UST Certification NOIA as passed by the Environmental Protection Commission on October 17, 2005.  Strike through that has been highlighted means the language was deleted from the original language.  Highlighted and underlined language was added.

  

ENVIRONMENTAL PROTECTION COMMISSION [567]

Notice of Intended Action

 Pursuant to the authority of Iowa Code section455B.474, the Environmental Protection

Commission proposes to amend Chapter 134 "Certification of Groundwater Professionals" and Chapter 135, "Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks," Iowa Administrative Code. The amendments to chapter 134 establish a compliance inspector certification program to be administered by the Iowa Department of Natural Resources. The amendments to chapter 135 require owners and operators of underground storage tanks (USTS) to have their tank systems inspected every year for operational compliance with the department's rules by an UST compliance inspector certified by the department.

Chapter 135 amendments require owners and operators to have their underground storage tank systems inspected every year for compliance using a Department certified third party inspector.  Pursuant to Iowa Code section 455B.475, the Department has the responsibility to conduct compliance inspections of UST facilities. Iowa Code section 455B.474(1) grants broad rulemaking authority to the Environmental Protection Commission to adopt UST operation and maintenance rules applicable to owners and operators of USTS.   

The proposed third party certification and annual inspection program derives from the Department's authority and decision to partially delegate this inspection authority and responsibility to certified private inspectors subject to oversight by Department inspectors. This will allow the Department to more effectively audit and target its inspection program as well as assist owners and operators to maintain consistent compliance with Department operation and maintenance rules.   

The development of a third party inspection program has been developed as the result of a series of meetings with representatives for petroleum marketers, the UST insurance community, the environmental community and other stakeholders with a common objective of increasing compliance and preventing leaks from USTS. 

The Chapter 134 amendments incorporate the certification program for an UST compliance inspector. This includes minimum qualifications for education and experience, training requirements, certification suspension and certification revocation. 

Any interested person may submit written comments on the proposed rule amendment on or before Friday December 2, 2005. Written comments should be sent to the Iowa Department of Natural Resources, Attn. Paul Nelson, Wallace State Office Building, Des Moines, IA 50319, Fax 515-281-8895, or e-mail paul.nelson@dnr.state.ia.us. 

Three public hearings will be held at 1:00 p.m. at the following locations:

Tuesday, November 29, 2005 - Coralville Public Library, 1401 5th St, Coralville, IA;

Wednesday, November 30, 2005- Denison Community Hall, 111 N Main St., Denison, IA; and

Friday, December 2, 2005- Wallace State Office Bldg., 4th Floor Conference Room, 502 E 9th St, Des Moines, IA. 

These rules are intended to implement Iowa Code section 455B.474.

The following rule change is proposed. 

ITEM 1. Amend the title of 455G--Chapter 134 to establish a Part I applicable to the existing groundwater professional certification rules and a Part II applicable to the proposed underground storage tank (UST) compliance inspector rules. Part II will be inserted after 567-134.5(455G):

CHAPTER 134

CERTIFICATION OF GROUNDWATER PROFESSIONALS AND

UNDERGROUND STORAGE TANK OPERATION INSPECTORS

PART I. CERTIFICATION OF GROUNDWATER PROFESSIONALS. 

Insert after rule 134.5: 

PART II. CERTIFICATION OF UST COMPLIANCE INSPECTORS 

ITEM 2. Add new rule 134.6 by adding the definition of underground storage tank (UST)

compliance inspector: 

567-134.6(455B) Definition.

UST "compliance inspector" means a person who inspects a regulated UST to satisfy the requirements of 135.20 for compliance with technical UST standards in 567-Chapter 135 (455B). 

ITEM 3. Add the following rules describing the certification procedure and requirements for UST compliance inspectors: 

567-134.7(455B) Certification requirements for UST compliance inspectors.

134.7(1) A person retained by an owner or operator of an UST facility for the purpose of establishing compliance with the annual UST compliance inspection required by the Department under 135.20 must hold a current UST compliance inspector certification issued by the department. Inspector certification will only be issued by the department to a person who:

      a. Possesses minimum experience and qualifications as provided in 134.8.

b. Attends the required training approved by the department.

c. Achieves a passing grade on a certification examination administered or approved by the department.

d. Submits an accurate and complete application.

e. Is not found to be in violation of this chapter and has not had a certification revoked by the department under rule 134.12 or the Underground Storage Tank Fund Board under IAC 591-Chapter 15 (455G).

134.7(2) Failure of the inspector examination.

a. An applicant who fails an initial examination may take a second examination.

b. Failure of the second examination will result in termination of the application. A person may reapply for inspector certification. The applicant must complete a regularly scheduled course of instruction before retaking the certification examination.

134.7(3) Renewal of certification.

a. Renewal Period. Certification shall be for a two-year period and must be renewed by January 1 of each odd numbered year. Applications for renewal must be submitted no later than sixty (60) days prior to the expiration date. If a certified inspector fails to obtain renewal by the expiration date, the Department may grant a thirty (30) day grace period to submit the application upon a showing of good cause and without payment of the renewal fee.

b. Continuing education. Certified inspectors must successfully complete 8 hours of training approved by the department to maintain certification.

c. Minimum inspections. In order to renew certification, an inspector must have conducted at least 25 compliance inspections each year. 

567-134.8(455B) Certified inspector experience and qualifications. An applicant must be an Iowa licensed UST installer or installation inspector under 591-Chapter 15(455G). 

567-134.9(455B) Temporary certification.

134.9(1) Until training and testing procedures are developed, the Department may issue a temporary inspector certification to any person who:

a. Meets the minimum experience requirements under 134.8.

b. Completes the U.S. EPA UST web-based training modules: Introduction To The Underground Storage Tanks (UST) Program and Basic UST Inspector Training with a 85% passing grade.

134.9(2) A person issued a temporary UST compliance inspector certification must complete approved training and testing in 134.11 by April 1, 2007.

134.9(3) Failure to achieve a passing grade before April 1, 2007 will result in revocation of temporary certification. 

567-134.10 (455B) Application for inspector certification.

134.10(1) The applicant shall be an individual.

134.10(2) An application for inspector certification shall be submitted on forms provided by the Department and shall contain the following information:

a. Evidence that the applicant has the experience and qualification prerequisites contained in 134.8.

b. The applicant’s name, address and telephone number.

c. Other information necessary for a determination of qualifications.

d. All applicable fees

134.10(3) Training and Certification fee. A nonrefundable fee of $500 in the form of a check or money order payable to the Department of Natural Resources must accompany the initial application for certification and each renewal application. This fee may be change based on actual expenses. The department will assess a fee for each training course and examination, based upon the cost of preparation and administration.

134.10(4) An application for certification shall be received by the department no later than 90 days prior to the announced date of the certification examination.

134.10(5) An application shall be complete upon submission.

134.10(6) An applicant meeting the requirements will be granted admission to the certification examination for inspector certification. 

567-134.11(455B) Training and Certification examinations.

134.11(1) Prior to taking the compliance inspector examination, the applicant must:

a. Complete the U.S. EPA UST web-based training modules: Introduction To The Underground Storage Tanks (UST) Program and Basic UST Inspector Training with a 85% passing grade.

b. Attend the department's inspector training course or designated approved course.

134.11(1) The department will establish administrative and technical content for the examinations and the standards and criteria against which they will evaluate candidates in determining the fitness of candidates for inspector certification.

134.11(2) The department will schedule a date and location for the examinations for certification of inspectors at least once in each calendar year.

134.11(3) Only applicants who have been authorized by the department to take an examination will be admitted to an examination or issued a certification as a result of passing an examination. Authorization to take an examination will be based on compliance with the requirements of this chapter.

134.11(4) To receive a passing grade on the examinations, the applicant for certification shall achieve a minimum score of 85%.

134.11(5) An applicant who fails two examinations may not retake the examination until the applicant has successfully completed a training program that is administered or approved by the department. Successful completion means attendance at all sessions of training and attainment of the minimum-passing grade established by the department in the approved of the training course.

567-134.12(455B) Environmental liability insurance requirements. All licensed compliance inspectors are required to have environmental liability insurance with minimum liability limits of  $250,000 per occurrence and in the aggregate.

134.12(1) Exception to this requirement. Certified inspectors employed by owners or operators of underground storage tank systems, to work on their own systems and not for others, are exempted from insurance requirements.

134.12(2) Forms of acceptable insurance. All parties covered by the certification provisions of this chapter shall provide evidence of environmental liability insurance to the director upon request.

(1) Environmental liability insurance may be provided by a private insurer authorized to do business in Iowa.

(2) Evidence of environmental liability insurance may be provided using methods of self insurance as outlined in 567-Chapter 136. 

567-134.13(455B) 15.3(2) Licensed company. Companies employing certified UST compliance inspectors shall be registered as a licensed UST compliance company. A company shall lose its license if it fails to employ at least one certified inspector or if it employs uncertified individuals to do inspections requiring certification. The annual license fee is $50. 

567-134.14(455B) Compliance inspection. The UST compliance inspector shall conduct a compliance inspection in accordance with the standards set out in 135.20 and department written instructions and guidelines.

a. The inspector shall record the inspection on the department's form and conduct the inspection to address all items contained on the inspection form.

b. Any problems observed during the inspection must be photographed using at least a 4.0 megapixel digital camera. The digital photographs must be included as part of the inspection report.

c. The compliance inspector must submit the inspection report electronically to the department within 14 days of the inspection.

d. A printed copy of the inspection report must be submitted to the owner and operator of the UST system. The inspector shall require the owner and operator to address any compliance violations or deficiencies in accordance with rules in chapter 567-135 or if no timeframes are established by rule, then within sixty (60) days or another reasonable time period approved by the department.

e. The compliance inspector shall follow-up on any actions required of the owner and operator to correct any compliance violations or deficiencies found during the inspection. Any documentation of correcting violations or deficiencies must be submitted to the department.

f. Any product releases found during the inspection must be reported to the department within 24 hours.

g. Any records provided by the owner and operator to the compliance inspector must be forwarded to the department.

h.       Inspectors shall not conduct compliance inspections at UST facilities owned or operated by the inspector’s employer or facilities at which they have been directly responsible for the installation or repair of the UST system.

i.         Licensed companies may not conduct compliance inspections at UST facilities where they have been directly responsible for the installation or repair of the UST system or facilities owned or operated by a company which has a controlling interest in the licensed company.

 

567-134.15 Disciplinary Actions

134.15(1) The Department may impose disciplinary action which may include but are not limited to notices of deficiency, probationary notices, suspension of a certification and revocation of the certificate.

134.15(2). A notice of deficiency or probationary notice shall not be an appealable decision.  The recipient of a notice may contest the basis for the notice in writing and such response shall be made part of the certification record.

134.15(3) The Department may suspend the certification of a certified inspector or licensed company for good cause, and based on single acts or omissions or repeated acts or omission.  The suspension may require the certified inspector to take remedial measures intended to correct or prevent future acts and omission. Good cause includes, but is not limited to:

a. A violation of these rules,

b. Negligent misrepresentation of material facts in a compliance report.

c. Negligent failure to identify a material violation of UST operation and maintenance standards in 567-135.20.

d. Repeated failure to conduct compliance inspections and submit reports in accordance with the standards set out in 567-135.20.

      e. Incompetence on the part of the certified inspector as evidenced by errors in conducting duties and activities for which the certification was issued.

f. In the case of a certified inspector’s failure to:

(1) Inform the owner or operator and the department of conditions or procedures that are not in accordance with the manufacturer’s technical and procedural specifications for installation, construction, modification or operation of the storage tank system or storage tank facility.

(2) Conduct, review or observe an activity required by the department.

     (3) Repeated failure to submit reports of inspection activities to the Department within 14 days of conducting the inspection activities or provide the owner and operator a copy of the inspection report.

134.15(2) The suspension of a certification shall prevent a company or person from engaging in activities of certification or licensing.

134.15(3) The department may require that the person successfully complete a special training program, examination or other remedial measures sponsored or approved by the Department designed to strengthen the specific weakness in the certified inspector’s duties as identified in the suspension order.

134.15(4) A certified inspector or licensed company shall immediately surrender certification documents to the Department as of the effective date of a suspension order. The department may reinstate the certification if it is determined:

a. The person has satisfied the terms of the suspension order.

      b. The person is competent to execute duties and responsibilities for which certification was issued. 

567-134.16(455B) Revocation of inspector certification or company license.

134.16(1) The Department may revoke the inspector certification or company license for one or more of the following:

a. Willful disregard of, or willful or repeated violations of this chapter or Chapter 135.

b. Fraudulent omissions or misstatements of material facts in a compliance inspection report or other written or oral communications with the Department. .

c. A knowing and willful failure to detect and report a material violation of UST operation and maintenance standards as part of a compliance inspection required by 567-135.20.

c. Acts or omissions warranting suspension after having certification or license previously suspended.

d. The revocation of a certification as an installer or installation inspector under 591-Chapter 15(455G).

134.16(2) A certified inspector or licensed company shall immediately surrender certification or licensing documents after the effective date of a revocation decision. 

ITEM 7. Amend Chapter 135 by adding the following new rules: 

567-135.20(455B) Annual inspection of UST system.

567-135.20(1) The UST owner or operator must have their UST systems inspected annually by an UST compliance inspector certified by the department under 567-Chapter 134(455B).

a. For active petroleum UST systems, inspections must be conducted prior to the annual expiration date of the financial responsibility mechanism.

b. For temporarily closed UST systems, inspections must be conducted prior to the anniversary date of the UST system being temporarily closed.

c. For UST systems containing hazardous substances, inspections must be conducted prior to July 1 of each year.

d. The certified UST compliance inspector must submit the inspection report to the department within 7 days of the inspection in the electronic format provided by the department. 

567-135.20(2) An inspection of an UST system must check for compliance with the technical standards of Chapter 135 following the department's guidance and inspection form. The inspection of an UST system currently in operation will include, but not limited to, the following:

a. The material currently stored in the UST.

      b. The type of tank and lines currently at the site compared to departments database.

c. Checking site records demonstrating operational compliance, 135.4(5).

d. Checking release detection records, 135.5(6).

e. Visually checking for releases or other violations by opening covers of dispensers, submersible pump sumps, and sumps for other piping connections for:

(1) Indications of a release and leaking equipment.

(2) Deteriorating product lines or excessive bends in product lines or flex connectors

(3) Proper anchoring of breakaways (dispensers only).

f. Current operating status of cathodic protection system if present.

g. Presence and operational condition of spill and overfill equipment, 135.3(1)"c".

h. Any problems observed during the inspection must be photographed using at least a 4.0 megapixel digital camera. The digital photographs must be included as part of the inspection report. 

567-135.20(3) Temporarily closed UST system inspection must include, but not limited to, the following:

a. The type of tank and lines currently at the site compared to departments database.

b. Checking site records demonstrating applicable operational compliance, 135.4(5).

c. Current operating status of cathodic protection system if present.

d. Checking for compliance with temporary closure requirements in 135.15(1). 

567-135.20(4) When the compliance inspection finds violations of the department's rules:

a. The owner and operator have 60 days from the date of the inspection to correct the violation.

b. Documentation the violation has been corrected must be submitted to the compliance inspector within 60 days of the inspection.

c. The department may require a follow-up inspection in instances of serious problems or history of repeated violations. 

567-135.20(5).  Owners and operators shall not contract with compliance inspectors who are employees of the owner or operator or who have been directly responsible for installation or repair of the UST system.  Owners and operators shall not contract with licensed companies in which they have a controlling interest.