Initial Notice of Contamination Beyond Property Boundaries
Two types of actual notice of contamination beyond property boundaries are required to be submitted by the Person Responsible for Site Rehabilitation (PRSR) or their agent to the FDEP’s Division of Waste Management within 10 days of initial discovery that contamination has migrated beyond the boundaries of the property at which a site investigation is being performed.
Upon such discovery, the PRSR shall notify the FDEP as soon as possible, within 10 days of discovery.
A) Initial Notice of Contamination (INOC) Pursuant to Section 376.30702, F.S. and Section 62-780.220, F.A.C.
Section 376.30702, F.S., provides specific notice requirements upon a PRSR’s discovery from laboratory analytical results that comply with appropriate quality assurance protocols pursuant to Chapter 62-160, F.A.C., that contamination exists in any medium beyond the boundaries of the property at which site rehabilitation was initiated pursuant to this chapter.
The notice shall be provided on Form 62-780.900(1) titled “Initial Notice of Contamination Beyond Property Boundaries” effective date 6-12-13. Notification forms may be obtained from the Division of Waste Management(DWM) website. The PRSR shall simultaneously mail a copy of such notice to the appropriate FDEP district office, county health department, and all known lessees and tenants of the source property. Refer to Section 376.30702(2), F.S., for additional details about this requirement and the information that must be included in the notice.
B) And/or Expanded Notification per DWM Guidance Memo dated November 14, 2008 for State–Funded Sites When the Department Acts as PRSR.
State-Funded cleanup sites are subject to “Expanded Initial Notice” per DWM Guidance.
Types of Sites Subject to Expanded Initial Notice:
Properties “suspected” of being contaminated above CTLs in any media based on a plume map signed and sealed by a Fla. licensed P.G. or P.E. Site Managers are required to identify these properties and prepare a INOC package.
If a plume map is not yet available, properties within a “250-Foot Radius” of the location of each “confirmed” off-site sample (GW only). Admin Contract will identify these properties and prepare the noticing for these properties.
Site Managers will include the following in a Noticing Package:
INOC Beyond Property Boundaries, Specific requirements are listed in the form: 62-780.900(1). Note: “Page 2” is to be completed for each off-site property.
Names of Contaminants of Concern (COCs) detected above Cleanup Target Levels (CTLs),
The corresponding CTL,
If multiple CTLs are exceeded, list health-based CTL.
Plume map(s), a vicinity map that shows the locations of the samples collected on the offsite properties.
Sampling dates and types of samples collected, analytical results and property boundaries, Use the Checklist.
Site Managers will send the Noticing Packages to:
The appropriate DEP District office,
County Health Department (Environmental Health Director),
Lessees and Tenants of the Cleanup Site Property (excludes off-site property information (page two of Form)).
Admin Contract’s Role:
Review packages received from PRSR,
QA file including maps, tables, property ownership records,
Send out Initial Notice of Contamination letters in weekly mail-out,
Please note that the Admin Contract staff is not tasked to perform technical reviews or make technical decisions. Site Managers make sure that the package submitted has the correct data and the necessary documentation.
Notice for Establishment of a Temporary Point of Compliance (TPOC)
Site cleanup under Active Remediation (62-780.700) and Natural Attenuation Monitoring (62-780.690) require the establishment of a Temporary Point of Compliance (TPOC) [see 62-780.700(1) and 62-780.690(2), respectively] if the plume is known to extend off the source property or you are using an offsite well to monitor a plume on the source property. If either of these instances are met, then Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a TPOC (i.e. TPOC noticing) to affected parties (County Health Dept., non-source property owners, etc.) is required (62-780.220) prior to approving the TPOC and associated Remedial Action Plan (RAP) or Natural Attenuation Monitoring Plan (NAMP).
Section 376.30701(2)(b), Florida Statutes (F.S.), establishes "the point of compliance at the source of contamination" such that the Person Responsible for Site Rehabilitation (PRSR) must meet all applicable Cleanup Target Levels (CTLs) at the source of contamination. However, the statute authorizes the FDEP to extend the point of compliance beyond the source area temporarily while cleanup is underway. A TPOC is an “imaginary” line established to depict the maximum areal extent within which CTLs may be exceeded during site rehabilitation. The primary purpose of TPOC noticing is to provide subsequent notice to potentially affected parties that the point of compliance for achieving CTLs will be temporarily extended during implementation of the proposed remedial strategy (e.g. RAP or NAMP).
A TPOC is the location at which concentrations of contaminants of concern (COCs) do not exceed applicable CTLs (i.e. all CTLs, all media).
If monitoring wells are too distant from the TPOC to reasonably function as TPOC monitoring wells, then the same computer model or professional judgment used to establish the TPOC may be used to determine whether the TPOC has been maintained.
Exceedance of an applicable CTL in a TPOC monitoring well should be addressed per Action Levels defined in the applicable RAP or NAMP.
The PRSR shall provide “actual notice” to local governments and the owners of any property into which the point of compliance is allowed to extend and “constructive notice” to residents and business tenants of the property into which the point of compliance is allowed to extend. Persons receiving such notice shall have the opportunity to comment within 30 days after receipt of the notice. For the purposes of this Rule 62-780.220, F.A.C., “actual notice” and “constructive notice” shall mean as follows:
Actual notice in written form mailed by “Certified Mail, Return Receipt Requested” or other form of delivery that provides confirmation of receipt (e.g. email with delivery receipt) to the appropriate County Health Department and all record owners of any real property into which the point of compliance is allowed to extend (mailed to the owner’s address listed in the current county property tax office records).
Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62-780.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Constructive notice shall consist of publication of notice in a newspaper of general circulation pursuant to paragraph 62-780.220(3)(b), F.A.C.Constructive notice shall include the same information required in the actual notice and shall indicate the 30-day deadline by which comments must be received.Constructive notice is required for brownfield sites. Constructive notice is not normally required for petroleum products contamination but may be requested by the Department. Copies of actual notices (and constructive notices, if applicable), must be provided to the Department as proof of compliance with this subsection. For purposes of the constructive notice, the PRSR shall provide a copy of the version printed in the newspaper or submit the actual newspaper page itself.
Typical Process for TPOC(s):
The ATC submits a RAP or NAMP with the proposed TPOC(s) or the site manager generates the TPOC(s) at the time of the RAP or NAMP submittal:
FDEP reviews the RAP or NAMP and proposed (or generated) TPOC(s). When both the plan and proposed TPOC(s) are found to be acceptable, FDEP sends a Provisional Approval Letter to the ATC and source property owner notifying them that the Department intends to approve the RAP or NAMP after the FDEP site manager completes the TPOC notice process per the requirements of Rule 62-780.220(3), F.A.C.
TPOC notice letter(s) are prepared by the Site Manager or Contractor (if authorized by the Site Manager under a purchase order). The pay item 1-3 is approved when a Contractor is tasked to prepare the noticing letters and site plan. Only one unit of the line item for TPOC will be approved in the purchase order. Contractors are to submit the letter(s) with RAP or NAMP to the Site Manager. Site Manager is responsible for the accuracy of the deliverable, TPOC notice letter(s) and site plan, from the Contractor; putting the letter on appropriate letterhead; and mailing per the instructions.
The notice letter provides a description of the site and a list of the categories of contaminants that have been identified as COCs for the site (e.g., petroleum, chlorinated solvents, polycyclic aromatic hydrocarbons, pesticides, metals, arsenic, etc.) and the affected media (e.g. soil, groundwater, surface water, sediment).
The TPOC notice letter should include a vicinity map (site plan) to satisfy the “description of site” requirement. The vicinity map should be of a legible scale and include the following: identification of the proposed TPOC point(s); delineated plume for each media as applicable; and sufficient street names or area landmarks to allow the recipient to identify the area included in the proposed TPOC action.
The FDEP site manager sends the TPOC notice letters by certified/confirmed mail or certified email (delivery receipt required), to each real property owner (RPO), including rights-of-ways (ROWs), whose property is crossed by or lies within the boundary of the proposed TPOC(s) and to the appropriate County Health Department and local governments. Real property owners are identified using current public property records such as the property appraiser’s web site. The Florida Department of Revenue maintains a link to all county property appraisers. The notice letter provides for a 30-day comment period.
The FDEP site manager provides proof of notice by uploading letters and delivery receipts to OCULUS/site file and sending copy of proof to the PRP.NoticeofCont@floridadep.gov shared mailbox.
Comments will be submitted to FDEP, reviewed, and retained in OCULUS/ site file.
The 30-day comment period will end at the latest of:
30 days after the last mail delivery confirmation card (“green card” if sent by certified mail) is signed;
30 days after the last green card or other confirmation is returned as undeliverable, unclaimed, or refused; or,
30 days after the email delivery receipt is received, or
30 days after the date constructive notice is published in the newspaper.
After the 30-day comment period is completed, FDEP and the PRSR should address comments, if applicable.
If changes are made to the TPOC(s) as a result of public comment, the FDEP site manager must provide additional TPOC notice for all new properties included within the revised TPOC(s).
Once any comments are addressed, FDEP issues the RAP Approval Order (RAPAO) a NAMP Approval Letter for state-funding (i.e. “Program”) sites, or NAMP Approval Order (NAMPAO) for Non-Program/Voluntary sites. The RAPAO, NAMP Approval Letter, or NAMPAO should state that the TPOC(s) does/do not authorize further migration of the plume to areas not already contaminated.
The RAPAO, NAMP Approval Letter, or NAMPAO is issued with (and the PRSR may choose to publish) a Chapter 120, F.S., notice of rights and a specified petition period.
The FDEP site manager shall send a copy of the RAPAO, NAMP Approval Letter, or NAMPAO to everyone who commented on or expressed concerns in response to the TPOC notice. Affected parties will have an additional opportunity to comment upon issuance of the RAPAO, NAMP Approval Letter, or NAMPAO by filing either a petition challenging the applicable Approval or by filing a Request for Extension of Time to File a Petition.
If no petitions or extension requests are filed, the RAPAO, NAMP Approval Letter, or NAMPAO becomes effective after the petition period ends.
Status Update 5-Year Notice
When utilizing TPOC(s) beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to the classes of persons who received notice pursuant to subsection 62-780.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. The5-year TPOC noticing is to be done by the site manager.
Notice Requirements for Schools
If the property at which contamination has been discovered is the site of a school as defined in Section 1003.01, F.S., regardless of whether the school property is the site at which site rehabilitation was initiated, then the school board of the district in which the property is located shall provide actual notice of the contamination to teachers and parents or guardians of students attending the school during the period of site rehabilitation. Such notice must be provided within 30 days of discovery or receipt of notification from the Department, whichever is earlier, and shall conform to the requirements in Section 376.30702(2)(a), (c), and (d), F.S. At least annually during the period of site rehabilitation, the school board of the district in which the property is located shall continue to provide such actual notice of the contamination, updated as appropriate, to teachers and parents or guardians of students attending the school. A representative copy of all notices shall be submitted to the Department at the time the notice is provided to the teachers and parents or guardians.
Site Managers will:
Prepare a short site-historical summary;
Include a site map showing the locations of contaminated media, monitoring wells and soil borings;
Complete and attach “Contaminant Data Tables” for each contaminated medium (groundwater, soil, surface water or sediment).
Send the above materials to PRP Noticing Coordinator.
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 institutional and engineering control, to real property owner(s) of any property subject to the institutional or institutional and 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 subsection 62-780.100(7), F.A.C., for guidance). Notice mailed to the registered agent of any party, if applicable, shall be sufficient notice for the purposes of this subsection. 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 institutional and 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 institutional and 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.
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