Last year was particularly busy for the Florida Department of Environmental Protection’s (DEP) Division of Waste Management (DWM) as it reshaped important waste management programs. While there was a definite crescendo in activities during the final quarter of 2013, it is anticipated that the DWM will to continue into 2014 with similar gusto. The following is a review of some of the DWM’s activities over the past year and an overview of what to expect in 2014.
Overhaul of Petroleum Restoration Program
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. DEP lobbied the Florida Legislature for statutory changes, but was ultimately unsuccessful in its efforts. The Legislature did act, 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.
On May 30, 2013, a mere four weeks after the close of the 2013 legislative session, FDEP 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.). It is unknown at this time how many Term Contractors will be in the pool. While the rules establish additional methods of awarding Program work, it is generally understood that the vast majority of work will be awarded to the Term Contractors.
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.
DEP expects both chapters 62-771 and 62-772 to be legally effective in January 2014.
Other Waste Cleanup Activities
Welcome news arrived in February 2013, when it was announced that the consolidated waste cleanup rulemaking could be finalized following the resolution of concerns raised by the Joint Administrative Procedures Committee (JAPC). The rulemaking combined all of DEP’s cleanup program rules into chapter 62-780, F.A.C., and repealed more specific cleanup program rules for petroleum contamination, dry cleaning solvent contamination, and designated brownfield sites (i.e., chapters 62-770, 62-782, and 62-785, F.A.C.). But for the JAPC issues, that rulemaking would have been completed in the fourth quarter of 2012. The revised rules became legally effective in June.
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, in response to JAPC comments, and the agency expects these rule amendments to become legally effective in January 2014.
On a parallel track with the “AIF rulemaking,” DEP 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 DEP, become the basis for conditional closure of a contaminated site. The most recent ICPG changes address JAPC concerns with the prescriptive (i.e., “rule-like”) 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 Resource Conservation and Recovery Act corrective action sites. The proposed revisions were made public in July, and DEP subsequently considered public comment and issued a revised ICPG in November 2013. The revised guidance document should be available soon on DEP’s website. DEP also announced that it will continue to consider additional revisions to its ICPG in 2014. Finally, the agency is on the cusp of developing a memorandum of understanding with the Florida Department of Transportation (DOT) addressing how contamination in DOT rights-of-way are to be addressed by DEP and site owners seeking conditional closure of a contaminated site.
On a related note, in November 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. The November memorandum is available on DEP’s website.
Also in November, the agency convened a second iteration of the Contaminated Soils Forum (now called the Contaminated Media Forum or CMF) to initiate stakeholder dialog 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 work groups conducted a series of telephone conference calls in late December and will present their findings and recommendations for further consideration at the next CMF meeting, which is anticipated to occur in February or March 2014.
Waste Management Facilities
November continued to be a busy month for DEP as it 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. Written comments were due to DEP on December 20, and additional rule development activities are expected in early 2014. DEP’s goal is to complete its Phase II rulemaking by mid-2014.
Recycling in Florida received a boost when long-awaited revisions to chapters 62-716 and 62-722, F.A.C., finally became effective on December 17. These revisions are intended to enhance implementation of Florida’s statutory goal, found in section 403.7032, F.S., to recycle at least 75 percent of the municipal solid waste that would otherwise be disposed of in waste management facilities, landfills, or incineration facilities. Generally, chapter 62-716, F.A.C., establishes annual reporting requirements, and the methods and criteria by which the recycling rates will be calculated. In the rule, DEP also provided clarification on the types of activities that would be considered recycling. These include “any process by which municipal solid waste is reused or returned to use in the form of raw materials or products,” and specifically includes the use of raw materials or products as fuels or fuel substitutes. Rule 62-716.480(3)(c), F.A.C. The rule further clarifies that recycling does not include any use that constitutes disposal, even if that process does have some beneficial use. Examples include the use of unprocessed C&D debris to fill a borrow pit. The use of processed clean debris, or the use of other processed municipal solid waste authorized by the department pursuant to a permit for use as fill material, however, is generally not considered disposal.
DEP’s Solid Waste Section staff rounded out the year by holding webinars on recent agency guidance addressing Florida statutory changes authorizing an exception to the prohibition on disposal of yard trash in lined, Class I landfills for Class I landfills that have active gas collection systems and beneficially use the gas, as well as guidance on extended 10- and 20-year permit durations for qualifying solid waste management facilities. Those guidance documents are available on the agency’s website.
Storage Tank Systems
DEP conducted a rule workshop in July 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). Written comments have been reviewed and considered, and DEP expects to complete this rulemaking during the first quarter of 2014.
In December, in a separate rulemaking addressing both USTs and aboveground storage tanks (AST), DEP conducted a rule development workshop for chapters 62-761 and 62-762, F.A.C. The agency is reinitiating a long dormant rulemaking to substantially overhaul its UST and AST rules to delete obsolete provisions, update technical requirements, and reorganize each rule chapter to provide greater clarity. DEP is accepting written comments on its initial rule drafts until January 31, 2014. Additional rule workshops are expected in 2014.
Hazardous Waste/Special Waste
In early December, DEP hosted a webinar by a U.S. Environmental Protection Agency (EPA) representative regarding EPA’s final solvent-contaminated wipes rule, which was published by EPA on July 31, 2013, and which becomes legally effective on January 31, 2014. EPA’s rule provides a conditional exclusion from the definition of solid waste for solvent-contaminated wipes sent for cleaning (reusable wipes) and a conditional exclusion from the definition of hazardous waste for solvent-contaminated wipes sent for disposal. In October, DEP moved forward at the state level in proposing rules to incorporate by reference the new EPA regulations. DEP’s rulemaking process in this regard should be completed in advance of January 31, 2014.
The Year Ahead
The flurry of activity at the end of 2013 will likely spill over into 2014. In addition to the implementation of the revised Petroleum Restoration Program, chapter 62-701, F.A.C., Phase II rulemaking, and comprehensive updating of the agency’s storage tank rules, the CMF will begin developing recommendations for potential statutory and regulatory revisions to the waste cleanup statutes and rules, including potential revisions to cleanup target levels. DEP’s 2013-14 Annual Regulatory Plan also references the initiation of stakeholder dialog to identify potential changes to chapter 62-780, F.A.C., governing Florida’s risk-based corrective action process, as well as rule changes needed recognizing procedures being developed in chapters 62-771 and 62-772, F.A.C. for petroleum contamination sites.
The 2014 legislative session is rapidly approaching and committee meetings are scheduled for the week of January 6. It is not yet known what will be on DEP’s legislative agenda this year, but look for a renewed attempt at legislative revisions to the Petroleum Restoration Program providing greater accountability and oversight of clean-up contracts.