Arkansas Administrative Code
Agency 118 - DEPARTMENT OF ENERGY AND ENVIRONMENT
Division 01 - Arkansas Pollution Control and Ecology Commission
Rule 118.01.21-019 - Rule 32, "Environmental Professional Certification"
Universal Citation: AR Admin Rules 118.01.21-019
Current through Register Vol. 49, No. 2, February 2024
Rule Number 32 Environmental Professional Certification
CHAPTER 1
: PURPOSE & AUTHORITIES
Rule
32.101.
Purpose.
(A)
Pursuant to Arkansas Code Annotated (A.C.A.) §
8-7-1301
et
seq. (Act 1018 of 2007), to establish and implement a certification
program to:
(1) Maintain a list of Phase I
consultants who meet the minimum qualifications for an environmental
professional who undertakes a Phase I environmental site assessment, referred
to as "all appropriate inquiry" under the Small Business Liability Relief and
Brownfields Revitalization Act, Pub.
L. No. 107-118, as it exists on January 1, 2007, or a Phase I environmental
site assessment under the American Society for Testing and Materials standard
E1527-05 as in effect on January 1, 2007; and
(2) Require that such consultants demonstrate
that they have the qualifications required to undertake such
activities.
(B) Pursuant
to A.C.A. §
8-7-1401
et
seq. (Act 864 of 2007), to establish and implement a certification
program to:
(1) Certify contractors who choose
to undertake the inspection, sampling, remediation, and removal of contaminated
materials from properties contaminated through the illicit manufacture of
controlled substances;
(2) Require
as a condition of certification that such contractors demonstrate they have
qualifications required to safely undertake such
activities.
Rule
32.102.
Authority.
A.C.A. §§ 8-7-1301, et seq. (Act 1018 of 2007) and §§ 8-7-1401, et seq. (Act 864 of 2007) authorize the Arkansas Pollution Control and Ecology Commission ("Commission") to adopt rules necessary for the Division of Environmental Quality ("Division") to implement and effectuate the powers and duties of the Commission as established by the Acts.
Rule 32.103.
Definitions.
The following terms shall have the same meaning when used in this Rule as established by the Act, unless the context otherwise requires:
(A) "Certification and
listing" means the review and approval of an individual's education
and relevant experience as prescribed at § 32.301(B) of this rule and the
placement of that individual's name on the list of certified environmental
professionals as required by § 32.101(A) of this rule.
(B) "Certified Clandestine Laboratory
Remediation Contractor" means a firm or company that is
licensed/certified by the Division pursuant to Section 4 of this rule, and that
performs investigation and remediation of residual contamination from the
manufacture of controlled substances or the storage of chemicals or equipment
used in the manufacture of controlled substances.
(C) "Clandestine Laboratory"
means a covert or secret illicit operation that uses a combination of apparatus
and chemicals to make controlled substances.
(D) "Commission" means the
Arkansas Pollution Control and Ecology Commission.
(E) "Contaminated" or
"Contamination" means polluted by chemical residues so that
the property is unfit for human habitation or use due to immediate or long term
threats to human health or the environment. Property that at one time was
contaminated but has been satisfactorily decontaminated according to procedures
established by the Division is not "contaminated".
(F) "Contractor" means one
or more individuals or commercial entities hired to perform work in accordance
with the requirements of § 32.402 of this rule.
(G) "Controlled Substances"
(A.C.A. §
5-64-101(d))
means: "a drug, substance, or immediate precursor in schedules I - VI" of the
Arkansas Department of Health list of controlled substances Agency#
007.07.
(H)
"Division," or "DEQ" means the Division of
Environmental Quality, or its successor.
(I) "Director" means the
Director of the Division of Environmental Quality.
(J) "Hazardous Substances"
means a hazardous substance as defined by A.C.A. § 8-7503(6).
(K) "HAZWOPER" means the
OSHA Hazardous Waste Operations and Emergency Response course (29 CFR
1910.120(a)(1)(i-v) and
(29 CFR
1926.65(a)(1)(i-v))
.
(L)
"Investigation" means the process of assessing the nature,
level, and/or extent of contamination of controlled or hazardous substances at
a clandestine laboratory.
(M)
"Manufacture" (A.C.A. §
5-64-101(m)
(Repl. 1997) means the production, preparation, propagation, compounding,
conversion, or processing of a controlled substance, either directly or
indirectly by extraction from a substance of natural origin, or independently
by means of chemical synthesis, or by a combination of extraction and chemical
synthesis.
(1)
"Manufacture"
includes any packaging or repackaging of a controlled substance or labeling or
re-labeling of a controlled substance's container.
(2) However, "Manufacture"
does not include the preparation or compounding of a controlled substance by an
individual for his or her own use, or the preparation, compounding, packaging,
or labeling of a controlled substance:
(a) By
a practitioner as an incident to his or her administering or dispensing of a
controlled substance in the course of his or her professional practice;
or
(b) By a
practitioner, or by his or her authorized agent under his or her supervision
for the purpose of, or as an incident to, research, teaching, or chemical
analysis and not for sale.
(N) "OSHA" means the federal
Occupational Safety and Health Administration.
(O) "Person" means any
individual, corporation, company, firm, partnership, association, trust,
joint-stock company or trust, venture, state or federal government or agency,
or any other legal entity however organized.
(P) "Phase I environmental site
assessment" means an assessment defined as "all appropriate inquiry"
under the Small Business Liability Relief and Brownfields Revitalization Act, Pub.
L. No. 107-118, and the rules promulgated under that federal act or a Phase I
environmental site assessment as that term is used in the American Society for
Testing and Materials standard E1527-05 as in effect on January 1,
2007.
(Q) "Phase I
Consultant" means a person who performs a Phase I environmental site
assessment for a fee or in conjunction with other services for which a fee is
charged.
(R)
"Property" means any real or personal property, or segregable
part thereof, that is involved in or affected by the unauthorized manufacture,
distribution, or storage of hazardous chemicals. This includes but is not
limited to single-family residences, units of multiplexes, condominiums,
apartment buildings, manufactured housing, any shop, booth, garden, or storage
shed, and all contents of the items referenced in this subsection.
(S) "Property Owner" means
the person holding fee simple title to real property. "Property Owner" also
means the person holding title to a manufactured home. With respect to personal
property, the term means the person who lawfully owns such property.
(T) "Public agency" means
any administrative body, department or agency of government which has official
or quasi official status.
(U)
"Relevant experience" as used in defining the qualifications
of environmental site assessment consultants in this Rule, means: participation
in the performance of all appropriate inquiries investigations, environmental
site assessments, or other site investigations that may include environmental
analyses, investigations, and remediation which involve the understanding of
surface and subsurface environmental conditions and the processes used to
evaluate these conditions and for which professional judgment was used to
develop opinions regarding conditions indicative of releases or threatened
releases to the subject property. The use of the phase
"full-time" within the definition of environmental
professional and the definition of relevant experience is meant to require that
an individual has accumulated the equivalent of 3, 5, or 10 years of actual
working experience in performing environmental site assessments. An individual
may accumulate such experience over a longer length of time than the 3, 5, or
10 years, as long as the total time of accumulated experience would be the
equivalent of 3, 5, or 10 years of full-time experience. Even after an
individual accumulates the required number of years of fulltime experience,
that individual does not have to conduct environmental site assessments, or all
appropriate inquiries investigations, on a full-time basis to continue qualify
as an environmental professional.
(V) "Remediation" means the
process of reducing the level of contamination of controlled substances below
the concentrations allowed by this rule.
CHAPTER 2
: CERTIFICATION AND LISTING
PROGRAMS
Rule 32.201.
Applicability.
(A) The Division
of Environmental Quality shall:
(1) Maintain
and make available to the public a list of Phase I consultants who meet the
minimum qualifications for an environmental professional who undertakes a Phase
I environmental site assessment, referred to as "all appropriate inquiry" under
the provisions of the Small Business Liability Relief and Brownfields
Revitalization Act, Pub.
L. No. 107-118, and the rules promulgated under that federal act.
(2) [Reserved].
(B) Persons wishing to be placed upon the
Division's list of certified environmental professionals shall meet the
education and experience requirements set forth at
40
CFR 312.10 and § 32.301(B) of this rule,
and submit an application for such certification and listing to the
Division.
CHAPTER
3
: PHASE I CONSULTANTS
Rule
32.301.
Certification Criteria for Phase I
Consultants.
(A) An applicant seeking
certification to be listed as a Phase I Consultant shall submit an application
on forms provided by the Division and shall pay the applicable application
fees.
(B) Persons seeking
certification as a Phase I Consultant shall possess sufficient specific
education, training, and experience necessary to exercise professional judgment
to develop opinions and conclusions regarding conditions indicative of releases
or threatened releases on, at, in, or to a property, sufficient to meet the
objectives and performance factors for all appropriate inquiries set forth in
40 CFR
312.20; and shall demonstrate this by meeting
at least one of the following combinations of education and experience:
(1) Hold a current Professional Engineer's or
Professional Geologist's license or registration; and have the equivalent of
three (3) years of full-time relevant experience; or
(2) Have a Bachelor's or higher degree from
an accredited institution of higher education in a relevant discipline of
engineering or science and the equivalent of five (5) years of full-time
relevant experience; or
(3) Have a high school diploma or general
equivalency diploma and at least ten (10) years of full-time relevant
experience; or
(4)
Be licensed or certified by the federal government, a state, tribe, or U.S.
territory (or the Commonwealth of Puerto Rico) to perform environmental
inquiries as defined in
40 CFR
312.21 and have the equivalent of three (3)
years of full-time relevant experience.
(C) Relevant experience shall be demonstrated
by the submittal of an application for certification documenting the
applicant's experiences and qualifications as prescribed by § 32.301(B)
above.
(D) Applicants shall also
submit, as part of the application for certification, a Disclosure Statement in
accordance with the disclosure statement provisions of APC&EC Rule No. 8.
The Disclosure Statement shall also certify that neither the individual nor the
individual's employer have been convicted of or plead guilty to an
environmental crime or offense, or any related criminal offense.
(E) The Division may request and review
additional relevant information about the applicant or application in order to
properly process the application.
(F) Upon demonstration of compliance with the
criteria, the applicant shall be eligible for certification and listing as a
Phase I Consultant under this subchapter.
CHAPTER 4
: CLANDESTINE LABORATORY
REMEDIATION CONTRACTORS
32.401.
Application.
(A) An applicant
seeking certification as a Clandestine Laboratory Remediation Contractor shall
submit an application on forms provided by the Division and shall pay the
applicable application fees in accordance with § 32.606(B) of this
rule.
(B) Applicants shall also
submit, as part of the application for certification, a Disclosure Statement in
accordance with the disclosure statement provisions of APC&EC Rule No. 8.
The Disclosure Statement shall also certify that neither the individual nor the
individual's employer have been convicted of or plead guilty to an
environmental crime or offense, or any related criminal offense.
(C) Upon receipt of a complete application,
the Division shall either accept or deny the applicant's certification. The
Division may revoke the certification of any contractor for cause and collect
the forfeited financial assurance of any contractor found to be in violation of
A.C.A. §§
8-7-1401
et
seq. Contractors shall also report any changes in their registration
information with the Division, such as address, financial assurance and/or
liability insurance information within 30 days. Failure to comply fully with
the requirements of this section may result in the immediate revocation of
certification by the Division.
32.402.
Certification Criteria for
Clandestine Laboratory Remediation Contractors.
(A) Persons seeking certification as a
Clandestine Laboratory Remediation Contractor shall maintain the following
information for all employees who perform decontamination and/or cleanup work
of former clandestine laboratories:
(1) Copy
of a current OSHA 40-hour HAZWOPER training certificate (29 CFR
1910.120(e)) or copy of a
current HAZWOPER 8-hour refresher certificate if it has been over 12 months
since the initial training; and
(2) Documentation of successful completion of
an 8-hour training course approved by the Division that encompasses the
following areas:
(a) Clandestine Drug
Laboratory Site Remediation Best Standards and Practices;
(b) Hazardous and precautionary measures for
initial and subsequent entry into a clandestine drug laboratory site;
(c) Preparation of the work plan for
remediation of a clandestine drug laboratory;
(d) Typical manufacturing methods for
controlled substances;
(e) Chemical
and physical hazards of a clandestine drug laboratory;
(f) Typical flammable, combustible,
corrosive, and reactive materials used in a clandestine drug
laboratory;
(g) Sampling waste from
the remediation of a clandestine drug laboratory;
(h) Preparing the final report on the
remediation of a clandestine drug laboratory;
(i) Potential sharps and biohazards at a
clandestine drug laboratory;
(j)
Proper handling and disposal of wastes from the remediation of a clandestine
drug laboratory; and
(k) Other
potential hazards or dangers that can be associated with a clandestine drug
laboratory.
(3)
Supervisory personnel shall, in addition to the eligibility requirements of
§§ 32.402(A)(1-2) above, shall comply with OSHA HAZWOPER supervisor
training requirements of
29 CFR
1910.120(e).
(B) DEQ may request and review additional
information about the applicant or application in order to properly process the
application.
(C) Upon demonstration
of compliance with the criteria, the applicant shall be eligible for
certification and listing as a Certified Clandestine Laboratory Remediation
Contractor under this Rule.
32.403.
Financial Assurance.
(A) Certified Clandestine Laboratory
Remediation Contractor shall provide the following financial assurances:
(1) A certificate of liability insurance
issued by an insurance company licensed to do business in Arkansas certifying
that the applicant has a general liability insurance policy in an amount of one
million dollars ($1,000,000.00) per incident / and two million dollars
($2,000,000.00) aggregate for personal or property damage that might occur to
third parties arising from the performance of regulated services for
inhabitable properties by the contractor or his agents;
(2) Errors and omissions insurance in the
amount of one million dollars ($1,000,000.00) per occurrence for negligent acts
committed in the course of a clandestine lab investigation and/or
remediation;
(3) Pollution
liability insurance in the amount of three million dollars ($3,000,000.00);
and
(4) Worker's
Compensation and Employer's Liability in statutory limits shall be secured and
maintained as required by the laws of the State of Arkansas.
(B) In the event the insurance
policy lapses, the applicant must provide a suitable replacement policy prior
to the expiration of the existing policy. DEQ shall be named as the certificate
holder.
CHAPTER
5
: [RESERVED]
CHAPTER
6
: ADMINISTRATION
Rule
32.601.
Certification Renewal.
(A) Certification and listing under the
provisions of this Rule to an individual shall be valid for two (2) years (or
portion thereof) from July 1st of the year the Division adds the individual to
the list of certified environmental professionals or Certified Clandestine
Laboratory Remediation Contractors.
(B) After June 1 of the second year after the
Division adds a person to the list of certified environmental professionals or
Certified Clandestine Laboratory Remediation Contractors under the provisions
of this Rule, the person must re-apply to the Division for renewal.
(C) A holder of a certificate who wishes to
renew his or her certification shall:
(1)
Submit an application for renewal to the Division, demonstrating that the
consultant continues to meet the applicable qualifications for certification
and listing as prescribed in Chapter 3 and Chapter 4 of this Rule, on forms
provided by the Division;
(2)
Submit a nonrefundable fee in the form of a money order, cashier's check, or
other payment method determined by the Division in the amount set forth at
§32.606 of this Rule; and
(3)
Complete and submit documentation of continuing education training of the type
and amount as set forth at § 32.605 of this Rule.
Rule 32.602.
Lapsed
Certifications. [Reserved].
Rule
32.603.
Certification by Other States or
Organizations. [Reserved].
Rule
32.604.
Reciprocity Agreements. [Reserved].
Rule 32.605.
Continuing Education
Requirements.
(A) Phase I consultants
and Certified Clandestine Laboratory Remediation Contractors shall remain
current in their field through participation in continuing education or other
activities.
(B) Definitions. As
used in this Subsection, the following terms are defined as follows:
(1) Professional Development Hours (PDH) - A
contact hour (nominal) of instruction or presentation. The common denominator
for other units of credit.
(2)
Continuing Education Unit (CEU) - Unit of credit customarily used for
continuing education courses. One continuing education unit equals ten (10)
hours of classroom experience in an approved education course.
(3) College/Unit Semester/Quarter Hour -
Credit for an approved college course.
(4) Course/Activity - Any qualifying course
or activity with a clear purpose and objective which will maintain, improve, or
expand the skills and knowledge relevant to the certified contractor or
consultant's field of practice.
(C) Requirements:
(1) Every Phase I consultant shall be
required to report a cumulative of fifteen (15) PDH units per year for each
renewal period. If a registrant exceeds the annual requirement in any renewal
period, a maximum of fifteen (15) PDH units may be carried forward into the
subsequent renewal period.
(2)
Certified Clandestine Laboratory Remediation Contractors seeking biennial
renewal of their certificate shall annually conduct and maintain documentation
for the successful completion of:
(a) At least
8 hours of OSHA HAZWOPER refresher training as prescribed by
29 CFR
1910.120(e); and
(b) At least 8 hours of additional training
related to clandestine laboratory investigation or
remediation.
(D) PDH units may be earned as follows:
(1) Successful completion of college
courses.
(2) Successful completion
of continuing education courses.
(3) Successful completion of correspondence,
televised, videotaped, audiotape, and other short courses/tutorials.
(4) Presenting or attending qualifying
seminars, in-house courses, work shops, or professional, technical, or
managerial presentations made at meetings, conventions, or
conferences.
(E) Units -
The conversion of other units of credit to PDH Units are as follows:
(1) 1 College or unit semester course -30
PDH
(2) 1 College or unit quarter
course-15 PDH
(3) 1 Continuing
Education Unit -10 PDH
(4) 1 Hour
of professional development in course work, seminars, or professional, or
management, or technical presentations made at meetings, conventions or
conferences: - 1 PDH
(5) For
teaching items 1 through 4 above, apply a multiple of 2 (teaching credit is
valid for teaching a course or seminar for the first time only).
(F) Determination of Credit - The
Division has final authority with respect to approval of courses, credit, PDH
value for courses, and other methods of earning credit.
(1) Credit for college or community college
approved courses will be based upon credit established by the
college.
(2) Credit for qualifying
seminars and workshops will be based on one PDH unit for each hour of
attendance. Attendance at qualifying programs presented at professional and/or
technical society meetings will earn PDH units for the actual time of each
program.
(3) The types of training
and continuing education required by this Chapter which may be eligible for
approval include instructional courses, seminars or conferences sponsored by
the Division, the Environmental Protection Agency, educational institutions,
independent professional or trade associations, manufacturers, or firms engaged
in environmental site assessment or hazardous substance management or
remediation.
(4) Course content
must be related to work performed by persons performing environmental site
assessment or hazardous substance management or remediation.
(G) Training Records. Each Phase I
consultant or Certified Clandestine Laboratory Remediation Contractor shall
maintain records to document his or her qualifications and continuing education
participation. The responsibility of maintaining records to be used to support
credits clamed is the responsibility of the Phase I consultant or the Certified
Clandestine Laboratory Remediation Contractor. Records required include, but
are not limited to:
(1) A log showing the type
of activity claimed, sponsoring organization, location, duration, instructor's
or speaker's name, and PDH credits earned; or
(2) Attendance verification records in the
form of completion certificates, or other documents supporting evidence of
attendance furnished by the organization sponsoring the approved training or
continuing education.
These records must be maintained for a period of three (3) years or in compliance with any applicable state requirements, and copies may be requested by the Division for audit verification purposes.
(H) Exemptions. A person may be exempt from
the professional development education requirements for one of the following
reasons:
(1) A person serving on temporary
active duty in the Armed Forces of the United States for a period of time
exceeding one hundred twenty (120) consecutive days in a year shall be exempt
from obtaining professional development hours required during that
year.
(2) Persons experiencing
physical disability, illness, or other extenuating circumstances as reviewed
and approved by the Division may be exempt. Supporting documentation must be
furnished to the Division.
(I) Noncompliance. The certification of a
person who does not satisfy the continuing education requirements at renewal
time will be suspended and the certificate holder notified of that status. The
Consultant will have six (6) months from the renewal date to satisfy that
condition or his or her certification will be revoked.
Rule 32.606.
Fees.
(A) Any person who applies to the Division
for certification and listing as a Phase I Consultant shall submit as part of
that application a money order, cashiers check, or other payment method
determined by the Division in the amount of twenty-five dollars ($25.00)
payable to the Division for an application fee.
(B) Any person who applies to the Division
for certification and listing as a Certified Clandestine laboratory Remediation
Contractor shall submit as part of that application a money order, cashiers
check, or other payment method determined by the Division in the amount of two
hundred dollars ($200.00) payable to the Division for an application
fee.
(C) DEQ will assess a
technical review fee pursuant to APC&EC Rule No. 23 Section 6(t) for each
clandestine lab cleanup project submitted for review to determine whether the
property has been satisfactorily remediated and is subsequently eligible for
removal from the list of contaminated properties established by A.C.A. §
8-7-1404.
The amount of such fee shall not exceed two hundred dollars ($200.00) per
property.
(D) Applications or
renewals will not be processed by the Division without payment of the
fee.
(E) Fees will be reviewed
biennially for potential adjustment to cover the costs of administering the
Environmental Professional Certification Program.
(F) The Division will not issue refunds for
any fees paid pursuant to this Rule.
Rule 32.607.
Certification
Statement.
(A) All documents, reports,
or correspondence created pursuant to activities addressed by this Rule,
whether submitted to the Division or to a client, shall include:
(1) The following certification statement:
I certify under penalty of law that this document and all attachments were prepared under my direction or supervision according to a system designed to assure that qualified personnel properly gather and evaluate the information submitted. The information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information; and
(2) The
signature of the certified Phase I consultant or Certified Clandestine
Laboratory Remediation Contractor.
Rule 32.608.
Records Review.
(A) The Division may inspect any records
required to be kept under this Rule during normal business hours including, but
not limited to, the following:
(1) Copies of
professional licenses, if applicable;
(2) Copies of certificates or licenses from
another state, tribe, U.S. territory, or organization recognized by the
Division as substantially equivalent, if applicable; and
(3) Documentation of continuing education
requirements pursuant to § 32.605 of this rule.
(B) The Division may establish requirements
concerning the information that shall be included in the records.
CHAPTER 7
:
DISCIPLINARY ACTIONS
32.701.
Disciplinary Actions.
(A) It is unlawful for
any person to:
(1) Make any false statement
or representation in any application or certification;
(2) Render inaccurate and certification
issued under this Rule; or
(3) Solicit or perform the services for which
a certification under this Rule is required without holding a current and valid
certification under this Rule.
(B) A person certified under the provisions
of the Rule may be subject to disciplinary action, or the certification may be
subject to suspension, condition, or revocation if he or she:
(1) Engages in activities subject to
certification under this Rule and is no longer entitled to that certification
by reason of his or her failure to maintain the license or other qualification
on which the certification was issued;
(2) Demonstrably fails to produce acceptable
work for specific activities for which the contractor has been certified under
this Rule;
(3) Practices fraud or
deception;
(4) Does not exercise
reasonable care, judgment, or the application of knowledge in the performance
of the certified contractor's responsibilities;
(5) Is incompetent, unable, or unwilling to
perform their responsibilities;
(6)
Fails to pay renewal fees;
(7) Does
not meet continuing education requirements; or
(8) Fails to meet any provision of this
Rule.
(C) If the Division
has sufficient evidence that a certified contractor should have his or her
certification suspended, conditioned, or revoked, the Director shall provide
notice of a final decision under the applicable rules of the Commission. The
Director's final decision shall specify the terms of the suspension, condition,
or revocation of the certification as a result of the disciplinary actions
under this Rule.
(D) The Director's
decision shall be subject to adjudication before the Commission in accordance
with administrative procedures adopted by the Commission.
(E) Certifications revoked, suspended, or
conditioned shall be subject to the terms outlined in the Director's final
decision.
(F) Disciplinary actions
for failure to comply with the provisions of this Rule may include the
assessment of a civil penalty pursuant to APC&EC Rule No. 7.
32.702.
Appeals
A certificate holder or other party with standing may appeal the Director's final decision to the Commission. Such an action shall be conducted as provided for in A.C.A. § 8-4202 et seq. and in accordance with the Commission's rules on administrative procedures.
CHAPTER 8
:
SEVERABILITY
Rule 32.801.
Severability.
If any provision of this Rule or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications hereof which can be given effect without the invalid provision or application, and to this end, provisions of this Rule are declared to be separate and severable.
CHAPTER 9
: EFFECTIVE DATE
Rule 32.901.
Effective Date.
This Rule shall be in full force and effect ten (10) days after it is filed with the Secretary of State.
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