Corrective Action Fund Rule Revisions

11

Global ChangesGlobal Changes

RenumberingRenumbering Elimination of Passive VoiceElimination of Passive Voice Conforming of Rules & Forms, clarifying where Conforming of Rules & Forms, clarifying where

forms may be obtained and submittedforms may be obtained and submitted

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Part 1Part 1

General ProvisionsGeneral Provisions

33

20.5.1.7: Definitions20.5.1.7: Definitions

Added a definition of “state-lead site” to Added a definition of “state-lead site” to distinguish from a “responsible party-lead distinguish from a “responsible party-lead site”site”

Incorporated definitions of general Incorporated definitions of general applicability from other parts, including:applicability from other parts, including:DeductibleDeductibleFacilityFacilityIncurredIncurred

44

Part 7Part 7

Reporting and Investigation Reporting and Investigation of Suspected and of Suspected and

Confirmed ReleasesConfirmed Releases

55

All SectionsAll Sections

Adds information in brackets on how to Adds information in brackets on how to contact the department to provide contact the department to provide notification of spill or releasenotification of spill or release

Moves requirements into other sections: Moves requirements into other sections: moves method for determining whether a moves method for determining whether a

release is a confirmed release from 20.5.7.10 release is a confirmed release from 20.5.7.10 to 20.5.7.8 to 20.5.7.8

moves investigation requirements in moves investigation requirements in 20.5.7.703 to 20.5.7.920.5.7.703 to 20.5.7.9

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20.5.7.8: Reporting of Spill or 20.5.7.8: Reporting of Spill or Release Release

Adds the tank system description to the Adds the tank system description to the information required to be reported information required to be reported

Captures new information on cause and Captures new information on cause and source of releases required by the federal source of releases required by the federal Energy Policy Act of 2005Energy Policy Act of 2005

New reporting form being developedNew reporting form being developed

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20.5.7.9: Suspected Releases 20.5.7.9: Suspected Releases

Emphasizes that a monitoring result of Emphasizes that a monitoring result of “anything other than a ‘pass’ result” must “anything other than a ‘pass’ result” must be reported to the departmentbe reported to the department

Removes the exception for defective Removes the exception for defective system equipment that is immediately system equipment that is immediately repaired or replacedrepaired or replaced

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20.5.7.10: Confirmed Releases 20.5.7.10: Confirmed Releases

Moved requirement that “visible leaks or Moved requirement that “visible leaks or seeps from any part of the storage tank seeps from any part of the storage tank system” must be reported to the system” must be reported to the department department

99

Parts 12 and 13Parts 12 and 13

Corrective Action for Corrective Action for USTs and ASTs Containing Petroleum Products USTs and ASTs Containing Petroleum Products

& & USTs Containing Other Regulated SubstancesUSTs Containing Other Regulated Substances

Slides refer to current rule numbers as Slides refer to current rule numbers as renumbered draft rules not yet completedrenumbered draft rules not yet completed

1010

All SectionsAll Sections

Removes references to the Guidelines for Removes references to the Guidelines for Corrective Action Corrective Action

Requires O/Os to comply with all Requires O/Os to comply with all applicable federal, state and local laws applicable federal, state and local laws and regulations and regulations

1111

All Variances of WQCC Standards All Variances of WQCC Standards RemovedRemoved

Removes demonstration of equivalent Removes demonstration of equivalent protection protection

Removes demonstration of technical Removes demonstration of technical infeasibilityinfeasibility

1212

20.5.12.1227/20.5.13.1319:20.5.12.1227/20.5.13.1319: Conceptual & Final Remediation PlansConceptual & Final Remediation Plans

Separates the remediation plan Separates the remediation plan requirements into two sections, one for a requirements into two sections, one for a conceptual remediation plan and one for a conceptual remediation plan and one for a final remediation plan final remediation plan

1313

New Section: Ready for Reuse New Section: Ready for Reuse DeterminationsDeterminations

Adds a Ready for Reuse section to Adds a Ready for Reuse section to “document that the current environmental “document that the current environmental conditions of a site pose no imminent conditions of a site pose no imminent threat to public health, safety and welfare threat to public health, safety and welfare or the environment in order to foster the or the environment in order to foster the return of previously underutilized, return of previously underutilized, warehoused or abandoned properties warehoused or abandoned properties back to productive use for the benefit of back to productive use for the benefit of the environment and community”the environment and community”

1414

20.5.12.1234 / 20.5.13.1326: 20.5.12.1234 / 20.5.13.1326: No Further Action DeterminationNo Further Action Determination

Clarifies the process for requesting a No Clarifies the process for requesting a No Further Action (NFA) determination Further Action (NFA) determination

Removes demonstration of technical Removes demonstration of technical infeasibility and alternative abatement infeasibility and alternative abatement standard variance as a basis for NFA standard variance as a basis for NFA

1515

Part 15Part 15

Corrective Action Fund Use Corrective Action Fund Use and Expendituresand Expenditures

1616

20.5.15.9: Corrective Action by 20.5.15.9: Corrective Action by Owners and OperatorsOwners and Operators

Add provision requiring department to Add provision requiring department to designate site where owner or operator is designate site where owner or operator is performing corrective action as a performing corrective action as a “responsible party-lead site” “responsible party-lead site”

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20.5.15.10: Corrective Action by 20.5.15.10: Corrective Action by the Departmentthe Department

Requires informationRequires information for the department for the department to investigate, ascertain and review in to investigate, ascertain and review in order to make a determination that:order to make a determination that: an owner and operator are unknown, unable an owner and operator are unknown, unable

or unwilling to perform corrective action; or or unwilling to perform corrective action; or a single entity is necessary to lead the a single entity is necessary to lead the

corrective action, so that the department may corrective action, so that the department may designate the site as a state-lead site and designate the site as a state-lead site and take corrective action using the fund take corrective action using the fund

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Process and Standards:Process and Standards: Adds a section Adds a section with the process and standards used to with the process and standards used to make a recommendation on whether a site make a recommendation on whether a site should be designated a state-lead siteshould be designated a state-lead site

1919


Owner Notification:Owner Notification: Adds the procedure Adds the procedure by which the department notifies owners by which the department notifies owners and operators that a site has been and operators that a site has been designated a state-lead site designated a state-lead site

2020

Part 16Part 16

Qualification of Persons Qualification of Persons Performing Corrective Performing Corrective

ActionAction

2121


Adds a definition of “proposal”:Adds a definition of “proposal”:

C.C. For purposes of this part, the term For purposes of this part, the term “proposal” means an offer to complete work “proposal” means an offer to complete work submitted in response to given specifications submitted in response to given specifications issued for a responsible party-lead site or for issued for a responsible party-lead site or for a state-lead site. a state-lead site.

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20.5.16.9: Qualification of Firms20.5.16.9: Qualification of Firms

Eliminates requirement that a firm submit Eliminates requirement that a firm submit a current statement of qualifications for the a current statement of qualifications for the firm’s authorized representative if that firm’s authorized representative if that information has already been submitted information has already been submitted during the same phase of corrective during the same phase of corrective action.action.

2323

20.5.16.9: Qualification of Firms20.5.16.9: Qualification of Firms

Adds a provision allowing the department Adds a provision allowing the department to require an already qualified firm to to require an already qualified firm to submit proof that it has paid its submit proof that it has paid its subcontractors, suppliers, labs, and other subcontractors, suppliers, labs, and other entities in a timely fashionentities in a timely fashion IFIF the department reasonably believes that the department reasonably believes that

the firm is not making timely payments on the firm is not making timely payments on work performed under an approved workplanwork performed under an approved workplan

2424

20.5.16.10: Disqualification of Firms20.5.16.10: Disqualification of Firms

Adds a new section allowing the Adds a new section allowing the department to disqualify a firm IF the firm:department to disqualify a firm IF the firm: Knowingly misrepresents material facts to the Knowingly misrepresents material facts to the

departmentdepartment Does not comply with Parts 12, 13, 16 or 17Does not comply with Parts 12, 13, 16 or 17 Does not complete work under an approved Does not complete work under an approved

workplan to the department’s satisfactionworkplan to the department’s satisfaction Failed to prove that it has timely paid its Failed to prove that it has timely paid its

subcontractors, suppliers, labs and others, subcontractors, suppliers, labs and others, when required to do so by the departmentwhen required to do so by the department

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Part 17Part 17

Corrective Action Fund Corrective Action Fund AdministrationAdministration

2626


Moves definitions to Part 1 that applied to more Moves definitions to Part 1 that applied to more than Part 17, including:than Part 17, including: DeductibleDeductible FacilityFacility IncurredIncurred

Deletes certain definitions, including: Deletes certain definitions, including: Director (because already included in Part 1)Director (because already included in Part 1) Small business (because of changes to the means Small business (because of changes to the means

test, the definition of small business was no longer test, the definition of small business was no longer relevant)relevant)

2727


Adds definitions of: Adds definitions of: PaymentPayment (payment includes reimbursement and (payment includes reimbursement and

payment)payment) State-lead siteState-lead site (a site where the department takes (a site where the department takes

corrective action using the fund because the owner corrective action using the fund because the owner and operator are unknown, unable or unwilling to take and operator are unknown, unable or unwilling to take corrective action or because the department corrective action or because the department determines that a single entity is necessary to lead determines that a single entity is necessary to lead the corrective action) the corrective action)

Clarifies the meaning of each phase of Clarifies the meaning of each phase of corrective action corrective action

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Clarifies that a compliance determination shall be reviewed Clarifies that a compliance determination shall be reviewed during the owner’s or operator’s entire term of ownership; during the owner’s or operator’s entire term of ownership;

Compliance for USTs shall be determined from March 7, 1990 until Compliance for USTs shall be determined from March 7, 1990 until corrective action is completed; corrective action is completed;

Compliance for ASTs shall be determined from July 1, 2001 until Compliance for ASTs shall be determined from July 1, 2001 until corrective action is completed.corrective action is completed.

Clarifies that no compliance determination and no tank fee Clarifies that no compliance determination and no tank fee payments are required for MSA reimbursement.payments are required for MSA reimbursement.

Requires the O/O to request a compliance determination Requires the O/O to request a compliance determination before submitting the initial request for payment of the before submitting the initial request for payment of the costs of corrective action.costs of corrective action.

20.5.17.11: Compliance 20.5.17.11: Compliance DeterminationsDeterminations

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20.5.17.13: Procedures for Determining 20.5.17.13: Procedures for Determining Compliance Compliance

Clarifies that the O/O must submit a written request for a Clarifies that the O/O must submit a written request for a compliance determination to the department. compliance determination to the department.

Clarifies information required in request, including: Clarifies information required in request, including: owner informationowner information facility information facility information performance standards for installation, upgrade and performance standards for installation, upgrade and

operation and maintenance of tanks operation and maintenance of tanks release detection release detection permanent closure permanent closure reporting, investigating, confirming and remediation of reporting, investigating, confirming and remediation of

a release a release proof of Financial Responsibilityproof of Financial Responsibility affirmation pageaffirmation page

3030

20.5.17.13: Procedures for 20.5.17.13: Procedures for Determining ComplianceDetermining Compliance

When the department completes a compliance When the department completes a compliance determination, it must:determination, it must: notify the O/O in writing of the results of the notify the O/O in writing of the results of the

compliance determination; compliance determination; explain that the O/O will be ineligible for payment of explain that the O/O will be ineligible for payment of

corrective action costs (other than an MSA) if found corrective action costs (other than an MSA) if found out of compliance; andout of compliance; and

notify the O/O of the results of the compliance notify the O/O of the results of the compliance determination within 45 days instead of 30 days.determination within 45 days instead of 30 days.

3131

20.5. 17.14: Competitive Contractor 20.5. 17.14: Competitive Contractor Selection for Remediation at Selection for Remediation at

Responsible Party-Lead SitesResponsible Party-Lead Sites

Creates separate sections covering Creates separate sections covering selection procedures for state-lead sites selection procedures for state-lead sites (will follow procurement code) and (will follow procurement code) and responsible party-lead sitesresponsible party-lead sites

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20.5.17.15: Procedures & Requirements for 20.5.17.15: Procedures & Requirements for Selection of Remediation Contractors at RP-Selection of Remediation Contractors at RP-

Lead SitesLead Sites

Eliminates requirement that O/O provide the Eliminates requirement that O/O provide the names of five possible contractors.names of five possible contractors.

Cost estimates required for short-listed Cost estimates required for short-listed proposals only.proposals only.

Allows the department to post specifications Allows the department to post specifications on its website instead of mailing to on its website instead of mailing to contractors.contractors.

Allows offerors to seek administrative review Allows offerors to seek administrative review of adverse selection decisions. of adverse selection decisions.

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20. 5.17.17: Workplan Approval, Change 20. 5.17.17: Workplan Approval, Change Orders for Corrective Action & Approval of Orders for Corrective Action & Approval of

DeliverablesDeliverables

Requires the department to notify O/Os at RP-Lead Sites Requires the department to notify O/Os at RP-Lead Sites and contractors at state-lead sites:and contractors at state-lead sites: in writing in writing within 15 days of receiving a deliverablewithin 15 days of receiving a deliverable whether the deliverable is approved. whether the deliverable is approved.

The written notice must inform the recipient that any The written notice must inform the recipient that any application for payment of costs of the approved application for payment of costs of the approved deliverable must be received by the department within 90 deliverable must be received by the department within 90 days of receiving notice of approval. days of receiving notice of approval.

3434

20.5.17.18: Corrective Action Eligible 20.5.17.18: Corrective Action Eligible and Ineligible Costs and Expendituresand Ineligible Costs and Expenditures

Clarifies that payments from the fund will be Clarifies that payments from the fund will be made for approved deliverables only.made for approved deliverables only.

Eliminates requirement that an O/O file an Eliminates requirement that an O/O file an insurance claim before applying to the fund for insurance claim before applying to the fund for payment. payment.

Adds to list of ineligible costs the cost of Adds to list of ineligible costs the cost of repairing or replacing remediation equipment or repairing or replacing remediation equipment or monitor wells negligently or intentionally monitor wells negligently or intentionally damaged or destroyed by O/O.damaged or destroyed by O/O.

3535

20.5.17.19: New Section on 20.5.17.19: New Section on Designated RepresentativesDesignated Representatives

Allows O/O to designate a representative to Allows O/O to designate a representative to facilitate compliance with Parts 7, 12 or 13, 15, facilitate compliance with Parts 7, 12 or 13, 15, 16, and 17. 16, and 17.

Allows a person to request designation by the Allows a person to request designation by the department as a representative WHEN the O/O department as a representative WHEN the O/O is incapable of both directing corrective action is incapable of both directing corrective action and assigning rights to the fund.and assigning rights to the fund. Designation includes assignment of all rights the O/O Designation includes assignment of all rights the O/O

may have for payment from the CAFmay have for payment from the CAF Designation must be approved by the department. Designation must be approved by the department. Designation does not release the O/O from liability.Designation does not release the O/O from liability.

3636

20.5.17.20: Means Test to 20.5.17.20: Means Test to Determine DeductibleDetermine Deductible

Simplifies the means test to a Simplifies the means test to a demonstration of inability (or reduced demonstration of inability (or reduced ability) to pay the deductible. ability) to pay the deductible.

New method requires a letter of New method requires a letter of explanation, financial documentation and explanation, financial documentation and provision of any other relevant evidence. provision of any other relevant evidence.

3737

20.5.17.23: Obtaining Facility and 20.5.17.23: Obtaining Facility and Owner ID Numbers for Purposes of Owner ID Numbers for Purposes of

Corrective ActionCorrective Action

Creates a mechanism for assigning owner Creates a mechanism for assigning owner and facility ID numbers to O/Os who are and facility ID numbers to O/Os who are exempt from registration and tank fee exempt from registration and tank fee requirements.requirements.

3838

20.5.17.24 and 20.5.17.25: 20.5.17.24 and 20.5.17.25: Contents of Applications for Payment Contents of Applications for Payment

from the Fundfrom the Fund

Separates the application requirements for RP-lead Separates the application requirements for RP-lead sites and state-lead sites.sites and state-lead sites.

Conforms rule to forms already used by the Conforms rule to forms already used by the department.department.

Eliminates requirement that a signed affirmation sheet Eliminates requirement that a signed affirmation sheet be submitted with each application. be submitted with each application.

A signed, dated and notarized affirmation sheet is required A signed, dated and notarized affirmation sheet is required with only the first application for payment for each workplan.with only the first application for payment for each workplan.

Eliminates limit on number of applications per quarter. Eliminates limit on number of applications per quarter.

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20.5.17.2620.5.17.26 Application and Application and Payment ProcessPayment Process

Requires O/O to submit applications to the Requires O/O to submit applications to the department within 90 days of written approval of department within 90 days of written approval of the deliverable.the deliverable.

Requires the department to either pay or reject Requires the department to either pay or reject an application within 60 days of receipt. an application within 60 days of receipt.

Allows owners, operators and contractors to Allows owners, operators and contractors to correct & resubmit rejected applications within correct & resubmit rejected applications within 30 days of date of the notice of inadequacies30 days of date of the notice of inadequacies

Allows the department to decline to review any Allows the department to decline to review any application that has been rejected and application that has been rejected and resubmitted more than 2 times. resubmitted more than 2 times.

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20.5.17.28: Administrative Review20.5.17.28: Administrative Review

Applies the administrative review process in Part Applies the administrative review process in Part 10 to all the department decisions made 10 to all the department decisions made pursuant to Title 20, Chapter 5 except pursuant to Title 20, Chapter 5 except compliance determinations. compliance determinations.

Allows contractors to seek administrative review Allows contractors to seek administrative review of decisions related to contractor selection and of decisions related to contractor selection and payment. payment.

Allows individuals to seek administrative review Allows individuals to seek administrative review of the department’s decisions not to designate a of the department’s decisions not to designate a representative. representative.

4141

20.5.17.29: Review of Compliance 20.5.17.29: Review of Compliance DeterminationsDeterminations

Allows owners, operators and designated Allows owners, operators and designated representatives (once approved by the representatives (once approved by the department) to seek review of compliance department) to seek review of compliance determinations using the review determinations using the review procedures in Part 17. procedures in Part 17.

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Part 10 Part 10

Administrative Review Administrative Review

4343


Expands access to administrative review using Expands access to administrative review using Part 10 procedures:Part 10 procedures: Owners, operators Owners, operators and contractorsand contractors would be able to would be able to

seek review of all department determinations except seek review of all department determinations except compliance determinations;compliance determinations;

Offerors would be able to seek review of adverse Offerors would be able to seek review of adverse contractor selection determinations; andcontractor selection determinations; and

Any person denied designation as a representative Any person denied designation as a representative would be afforded administrative review. would be afforded administrative review.

4444


Applies Part 10 procedures to all adverse Applies Part 10 procedures to all adverse determinations except compliance determinations except compliance determinations determinations Cost eligibility determinations would follow Cost eligibility determinations would follow

Part 10 procedures, rather than Part 17 Part 10 procedures, rather than Part 17 proceduresprocedures

Technology

Corrective Action Fund Rule Revisions