FBA/ELULS PRESENTS: A Technical and Legal Perspective on Florida's Contaminated Media Forum. May 21, 2015

Transcription

1 FBA/ELULS PRESENTS: A Technical and Legal Perspective on Florida's Contaminated Media Forum Steven D. Folsom, P.E. BCEE HSW Engineering, Inc. Laurel Lockett, Esq. Carlton Fields Jorden Burt May 21, 2015 J. Keith Tolson, Ph.D. Geosyntec Consultants

2 RBCA in Florida 1996 Petroleum Cleanup Program Overhaul F.S and F.A.C Brownfields Redevelopment Act F.A.C Drycleaning Solvent Cleanup Program F.A.C 2003 Global RBCA F.S. and F.A.C.

3 Contaminated Soils Forum Principal Focus Groups Ecological Risk Cleanup Communication Methodology Reuse Focus Group Engineering Controls Institutional Controls Landmark Results Issues Papers; F.A.C.; F.A.C.; Institutional Controls Procedures Guidance; Program Guidance Documents: Background Determination; Low Yield/Poor Quality Leachability by Analysis of SPLP Results Temporary Point of Compliance

4 10-year review..forum v2.0

5 Florida RBCA Petroleum, Dry Cleaner Solvent, Brownfields or Global Cleanup Target Levels (62-777, FAC) SOIL Direct Exposure (Residential versus Commercial/Industrial) Leachability GROUNDWATER Drinking Water Standards and other Low Yield/Poor Quality Natural Attenuation Default Criteria (NADCs) SURFACE WATER Marine Fresh Water Closure Options: RMO1 without conditions RMO2 or 3: with conditions (ICs, ECs, and RCs!)

6 FDEP Strategy for Revisions to Site Cleanup Rules I II III RBCA Rule Consolidation (June 2013) Probabilistic Risk Assessment CTLs (Feb 2014) New Guidance Rulemaking? (780 & 777 FAC)

7 CMF Principal Focus Groups Background Soil Direct Exposure and Leachability, Institutional/Engineering Controls F.A.C. CTLs Probabilistic Risk Assessments Ecological Risk

8 Background: Soil FDEP Guidance (2012) Soil type Lithology/horizon Analytical methods No composite samples Minimum # of samples Alternative Methods Direct comparison Comparison 95% UCL Weight of Evidence Statistical Analysis EPA, 1995

9 Anthropogenic Background chemicals, both manmade and natural ubiquitous in the environment due to human activities [for example] PAHs and dioxins. Not addressed expressly by rule/statute Cleanup liability extends only to release Anthropogenic background concentration becomes Alternative CTL - Soil, GW, SW Proposed legislation would clarify that cleanup is required only to natural or anthropogenic background (HB 841/SB1302)

10 Background Determination Impact on Assessment/Closure An example of the above using a line-of-evidence approach would be the detection of PAHs in soil along the edge of an asphalt parking lot. PAHs are often found close to such asphalt surfaces with concentrations decreasing significantly within a short distance outward. This localized occurrence of PAHs from weathering of the asphalt surface would not be considered a discharge subject to assessment and cleanup under FDEP rules. Site Rehabilitation Completion Order (SRCO) states that COC was found to be unrelated to the discharge for which the SRCO is being issued No restrictive covenant or engineering control for COC is required for background determination

11 Background: Groundwater the [FDEP] shall not require site rehabilitation to achieve a cleanup target level for any individual contaminant that is more stringent than the site-specific, naturally occurring background concentration for that contaminant (2)(g), F.S. FDEP Guidance (2013) Locations Sample #s DQOs Comparison Methods Statistical Non-statistical

12 Background Studies National Studies Ma et al (1999) Trace Metals Miami-Dade County Metals, PAHs, Pesticides, Dioxin Natural vs Anthropogenic Categorical land uses FDEP Database(s)

13 Evolving Policy/Implementation Arsenic Impacts Pahokee Plaza BF SRCO (11/2011) Soil > RE & Com/Ind DE No GW impact Background study: As naturally occurring & area-wide anthropogenic SRCO issued under RMO I Cattleman Rd. Final Order (10/2013) Locally derived fill used on site Soil > RE DE (~7 mg/kg) SPLP showed soil likely to leach GW >10 ug/l (generally <50 ug/l) Well known local background info provided Final Order

14 Application of DE SCTLs at Depth for Delineation and Closure (Dec. 2014) DE SCTLs apply from 0-2 bls If soil > DE SCTL is between 2-12 bls, no RC is required if another suitable IC is used: Deed notice (form pending) FDEP IC Registry Must complete delineation to RES SCTL Sampling below water table/in smear zone is not required

15 Leachability Basics: (1)(i), FS (2003) Leachability-based SCTLs shall be based on protection of the GW CTLs (or the alternative CTLs, as appropriate) Leachability SCTLs shall not be applicable if FDEP determines, based upon individual site characteristics, and in conjunction with ICs/ECs, if needed, that contaminants will not leach into the groundwater at levels that pose a threat to HHE

16 Options to Evaluate Leachability 1. Soil < L-SCTLs 2. When no GW impacts are present, no leachability issue even if soil > L-SCTL 3. Where GW concentrations are consistent with background - no leachability issue even if soil > L-SCTL 4. Use of direct test of soil leachability (SPLP or other) 5. Site specific derivation of L-SCTLs using actual soil characteristics or back-calc from Alterative GCTLs (ie. Poor Quality CTLs) 6. Evaluation of GW data or fate & transport modeling 7. Use of Engineering Controls 8. L-SCTLs not necessarily not to exceed values can be consideration of mass and distribution of impacts

17 Use of Surface Water CTLs in GW Closure Decision (2014; no written policy) Limited GW impacts discharge to surface water with higher SW CTL apply Fresh Surface Water CTL as closure criteria: COC SW CTL GW CTL ARSENIC 50 ppb 10 ppb 1,4 DIOXANE 120 ppb 3.2 ppb Proposed legislation was intended to formalize policy (HB 841/SB 1302)

18 Site Assessment/Delineation Requirements Issue: Prescriptive site assessment under Chapter may not always needed to adequately characterize a Site Potential Areas for New Guidance: Document acceptable alternative assessment/ delineation techniques use of conceptual site model delineation when use restriction or EC is contemplated delineation to new PRA-derived SCTLs Probable Rule Changes: Include Incremental Sampling as acceptable assessment technique Modify the 3X rule Eliminate hard requirement for ¼ acre residential EU Modify approach to additivity/antagonism/apportionment

19 Closure Based on Non-Recorded Institutional Controls (Nov. 2013) examples of ICs that do not require a restrictive covenant are governmental controls that impose restrictions on land use or resource use. Typical examples of other forms of ICs for groundwater at a site include groundwater delineated areas under Chapter , F.A.C., county or municipal ordinances prohibiting the installation of potable water wells in urban areas or mandating that any new potable well be connected to the county or municipal water delivery system, groundwater classified as undrinkable, and prohibition on installation of wells in potable wellhead protection areas under Chapter , F.A.C. When using existing governmental controls to close a site, a site owner is not required to place a restrictive covenant by deed or title to the property if the governmental control achieves the necessary degree of restriction on access to contaminated media. - Jorge Caspary Memorandum Site Closure with Conditions

20 Factors To Be Considered: Scope and coverage of the local ordinance(s): Requirement for connection to municipal water delivery system for both potable and irrigation water; Prohibition on installation of new wells Nature and concentration of COCs Size/location of plume Location of existing improvements Status of site development (dewatering consideration) Presence of existing infrastructure for provision of irrigation Location of existing irrigation wells (if any) relative to plume Potential for additional construction/impact of construction Potential for installation of new stormwater features or enlargement of existing stormwater features at or near the affected property Possible additional guidance from OGC (pending)

21 Cassleberry Square (Orlando area)

22 DEP/DOT Memorandum of Understanding

23 In Development: Guidance on Use of Engineering Controls Provide alternatives to use of 2 clean fill or impermeable surface to address DE path Provide template Engineering Control Maintenance Plan to facilitate approval for typical concrete or asphalt caps Eliminate requirement for recordation of complete ECMP in the RC allow evolution of plan without need for modification of RC

24 FAC CTLs Apportionment Hot-Spot (3x) provision Acute Toxicity SCTLs Probabilistic Risk Assessment Toxicity Value Sources CTL Formulae Toxicity Value Adjustment Exposure Assumptions

25 Alternative Cleanup Target Levels (ACTLs) under , FS tables are not standards, but offered as conservative walk-away defaults Overly conservative assumptions embodied in equations result in CTLs not reflective of actual circumstances of exposure In practice, FDEP reluctant to allow alternative methods or assumptions to derive ACTLs (exception is recreational)

26 Deterministic Method SCTLs [1 x 10-6 ] [51.9 kg] SCTL = [Target Risk]x [Body Weight] x [Constants] [Soil Ingestion] x [Toxicity] x [Exposure Freq] x [Exposure Duration] [120 mg/day] [EPA#] [350 days/yr] [30 yrs] For each input a single value is selected such that the resulting risk estimate is the highest that is reasonably expected to occur (Reasonably Maximum Exposure RME). In deterministic risk assessment the resulting output risk is a single value typically corresponding to an upper bound risk estimate. Arsenic Residential SCTL = 2.1 mg/kg soil

27 Probabilistic Risk Example 76.1 [Target Risk] x [Body Weight] x [Constants] SCTL = [Soil Ingestion] x [Toxicity] x [Exposure Freq] x [Exposure Duration] Body Weight 100 Soil Ingestion Rate Distribution of SCTLs 10% Exposure Duration

28 ACTLs Using Probabilistic Risk Assessment (Feb 2014) Probabilistic Risk Assessment (PRA) is permitted! Allows range/distribution of inputs, rather than single point assumptions Must use FDEP Risk Equations May use alternative toxicity values from alternative sources meeting rigorous scientific review process May define alternative basis of exposure

29 Probabilistic Risk Assessments Several Science/Policy Decisions Forward vs backward risk calculations Selection of input assumptions for modeling (variability and uncertainty) Input distribution shapes Exposure start age children Soil Ingestion rate Exposure duration Exposure frequency Bioavailability

30 How Can ACTLs Help? PRAs - Use distributions to develop new alternative defaults to Tables: Residential Direct Exposure CTL ~2-6x increase Com/Ind Direct Exposure CTL ~1.5-4x increase for carcinogens (which tend to drive problems) For non-carcinogens less impact because calcs driven by daily exposure (soil ingestion may allow changes up to 2x) Use Site-specific exposure scenario to define inputs and derive appropriate ACTLs For example: 55+ Community Arsenic RES DE CTL 7.4 (v. 2.1) Proposed Legislation would have limited requirements for using RCs with ACTLs (HB 841/SB 1302)

31 Institutional Controls Procedures Guidance (use of RC/ICs for closure with conditions) (Nov 2013) Restrictive Covenant required for closure w/ conditions Guidance prescribes Model RC: Prohibition on use of GW Prohibition on future residential use Implementation and maintenance of cap or other Engineering Control (EC) Subordination of Mortgage and Consent and Joinder of Easement Holders not required except: For active EC with substantial recurring expense or Failure to maintain could result in imminent hazard Example: active methane or HS gas collection system Direct conflict with use prohibited in mortgage EC in easement with substantial risk of exposure Written notice and opportunity to comment provided

32 ICPG Clarifications Use of NAICS sector descriptions to define restricted uses is not mandatory Alternative descriptions for permitted and/or prohibited uses may be used that are consistent with the degree and nature of the cleanup exposure conducted and actual conditions of exposure

33 Carve Outs From Model RC The following uses of the Property are prohibited: agricultural use of the land including forestry, fishing and mining; hotels or lodging; recreational uses including amusement parks, parks, camps, museums, zoos, or gardens; residential uses, and educational uses such as elementary or secondary schools, or day care services. These prohibited uses are specifically defined by using the North American Industry Classification System, United States, 2012 (NAICS), Executive Office of the President, Office of Management and Budget. The prohibited uses by code are:.subsector 713 Amusement, Gambling, and Recreation Industries Sample carve out supplemental text: Notwithstanding the foregoing, nothing herein shall be deemed to prohibit the use or operation of a health club, recreation or fitness facility, including ancillary child or daycare services, provided those uses are wholly contained within a building on the Property including foundation that prevents human exposure to soil.

34 Alternative Use Restrictions Eliminate NAICS code based definition and replace with narrative that defines specific conditions of exposure that are prohibited. Where site-specific ACTLs have been derived text must capture the essential exposure assumptions upon which the ACTLs were derived Example for age restricted community (Arsenic < 7.4 ppm) The future use of the Property shall be for residential development; provided, however, no person under the age of eighteen (18) years old may occupy or reside in any residential housing unit or common area, amenity or other improvement which may be constructed on the Property from time to time, for a period exceeding thirty (30) days in any calendar year. Temporary occupancy that lasts more than four (4) hours on any given day, whether the duration of the temporary occupancy be continuous or in the aggregate, shall constitute occupancy of one (1) day for purposes of hereof.

35 Alternatives To Blanket Groundwater Restrictions Groundwater restrictions can be limited to a particular aquifer or to a limited portion of a property in appropriate circumstances Recommend weight of evidence approach in ICPG: The nature and concentrations of contaminants The affected aquifer(s) size and location of plume The proposed use(s) of aquifer to be permitted The ability to demonstrate isolation of the proposed restricted aquifer from the aquifer(s) that will remain available for use Interconnections to surface water

36 Ecological Risk Tier I Screening Level Ecological Risk Assessment EPA ERAGS STEP 1 Site visit and screening-level problem formula on EPA ERAGS STEP 2 Exposure es mate and risk calcula on Tier II - Baseline Ecological Risk Assessment and site-specific exposure values EPA ERAGS STEP 3 Baseline problem formula on, assessment endpoints, and conceptual site model EPA ERAGS STEP 4 Study design and data quality objec ves EPA ERAGS STEP 5 Verifica on of field sampling design EPA ERAGS STEP 6 Site inves ga on and data analysis EPA ERAGS STEP 7 Risk characteriza on Tier III Highly specialized or long-term site-specific inves ga ons EPA ERAGS STEPS 3-7 re-characterize with updated measurement endpoints and values EPA ERAGS STEP 8 Risk management Figure 1 Relationship between the Eco-RBCA and US EPA ERAGS processes

37 Recap IMPLEMENTED: Substantive Dialogue Technical Guidance Streamlined Processes IN THE WORKS: Statutory change Rulemaking More Guidance

38 Thank You! Steven D. Folsom, P.E. BCEE HSW Engineering, Inc. Tampa, Florida Laurel Lockett, Esq. Carlton Fields Jorden Burt Tampa, Florida J. Keith Tolson, Ph.D. Geosyntec Consultants Temple Terrace, Florida