By RALPH A DEMEO
The Florida Department of Environmental Protection (FDEP) is planning changes that would make it much more difficult to develop property containing low levels of arsenic found throughout many locations in Florida.
These changes to the methodology for establishing arsenic soil values, based on revised United States Environmental Protection Agency (EPA) toxicity factors, will have a potentially devastating effect on industries, businesses, landowners, home builders, developers, local governments and others facing responsibility or liability for contaminated properties. Site assessment, remediation, and development costs would rise considerably under this approach, and real property transactions may be significantly affected.
This is based on a toxicity assessment for arsenic done in January 2025 by EPA pursuant to the Integrated Risk Information System (IRIS) program. FDEP’s practice generally has been to use revised toxicity factors if alternative soil cleanup target levels are proposed. However, it is important to note that FDEP is under no legal imperative to adopt this method for established arsenic values.
FDEP is considering requiring the use of this new EPA toxicity assessment for arsenic under pressure from the Miami-Dade County Department of Environmental Resources Management (DERM). A report from the FDEP’s contractor at the University of Florida, applying this factor, concluded that the new DERM SCTL would be 0.1 mg/kg for residential and 0.2 mg/kg for commercial sites, which is below background levels at many sites in Florida. This is at odds with Florida background soils analyses, which are above this value in many locations in Florida, where the background arsenic value is reported to be higher than 0.1 mg/kg.
Landowners, developers, homebuilders and Persons Responsible for Site Rehabilitation should not, as has been suggested by FDEP, be required to undertake a FDEP-approved site-specific soil background analysis to establish an alternative SCTL. These are costly and time-consuming studies, which can have a chilling effect on land development, contaminated property assessment and remediation, and land transfers. Existing soil maps provide ample evidence of background levels of contaminants in soils which have been, and should continue to be, relied upon.
Interestingly, EPA itself does not use this toxicity factor to establish soil screening levels at EPA-led sites. There also are significant legal obstacles to FDEP requiring the use of this approach. Under Chapters 62-777, 62-780, Florida Administrative Code, it is not required to use this value. Furthermore, under Florida law, any alternative CTL must be protective to the same degree as the established default criteria, which is questionable in this case. It is also impracticable to use this new toxicity factor because the standard, if adopted, would be effectively zero.
Principally affected stakeholders, in particular regulated activities, landowners, PRSRs and those engaged in the buying and selling and redevelopment of land, including potential Brownfield redevelopment, should contact FDEP immediately to demand stakeholder input before any decisions are made. At present, no workshops or other opportunities to obtain stakeholder input are planned. Interested persons should monitor this closely, contact their lawyer and consultants about its potential impact on their interests, and provide comments to the FDEP before it gains any traction.
The Integrated Risk Information Systems report can be found here.
Ralph A. DeMeo is Special Counsel at Adams & Reese
