401 KAR 42:340. Laboratory certification.

      RELATES TO: KRS 224.10-420, 224.10-440, 224.60-110, KRS 224.60-130, KRS 224.60-140

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

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.60-130(1)(a) requires the establishment of criteria to certify laboratories that contract with owners or operators of petroleum storage tanks to perform analytical testing. This administrative regulation establishes the requirements for certification and the parameters and methods on which certification shall be granted.

      Section 1. Applicability. A sample required by 401 KAR Chapter 42 shall be submitted to a laboratory certified pursuant to this administrative regulation. This administrative regulation shall apply to analytical testing performed on or after October 1, 1999. An owner or operator of a petroleum storage tank who fails to comply with this requirement shall not be reimbursed by the cabinet for costs related to analytical testing and corrective action.

      Section 2. Certification Requirements. (1) A laboratory shall demonstrate current accreditation by:

      (a) The American Association for Laboratory Accreditation for the "Kentucky Underground Storage Tank Laboratory Accreditation Program"; or

      (b) Any state approved to accredit environmental laboratories to perform the following tests, in accordance with National Environmental Laboratory Accreditation Program requirements and standards:

      1. Benzene, toluene, ethylbenzene, xylene, and methyl tertiary butyl ether (BTEX, MTBE) in soil and water;

      2. Polynuclear aromatic hydrocarbons in soil and water;

      3. Total lead in soil and water;

      4. Toxicity characteristic leaching procedures (TCLP) for:

      a. Metals;

      b. Volatiles;

      c. Acid/base/neutrals; and

      d. Pesticides and herbicides;

      5. Ignitability;

      6. Paint filter test; and

      7. pH.

      (2) A laboratory seeking certification from the cabinet shall submit a completed "Application for Laboratory Certification", DEP 6074, (January 2006). The application shall include proof of accreditation as described in subsection (1) of this section.

      (3) The cabinet shall reimburse a petroleum storage tank owner or operator for the cost of a laboratory analysis if the:

      (a) Analysis is conducted in accordance with the established parameters and methods;

      (b) Analysis is required by written directive by the cabinet and performed in accordance with 401 KAR Chapter 42; and

      (c) Laboratory is certified by the cabinet to conduct that analysis.

      Section 3. Renewal of Certification. A certification shall be valid for two (2) years from the date of issuance by the cabinet. To apply for renewal an applicant for renewal shall submit:

      (1) An "Application for Laboratory Certification", DEP 6074, (January 2006); and

      (2) Updated documentation demonstrating accreditation by the:

      (a) American Association for Laboratory Accreditation; or

      (b) National Environmental Laboratory Accreditation Program.

      Section 4. Loss of Certification. (1) The cabinet may revoke or suspend a certification if the applicant:

      (a) Negligently, incompetently, recklessly, or intentionally violates any provision of this administrative regulation, or any state, federal, or local statute, regulation, code or standard concerning the performance of analytical testing;

      (b) Obtains the certification through fraud or misrepresentation; or

      (c) Knowingly or intentionally submits false information to owners, operators, contractors, or the cabinet.

      (2) A certified laboratory shall maintain accreditation by the American Association for Laboratory Accreditation or the National Environmental Laboratory Accreditation Program for the duration of certification.

      (3) The cabinet shall, within ten (10) days of this determination, notify a laboratory, in writing, of the suspension or revocation of certification.

      (4) A laboratory seeking to dispute revocation or suspension shall appeal that decision pursuant to KRS 224.10-420, 224.10-440, and 401 KAR 100:010.

      Section 5. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Application for Laboratory Certification", DEP 6074, (January 2006); and

      (b) The American Association for Laboratory Accreditation, "Kentucky Underground Storage Tank Laboratory Accreditation Program Requirements", (September 2005).

      (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. 2052; Am. 2871; eff. 6-9-99; 29 Ky.R. 551; 944; eff. 10-9-2002; Recodified from 415 KAR 1:140; 32 Ky.R. 2145; 33 Ky.R. 759; eff. 9-13-2006.)