The Department's proposed amendments will clarify the purpose and applicability of Chapter 62-771, Petroleum Contamination Site Priority Ranking Rule. The Department is adding a definition of "imminent threat" petroleum contaminated site to specify ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-771.100Introduction, Scope and Definitions

62-771.300Scoring System and Scoring System Application

PURPOSE AND EFFECT: The Department's proposed amendments will clarify the purpose and applicability of Chapter 62-771, Petroleum Contamination Site Priority Ranking Rule. The Department is adding a definition of "imminent threat" petroleum contaminated site to specify those sites that require immediate response by the Department. The Department is also establishing when and how the Department will rescore petroleum contaminated sites in order to prioritize state funded cleanup of the sites.

SUMMARY: The Department's proposed amendments to 62-771.100 include amendments to: remove language that is repetitive of statute; clarify the purpose and applicability of Ch. 62-771; and add a definition of "imminent threat." The Department's proposed amendments to 62-771.300 include amendments to: describe when and how the Department will rescore a petroleum contaminated site; clarify that the Department will use the site scoring to prioritize state-funded cleanup; and clarify that once an imminent threat has been addressed it will return to the appropriate place in priority ranking.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed amendments to Ch 62-771 either clarify rule language, relate to Department procedures for rescoring a site or define an imminent threat and therefore do not impose any regulatory costs. The proposed rule will not have an adverse economic impact on the public or regulated entities, including small businesses.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 376.303, 376.3071 FS.

LAW IMPLEMENTED: 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: October 28, 2013; 10:00 a.m.

PLACE: Carr Building, Room 170, 3800 Commonwealth Boulevard, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Robert Cowdery, DEP Division of Waste Management, 2600 Blairstone Rd., Tallahassee, Fl 32399; [phone]; [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Robert Cowdrey, DEP Division of Waste Management, 2600 Blairstone Rd., Tallahassee, Fl 32399; 850-245-8899; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62-771.100 Introduction, Scope and Definitions.

(1) Purpose. Section 376.3071(2), Florida Statutes, states that the intent of the Legislature is to establish the The Inland Protection Trust Fund, created in Section 376.3071(2), Florida Statutes, serves to serve as a repository for funds which enables will enable the Department to respond without delay to incidents of inland contamination related to the storage of petroleum and petroleum products in order to protect the public health, safety and welfare and minimize environmental damage from petroleum contamination sites in an efficient and cost-effective manner. This Chapter identifies the process by which The priority rules established in this section are enacted to enable the Department will: to carry out the Legislature’s intent.

(a) Initially score petroleum contamination sites to reflect potential risk to human health and the environment;

(b) Rescore petroleum contamination sites based on available site-specific data; and

(c) Rank petroleum contamination sites based on score to prioritize the order in which the Department will perform site rehabilitation activities in accordance with Chapter 62-780, F.A.C.

(2) Pursuant to Section 376.3071(5)(a), Florida Statutes, this Chapter establishes states that the Department shall establish criteria for determining Department priorities for conducting response actions at petroleum contamination sites. based on factors that include, but need not be limited to:

(a) The degree to which human health, safety, or welfare may be affected by exposure to the contamination;

(b) The size of the population or area affected by the contamination;

(c) The present and future uses of the affected aquifer or surface waters, with particular consideration as to the probability that the contamination is substantially affecting, or will migrate to and substantially affect, a known public or private source of potable water; and

(d) The effect of the contamination on the environment.

(3)Pursuant to Section 376.3071(5)(a), Florida Statutes, funds from the Inland Protection Trust Fund further states that money in the fund shall be obligated for response action at individual petroleum contamination sites in accordance with such established criteria.

(4) Applicability. This rule establishes criteria and a system to score and rank petroleum contamination sites qualifying for the Early Detection Incentive Program (Section 376.3071(9), F.S.), sites qualifying for other authorized site activities (Section 376.3071(4), F.S.), sites participating in the restoration portion of the Petroleum Liability and Restoration Insurance Program (Section 376.3072, F.S.), and sites qualifying for the Abandoned Tank Restoration Program (Section 376.305(6)(7), F.S.), sites qualifying for the Petroleum Cleanup Participation Program (Section 376.3071(13), F.S.), and sites qualifying for the Innocent Victim Petroleum Storage System Restoration Program (Section 376.30715, F.S.) to determine the order in which sites will be addressed by the Department.

(5) Definitions. All words and phrases defined in Section 376.301, F.S., shall have the same meaning when used in this chapter unless the context clearly indicates otherwise. The following words and phrases when used in this chapter shall, unless the context clearly indicates otherwise, have the following meanings:

(a) “Assignment” means authorization to proceed with response action through a contract, task assignment, or Department issued purchase order..

(b) through (d) No change.

(e) “Imminent Threat” means a site where specific conditions or set of circumstances exist that are likely to create an immediate exposure risk to human health or environmental receptors.  The determination of the exposure risk posed by a site must take into consideration all of the following:

1. The toxicity of the contaminants of concern;

2. The concentrations of the contaminants of concern in the affected medium; and

3. The likelihood that exposure to this contamination will occur.

(e) through (f) renumbered (f) through (g) No change.

(h)(g) “Program Task” means a phase of site rehabilitation, including initial remedial action, contamination assessment report, remedial action plan and remedial action, as described in Chapter 62-780 62-770, F.A.C.

(h) through (k) renumbered (i) through (l) No change.

Rulemaking Specific Authority 376.303, 376.305, 376.3071, 376.3072 FS. Law Implemented 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New 5-5-87, Formerly 17-71.001, Amended 6-5-89, 11-16-89, 2-14-93, Formerly 17-771.100, Amended 12-5-96,_________.

 

62-771.300 Scoring System and Scoring System Application.

(1) For sites that have not been scored, the initial The scoring system is as follows:

(a) through (d) No change.

(2) No change.

(3) Points shall be totaled totalled and sites ranked based on the total numerical score for a site.

(4) No change.

(5) Rescoring. 

(a) After a Site Assessment Report has been approved by the Department, pursuant to Rule 62-780.600, F.A.C., the site will be rescored by awarding or deducting points from the initial score using the applicable criteria in subsection 62-771.300(1), F.A.C.

(b) After a Risk Assessment Report has been approved by the Department, pursuant to Rule 62-780.650, F.A.C., the site will be rescored by awarding or deducting points from the initial score using the applicable criteria in subsection 62-771.300(1), F.A.C.

(c) After a Post Active Remediation Monitoring Report has been approved by the Department, pursuant to Rule 62-780.750, F.A.C., the site will be rescored by awarding or deducting points from the initial score using the applicable criteria in subsection 62-771.300(1), F.A.C.

(d) If any of the approved reports discussed in paragraph 62-771.300(5)(a) – (c), F.A.C., demonstrate that the petroleum contamination at a site poses minimal risk to public or private sources of potable water or surface waters, the Department will deduct the applicable points awarded to a site in subparagraph 62-771.300(1)(b), F.A.C.

(e) Notwithstanding the priority ranking score of a site in natural attenuation monitoring, funds shall be made available for implementation of a monitoring plan in accordance with the site’s program eligibility.

(f) If a site is no longer meeting the criteria to remain in natural attenuation monitoring or long-term natural attenuation monitoring, the Department will rescore the site, if necessary, and revisit options for remedial action and site closure under Chapter 62-780, F.A.C.

(6)(5) Priority List. A priority list of sites shall be developed based on an ordering of scored sites such that the highest scored site(s) shall be of highest priority for response action and the lowest scored site(s) shall be of lowest priority for response action. The priority ranking list shall be maintained on the Department’s website.  All

(6) scored Scored sites shall be incorporated into the priority list on a quarterly basis with the position of all sites previously on the list being adjusted accordingly.

(7) Site Selection and Task Assignments. Sites will be selected for response actions beginning with the highest ranked sites on the most recent priority ranking list and proceed through lower ranked sites.  Contractors will be assigned to specific sites in accordance with the provisions of Chapter 62-772, F.A.C.  .

(8) Assignments for program tasks shall be made beginning with the highest ranked site(s) on the priority list in effect on the date the assignment is made and proceed through lower ranked sites.

(9) All scored sites will be reincorporated into the priority list on a quarterly basis until all sites have been assigned.

(8)(10) Once a task an assignment is made, a subsequent quarterly adjustment to the priority list shall not alter that task assignment unless the Department determines that a more cost effective approach can be achieved by a reassignment, that a compelling public health or environmental condition warrants a reassignment, or that reassignment is otherwise in the overall public interest. 

(9)(11) Regardless of a site’s score, the Department may initiate emergency action for those sites that, in the judgment of the Department, are an imminent threat hazard to human health and safety or where failure to prevent migration of petroleum contamination would cause irreversible damage to the environment. Once the threat that necessitated the emergency action has been addressed the site will return to the appropriate place in priority ranking.

Rulemaking Specific Authority 376.303, 376.305, 376.3071, 376.3072 FS. Law Implemented 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History–New 5-5-87, Formerly 17-71.001, Amended 6-5-89, 11-16-89, 2-14-93, Formerly 17-771.100, Amended 12-5-96,_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jorge Caspary

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Herschel T. Vinyard Jr.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 27, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 30, 2013