Risk-based corrective action in Florida: how is it working?

• Author: DeMeo, Ralph A.
• Position: Environmental and Land Use Law

The Florida Legislature passed Committee Substitute for H.B. 1123, commonly referred to as "Global" RBCA, which was signed into law by then-Governor Jeb Bush on June 20, 2003. A decade has passed since the Florida Legislature enacted Global RBCA. This article highlights recent developments concerning Florida's RBCA process and forecasts potential future legislative and other regulatory activities, and demonstrates that the Florida RBCA process continues to evolve toward fulfillment of the Florida Legislature's goals and directives.

Global RBCA extended the use of risk-based corrective action to all contaminated sites resulting from a discharge of pollutants or hazardous substances when legal responsibility for site rehabilitation exists pursuant to other provisions of F.S. Chs. 376 and 403. Prior to 2003, risk-based corrective action in Florida was used at contaminated sites under the supervision of specific Florida Department of Environmental Protection (FDEP) programs, namely: the Petroleum Program, the Brownfield Program, the Drycleaning Facility Restoration Program, and, in rare instances, facility-specific consent orders. Risk-based corrective action utilizes site-specific data, modeling results, risk assessment studies, institutional controls, such as deed restrictions limiting future use to industrial; engineering controls, such as placing an impervious surface over contaminated soils to prevent human exposure; or any combination thereof. These are used to develop a unique remediation strategy for the site that considers the intended use of the property and aims to protect human health, safety, and the environment "under actual circumstances of exposure" as provided in F.S. [section]376.30701 (2013). Based upon this information, RBCA may incorporate engineering controls, institutional controls, or even alternative cleanup target levels (CTLs) without controls to achieve a "no further action" determination from FDEP. Further, site-specific, naturally occurring background may be used in the RBCA evaluation and recommendations.

Prior to the introduction of risk-based corrective action at nonprogram sites, contamination at a site was typically remediated to the default CTLs contained in F.A.C.R. 62-777.170, at which point, site rehabilitation would typically be deemed complete. Consequently, there was little flexibility to provide for site-specific remediation strategies. For example, the soil CTLs are flexible only to the extent that there are two sets of default CTLs: one set for property used for residential purposes following remediation, and the other for sites used for industrial purposes following remediation. Furthermore, the residential soil CTLs are highly conservative, and were developed based on the assumption that individuals will be at their residence for 350 days per year and live at the same place for 30 years, or in the case of industrial property, that a worker will spend 250 days per year and 25 years at the same workplace. As such, contaminated property was often remediated to conservative residential or industrial levels even though "actual circumstances of exposure" were, in reality, far less than the assumed exposure. Consequently, remediation was often inefficient and overly expensive. Shortly after the statute became effective, FDEP commenced what was to become a lengthy and contentious rulemaking process designed to implement the provisions of the Global RBCA statute. Some of the most vigorous debates during the rulemaking process concerned the notice provisions, which required owners of contaminated property, upon the discovery of contamination beyond their property boundaries, to notify neighboring property owners that pollutants were discovered on or under their property. In 2005, F.A.C. Ch. 62-780, the Global RBCA rule, finally became effective, providing contaminated site cleanup criteria.

The goal of risk-based corrective action in Florida was to provide for a flexible site-specific cleanup process that reflected the intended use of the property following cleanup, while maintaining adequate protection of human health, safety, and the environment through the evaluation of the toxicity of the contamination and exposure pathways...