401 KAR 42:314. Contractor certification for individuals.

 

      RELATES TO: KRS 224.10-420, 224.10-440, 224.60-110, 224.60-130(1)

      STATUTORY AUTHORITY: KRS 224.60-130(1)(a)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.60-130(1)(a) requires the establishment of criteria to be met by persons who contract to perform corrective action. This administrative regulation establishes criteria for obtaining certification for an individual to be eligible to contract and perform corrective action for a release from a petroleum storage tank.

 

      Section 1. Definitions. (1) "Interim contractor" means an individual who is not a certified contractor and is identified by a company to replace a certified contractor in accordance with Section 8 of this administrative regulation.

      (2) "Participation" means direct and substantial involvement in each aspect of corrective action and report preparation.

      (3) "Supervise" means having the authority and responsibility for the performance of corrective action at a facility as a result of a release from petroleum storage tank system, and having the ability to exercise independent judgment and to direct the activities of an employee or subcontractor in the performance of corrective action.

 

      Section 2. Applicability. This administrative regulation sets criteria for being certified as a contractor, which shall include the following:

      (1) Technical competency and proficiency in the performance of corrective action;

      (2) General knowledge of 401 KAR Chapter 42; and

      (3) General knowledge of health and safety standards.

 

      Section 3. Certified Contractor Requirements for Reimbursement. (1) For an Application for Assistance, DEP 6063 (August 2006), incorporated by reference in 401 KAR 42:250, a person who contracts to perform or supervise corrective action shall be certified by the cabinet to be eligible for reimbursement.

      (2) A certified contractor shall perform or supervise corrective action such as site checks, site investigations, and preparation and implementation of corrective action at facilities, in accordance with 401 KAR Chapter 42.

      (3)(a) To be eligible for reimbursement from the cabinet, a person who contracts to perform corrective action shall, prior to incurring costs, notify the cabinet and the owner or operator of the facility, in writing, of the name of the certified contractor designated to supervise the corrective action.

      (b) If the certified contractor changes, a new notice shall be given.

      (4) A person or company who installs, repairs, closes, or removes an underground storage tank, not involving the performance of corrective action, shall not be subject to this administrative regulation.

 

      Section 4. Application Requirements. (1) An applicant for certified contractor shall:

      (a) Submit to the cabinet a completed "Certified Contractor Application", DEP 6072 (January 2006);

      (b) Submit verification of experience of participation in the performance of corrective action at facilities where a release occurred from a petroleum storage tank system, in accordance with Section 5 of this administrative regulation; and

      (c) Complete the examination requirement of Section 6 of this administrative regulation.

      (2) An application to take the certified contractor examination shall be denied if the applicant:

      (a) Fails to provide the information required by the application form;

      (b) Fails to comply with the experience requirement of this administrative regulation; or

      (c) Makes a misrepresentation or submits false information in the application.

      (3)(a) An applicant who has been assigned a testing date and time may request a change in the examination schedule by writing to the cabinet.

      (b) If the request for a rescheduled examination date falls into another examination quarter, the applicant shall reapply to the cabinet.

      (4) An applicant who wishes to retake the certified contractor examination shall reapply to the cabinet.

 

      Section 5. Experience Requirements. The experience required for contractor certification is as follows:

      (1) A person with a degree in the physical, life, or environmental sciences with two (2) years participation, as defined in Section 1(2) of this administrative regulation, in the performance of corrective action.

      (2) A person without a degree in the physical, life, or environmental sciences with six (6) years participation, as defined in Section 1(2) of this administrative regulation, in the performance of corrective action.

 

      Section 6. Examination Requirements. Prior to the cabinet's approval of certification, an applicant for certified contractor shall pass a written examination administered by the cabinet.

      (1) The examination for certification shall be a written multiple choice examination covering all aspects of:

      (a) Corrective action for a release from a petroleum storage tank system. The examination shall test the applicant's knowledge of codes, standards, statutes, regulations, current technology, and industry recommended practices with respect to performing corrective action where a release has occurred from a petroleum storage tank system;

      (b) Applicable occupational health and safety and public health and safety requirements. The examination shall test the applicant's knowledge of codes, standards, statutes, regulations, current technology, and industry recommended practices with respect to occupational health and safety and public health and safety; and

      (c) The reporting requirements, documentation requirements and procedures of 401 KAR Chapter 42

      (2) A minimum score of seventy-five (75) percent on the examination shall be considered passing.

      (3) The examination shall be given upon prior appointment with the cabinet.

      (4) The cabinet shall have a minimum of fourteen (14) calendar days to review the application and schedule the examination.

      (5) The cabinet shall furnish the applicant with instructions for taking the examination upon receipt of a completed application. The instructions shall refer the applicant to relevant statutes, regulations, and industry publications.

      (6) Each examination shall be graded and the applicant notified of the result immediately upon completion of the examination.

      (7) Contractors who fail the examination shall be allowed to retake the examination no sooner than thirty (30) days from the previous examination date.

 

      Section 7. Certification and Renewal Procedures. (1) The cabinet shall issue a certificate to each individual who successfully complies with this administrative regulation. The certificate shall be renewed two (2) years from the date of certification.

      (2) An application for renewal shall be submitted to the cabinet on the "Certified Contractor Application", DEP 6072, (January 2006).

      (3) The certified contractor shall be responsible for renewing the certification prior to expiration. Certified contractors who fail to apply for renewal, prior to expiration, shall have thirty (30) days from the date of expiration to submit the required renewal application. Contractors who fail to submit the renewal application shall retake the examination in order to renew certification.

      (4) The certificate shall not be renewed if an applicant:

      (a) Fails to provide the information required by the "Certified Contractor Application", DEP 6072, (January 2006);

      (b) Makes a misrepresentation or submits false information in the application; or

      (c) Failed to participate in or supervise corrective action during the two (2) year period prior to renewal.

      (5) The cabinet shall require that a certified contractor pass a written examination to renew a certification if there has been a significant change, since the date of original certification, in the statutes, regulations, code, or industry recommended practice with respect to performing corrective action or the reporting and document requirements of the cabinet. The cabinet shall provide written notification to the certified contractor indicating that significant changes have taken place and that an updated examination has been finalized.

      (6) An applicant denied the opportunity to take the certification examination or denied the renewal of their contractor certification may appeal the determination by requesting a hearing pursuant to KRS 224.10-420, 224.10-440, and 401 KAR 100:010.

 

      Section 8. Revocation or Suspension of Certification. (1) The cabinet shall revoke or suspend a certificate issued pursuant to this administrative regulation if the certified contractor:

      (a) Negligently, incompetently, recklessly or intentionally violates a provision of this administrative regulation or any required federal, state or local regulation, code or standard relating to corrective action;

      (b) Recklessly or intentionally causes or permits a person under the contractor's supervision to perform corrective action in violation of standards of the State Fire Marshall or the cabinet;

      (c) Obtained the certification through fraud or misrepresentation;

      (d) Fails to perform a corrective action in a manner consistent with state and federal statutes and regulations for safety or corrective action, or fails to perform a corrective action consistent with generally acceptable professional standards; or

      (e) Knowingly or intentionally submits false information, documentation or payment request to an owner, an operator, or the cabinet.

      (2) The cabinet shall send written notice to a contractor whose certificate has been suspended or revoked. The suspension or revocation will be effective immediately upon receipt of the notification letter.

      (3) A person whose certificate is suspended or revoked may appeal by requesting a hearing pursuant to KRS 224.10-420, 224.10-440, and 401 KAR 100:010.

 

      Section 9. Interim Contractor. (1) A company engaged in the performance of corrective action at a facility shall immediately notify the cabinet in writing of the extended absence of a certified contractor due to an emergency or unanticipated circumstance. The notice shall provide the name and qualifications of the individual replacing the certified contractor.

      (2) The cabinet shall evaluate the qualifications of the designated interim contractor, in accordance with Section 5 of this administrative regulation, and shall notify the company of its determination, in writing, within fifteen (15) days of receipt of the company's notice. The cabinet shall:

      (a) Approve the company's request for designation of the interim contractor for a period not to exceed six (6) months and specify conditions appropriate to the facility and the interim contractor's qualifications; or

      (b) Deny the request, for failure to meet the requirements of Section 5 of this administrative regulation.

      (3) No individual company shall engage an interim contractor for more than six (6) months within a twelve (12) month period..

 

      Section 10. Incorporation by Reference. (1) "Certified Contractor Application", DEP 6072, (January 2006) is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Underground Storage Tank Branch, 81 C. Michael Davenport Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m., excluding state holidays, and may also be obtained on the Division of Waste Management’s Web page located at www.waste.ky.gov. (20 Ky.R. 3140; Am. 21 Ky.R. 29; eff. 7-27-94; 22 Ky.R. 1343; 1596; eff. 2-27-96; 23 Ky.R. 2239; eff. 4-9-97; 25 Ky.R. 1119; 2866; eff. 6-9-99; Recodified from 415 KAR 1:114, 2-17-2005; 32 Ky.R. 2136; 33 Ky.R. 753; eff. 9-13-06.)