401 KAR 42:316. Certification of contracting companies.

      RELATES TO: KRS 224.10-420, 224.10-440, 224.60-130, 224.60-140

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

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.60-130(1) requires the cabinet to establish by administrative regulation the procedures to administer the financial responsibility and petroleum storage tank accounts of the Petroleum Storage Tank Environmental Assurance Fund, and authorizes establishment of eligibility criteria for the certification of partnerships and companies that engage in corrective action. This administrative regulation establishes criteria for certification of companies that contract with eligible owners and operators to perform corrective action at petroleum storage tank facilities.

      Section 1. Certification Requirements. (1) A company or partnership who contracts with an eligible owner or operator to perform corrective action shall be certified by the cabinet. The cost of corrective action performed by a company or partnership not certified shall not be reimbursable.

      (2) To be eligible to contract with a petroleum storage tank owner or operator seeking reimbursement from the cabinet, the company or partnership shall:

      (a) Employ or contract with one (1) or more individuals certified by the cabinet pursuant to 401 KAR 42:314;

      (b) Hold, in good standing, all licenses, permits and training certifications required to perform corrective action services in Kentucky;

      (c) Provide to the cabinet applicable work experience to demonstrate the technical, administrative and financial capability to perform and manage corrective action at a facility; and

      (d) Be approved in writing by the cabinet as certified to perform corrective action services in Kentucky.

      (3) This requirement shall apply to corrective actions initiated on or after July 1, 1999.

      (4) An authorized representative of a certified company shall sign an application or claim payment request in addition to the eligible owner or operator. The certified company shall certify that:

      (a) The information or payment request has been reviewed and is true and correct; and

      (b) Each claim payment cost is reasonable, necessary, and was performed in compliance with 401 KAR Chapter 42.

      Section 2. Application Requirements. (1) An applicant for company certification shall submit:

      (a) A completed "Certified Company or Partnership Application", DEP 6073, (January 2006);

      (b) Verification of the employment or contracting of one (1) or more individuals certified pursuant to 401 KAR 42:314;

      (c) As references, the names and addresses of three (3) previous clients for whom environmental remediation has been performed by the company. If none, the applicant shall provide the names and addresses of three (3) previous or current clients of the individual certified pursuant to 401 KAR 42:314; and

      (d) A list of the names and address of officers and principals of the applicant, and if applicable, a list of all stockholders.

      (2) Cabinet staff may inspect facilities of the applicant if necessary to verify information in the application or to assist in the evaluation of the applicant's capabilities.

      (3) The cabinet may require additional information and documentation if necessary to verify the applicant's actual work experience.

      (4) An application for certified company status shall be denied if the applicant:

      (a) Fails to provide the information required in the application or in this administrative regulation;

      (b) Does not meet the requirements of subsection (1) of this section;

      (c) Does not hold, in good standing, all licenses, permits and training certifications required to perform corrective action services in Kentucky;

      (d) Fails to allow cabinet staff to access company records for audit purposes pursuant to 401 KAR 42:335;

      (e) Fails to provide additional information and documentation requested by the cabinet;

      (f) Fails to demonstrate the technical, administrative and financial capability to perform and manage corrective action at underground storage tank facilities;

      (g) Provides false or misleading information in the application;

      (h) Has an officer, director, principal, or stockholder who has had a certification, granted pursuant to 401 KAR 42:314, revoked or suspended;

      (i) Has an officer, director, principal, or stockholder who was an officer, director, principal, or stockholder in a certified company, previously having had its certification revoked or suspended; or

      (j) Fails to maintain general and professional liability insurance and pollution/property coverage.

      (5) An applicant whose application for company certification is denied may appeal the determination by requesting a reconsideration or hearing pursuant to KRS 224.10-420, 224.10-440, and 401 KAR 100:010.

      (6) The cabinet shall issue a certificate to a qualifying applicant, indicating certification pursuant to this administrative regulation.

      Section 3. Certification and Renewal Procedures. (1) The cabinet shall issue a certificate to each company that successfully complies with this administrative regulation. The certificate shall be renewed two (2) years from the date of certification. The certified company shall be responsible for renewing certification prior to expiration.

      (2) An application for renewal shall be submitted to the cabinet on the "Certified Company or Partnership Application", DEP 6073, (January 2006).

      (3) Actions performed by a certified company, under contract with an owner or operator, that fails to renew its certification shall be ineligible for reimbursement of corrective action costs incurred after the expiration date.

      Section 4. Revocation or Suspension of Certification. (1) A certification issued pursuant to this administrative regulation shall be revoked or suspended if the certified company:

      (a) Or its employee or agent knowingly submits false information, documentation, or a false payment request to an owner, operator, or the cabinet;

      (b) Has permitted an employee, agent or subcontractor to violate a provision of 401 KAR Chapter 42, or to perform corrective action in violation of the standards of the State Fire Marshal or the cabinet;

      (c) Has failed to comply with the terms set forth in 401 KAR 42:335;

      (d) Has negligently, incompetently, recklessly or intentionally violated a provision of this chapter or a required federal, state or local regulation, code or standard relating to corrective action;

      (e) Has obtained the certification through fraud or misrepresentation; or

      (f) Fails to perform a corrective action in a manner consistent with state or federal laws and regulations for safety or corrective actions, or fails to perform a corrective action consistent with generally acceptable professional standards.

      (2) The cabinet shall issue a letter by certified mail notifying a noncompliant certified company that its certification has been revoked or suspended by action of the cabinet.

      (3) A person whose certificate is suspended or revoked may appeal the determination by requesting a hearing pursuant to KRS 224.10-420, 224.10-440, and 401 KAR 100.010.

      Section 5. Incorporation by Reference. (1) "Certified Company or Partnership Application", DEP 6073, (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. (25 Ky.R. 1272; Am. 1925; 2558; eff. 5-19-99; Recodified from 415 KAR 1:116, 2-17-2005; 32 Ky.R. 2139; 33 Ky.R. 480; 755; eff. 9-13-06.)