310 CMR, § 80.49 - Third-party Inspections
(1) The third-party
inspection program operates on a three year cycle that began on August 8, 2007.
Every Owner and Operator was required to have every UST system inspected by a
third-party inspector by August 8, 2010, and have every UST system inspected by
a third-party inspector every three years thereafter.
(2) The Owner and Operator shall have all UST
systems at each UST facility inspected by a third-party inspector and submit
the third-party inspection report to the Department on or before the UST
facility compliance date established in 310 CMR 80.49(2)(a) through (g).
(a) The date the third-party inspection was
performed between August 8, 2007 and August 8, 2010 establishes the UST
facility compliance date for the triennial third-party inspection, except as
determined in 310 CMR 80.49(2)(e) and (g).
(b) The Owner or Operator shall submit a
truthful, accurate and complete third-party inspection report that contains all
the information required in 310 CMR 80.49(7) on or before the UST facility
compliance date.
(c) The Owner or
Operator shall submit the third-party inspection report to the Department no
later than 60 days after the commencement of the third-party inspection in
accordance with 310 CMR 80.49(7)(c)1., 2., or 3.
(d) A late submittal shall not alter the UST
facility compliance date for future third-party submittals, unless the
Department changes the UST facility compliance date in accordance with 310 CMR
80.49(2)(g).
(e) A submittal more
than 30 days before the UST facility compliance date shall establish a new UST
facility compliance date for future submittals, unless the Department changes
the UST facility compliance date in accordance with 310 CMR
80.49(2)(g).
(f) If an Owner
registers a new UST facility after January 2, 2015, the Department will assign
the UST facility a UST facility compliance date. If an Owner or Operator
installs a new or replacement UST system or tank at an existing UST facility,
such installation shall not alter the UST facility compliance date.
(g) The Department may change the UST
facility compliance date for any UST facility provided the Department gives the
Owner and Operator 90 days prior written notice. The Department's decision to
change the UST facility compliance date shall not be subject to M.G.L. c. 30A,
or any other law governing adjudicatory proceedings.
(3) Third-party inspections shall only be
performed by third-party inspectors certified in accordance with 310 CMR
80.49(4).
(4)
Certification Requirements for a Third-party
Inspector.
(a) Individuals who
seek to become third-party inspectors and who meet the requirements of 310 CMR
80.49(4)(b) and (c) shall submit an application to the Department, in a format
specified by the Department, for consideration.
1. If the Department determines the
individual meets the certification requirements in 310 CMR 80.49(4)(b) and (c),
the individual shall be issued a third-party inspector number and shall be
certified as a third-party inspector.
a. All
certifications shall be for a fixed term of three years from the date the
Department issued the third-party inspector number and certification, unless
suspended or revoked.
b. In order
to renew a certification, the third-party inspector shall re-apply in a format
specified by the Department at least 90 days before the certification expires.
i. To renew a certification, the third-party
inspector shall demonstrate he or she is in compliance with the requirements at
310 CMR 80.49(4)(d).
ii. Any
certification which is scheduled to expire shall be automatically extended if
the third-party inspector files an application for renewal at least 90 days
before the scheduled expiration date. This automatic extension shall remain in
effect until:
(i) The Department issues a new
certification to the third-party inspector; or
(ii) The Department denies the application
for renewal and all opportunities for adjudicatory hearing in accordance with
M.G.L. c. 30A, § 13, before the Department have been exhausted, in which
case the extended certification shall be deemed expired; or
(iii) The Department suspends or revokes the
extended certification and all opportunities for adjudicatory hearing, if any,
in accordance with M.G.L. c. 30A, § 13, before the Department have been
exhausted.
2. If the Department determines the
individual does not meet the certification requirements in 310 CMR 80.49(4)(b)
and (c), the individual's application shall be denied in writing.
a. Upon receiving a denial from the
Department, the individual may submit a letter to the Department requesting
that the Department reconsider its decision. Said letter shall be postmarked or
delivered to the Department within 30 days of the date of the denial letter
from the Department.
b. The
Department shall respond to the individual in writing within 30 days of
receiving the request for reconsideration.
c. If, upon reconsideration, the Department
determines the individual does not meet the certification requirements, it
shall notify the individual in writing and the individual may file an
administrative appeal of the Department's decision in accordance with
310 CMR
80.50.
3. Upon receipt of a third-party inspector
number from the Department, the third-party inspector is certified and may
conduct third-party inspections provided the third-party inspector meets the
performance standards in accordance with 310 CMR 80.49(5).
(b) In order to be certified as a third-party
inspector, an individual shall:
1. Take and
pass Department required examination(s) that tests individuals on their
knowledge of
310 CMR 80.00, and
installation, operation and maintenance, and closure and temporary closure of
UST systems and UST components, which may include a field component.
2. Demonstrate experience by one of the
following:
a. Possess at least three years of
field experience in the areas of UST system installation and/or operation and
maintenance:
b. Participate in at
least ten inspections with a certified third-party inspector to obtain
hands-on, practical experience with third-party inspections. Said inspections
shall be conducted within the three years immediately prior to submitting an
application in accordance with 310 CMR 80.49(4)(a); or
c. Hold a current UST third-party inspector
certification from another state, and have performed a minimum of ten UST
third-party inspections in that state within the past three
years.
(c) A
third-party inspector who is registered with the Department under
527 CMR 9.00: Tanks
and Containers as of January 2, 2015 and is not certified by January
1, 2018, does not have to meet the requirements of 310 CMR 80.49(4)(b)2. to
become a certified third-party inspector, provided that:
1. The third-party inspector has conducted at
least ten third-party inspections since August 8, 2007; and
2. On or before January 1, 2019, the
third-party inspector takes and passes the Department required examination
pursuant to 310 CMR 80.49(4)(b)1.
(d) In order to maintain and renew
certification, the third-party inspector shall:
1. Complete annual training as required by
the Department, which may include a field component.
2. Complete at least six third-party
inspections within the three-year certification period.
(5)
Performance Standards.
(a) A third-party inspector shall have the
continuing duty to meet the following performance standards:
1. Be a certified third-party inspector
before conducting any third-party inspections.
2. Not transfer or assign the certification
to any other individual.
3.
Personally conduct and complete third-party inspections they sign and
certify.
4. Conduct and complete
third-party inspections in accordance with 310 CMR 80.49(7)(a).
5. Provide an accurate and complete
third-party inspection report.
6.
Not make any false, inaccurate or misleading statements in the third-party
inspection report.
7. Provide any
information regarding third-party inspections to the Department upon request,
as soon as possible, but in no event more than seven business days following
the request.
8. If a third-party
inspector identifies one or more conditions in accordance with
310 CMR
80.48(1), at a UST system
the third-party inspector shall:
a.
Immediately, but in no event later than 24 hours after obtaining knowledge of
the condition, advise the Owner or Operator of the one or more conditions
described at
310 CMR 80.48(1)
and the Owner or Operator's obligation to
notify the Department of the condition(s) in accordance with
310 CMR
80.48(2); and
b. Notify the Department of the violation no
later than 48 hours after informing the Owner or Operator, unless the
third-party inspector receives written confirmation from the Owner or Operator
that it notified the Department.
(6)
Prohibitions. At
the time of a third-party inspection and for the year immediately preceding the
third-party inspection, a third-party inspector shall not be:
(a) An Owner or Operator of the UST system
the third-party inspector is inspecting;
(b) The spouse, parent, child, brother or
sister by blood, marriage or adoption of an Owner or Operator of the UST system
who has performed work on the UST system, or the spouse, parent, child, brother
or sister by blood, marriage or adoption of an employee or contractor of the
Owner or Operator of the UST system who has performed work on the UST system
that the third-party inspector is inspecting;
(c) An employee of the Owner or Operator he
or she is inspecting or an individual who has performed work at the UST
facility he or she is inspecting, under contract or otherwise, other than a
contractor who is the third-party inspector;
(d) The designated Class A, B or C operator
of the UST system the third-party inspector is inspecting; or
(e) A person, or employee of a person, having
any financial interest in or daily on-site responsibility for the UST system
that the third-party inspector is inspecting.
(7)
Inspection
Requirements.
(a) A third-party
inspector shall conduct a third-party inspection in accordance with 310 CMR
80.49(7)(a) through observation during the inspection and a review of the
records compiled and maintained since the most recent third-party inspection,
and shall determine, at a minimum, the following for each UST system and UST
components:
1. Whether the Owner or Operator
submitted required documentation to the Department in accordance with
310 CMR
80.23.
2. Whether leak detection equipment has been
installed, tested, maintained and is fully operational in accordance with
310 CMR 80.19 and
80.26
and the manufacturer's specifications.
3. Whether corrosion protection, if
applicable, has been installed, tested, maintained, and is fully operational in
accordance with
310 CMR
80.22 and
80.29
and the manufacturer's specifications.
4. Whether turbine, intermediate and
dispenser sumps and sump sensors have been installed, inspected, tested and
maintained in accordance with
310 CMR
80.20 and
80.27
and the manufacturer's specifications.
5. Whether spill buckets have been installed,
inspected, tested and maintained in accordance with
310
CMR 80.21(1) and
80.28(1)
and (2) and the manufacturer's
specifications.
6. Whether overfill
protection has been installed, inspected, tested, maintained, and is fully
operational in accordance with
310
CMR 80.21(2) and
80.28(1)
and (3) and the manufacturer's
specifications.
7. Whether
inventory monitoring, if applicable, has been performed and recorded in
accordance with
310 CMR
80.31.
8. Whether tightness tests were conducted in
accordance with
310 CMR
80.32.
9. Whether the Compliance Certification has
been completed and submitted to the Department in accordance with
310 CMR
80.34.
10. Whether repairs and replacements have
been conducted in accordance with
310 CMR
80.33.
11. Whether periodic inspections have been
conducted and recorded in accordance with
310 CMR
80.35.
12. Whether the emergency response postings
and written procedures are in compliance with
310
CMR 80.25.
13. Whether alarms have been responded to and
the responses documented in accordance with
310 CMR
80.24(3).
14. Whether visual and/or olfactory
observations indicate the presence of leakage or release related to the UST
system or UST components.
15.
Whether UST systems that changed product in the UST system complied with
310 CMR
80.41.
16. Whether financial responsibility is
current, valid and documented in accordance with
310 CMR 80.51 through
80.63.
17. Whether UST systems that are temporarily
out-of-service are being maintained and documented in accordance with
310
CMR 80.42.
18. Whether UST systems that were removed or
permanently closed in-place were properly documented in accordance with
310 CMR
80.43.
19. Whether documentation for Class A, B and
C operators is current and maintained in accordance with
310 CMR
80.37.
20. Whether required records are kept in
accordance with
310 CMR
80.36.
(b) The Owner or Operator shall provide the
third-party inspector with all necessary records to complete the inspection in
accordance with 310 CMR 80.49(7)(a).
(c) A third-party inspector shall record the
results of a third-party inspection on a third-party inspection report
specified by the Department, shall sign and date such report in accordance with
the certification at 310 CMR 80.49(7)(d), and shall provide the report to the
Owner or Operator.
1. If the third-party
inspection does not identify any deficiencies, the Owner or Operator shall sign
and date the third-party inspection report in accordance with the certification
at 310 CMR 80.49(7)(e), and shall submit the third-party inspection report to
the Department on or before the UST facility compliance date in accordance with
310 CMR 80.49(7)(f).
2. If the
third-party inspection identifies deficiencies, the Owner or Operator shall
correct any deficiencies, if possible, in accordance with
310 CMR 80.00, sign and date
the third-party inspection report in accordance with the certification at 310
CMR 80.49(7)(e), and submit the report to the Department on or before the UST
facility compliance date.
a. Before the
third-party inspection report is submitted, the Owner or Operator shall have
the third-party inspector determine whether each deficiency is corrected and
the third-party inspector shall record their findings on the third-party
inspection report.
b. A third-party
inspector shall document the findings of the facility's re-inspection in the
"Re-inspection" section of the third-party inspection report, sign and date the
report in accordance with the certification at 310 CMR 80.49(7)(d), and provide
the third-party inspection report to the Owner or Operator.
3. In the
event that the Owner or Operator is unable to correct the deficiencies
identified in the third-party inspection by the UST facility compliance date,
the Owner or Operator shall sign and date the third-party inspection report in
accordance with the certification at 310 CMR 80.49(7)(e) and submit the
third-party inspection report with a return to compliance (RTC) plan to the
Department, in a format specified by the Department, on or before the UST
facility compliance date in accordance with 310 CMR 80.49(7)(f).
a. The RTC plan shall:
i. Identify each deficiency that was not
corrected;
ii. Detail what the
Owner or Operator will do to correct each identified deficiency; and
iii. Include the following statement: "I,
[name of Owner or Operator], attest under the penalties of law:
1. that I have personally examined and am
familiar with the information contained in this return to compliance plan,
including any and all documents accompanying this certification statement;
2. that, based on my inquiry of
those individuals responsible for obtaining the information, the information
contained in this submittal is to the best of my knowledge, true, accurate, and
complete; and
3. that I am fully
authorized to make this attestation on behalf of this UST system or facility. I
am aware that there are significant penalties, including, but not limited to
possible fines and imprisonment, for submitting false, inaccurate, or
incomplete information."
b. The deficiencies identified in the RTC
plan shall be corrected and the Owner or Operator shall submit a RTC completion
report to the Department, in a format specified by the Department, within 30
days of the submittal of the third-party inspection report. If the RTC plan
documents a reasonable basis for a proposed alternative completion due date by
which the deficiencies will be corrected and the required RTC completion report
submitted, the RTC completion report shall be submitted by this alternative
completion due date.
c. If, upon
review, the Department determines that the proposed alternative completion due
date is not reasonable, the Department shall notify the Owner or Operator that
deficiencies shall be corrected and the RTC completion report submitted to the
Department by a date earlier than the proposed alternative date.
d. Before the RTC completion report is
submitted, the Owner or Operator shall have a third-party inspector determine
whether each deficiency is corrected and the third-party inspector shall record
their findings on the RTC completion report.
e. The third-party inspector shall sign and
date the RTC completion report in accordance with the certification at 310 CMR
80.49(7)(d), and provide the RTC completion report to the Owner or
Operator.
f. The Owner or Operator
shall sign and date the RTC completion report in accordance with the
certification at 310 CMR 80.49(7)(e), and submit the RTC completion report to
the Department on or before the RTC completion due
date.
(d) A
third-party inspector who performs a third-party inspection shall sign and date
the third-party inspection report with the following certification:
"I attest under the penalties of law:
(i) that I am a certified third-party
inspector in compliance with 310 CMR 80.49(4);
(ii) that I personally performed this
inspection of the UST facility in accordance with the 310 CMR 80.49(7), and
having fully completed this report, believe the contents of this report and all
attachments to be true and accurate as of the time of the inspection; and
(iii) that all the information
provided to me by the Owner and Operator necessary to complete this report is,
to the best of my knowledge, true, accurate, and complete. I am aware that
there are significant penalties including, but not limited to, possible fines
and imprisonment for submitting false, inaccurate, or incomplete
information."
(e) The
Owner or Operator shall sign, date and submit a third-party inspection report
to the Department with the following certification:
"I attest under the penalties of law:
(i) that I am the Owner or Operator of this
UST facility;
(ii) that I have
personally read this inspection report and understand the contents, including
all attachments, deficiencies and recommendations;
(iii) that all the information provided by me
to the third-party inspector is, to the best of my knowledge, true, accurate,
and complete;
(iv) that I have not
altered, added or deleted any information in this inspection report; and
(v) that I am fully authorized to
make this attestation on behalf of this UST facility. I am aware that there are
significant penalties including, but not limited to, possible fines and
imprisonment for submitting false, inaccurate, or incomplete
information."
(f) The
Owner or Operator shall ensure that the third-party inspection report is hand
delivered, postmarked or submitted electronically to the Department by the UST
facility compliance date set forth in 310 CMR 80.49(2).
(g) The Owner and Operator shall not alter or
delete any information in the third-party inspection report.
(8) Nothing contained in 310 CMR
80.49 shall be construed or interpreted to limit the authority of the
Department to conduct inspections of UST systems or facilities or to take any
enforcement or other actions with respect to such systems and facilities as is
authorized by
310 CMR 80.00 or by any other
statute, regulation or other legal authority.
(9) If the Department determines that a
third-party inspector has not complied with any provision of 310 CMR 80.49, the
Department may take enforcement against the third-party inspector in accordance
with
310 CMR
80.50.
(10) The Department may deny, suspend or
revoke the application or certification of any individual or third-party
inspector if the Department determines that the individual or third-party
inspector has not complied with any provision of
310 CMR 80.48(10)
or 80.49. Such action by the Department
shall be subject to opportunity for an adjudicatory hearing pursuant to
310 CMR
80.50(5). In an adjudicatory
hearing held pursuant to
310 CMR
80.50, the only issue to be adjudicated is
whether the Department's decision to deny, suspend or revoke the application or
certification of an individual or third-party inspector was reasonable in light
of the particular facts and circumstances available to the Department at the
time of its decision.
(11) Any
individual whose application is denied or any third-party inspector whose
certification is revoked shall be barred from re-applying to become a
third-party inspector for up to two years.
Notes
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