Bill Text: FL S0544 | 2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Brownfield Development [EPSC]

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2010-04-30 - Died in Committee on Finance and Tax, companion bill(s) passed, see CS/CS/CS/SB 550 (Ch. 2010-205) [S0544 Detail]

Download: Florida-2010-S0544-Introduced.html

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Florida Senate - 2010                                     SB 544 
 
By Senator Constantine 
22-00326-10                                            2010544__ 
1                        A bill to be entitled 
2         An act relating to brownfields; amending s. 376.81, 
3         F.S.; deleting an obsolete date with respect to the 
4         establishment of rules governing the brownfield 
5         rehabilitation program; providing an effective date. 
6 
7  Be It Enacted by the Legislature of the State of Florida: 
8 
9         Section 1. Subsection (1) of section 376.81, Florida 
10  Statutes, is amended to read: 
11         376.81 Brownfield site and brownfield areas contamination 
12  cleanup criteria.— 
13         (1) It is the intent of the Legislature to protect the 
14  health of all people under actual circumstances of exposure. By 
15  July 1, 2001, The secretary of the department shall establish 
16  criteria by rule for the purpose of determining, on a site 
17  specific basis, the rehabilitation program tasks that comprise a 
18  site rehabilitation program and the level at which a 
19  rehabilitation program task and a site rehabilitation program 
20  may be deemed completed. In establishing the rule, the 
21  department shall apply, to the maximum extent feasible, a risk 
22  based corrective action process to achieve protection of human 
23  health and safety and the environment in a cost-effective manner 
24  based on the principles set forth in this subsection. The rule 
25  must prescribe a phased risk-based corrective action process 
26  that is iterative and that tailors site rehabilitation tasks to 
27  site-specific conditions and risks. The department and the 
28  person responsible for brownfield site rehabilitation are 
29  encouraged to establish decision points at which risk management 
30  decisions will be made. The department shall provide an early 
31  decision, when requested, regarding applicable exposure factors 
32  and a risk management approach based on the current and future 
33  land use at the site. The rule shall also include protocols for 
34  the use of natural attenuation, the use of institutional and 
35  engineering controls, and the issuance of “no further action” 
36  letters. The criteria for determining what constitutes a 
37  rehabilitation program task or completion of a site 
38  rehabilitation program task or site rehabilitation program must: 
39         (a) Consider the current exposure and potential risk of 
40  exposure to humans and the environment, including multiple 
41  pathways of exposure. The physical, chemical, and biological 
42  characteristics of each contaminant must be considered in order 
43  to determine the feasibility of risk-based corrective action 
44  assessment. 
45         (b) Establish the point of compliance at the source of the 
46  contamination. However, the department is authorized to 
47  temporarily move the point of compliance to the boundary of the 
48  property, or to the edge of the plume when the plume is within 
49  the property boundary, while cleanup, including cleanup through 
50  natural attenuation processes in conjunction with appropriate 
51  monitoring, is proceeding. The department also is authorized, 
52  pursuant to criteria provided for in this section, to 
53  temporarily extend the point of compliance beyond the property 
54  boundary with appropriate monitoring, if such extension is 
55  needed to facilitate natural attenuation or to address the 
56  current conditions of the plume, provided human health, public 
57  safety, and the environment are protected. When temporarily 
58  extending the point of compliance beyond the property boundary, 
59  it cannot be extended further than the lateral extent of the 
60  plume at the time of execution of the brownfield site 
61  rehabilitation agreement, if known, or the lateral extent of the 
62  plume as defined at the time of site assessment. Temporary 
63  extension of the point of compliance beyond the property 
64  boundary, as provided in this paragraph, must include actual 
65  notice by the person responsible for brownfield site 
66  rehabilitation to local governments and the owners of any 
67  property into which the point of compliance is allowed to extend 
68  and constructive notice to residents and business tenants of the 
69  property into which the point of compliance is allowed to 
70  extend. Persons receiving notice pursuant to this paragraph 
71  shall have the opportunity to comment within 30 days of receipt 
72  of the notice. 
73         (c) Ensure that the site-specific cleanup goal is that all 
74  contaminated brownfield sites and brownfield areas ultimately 
75  achieve the applicable cleanup target levels provided in this 
76  section. In the circumstances provided below, and after 
77  constructive notice and opportunity to comment within 30 days 
78  from receipt of the notice to local government, to owners of any 
79  property into which the point of compliance is allowed to 
80  extend, and to residents on any property into which the point of 
81  compliance is allowed to extend, the department may allow 
82  concentrations of contaminants to temporarily exceed the 
83  applicable cleanup target levels while cleanup, including 
84  cleanup through natural attenuation processes in conjunction 
85  with appropriate monitoring, is proceeding, if human health, 
86  public safety, and the environment are protected. 
87         (d) Allow brownfield site and brownfield area 
88  rehabilitation programs to include the use of institutional or 
89  engineering controls, where appropriate, to eliminate or control 
90  the potential exposure to contaminants of humans or the 
91  environment. The use of controls must be preapproved by the 
92  department and only after constructive notice and opportunity to 
93  comment within 30 days from receipt of notice is provided to 
94  local governments, to owners of any property into which the 
95  point of compliance is allowed to extend, and to residents on 
96  any property into which the point of compliance is allowed to 
97  extend. When institutional or engineering controls are 
98  implemented to control exposure, the removal of the controls 
99  must have prior department approval and must be accompanied by 
100  the resumption of active cleanup, or other approved controls, 
101  unless cleanup target levels under this section have been 
102  achieved. 
103         (e) Consider the additive effects of contaminants. The 
104  synergistic and antagonistic effects shall also be considered 
105  when the scientific data become available. 
106         (f) Take into consideration individual site 
107  characteristics, which shall include, but not be limited to, the 
108  current and projected use of the affected groundwater and 
109  surface water in the vicinity of the site, current and projected 
110  land uses of the area affected by the contamination, the exposed 
111  population, the degree and extent of contamination, the rate of 
112  contaminant migration, the apparent or potential rate of 
113  contaminant degradation through natural attenuation processes, 
114  the location of the plume, and the potential for further 
115  migration in relation to site property boundaries. 
116         (g) Apply state water quality standards as follows: 
117         1. Cleanup target levels for each contaminant found in 
118  groundwater shall be the applicable state water quality 
119  standards. Where such standards do not exist, the cleanup target 
120  levels for groundwater shall be based on the minimum criteria 
121  specified in department rule. The department shall apply the 
122  following, as appropriate, in establishing the applicable 
123  cleanup target levels: calculations using a lifetime cancer risk 
124  level of 1.0E-6; a hazard index of 1 or less; the best 
125  achievable detection limit; and nuisance, organoleptic, and 
126  aesthetic considerations. However, the department shall not 
127  require site rehabilitation to achieve a cleanup target level 
128  for any individual contaminant which is more stringent than the 
129  site-specific, naturally occurring background concentration for 
130  that contaminant. 
131         2. Where surface waters are exposed to contaminated 
132  groundwater, the cleanup target levels for the contaminants 
133  shall be based on the more protective of the groundwater or 
134  surface water standards as established by department rule. The 
135  point of measuring compliance with the surface water standards 
136  shall be in the groundwater immediately adjacent to the surface 
137  water body. 
138         3. Using risk-based corrective action principles, the 
139  department shall approve alternative cleanup target levels in 
140  conjunction with institutional and engineering controls, if 
141  needed, based upon an applicant’s demonstration, using site 
142  specific data, modeling results, risk assessment studies, risk 
143  reduction techniques, or a combination thereof, that human 
144  health, public safety, and the environment are protected to the 
145  same degree as provided in subparagraphs 1. and 2. Where a state 
146  water quality standard is applicable, a deviation may not result 
147  in the application of cleanup target levels more stringent than 
148  the standard. In determining whether it is appropriate to 
149  establish alternative cleanup target levels at a site, the 
150  department must consider the effectiveness of source removal, if 
151  any, which has been completed at the site and the practical 
152  likelihood of the use of low yield or poor quality groundwater, 
153  the use of groundwater near marine surface water bodies, the 
154  current and projected use of the affected groundwater in the 
155  vicinity of the site, or the use of groundwater in the immediate 
156  vicinity of the contaminated area, where it has been 
157  demonstrated that the groundwater contamination is not migrating 
158  away from such localized source, provided human health, public 
159  safety, and the environment are protected. When using 
160  alternative cleanup target levels at a brownfield site, 
161  institutional controls shall not be required if: 
162         a. The only cleanup target levels exceeded are the 
163  groundwater cleanup target levels derived from nuisance, 
164  organoleptic, or aesthetic considerations; 
165         b. Concentrations of all contaminants meet the state water 
166  quality standards or minimum criteria, based on protection of 
167  human health, provided in subparagraph 1.; 
168         c. All of the groundwater cleanup target levels established 
169  pursuant to subparagraph 1. are met at the property boundary; 
170         d. The person responsible for brownfield site 
171  rehabilitation has demonstrated that the contaminants will not 
172  migrate beyond the property boundary at concentrations exceeding 
173  the groundwater cleanup target levels established pursuant to 
174  subparagraph 1.; 
175         e. The property has access to and is using an offsite water 
176  supply and no unplugged private wells are used for domestic 
177  purposes; and 
178         f. The real property owner provides written acceptance of 
179  the “no further action” proposal to the department or the local 
180  pollution control program. 
181         (h) Provide for the department to issue a “no further 
182  action order,” with conditions, including, but not limited to, 
183  the use of institutional or engineering controls where 
184  appropriate, when alternative cleanup target levels established 
185  pursuant to subparagraph (g)3. have been achieved, or when the 
186  person responsible for brownfield site rehabilitation can 
187  demonstrate that the cleanup target level is unachievable within 
188  available technologies. Prior to issuing such an order, the 
189  department shall consider the feasibility of an alternative site 
190  rehabilitation technology in the brownfield area. 
191         (i) Establish appropriate cleanup target levels for soils. 
192         1. In establishing soil cleanup target levels for human 
193  exposure to each contaminant found in soils from the land 
194  surface to 2 feet below land surface, the department shall apply 
195  the following, as appropriate: calculations using a lifetime 
196  cancer risk level of 1.0E-6; a hazard index of 1 or less; and 
197  the best achievable detection limit. However, the department 
198  shall not require site rehabilitation to achieve a cleanup 
199  target level for an individual contaminant which is more 
200  stringent than the site-specific, naturally occurring background 
201  concentration for that contaminant. Institutional controls or 
202  other methods shall be used to prevent human exposure to 
203  contaminated soils more than 2 feet below the land surface. Any 
204  removal of such institutional controls shall require such 
205  contaminated soils to be remediated. 
206         2. Leachability-based soil target levels shall be based on 
207  protection of the groundwater cleanup target levels or the 
208  alternate cleanup target levels for groundwater established 
209  pursuant to this paragraph, as appropriate. Source removal and 
210  other cost-effective alternatives that are technologically 
211  feasible shall be considered in achieving the leachability soil 
212  target levels established by the department. The leachability 
213  goals shall not be applicable if the department determines, 
214  based upon individual site characteristics, and in conjunction 
215  with institutional and engineering controls, if needed, that 
216  contaminants will not leach into the groundwater at levels that 
217  pose a threat to human health, public safety, and the 
218  environment. 
219         3. Using risk-based corrective action principles, the 
220  department shall approve alternative cleanup target levels in 
221  conjunction with institutional and engineering controls, if 
222  needed, based upon an applicant’s demonstration, using site 
223  specific data, modeling results, risk assessment studies, risk 
224  reduction techniques, or a combination thereof, that human 
225  health, public safety, and the environment are protected to the 
226  same degree as provided in subparagraphs 1. and 2. 
227         Section 2. This act shall take effect July 1, 2010.