In early 2014, we reported on a number of the Florida Department of Environmental Protection’s (DEP) Division of Waste Management (DWM) activities reshaping important waste management programs. As reported then, the last quarter of 2013 was extremely active for the DWM and that has continued through the first half of 2014. The following is a mid-year update on those DWM efforts.
Petroleum Restoration Program Overhaul Largely Complete
In 2013, DEP sought to provide increased fiscal accountability to the Petroleum Restoration Program (Program) by scrapping the well-established contractor pre-approval process in favor of competitive procurement. In 2013, DEP unsuccessfully lobbied for these statutory changes. The Florida Legislature did respond, however, by including language in specific appropriation 1668 of the 2013-2014 General Appropriations Act, conditioning the release of $75 million of appropriated Program funds upon DEP adopting rules by January 1, 2013, to improve the effectiveness and efficiency of the Program.
Shortly after close of the 2013 legislative session, DEP published proposed rules overhauling the Program. New chapter 62-772, Florida Administrative Code (F.A.C.), the “procurement rule,” requires that all future work to be performed under the Program must be competitively procured. Under the proposed rule, the majority of the work will be awarded to a pool of qualified contractors (term contractors) developed through a procurement process consistent with section 287.057, Florida Statutes (F.S.).
In addition to the procurement rule, DEP also proposed revisions to existing chapter 62-771, F.A.C., the “scoring rule,” to prioritize funding and rehabilitation work to sites that pose the greatest risk to human health and the environment. These revisions require DEP to re-evaluate the site’s priority funding at various stages in the assessment and remediation process and to deduct points from a site score once the threat has been assessed and effectively addressed.
The proposed rules were adopted in late December 2013 and the revisions to chapter 62-771 and new chapter 62-772 became legally effective in January 2014.
In March 2014, the Program transformation was further cemented by the Florida Legislature’s passage of legislative changes to chapter 376, F.S.(chapter 2014-151, Laws of Florida) to reflect the revamped Program. Those statutory changes went into legal effect on July 1, 2014.
Other Waste Cleanup Developments
As previously reported, in September 2013, additional changes to chapter 62-780, F.A.C., were proposed by DEP in response to a petition to initiate rulemaking filed by Associated Industries of Florida (AIF). That petition sought increased regulatory flexibility in the Florida risk-based corrective action process to allow for use of non-site specific toxicological information and probabilistic risk assessment methods in establishing alternative cleanup target levels. DEP published a subsequent Notice of Change in November 2013, in response to Joint Administrative Procedures Committee (JAPC) comments and the agency rule amendments became legally effective in February 2014.
In November 2013, Jorge Caspary, DWM Director, issued a memorandum clarifying some important points regarding conditional site closure. The memorandum emphasized that site closure with conditions is codified in chapter 62-780, F.A.C., and is a form of site closure strictly based on voluntary acceptance by the property owner, and that DEP 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 include local ordinances and other governmental controls that impose restrictions on land use or resource use. That agency guidance memorandum was the precursor to a DEP determination in January 2014 for a cleanup site in Palm Beach County where the agency issued a site rehabilitation completion order with conditions based on local government ordinances, resolutions, and development orders, which prohibited the use or withdrawal of groundwater for potable or non-potable uses. Similar site determinations may well follow.
In addition, over the last several months, DEP has issued at least two relatively novel written site determinations concluding that arsenic concentrations in soil at those sites were naturally occurring and that site rehabilitation requirements under chapter 62-780, F.A.C., did not apply. Until very recently, the agency was not open to issuing such written determinations for sites where DEP did not have regulatory cleanup jurisdiction under its authorizing statutes and implementing rules.
In June, the agency announced its completion of an agreement with the Florida Department of Transportation (DOT) addressing how petroleum contamination in DOT rights-of-way is to be addressed by DEP and site owners seeking closure of a contaminated site. The agreement provides DEP with the flexibility to close a petroleum cleanup site where contaminated media exists below state roadways so long as the contaminant plume below has not migrated beyond the right-of-way and into private property, and certain notification requirements between both agencies are satisfied. While currently limited to petroleum contamination, the agreement may provide valuable regulatory precedent for future application to non-petroleum cleanup sites.
Contaminated Media Forum
In November 2013, the agency convened a second iteration of the Contaminated Soils Forum (now called the Contaminated Media Forum or CMF) to initiate stakeholder dialogue to explore rule, policy, and potential toxicological updates to DEP’s waste cleanup rule and the Florida risk-based corrective action process. In the late 1990s and early 2000s, the former Contaminated Soils Forum assisted DEP 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 chapter 62-777, F.A.C. After its November organizational meeting, CMF’s work groups conducted a series of telephone conference calls, and the work groups and the entire CMF met face-to-face in late February 2014. During those meetings, several of the work groups presented preliminary recommendations to DEP for the agency’s consideration. Those recommendations are available on DEP’s website on the CMF web page (http://www.dep.state.fl.us/waste/categories/csf/). Most recently, DEP initiated another CMF work group to address issues associated with DEP’s implementation of probabilistic risk assessment methods. That work group met in June, and further discussion on this topic is expected. DEP also recently issued a draft guidance memorandum for public review and comment concerning application of exposure-based soil cleanup target levels for subsurface soils. It is anticipated that the next CMF meeting will be held before the end of the summer.
Waste Management Facilities
In November 2013, DEP initiated Phase II of its revisions to chapter 62-701, F.A.C., concerning solid waste management facilities. The rulemaking addresses a variety of issues including more detailed hydrogeological and geotechnical investigation requirements (particularly in unstable geologic areas with potential for sinkhole development), beneficial use of ash residue from waste to energy facilities, financial assurance requirements, statutory requirements that construction and demolition (C&D) debris disposal facilities be constructed with liner systems, and C&D debris recycling and disposal. A second rule development workshop was conducted in March 2014, and the agency is finalizing its proposed rule amendments. DEP staff is planning to brief the Environmental Regulation Commission (ERC) on these rule amendments in August, with a subsequent ERC adoption hearing soon thereafter.
Storage Tank Systems
DEP conducted a rule workshop in July 2013 regarding draft revisions to the underground storage tank (UST) rules. Specifically, in accordance with the Federal Energy Policy Act, the revisions will require owners and operators of USTs to undergo training and certification. In addition, the agency developed draft rule provisions authorizing DEP to prohibit delivery of pollutants to a non-compliant facility (e.g., USTs that do not have secondary containment or a method of release detection). The rulemaking is near completion following DEP’s June 24, 2014, publication of additional rule revisions in response to comments from the JAPC. The agency expects all of the rule revisions to be legally effective in late August or early September.
In December 2013, in a separate rulemaking addressing both USTs and aboveground storage tanks (AST), DEP reinitiated a long dormant rulemaking to substantially overhaul its UST and AST rules, chapters 62-761 and 62-762, F.A.C. DEP has bifurcated the rulemaking schedule for these rules due to the formation of an AST Technical Advisory Group (TAG) that is assisting the agency with technical and regulatory issues unique to AST systems, particularly large field-erected ASTs. The AST TAG consists of stakeholders from industry, DEP, local government, and port facilities.
The agency’s plan is to complete its UST rulemaking by the end of this year, while the AST rulemaking is scheduled to finish by the end of 2015 to allow for completion of the AST TAG effort. A number of AST TAG meetings have been held over recent months with the next AST TAG meeting scheduled for August 6, 2014, in Tampa.
What is Left for 2014?
Over the next few months, we anticipate that the agency will focus on finalizing the CMF recommendations for potential statutory and regulatory revisions, including potential updates to its cleanup target levels. Indeed, it is largely expected that the agency will move forward in 2015 with updates to the cleanup target levels found in chapter 62-777, F.A.C., to incorporate new toxicological and other technical information used in development of the cleanup target levels. Nearly a decade has passed since the last cleanup target levels update. While it is expected that all of these regulatory activities will continue, they will likely proceed at a somewhat slower pace until the results of the November gubernatorial election are known.