Acronyms and Definitions, Notices, Emergency Response Action or Interim Source Removal, Interim Source Removal, Site Assessment, Risk Assessment, No Further Action and No Further Action with Controls, Natural Attenuation Monitoring
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RULE NOS.:RULE TITLES:
62-780.200Acronyms and Definitions
62-780.220Notices
62-780.500Emergency Response Action or Interim Source Removal
62-780.525Interim Source Removal
62-780.600Site Assessment
62-780.650Risk Assessment
62-780.680No Further Action and No Further Action with Controls
62-780.690Natural Attenuation Monitoring
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 42 No. 182, September 19, 2016 issue of the Florida Administrative Register.
62-780.200 Acronyms and Definitions.
(1) through (9) No change.
(10) “Contaminated” or “contamination” means the presence of free product or any contaminant in surface water, groundwater, soil, sediment, or upon the land, in concentrations that exceed the applicable CTLs specified in Chapter 62-777, F.A.C., or water quality standards in Chapter 62-302 or 62-520, F.A.C., or in concentrations that may result in contaminated sediment. At sites where alternative CTLs have been developed solely based upon intrinsic chemical properties that do not vary under different exposure scenarios (e.g., toxicity) or based upon a risk assessment where the exposure parameters have been demonstrated to be applicable throughout the study area, then such alternative CTLs are the applicable CTLs for evaluting “contaminated” or “contamination” and would supersede the CTLs specified in Chapter 62-777, F.A.C. However, alternative CTLs can not be substituted for water quality standards in Chapter 62-302 or 62-520, F.A.C. This definition is solely for use within Chapter 62-780, F.A.C., and pursuant to Section 376.30701(1)(a), F.S., shall not be used to establish legal responsibility for conducting site rehabilitation.
(11) through (58) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.81 FS. Law Implemented 376.301, 376.3071, 376.30701, 376.3078(4), 376.81 FS. History–New 4-17-05, Amended 6-12-13, .
Editorial Note: Portions of this rule were copied from 62-770.200, Formerly 17-70.003 and Formerly 17-770.200; 62-782.200; and 62-785.200.
62-780.220 Notices.
(1) through (6) No change.
(7) Notice Requirements for Closure Using Institutional, Engineering Controls or Alternative CTLs. Sections 376.30701(2) (c) and (d), F.S. provide specific notice requirements for conditional closure using institutional controls, engineering controls or alternative CTLs. Prior to the Department’s approval of institutional controls, institutional and engineering controls, or alternative CTLs, the PRSR shall mail notice of the Department’s intent for such approval to the local government(s) with jurisdiction over the property(ies) subject to the institutional or engineering control, to real property owner(s) of any property subject to the institutional or engineering control, to any resident or business tenant, and to any party holding a materially affected encumbrance in the area subject to the control (see the Institutional Control Procedures Guidance referenced in section 62-780.100(7), F.A.C., for guidance on when actual notice should be provided). Notice mailed to the registered agent of any party, if applicable, shall be sufficient notice for the purposes of this paragraph. Where there are multiple residences (e.g., a condominium), businesses or tenants on any property subject to the institutional or engineering control, the PRSR may publish notice in lieu of mailing to such residences, businesses or tenants. The notice shall be mailed or published by the PRSR within 30 days after the Department’s provisional approval of the No Further Action Proposal with institutional or engineering controls. The PRSR shall provide the Department with a copy of the mailed notice and a list of names and addresses to whom the notice was sent and the date it was sent. For published notice, proof of such notice that meets the requirements of subsections 62-110.106(5), (8), and (9), F.A.C., shall be provided. The notice shall provide the local government(s) with jurisdiction over the property(ies) subject to the control(s), real property owner(s) of any property subject to the control(s), and residents of any property subject to the control(s), any party holding an easement for the area subject to the control(s), and business tenants of any property subject to the controls, the opportunity to comment to the Department within 30 days after receipt of the notice of the Department’s intent of approval. For a description of the agency action proposed, the notice shall contain “to issue a Site Rehabilitation Completion Order with institutional controls for a contaminated site.” Additionally, the notice of rights language shall be replaced with “Local governments, real property owner(s) of any property subject to the institutional or engineering control, and residents of any property subject to the institutional or engineering control have 30 days from receipt (or publication) of this notice to provide comments to the Department.” The notice shall also provide the appropriate mailing address and, if warranted, electronic mail address to which comments should be sent. See subsection 62-780.100(7), Institutional Controls Procedures Guidance, for sample notice templates.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.30702, 376.3078(4), 376.81, 403.7255 FS. Law Implemented 376.3071, 376.30701, 376.30702, 376.3078(4), 376.81, 403.7255 FS. History–New 4-17-05, Amended 12-27-07, 6-12-13, .
Editorial Note: Portions of this rule were copied from 62-770.220; 62-782.220; and 62-785.220.
62-780.500 Emergency Response Action.
(1) through (8) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.3078(9), 376.81 FS. Law Implemented 376.305, 376.3071, 376.30701, 376.3078(4), 376.3078(9), 376.81 FS. History–New 4-17-05, Amended 6-12-13, .
Editorial Note: Portions of this rule were copied from 62-770.300, Formerly 17-70.006 and Formerly 17-770.300; 62-782.500; and 62-785.500.
62-780.525 Interim Source Removal.
(1) through (4) No change.
(5) Soil and Sediment Removal, Treatment, and Disposal.
(a) The PRSR may excavate contaminated soil or contaminated sediment for proper treatment or proper disposal as an interim source removal activity provided the following criteria are met:
1. through 4. No change.
5. If one of the objectives of the interim source removal is to excavate all the contaminated soil or sediment, confirmatory soil or sediment samples shall be collected, unless the excavation of the source occurs above the groundwater table to a depth of 1 foot below and 1 foot laterally of visually stained soil or sediment, if present. When visual staining is not present, soil screening methods may be used for confirming that excavation is complete above the groundwater table provided the soil screening method is applicable to the pollutant or hazardous substance that has been discharged provided that the field method has been verified and validated against standard laboratory methods, that the detection limit of soil screening instrumentation is appropriate based on the cleanup target levels for the pollutant of hazardous substance and that the applicable quality control/quality assurance protocols are followed (note that proper quality assurance may include correlation with laboratory analytical results). When soil screening methods are not used, s Soil samples shall be collected at the bottom of the excavation (unless the bottom is below the water table) and walls or perimeter of the excavation. Sediment samples shall be collected at the bottom and perimeter of the excavation, if applicable;
6. through 9. No change.
(b) Land farming of soil contaminated by petroleum products is allowed, provided the land farming operation is located on the same property as the source of contaminated soil unless it is land farmed at a permitted stationary facility. The following criteria shall be met for contaminated soil land farmed on the source property:
1. through 9. No change.
10. Land farmed soil that does not exceed the lower of the direct exposure residential CTLs and leachability based on groundwater criteria CTLs specified in Chapter 62-777, F.A.C., Table II may be disposed on-site or off-site. The PRSR is advised that other federal or local laws and regulations may apply to these activities. Land farmed soil that exceeds the applicable CTLs specified in Chapter 62-777, F.A.C., Table II shall not be disposed or returned to the original excavation without obtaining approval from the Department pursuant to paragraph 62-780.525(5)(a), F.A.C., or rule 62-780.650, 62-780.680, 62-780.690 or 62-780.700, F.A.C., as applicable.
(c) No change.
(d)(c) Consistent with the goals set forth in Section 403.061(33), F.S., the Department encourages treatment over disposal options to address contaminated soil.
(e) Soil or sediment treatment, storage, or disposal techniques not authorized by applicable rules of the Department require approval in an Interim Source Removal Proposal submitted pursuant to paragraph 62-780.525(5)(f) 62-780.525(5)(e), F.A.C., or in a Remedial Action Plan submitted pursuant to Rule 62-780.700, F.A.C.
(f) through (g) No change.
(6) Authorization or receipt of approval pursuant to Rule 62-780.525 627-80.525, F.A.C., does not relieve the PRSR from the obligation to comply with other Department rules (for example, Chapters 62-701 and 62-730, F.A.C.) for product recovery, product disposal, groundwater recovery, or the handling, storage, disposal, or treatment of contaminated media. The PRSR is advised that other federal or local laws and regulations may apply to these activities.
(7) Interim Source Removal Report.
(a) Within the time frames specified in Table A or the CAD, the PRSR shall submit an electronic or paper copy of an Interim Source Removal Report to the Department for review. If analytical results obtained pursuant to subparagraphs 62-780.525(3)(a)6., 62-780.525(5)(a)5., and 62-780.600(5)(m)3., F.A.C., as applicable, after completion of the interim source removal, demonstrate that the No Further Action criteria of subsection 62-780.680(1), F.A.C., are met, a Site Assessment Report pursuant to subsection 62-780.600(7), F.A.C., may be submitted in lieu of an Interim Source Removal Report. The Interim Source Removal Report shall contain the following information in detail, as applicable:
1. through 12. No change.
13. A scaled site map (including a graphical representation of the scale used) that shows the locations and results of confirmatory soil or sediment samples in relation to the area of the soil or sediment removal; and
14. through 15. No change.
(b) No change.
(8) through (9) No change.
Rulemaking Authority 376.303, 376.305, 376.3071, 376.30701, 376.3078(4), 376.3078(9), 376.81 FS. Law Implemented 376.3071, 376.30701, 376.3078(4), 376.3078(9), 376.81 FS. History–New .
62-780.600 Site Assessment.
(1) through (2) No change.
(3) The objectives of the site assessment shall be the following, as applicable:
(a) No change.
(b) To determine whether contamination is present and the types of contaminants present, and to determine the horizontal and vertical extent of contamination in every medium found to be contaminated (for soil in the unsaturated zone, to the more stringent of the direct exposure residential soil CTLs and the applicable leachability-based soil CTLs provided in Chapter 62-777, F.A.C., Table II; and for groundwater, to the groundwater CTLs or to the surface water CTLs provided in Chapter 62-777, F.A.C., Table I, as applicable.; or to alternative Alternative CTLs that have been developed solely based upon intrinsic chemical properties that do not vary under different exposure scenarios (e.g., toxicity) or are based upon a risk assessment where the exposure parameters have been demonstrated to be applicable throughout the study area may be used as applicable (except that determination of the horizontal and vertical extent of exceedances of delineation to the water quality standards in Chapter 62-520 or 62-302, F.A.C., is always required);
(c) through (k) No change.
(4) No change.
(5) The site assessment shall include tasks that are necessary to achieve objectives described in subsection 62-780.600(3), F.A.C., and include the following, as applicable based on site-specific circumstances:
(a) through (b) No change.
(c) Sampling of soil from the unsaturated zone for the following criteria, as applicable:
1. Appropriate laboratory analyses to determine the degree and extent of soil contamination and, as applicable, the background concentrations. A sufficient number of soil samples to define the horizontal and vertical extent of contamination shall be collected in the unsaturated zone based on the horizontal and vertical extent of contamination. Samples shall be collected at two-foot vertical intervals unless the sampling intervals are adjusted, as necessary, to account for factors such as discrete variations in the lithology, depth to the water table, the point of discharge, and the chemical and physical properties of the contaminants. If a surficial discharge of metals or semi-volatile organic compounds is known or suspected, the sampling vertical intervals shall be as follows: land surface to six inches, six inches to two feet, and two-foot intervals thereafter to the extent necessary to define the soil contamination. If the 95% Upper Confidence Limit (UCL) approach pursuant to subparagraphs 62-780.680(1)(b)1., 62-780.680(2)(b)1., and 62-780.680(3)(b)1., F.A.C., is used, the soil sampling shall be sufficient to identify the area(s) of highest contaminant concentrations and to allow the calculation of an exposure unit average concentration. [Refer to the technical report referenced in subsection 62-780.100(2), F.A.C., for guidance.];
2. through 5. No change.
(d) through (u) No change.
(6) through (10) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.81, 403.0877 FS. Law Implemented 376.3071, 376.30701, 376.3078(4), 376.81, 403.0877 FS. History–New 4-17-05, Amended 6-12-13, 2-4-14, .
Editorial Note: Portions of this rule were copied from 62-770.600, Formerly 17-70.008 and Formerly 17-770.600; 62-782.600; and 62-785.600.
62-780.650 Risk Assessment.
(1) No change.
(a) through (b) No change.
1. No change.
2. Input assumptions different from those used to develop default CTLs may be used to propose alternative CTLs. The appropriate equations from Chapter 62-777, F.A.C., must be used in calculating the alternative CTLs. Toxicity values for quantifying human health risks and for developing alternative CTLs may be taken from the following information sources listed in Rule 62-780.100, F.A.C., in order of preference:
a. through b. No change.
c. Values proposed by a PRSR from other sources. Such values must be compared with any values available from the referenced guidelines in Rule 62-780.100(12) through 62-780.100(20) and be accompanied with a justification for using the proposed value and. Such proposals are subject to review and acceptance by FDEP based upon statutory requirements for the protection of human health and the environment. The referenced guidelines in Rule 62-780.100(12) through 62-780.100(20) are available for reference when selecting or justifying alternative values.
(c) A risk characterization that utilizes the results of the exposure assessment, the toxicity assessment, and any other relevant public health and epidemiological assessments, to characterize cumulative risks to the affected population(s) and the environment from contaminants found at the site. Based on the concentrations of contaminants found at the site, the characterization shall include:
1. through 2. No change.
3. Derivation of alternative CTLs, as applicable. [Refer to Appendix C of the technical report referenced in subsection 62-780.100(2), F.A.C., for guidance on the derivation of alternative CTLs for TRPHs based on a sub-classification methodology; and to Chapter 62-777, F.A.C., Table III for methods that may be used in determining soil properties for the derivation of alternative CTLs based on site-specific soil characteristics, if soil properties are used to derive alternative CTLs.] In developing alternative CTLs, the dose additivity of chemicals shall be considered [Refer to the “Dose Additivity” document referenced in subsection 62-780.100(24), F.A.C., for guidance].
(d) No change.
(2) through (7) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.81, 403.061 FS. Law Implemented 376.3071, 376.30701, 376.3078(4), 376.81, 403.021, 403.061, 403.062 FS. History–New 4-17-05, Amended 6-12-13, 2-4-14, .
Editorial Note: Portions of this rule were copied from 62-770.650; 62-782.650; and 62-785.650.
62-780.680 No Further Action and No Further Action with Controls.
(1) Risk Management Options Level I – A No Further Action without institutional controls or without institutional and engineering controls shall apply if the following conditions are met:
(a) through (b) No change.
(c) Contaminated groundwater is not present, as demonstrated by the analyses of groundwater samples collected from representative sampling locations (unless the Department has concurred that groundwater sampling is unnecessary based on the site-specific conditions), that show that criteria 1. and 2. are met:
1. No change.
2. Groundwater contaminant concentrations do not exceed the surface water CTLs specified in Chapter 62-777, F.A.C., Table I freshwater surface water criteria column or marine surface water criteria column, as applicable, if the site’s groundwater contaminant concentrations are affecting or may potentially affect a surface water body based on monitoring well data, groundwater flow rate and direction, or fate and transport modeling. The point of measuring compliance with the surface water standards shall be in the groundwater from the landward side immediately adjacent to the surface water body. However, for cleanups being conducted pursuant to 376.30701(2), F.S., (including petroleum contamination sites being addressed pursuant to Section 376.3071, F.S., that are not eligible for state-funded site rehabilitation, if the PRSR elects) or 376.81(1), F.S., such measurement is not necessary if it has been demonstrated, based on site assessment data provided in accordance with 62-780.600, F.A.C., that the contaminants do not cause or contribute to the exceedance of applicable surface water quality criteria.;
(d) through (e) No change.
(2) Risk Management Options Level II – A No Further Action with institutional controls (whether such institutional controls are recorded in the public records of the County in which the site is located, or are non-recorded institutional controls), and, if appropriate, engineering controls shall apply if the controls are protective of human health, public safety, and the environment. Notice of the use of institutional or engineering controls shall be provided in accordance with paragraph 62-780.220(7), F.A.C. Fate and transport models, as defined in Rule 62-780.610, F.A.C., may be utilized to justify the No Further Action Proposal. It shall be demonstrated to the Department that the following conditions are met for those contaminants that do not meet Risk Management Options Level I criteria of subsection 62-780.680(1), F.A.C.:
(a) through (b) No change.
(c) Alternative groundwater CTLs have been established by the PRSR depending on the current and projected use of groundwater in the vicinity of the site and one or more of the following criteria are met, as applicable:
1. through 2. No change.
3. For groundwater contamination that is affecting or may potentially affect only a marine surface water body with no other properties or freshwater surface water bodies located between the source property boundary and the marine surface water body, the CTLs specified in Chapter 62-777, F.A.C., Table I marine surface water criteria column shall apply to groundwater. The point of measuring compliance with the surface water standards shall be in the groundwater from the landward side immediately adjacent to the surface water body. However, for cleanups being conducted pursuant to 376.30701(2), F.S., (including petroleum contamination sites being addressed pursuant to Section 376.3071, F.S., that are not eligible for state-funded site rehabilitation, if the PRSR elects) or 376.81(1), F.S., such measurement is not necessary if it has been demonstrated, based on site assessment data provided in accordance with 62-780.600, F.A.C., that the contaminants do not cause or contribute to the exceedance of applicable surface water quality criteria; and
4. No change.
(3) through (6) No change.
(7) When a No Further Action Proposal is approved pursuant to subparagraph 62-780.600(9)(a)1. or 62-780.650(5)(a)1., F.A.C., or paragraph 62-780.680(5)(a), 62-780.690(11)(a), or 62-780.750(7)(a), F.A.C., the Site Rehabilitation Completion Order shall contain, at a minimum, the following information:
(a) through (h) No change.
(8) through (9) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.81, 403.061, 403.0877 FS. Law Implemented 376.3071, 376.30701, 376.3078(4), 376.81, 403.0877 FS. History–New 4-17-05, Amended 6-12-13, 2-4-14, .
Editorial Note: Portions of this rule were copied from 62-770.680; 62-782.680; and 62-785.680.
62-780.690 Natural Attenuation Monitoring.
(1) through (2) No change.
(3) Where surface water is or may be exposed to contaminated groundwater (based on monitoring well data, groundwater flow rate and direction, or fate and transport modeling), the point of measuring compliance with the surface water standards shall be in the groundwater from the landward side immediately adjacent to the surface water body. For cleanups being conducted pursuant to 376.30701(2), F.S., (including petroleum contamination sites being addressed pursuant to Section 376.3071, F.S., that are not eligible for state-funded site rehabilitation, if the PRSR elects) or 376.81(1), F.S., such measurement is not necessary if it has been demonstrated, based on site assessment data provided in accordance with 62-780.600, F.A.C., that the contaminants do not cause or contribute to the exceedance of applicable surface water quality criteria.
(4) through (7) No change.
(8) The monitoring program shall be performed as specified in the Natural Attenuation Monitoring Plan approval, as follows:
(a) through (d) No change.
(e) If analyses of groundwater samples indicate that concentrations of applicable contaminants exceed any action levels specified in the Natural Attenuation Monitoring Plan approval, then the monitoring report referenced in paragraph 62-780.690(8)(d), F.A.C., shall be signed and sealed by an appropriate registered professional pursuant to Rule 62-780.400, F.A.C., and shall include a proposal to:
1. through 3. No change.
4. Other proposal as authorized by this rule chapter action as approved by the department.
(f) As specified in the approved Natural Attenuation Monitoring Plan, the analytical data shall be evaluated in reference to the expected reductions in contaminant concentrations in monitoring wells pursuant to subparagraph 62-780.690(1)(f)1., F.A.C., or sub-subparagraph 62-780.690(1)(f)2.b., F.A.C., as applicable, to verify progress of site rehabilitation by natural attenuation. If the rate of expected cleanup progress is not achieved, then the monitoring report referenced in paragraph 62-780.690(8)(d), F.A.C., shall be signed and sealed by an appropriate registered professional pursuant to Rule 62-780.400, F.A.C., and shall include a proposal to:
1. through 3. No change.
4. Other proposal as authorized by this rule chapter action as approved by the department; and
(g) No change.
(9) through (14) No change.
Rulemaking Authority 376.303, 376.3071, 376.30701, 376.3078(4), 376.81, 403.061, 403.0877 FS. Law Implemented 376.3071, 376.30701, 376.3078(4), 376.81, 403.0877 FS. History–New 4-17-05, Amended 6-12-13, .
Editorial Note: Portions of this rule were copied from 62-770.690; 62-782.690; and 62-785.690.
