also raised the burden of proof from a reasonable inference of off-site migration to the detection (by analytical data meeting appropriate quality assurance protocols) of site-related contamination beyond the boundary of the source property. This represents a significant change from the provisions earlier rule drafts, which many warned would result in more 3rd party litigation.

The ERC considered more than fifty proposed amendments to one or more of the rules. Most of these were housekeeping amendments that corrected grammatical errors and other minor issues. However, a few more substantive amendments were considered. Several of these are discussed briefly below.

At the adoption hearing, the Legal Environmental Assistance Foundation (LEAF) offered an amendment to each of the rules that would have prohibited site management strategies that include indefinite use of off-site institutional controls when a contaminant plume leaves the source property boundaries, if the neighboring property owner agreed to place engineering and/or institutional controls on his/her property. LEAF argued that FDEP did not have statutory authority to approve such measures. FDEP’s attorneys successfully argued otherwise and the amendment failed for the lack of a motion to approve it by the ERC.

LEAF offered a second amendment to Chapter 62-777 that would have eliminated FDEP’s use of a 33% bioavailability adjustment factor in the calculation of the Soil Cleanup Target Levels (SCTLs) for arsenic. This bioavailability adjustment factor is the outcome of an FDEP-funded study at the University of Florida the results of which have been discussed extensively and debated over the past several of years by Florida’s Contaminated Soils Forum. The use of the bioavailability adjustment factor raises the default SCTLs for arsenic from 0.8 mg/kg to 2.1 mg/kg (residential) and from 3.7 mg/kg to 12.0 mg/kg (commercial/industrial). LEAF argued that these adjustments were not sufficiently supported by the current research. This amendment also failed.

The Florida Petroleum Marketers and Convenience Store Association (FPMA) offered an amendment to Chapter 62-770 that would have modified the Petroleum Rule so that it was consistent with Chapter 62-780 with regard to “de minimis discharges.” Chapter 62-780 allows a responsible party to remediate contaminant releases without requiring the submittal of a formal report to the Department. FMPA argued that a similar option should be available under the Chapter 62-770. FDEP argued that the Petroleum rule already specified a minimal discharge volume below which no reporting is required and that it needed to maintain tighter controls on the cleanup process because the State is funding many of the petroleum cleanups. This amendment failed.

FPMA offered two additional amendments to Chapter 62-770 that would have changed when and to whom notification of a temporary point of compliance beyond the source property boundary must be provided. FPMA argued that the rule language was an invalid exercise of delegated legislative authority because FDEP had gone beyond the specific provisions of the referenced statutes. Both of these amendments failed.

Following the ERC adoption hearing, FPMA filed a formal challenge to Chapter 62-770 claiming an invalid exercise of delegated legislative authority with regard to the notice requirements associated with establishing a temporary point of compliance beyond the source property boundary. As a result of this challenge, the Petroleum rule will follow a different timeline for adoption than the other rules.

FDEP plans to publish the amended rules to the Bureau of Waste Cleanup’s website (http://www.dep.state.fl.us/waste/categories/wc/default.htm). The Notice of Change was published on March 4th. A 21-day period follows the publication during which legal challenges to the proposed rules may be filed. If there are no challenges, FDEP has indicated that the rules should become effective in mid-April.

After that, things will get interesting. It is my personal opinion that the complexity and highly prescriptive nature of the RBCA process detailed in Global RBCA and other “program” rules will prove challenging to implement at many sites. If strictly enforced, several of the more technical rule elements such as cleanup target level apportionment, the 3X “not to exceed” criterion, and highly prescriptive sampling requirements will create technical and financial obstacles to appropriate risk-based evaluations.
 

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).