Rules & Regulations of the State of Tennessee
Title 0400 - Environment and Conservation
Subtitle 0400-15 - Division of Remediation
Chapter 0400-15-03 - Drycleaner Environmental Response Program
Section 0400-15-03-.05 - QUALIFICATIONS AND PROCEDURES FOR ENVIRONMENTAL RESPONSE ACTIVITIES

Universal Citation: TN Comp Rules and Regs 0400-15-03-.05

Current through September 24, 2024

(1) General

(a) This rule is promulgated to establish guidelines and procedures by which applicants investigate and remediate sites to preserve the right to seek reimbursement of expenses from the DCERF.

(b) This rule applies to all applicants.

(c) Nothing in this rule shall be construed to prohibit the implementation of initial abatement and site stabilization measures upon the discovery of a release of drycleaning solvent. The costs of such measures may be DCERF eligible regardless of compliance with this rule, in accordance with subparagraph (3)(c) of Rule 0400-15-03-.08.

(2) Application for Entry into the DCERP

(a) Persons wishing to apply for entry into the DCERP and reimbursement of costs from the DCERF for eligible expenses shall first submit an application for the Commissioner's review and approval.

(b) An application must be submitted by the applicant to the Commissioner in a format determined by the Commissioner. The application shall be complete, legible, and accurate, and shall include the following:
1. All applications shall contain verification that the subject facility is currently registered with the Department, that all applicable fees and surcharges are paid, and that the facility is not included in a site that has been accepted into the voluntary cleanup oversight and assistance program pursuant to T.C.A. § 68-212-224.

2. For both active and abandoned facilities, any known past recorded incidents of noncompliance shall be referenced in the application (for example, any previous inspection letters or orders from the Commissioner or a local department of health that documented violations). If the facility is active, the application shall also contain verification that the facility is in compliance with Rule 0400-15-03-.04.

3. In all applications, a person with appropriate legal authority shall grant the applicant, the applicant's DCAC(s), and the Commissioner the right of ingress and egress to the facility to perform the activities authorized by the DCERP.

4. Applications for active facilities or abandoned facilities (where the application is filed by the operator of the drycleaning facility) must either:
(i) Include a certification by the operator that the operator has full legal authority to authorize the Commissioner's access of the facility for all solvent impact assessments and response actions; or

(ii) If the operator lacks such legal authority, the application must be filed jointly by the operator and the property owner. The applicant(s) shall designate the person who will receive DCERF reimbursement under the DCERP and the applicant's point of contact concerning the application.

5. Applications for abandoned facilities (filed by the impacted third parties) must be filed jointly by the impacted third party and the property owner if other than the impacted third party. The applicant must certify to the best of their knowledge that the facility meets all requirements for DCERF eligibility. The applicants shall designate the person who will receive DCERF reimbursement under the DCERP and the applicant's point of contact concerning the application.

6. An impacted third party who is not the real property owner of the facility may file an application, without other signatories, if a previous application has been filed and accepted for the facility which grants ingress and egress. If no previous application has been filed and approved for the facility the impacted third party must file an application jointly with the real property owner.

7. Any other information requested by the Commissioner.

(c) The Commissioner shall confirm in writing to the applicant that an application has been received and identify any alleged deficiencies. Subject to the availability of funds in the DCERF, and after receipt and evaluation of a complete application, the Commissioner shall notify the applicant to proceed with a facility inspection if the site is an active facility. The Commissioner may also require a facility inspection of an abandoned facility. Based on the applicant's DCERF eligibility certification in the application, the facility inspection shall preliminarily be considered a DCERF eligible expense, subject to the appropriate deductible.

(3) If a facility inspection is required by the Commissioner, the applicant's DCAC shall perform the facility inspection. At a minimum, the facility inspection shall include a records review and an on-site inspection. The records review shall include, but not necessarily be limited to, solvent purchases, waste handling practices, equipment maintenance and repair, equipment upgrades, and other items requested by the Commissioner. The on-site inspection shall include, but not necessarily be limited to, evaluation of equipment, operations, containment, solvent storage, waste disposal, signs or evidence of a release, compliance with BMPs, and other items requested by the Commissioner. The applicant shall submit a facility inspection report to the Commissioner in a format and according to a schedule determined by the Commissioner. A facility may be re-inspected by Department staff.

(4) Fund Eligibility Determination

(a) After review of the application and facility inspection, the Commissioner shall notify applicants in writing of the Commissioner's determination on acceptance into the DCERP and DCERF eligibility. If the applicant is denied entry into the DCERP or DCERF, the notification shall include the reasons for denial. The reasons for denial shall include:
1. The applicant does not meet the definition of a current or prior owner or operator of an active or abandoned drycleaning facility, in-state wholesale distribution facility, or an impacted third party;

2. The facility does not meet the definition of an abandoned or active drycleaning facility, or in-state wholesale distribution facility, or the facility is ineligible pursuant to T.C.A. 68-217-107(c);

3. Failure of an abandoned or active drycleaning facility or in-state wholesale distribution facility to have been registered during any active operations after June 13, 1995;

4. Failure to pay all applicable registration fees, penalties, and interest;

5. Failure to pay all applicable surcharges and penalties;

6. Failure to implement applicable BMPs at a drycleaning facility or in-state wholesale distribution facility;

7. Failure to conduct an appropriate facility inspection;

8. Failure to comply with the proper facility closure procedures in accordance with this rule;

9. The facility is included in a site that has been accepted into the Department's voluntary cleanup oversight and assistance program pursuant to T.C.A. § 68-212-224;

10. The facility has already accrued costs or is subject to a pending or final enforcement action pursuant to the Hazardous Waste Management Acts of 1977 or 1983, Title 68, Chapter 212; or

11. Failure to comply with other requirements of this chapter or the Act.

(b) If fees, surcharges, interest, or penalties have not been paid, the applicant will not be accepted into the DCERP and will not be eligible for reimbursement of response costs other than the initial facility inspection until all money owed has been paid.

(c) If applicable BMPs have not been implemented, the applicant will not be accepted into the DCERP and will not be eligible for reimbursement of response costs other than the initial facility inspection. If the applicant corrects any deficiencies, the applicant may be accepted into the DCERP and may be eligible for fund reimbursement for any releases that the applicant can demonstrate, to the satisfaction of the Commissioner, to have occurred after the date the deficiencies were corrected. The applicant may request follow-up inspections after correcting deficiencies. However, all facility inspections subsequent to the initial facility inspection conducted at the applicant's request will not be DCERF reimbursable.

(d) Real Property Owner as Impacted Third Party
1. Notwithstanding the fact that the facility inspection reveals that applicable BMPs have not been implemented, an impacted third party that has never operated the facility and that is the real property owner of the facility will remain eligible for reimbursement of response costs beyond the initial facility inspection unless:
(i) Such party:
(I) Had actual knowledge of the operator's failure to implement BMPs prior to the release, and

(II) Failed to notify the Department of such operator's failure within 60 days of such knowledge; or

(ii) Such party failed to make a good faith effort to require the operator's compliance with applicable BMP requirements. For purposes of this rule, a good faith effort to require the operator's compliance with applicable BMPs means that the real property owner:
(I) At the first reasonable opportunity, imposes an obligation under the lease or other contractual agreement on the operator to comply with applicable BMPs; and

(II) Takes any other reasonable action to encourage implementation of BMPs by the operator.

2. Notwithstanding compliance with the provisions of part 1. of this subparagraph, where the facility inspection or other documentation or investigation reveals that applicable BMPs have not been implemented, in order for an impacted third party who is the real property owner of the site to remain eligible for DCERF reimbursement:
(i) The site must be an abandoned facility; or

(ii) The impacted third party must terminate the tenancy of the operator of the drycleaning facility.

3. Eligibility for DCERF reimbursement of the real property owner of the site shall not relieve the facility operator from liability for any release under any other law or for third party claims.

4. An impacted third party that is not the owner of the real property on which the facility is located is not responsible for the failure to implement BMPs and need not cure such failure. However, upon application by an impacted third party who is not the owner of the real property on which the facility is located, the Commissioner shall notify the operator of the facility and the real property owner of the impacted third party's application and provide them with the opportunity to apply for the DCERF within a specified time period. If neither the operator of the facility nor the real property owner enters the DCERP and corrects the deficiencies, the Commissioner may initiate activities to evaluate the site under Chapter 0400-15-01 Inactive Hazardous Substance Site Remedial Action Program. Eligibility for DCERF reimbursement of an impacted third party that is not the owner of the real property on which the facility is located shall not relieve the facility operator or the real property owner of the site from liability for any release under any other law or for third party claims, including without limitation, liability for reimbursement of response costs paid out of the Hazardous Waste Remedial Action Fund.

(e) If any deficiencies are either uncorrectable or not corrected within a time frame specified by the Commissioner, the applicant may be denied DCERF access. If DCERF access is denied, the applicant shall have 30 days from the Commissioner's mailing of the notice to appeal the denial to the Commissioner in the manner set forth in Section 5(a) of Rule 0400-15-03-.03. If the Commissioner upholds the denial of DCERF access, or if an appeal is not made within 30 days, the Commissioner may revoke the operator's Certificate of Registration pursuant to Rule 0400-15-03-.10, notify wholesale distributors of such revocation, and initiate activities to evaluate the site under Chapter 0400-15-01 Inactive Hazardous Substance Site Remedial Action Program.

(5) Prioritization Investigation

(a) For sites that receive a notice of DCERF eligibility, the applicant shall perform a prioritization investigation according to a format established by the Commissioner. The applicant shall submit a work plan; a cost proposal including, but not limited to, a breakdown of cost by category listed in the reimbursement request; a maximum cost that may not be exceeded in the prioritization investigation; and a schedule for implementation of the prioritization investigation. The applicant shall make any changes to the work plan, cost proposal, or schedule of implementation required by the Commissioner. Subject to the availability of funds in the DCERF, approval of the work plan, cost proposal, and approval of the proposed schedule, the Commissioner shall authorize implementation and notify the applicant to proceed with the prioritization investigation. The PEP shall implement the prioritization investigation as required by the Commissioner. Following the prioritization investigation, the applicant shall submit the results of the prioritization investigation to the Commissioner according to a schedule and in a format determined by the Commissioner. The applicant may perform activities in addition to work requested by the Commissioner at the prioritization investigation stage; however, only activities specifically pre-approved by the Commissioner shall be DCERF eligible expenses for the prioritization investigation. If additional activities are performed, results of the additional work shall be submitted to the Commissioner within 45 days of the completion of any phase of additional activities.

(b) Once the prioritization investigation is completed and a report is submitted to the Commissioner, the Commissioner shall evaluate all pertinent information and make a determination for further investigation and remediation of any release of drycleaning solvent. At the Commissioner's discretion, a prioritization investigation may also be performed by the Commissioner.

(6) Prioritization for Further Investigation or Interim Action

(a) The Commissioner shall utilize the prioritization investigation report and other applicable information to prioritize approved sites for further investigation or interim action.

(b) Subject to the availability of funds in the DCERF, additional activities will be approved at sites in accordance with the priority ranking schedule.

(c) At all stages within the DCERP, the approval of additional work to be funded by the DCERP will be done with consideration for the relative threats to human health and the environment associated with each site. Sites in the DCERP are at any time subject to reprioritization by the Commissioner based upon the receipt of additional data that may affect the prioritization determination.

(7) Implementation of Interim Actions

(a) Interim Action
1. The Commissioner shall notify the applicant of the Commissioner's determination of the need for interim action within 60 days of receiving a complete prioritization investigation. Subject to the availability of funds in the DCERF, the Commissioner shall notify the applicant to prepare a work plan, cost proposal, and schedule of implementation to perform interim action, which shall be submitted to the Commissioner according to the schedule and in the format required by the Commissioner. The applicant shall make any changes to the work plan, cost proposal, or schedule of implementation required by the Commissioner.

2. Subject to the availability of funds in the DCERF, approval of the work plan, approval of the cost proposal, and approval of the proposed schedule, the Commissioner shall authorize implementation and notify the applicant to proceed with the interim action. The applicant shall implement the interim action as approved by the Commissioner. The Commissioner may declare the applicant ineligible for reimbursement if the interim action is not performed in accordance with the schedule and work plan requested by the Commissioner. The Commissioner may declare the applicant ineligible for reimbursement if the solvent impact assessment is not performed in accordance with the schedule and work plan requested by the Commissioner.

3. Following the interim action, the applicant shall submit the interim action report to the Commissioner according to a schedule and in a format determined by the Commissioner. If the applicant or the Commissioner performed interim action at the site, then the site will be re-prioritized for investigation.

(b) Solvent Impact Assessments
1. The Commissioner shall notify the applicant of the Commissioner's determination of the need for a solvent impact assessment within 60 days of receiving a complete prioritization investigation. Subject to the availability of funds in the DCERF, the Commissioner shall notify the applicant to prepare a work plan, cost proposal, and schedule of implementation to perform the solvent impact assessment, which shall be submitted to the Commissioner for approval according to the schedule and in the format required by the Commissioner. The applicant shall make any changes to the work plan, cost proposal, or schedule of implementation required by the Commissioner.

2. Subject to the availability of funds in the DCERF, approval of the work plan, approval of the cost proposal, and approval of the proposed schedule, the Commissioner shall authorize implementation and notify the applicant to proceed with the solvent impact assessment. The applicant shall implement the solvent impact assessment as approved by the Commissioner. Following the investigation, the applicant shall submit the solvent impact assessment report to the Commissioner according to a schedule and in a format determined by the Commissioner. The Commissioner may declare the applicant ineligible for reimbursement if the solvent impact assessment is not performed in accordance with the schedule and work plan requested by the Commissioner.

3. Unless required by subparagraph (6)(f) of Rule 0400-15-03-.08, minor adjustments in the approved work plan, as required based on field or subsurface conditions, do not require approval by the Commissioner.

(c) Supplemental Investigations
1. If the Commissioner requires the applicant to perform supplemental investigation at the site, the applicant shall submit an addendum work plan to conduct the necessary investigation, a cost proposal, and schedule to the Commissioner according to the schedule and in the format requested by the Commissioner. The applicant shall make any changes to the work plan, cost proposal, or schedule of implementation required by the Commissioner.

2. Subject to the availability of funds in the DCERF, approval of the work plan, approval of the cost proposal, and approval of the proposed schedule, the Commissioner shall authorize implementation and notify the applicant to implement the work plan as approved.

3. Following completion of the supplemental investigation, the applicant shall submit the investigation report to the Commissioner according to a schedule and in the format requested by the Commissioner.

(d) Investigation or Interim Action Report

An investigation or interim action report shall include a description of activities undertaken during the investigation or interim action, observations made, sampling results, any adjustments to the work plan, and other information required by the Commissioner.

(8) Remedial Alternatives Study

If requested in writing by the Commissioner following the Commissioner's review of the investigation report, the applicant shall submit a remedial alternatives study report to the Commissioner according to a schedule and in a format requested by the Commissioner. The remedial alternatives study format may include a description of proposed pilot testing, response action, or alternative remedial approaches. A cost proposal for the proposed activities outlined in the remedial alternatives study may also be required at this time.

(9) Remediation Priority Ranking

(a) Based on the results of a solvent impact assessment or interim action and other relevant factors, the Commissioner shall rank approved sites for remediation.

(b) At all stages within the DCERP the approval of additional work to be funded by the DCERP will be done with consideration for the relative threats to human health and the environment associated with each site.

(c) Subject to the availability of funds in the DCERF, remedial actions will be approved at sites in accordance with the remediation priority ranking schedule. For sites which have equivalent ranking status, funds will be authorized according to the chronological order in which the applications were received.

(10) Implementation of Remediation

(a) Based on availability of funds in the DCERF, the site ranking, and the remediation required, the Commissioner shall notify an applicant to prepare a work plan, cost proposal, and schedule of implementation to perform the remediation activities. The applicant shall make any changes or modifications to the work plan, cost proposal, or schedule of implementation required by the Commissioner. Subject to the availability of funds in the DCERF, approval of the work plan, approval of the cost proposal, and approval of the proposed schedule of implementation, the Commissioner shall authorize implementation and notify the applicant to perform the necessary approved remedial action at the site. The applicant shall implement the remediation plan as approved by the Commissioner.

The Commissioner may declare an applicant ineligible for reimbursement if a remedial action is not performed in accordance with the schedule and work plan requested by the Commissioner.

(b) Following the implementation of the approved work plan, the applicant shall submit to the Commissioner a remediation report containing a description of the activities undertaken during the remediation, observations made, sampling results, and other information requested by the Commissioner according to a schedule and format determined by the Commissioner. If the remediation will require long-term operation and maintenance (O&M) or monitoring, the applicant shall submit the remediation report after all approved activities other than O&M or monitoring have been completed.

(c) If the remediation requires O&M or monitoring, the applicant shall prepare an O&M or monitoring plan according to a schedule and in the format required by the Commissioner and submit the O&M or monitoring plan to the Commissioner. The applicant shall make any changes or modifications to the plan required by the Commissioner. The applicant shall implement the O&M or monitoring plan as approved.

(11) Response Complete Summary Letter

After all required interim action, investigation, remediation, and other required activities are completed at the site, a Response Complete Summary letter shall be issued to the applicant by the Commissioner. Following issuance of this letter and reimbursement of all authorized costs, the site shall return to non-DCERF eligible status and the applicant may no longer receive DCERF reimbursements without reapplying for DCERF eligibility. Nothing in this paragraph shall prevent the Commissioner from issuing an interim status letter while O&M or monitoring at a site is ongoing, or from continuing DCERF reimbursement of authorized costs related to such O&M or monitoring after issuance of an interim status letter.

(12) Non-Reimbursement Review

(a) The DCERP may provide oversight of registered facilities requesting review that will not be seeking DCERF reimbursement. Prior to issuance of a Response Complete Summary Letter, the DCERP will ensure that the investigative and remedial activities were comparable to sites participating in the DCERP for reimbursement of environmental response activities and that to the extent practicable were consistent with the requirements of this chapter. The requester shall submit a written request to the Commissioner for review or oversight and shall document or include the following: BMP compliance; the facility is current with all fees, surcharges, and penalties; the work has or will be performed by a DCAC; signed acknowledgment that costs expended will not be eligible for reimbursement from the DCERF; and that all pertinent documents and reports have been submitted to the Commissioner. The requestor shall pay a program oversight fee of $5,000.

(b) The Commissioner may provide oversight of unregistered facilities requesting reviews that will not be seeking DCERF reimbursement. The Commissioner may deny any request for a review that is not reasonable or cost effective. Prior to issuance of a Response Complete Summary Letter, the DCERP will ensure that the investigative and remedial activities were comparable to sites participating in the DCERP for reimbursement of environmental response activities and that to the extent practicable were consistent with the requirements of this chapter. The requester shall submit a written request to the DCERP for review or oversight and shall include an acknowledgement that costs expended will not be eligible for reimbursement from the DCERF and shall submit all pertinent documents and reports related to environmental activity at the site. The requester shall pay a program oversight fee of $5,000.

(c) Notwithstanding the request for and provision of oversight under the DCERP pursuant to either subparagraph (a) or (b) of this paragraph, any applicant may apply for entry of a facility in the DCERP in accordance with this rule and proceed to comply with the requirements of this rule; provided, that any costs incurred under oversight pursuant to subparagraphs (a) or (b) of this paragraph shall not be reimbursable from the DCERF.

Authority: T.C.A. §§ 4-5-201, et seq., and 68-217-101, et seq.

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