By Steve Hilfiker
Petroleum Cleanup Program
After unanimous approval through both houses last spring, a veto in the summer, and an override in the fall, House Bill 1385 has made it to law. The Florida Legislature voted to override the Governor’s veto of the bill in a Special Session on November 16, 2010. The law amends Florida Statute (FS) section 376.3071 subsection (5)(c), which allows Long Term Natural Attenuation Monitoring (LTNAM) strategies as outlined below, and subsection (11)(b), which is the primary focus of this article.
FS 376.3071(11)(b) now provides a Low-Scored-Site Initiative (LSSI) designed to reduce the backlog of sites in the petroleum cleanup program. The premise for LSSI is that the cleanup program has not sampled most of the low scored sites in many years. The initiative is based on the likelihood that many of these sites have attenuated naturally and are no longer impacted.
For sites scored 10 or less with state restoration funding eligibility, the law states that up to $10 million shall be encumbered annually from the Inland Protection Trust Fund for LSSI. A maximum of $30,000 per site is available for assessment and six months of groundwater monitoring, for sites that meet the criteria specified in paragraph (11)(b)1 of the law.
Funding will be available on a first-come, first-served basis and is limited to ten sites per fiscal year for each responsible party or site owner. The bill was silent on payment of deductibles and copayments but it did not amend other sections of the Florida Statutes regarding these subjects. Funding is not available for the establishment of institutional or engineering controls, which are mentioned in revised FS section (11)(b)1 only once. The reference is in paragraph (11)(b)1.f as the means to achieve the criteria if impacted soil that is subject to human exposure exists within two feet of land surface.
Based on paragraph (11)(b)2, if the assessment results demonstrate that no soil or groundwater impacts exist above the FDEP regulatory cleanup target levels, these sites can obtain a Site Rehabilitation Completion Orders (SRCO), which represent final agency action for properties that are regulated by FAC Chapter 62-770. If impacts exist but are contained within site boundaries, No Further Action (NFA) can be obtained if the criteria of (11)(b)1 are met. Per the law, the FDEP-issued determination of NFA acknowledges that minimal contamination exists onsite and that such contamination is not a threat to human health or the environment. An opinion is offered at the end of this article regarding restrictive covenants on the LSSI sites that meet the criteria for No Further Action.
The law states that any site with priority ranking scores of 10 or less may voluntarily participate in the program regardless of eligibility. NFA status for sites scored 10 or less and releases reported prior to 1995 has been available through non-reimbursable voluntary cleanup in accordance with FS section (11)(b) based on similar criteria since the 1990s. The new law makes the achievement of NFA status for sites 10 or less available through the use of state funding and opens the opportunity to any 10 and under site, not just those with discharges reported prior to 1995.
FS 376.3071(5)(c) introduces Long Term Natural Attenuation Monitoring (LTNAM) to the various means of compliance with the petroleum cleanup rule. LTNAM is designed to maximize the benefits of natural degradation and minimize remedial costs on sites where the plume is shrinking or stable and confined to the source property. If cost effective, this provision allows for the turning off of systems when sites reach NAM levels to allow for reviewing the feasibility of attenuation as the method to complete the cleanup.
The FDEP has indicated that it will be posting draft guidance for implementation of each of these new procedures on its web site in December. A two-week industry comment period will follow for each, and the FDEP anticipates a roll out date for the new procedures in January. The LSSI guidance is expected to be released and implemented first, with the LTNAM guidance and implementation to follow shortly thereafter. FDEP intends to have a public meeting on or about January 11, 2011 for going over both programs with the public.
The remainder of this article is my opinion based on my understanding and involvement in the communications that led to the bill.
It is my understanding that the intent of both the original and revised statute FS 376.3071(11)(b) is to enable a means of unconditional NFA to 10 and under sites. My understanding is supported by the language of the former section (11)(b) which allows NFA for sites scored 10 and under based essentially on (in summary) no free product, limited groundwater impacts, no exposure hazards, and no excessively contaminated soil. But the prior statute frequently referenced institutional and engineering controls.
Every mention of the use of institutional and engineering controls in the former statute section (11)(b) is stated as follows: “Where appropriate, institutional and engineering controls meeting the requirements of subparagraph (5)(b)4. may be required by the department to meet these criteria”. In the new version of the law, the ‘where appropriate’ phrases have been stricken, as have former paragraphs (11)(b)7 through (11)(b)10.
My understanding of the intent of House Bill 1385 regarding this subject is supported by the language of paragraph (11)(b)2 as discussed above. In particular, this new statute makes a distinction between SRCO and NFA; it states that a determination of NFA acknowledges that minimal contamination exists onsite and that such contamination is not a threat to human health or the environment. Based on my recollection of the initial communications regarding the intent of the bill, the amendments to the statute referenced in the prior paragraph were designed to provide NFA without conditions, without institutional and engineering controls, without restrictive covenants, and without deed restrictions.
It is my understanding that the FDEP OGC intends to require deed restrictions on the NFA sites. This is a very important subject and I believe it will lead to interesting dialog in December, during the 2-week industry comment period on the FDEP new guidance.
I believe the bill’s intent was to have the work orders end in one of the following three options:
1. Site Rehabilitation Completion Order (SRCO),
2. No Further Action (NFA) – file closure – no conditions, or
3. the site doesn’t qualify for either and it gets back in the score line.
Paragraph four of the “Summary Analysis” on page 1, and paragraph six of the “Full Analysis” on page 2 of the 3/11/10 “House Staff Analysis” supports the opinion above. More specifically, page four paragraph two of the 3/11/10 “House Staff Analysis”, states: “If these conditions are met {(11)(b)1}, the FDEP must issue a NFA, which means minimal contamination exists onsite and that contamination is not a threat to human health or the environment.”
Nothing is mentioned in the bill or the staff analysis about the use of institutional and engineering controls as a requirement for NFA sites, except for the circumstance in the second half of section (11)(b)1.f as described in the next paragraph. As I read it, NFA criteria can be achieved based on 1.a.–e. and the first half of 1f.
The conditions under subparagraph (11)(b)1.a. through f are the criteria to achieve NFA for these sites. Paragraph 1.f.has “or” (not “and”) in the midst of its condition; it says that the site can achieve NFA if “soils on-site that are subject to human exposure found between land surface and 2 feet below land surface meet the SCTLs established by department rule or human exposure is limited by appropriate institutional or engineering controls” In other words, if the site meets 1.a. – 1.f. only by using the option where such controls are necessary, it is only then that such a site shall be required to have deed restrictions.
The preceding paragraph mentions a circumstance where a site owner could use institutional or engineering controls to qualify for the NFA (the second half of rule 1.f.). The end of paragraph (11)(b)3.a. states: the department may not pay the costs associated with the establishment of institutional or engineering controls”. In my opinion, this language applies to the discussion in the prior paragraph and does not mean that the NFA sites are to be NFA with condition sites.
NFA should mean NFA, not NFA with deed restrictions.
Steve Hilfiker is President of Environmental Risk Management, Inc and can be reached at steve@ermi.net.