Bill Text: FL S0544 | 2010 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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
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.By15July 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.