Ala. Admin. Code r. 287-1-1-.05

Current through Register Vol. 43, No. 1, October 31, 2024

Section 287-1-1-.05 - Approval Of Consultants

(1) ADEC Initial Application Requirements. Any company that wishes to be approved to perform fund eligible work must submit a written application to become an ADEC with the Board according to a format determined by the Board. The application shall include the following and other information requested by the Board:

(a) Statement of organization, experience, and personnel including the following:

(i) Provide the organizational history of the company including, but not necessarily limited to, years in business; location of offices; form of business - sole proprietor, partnership, corporation; and a list of officers and principals of the company including their mailing addresses and telephone numbers;

(ii) Provide a copy of the organization's latest annual financial statement or other approved alternate proof of financial stability;

(iii) Provide a letter from an insurance company or companies approved to do business in the State of Alabama which states that, within 30 days of notification that the company has been approved for addition to the ADEC list, the company can have in effect insurance as required in these rules with the Board listed as a certificate holder on the policy(ies);

(iv) A licensed consultant that is applying to be in the remediation category shall attach a copy of the certificate documenting that the company has a valid Alabama Contractor's License with a Specialty Classification to perform remediation of hazardous substance or hazardous waste sites or the equivalent with a monetary limitation of not less than five hundred thousand dollars ($500,000);

(v) A detailed organizational chart showing only the employee names and titles who will perform work under the DERTF and a description of the project organization relating to staff who will perform work under the DERTF. The organizational chart should state which staff will perform which services and include each person's job title. It should also note the location of all staff.

(b) Attach a resume for each person listed on the organizational chart. Organize resumes in sections by office so that it is clear which personnel work from which office. Resumes shall, at a minimum, include the following information:

(i) Description of the education of the person including the school and year graduated, degree and major area of study, and specialized training including, but not limited to, health and safety training;

(ii) The current position, title, years of applicable experience and licenses and registrations that the person holds. If a person is listed on the organizational chart as an engineer, then that person must have an Alabama Professional Engineer License number listed on the resume. Any geologist listed on the organizational chart must have an Alabama Geologist Registration number on the resume;

(iii) A list of the sites on which the employee worked where the employee either performed facility investigations, assessments, or remediation activities related to contamination resulting from the release of dense non-aqueous liquids excluding polychlorinated biphenyls (PCBs). Describe the activities and duties performed by the employee.

(c) Proof of Satisfaction of ADEC Experience Requirements:

(i) If the company desires to be approved to perform initial investigations, provide descriptions of a minimum of three (3) different investigations performed by company staff (who will perform work under the DERTF) during the past five (5) years at facilities which use or have onsite dense non-aqueous liquids excluding PCBs.

(ii) If the company desires to be approved to perform property assessments at sites in the DERTF, provide descriptions of a minimum of three (3) different assessments of sites with contamination resulting from the release of dense non-aqueous liquids excluding PCBs in soil and/or groundwater which company staff who will perform work under the DERTF have performed in the past five (5) years.

(iii) Reserved

(iv) If the company desires to be approved to perform property remediation at sites in the DERTF, provide descriptions of a minimum of three (3) different sites where company staff who will perform work under the DERTF have performed remediation of contamination resulting from the release of dense non-aqueous liquids excluding PCBs in soil and/or groundwater in the past five (5) years.

(v) If a company desires to be approved for a combination of initial investigation, property assessment and property remediation, then submit a minimum of three (3) sites for each category for which the company is applying in compliance with the requirements set forth in subparagraphs (i) through (iv) above.

(vi) In the descriptions required by subparagraphs (i) through (v) above, state the duties performed, type of facility investigated or contaminants investigated, assessed or remediated, results of the investigation, assessment or remediation and other pertinent information which would show the company's competency in initial investigation, property assessment and/or property remediation of contamination resulting from the release of dense non-aqueous liquids excluding PCBs (be specific). Only include sites worked by personnel who will work on DERTF sites. Indicate the personnel who performed the, investigation, assessment, or remediation and describe their job duties. Limit the discussion to two (2) typed pages per site per category;

(vii) Attach letters of recommendation for two (2) sites described above from clients describing the company's investigation activities at the site and the clients' opinions of the quality of work performed by company's personnel if the company is applying to be approved for initial investigation activities. Attach letters of recommendation for two (2) sites described above from clients describing the company's assessment activities at the site and the clients' opinions of the quality of work performed by company's personnel if the company is applying to be approved for drycleaner property assessment. Attach letters of recommendation for two (2) sites described above from clients describing the company's remediation activities at the site and the clients' opinions of the quality of work performed by company's personnel if the company is applying to be approved for property remediation activities; and

(viii) If the company, its officers, its principals, or any of the employees referenced in these Rules have previously been removed from the ADEC list or have been the subject of any professional license revocation or suspension proceeding, or have been assessed a civil penalty for violation of any environmental law in Alabama or comparable law in another jurisdiction, describe the circumstances, including the reason(s) for such action and the response action(s) taken by the company to assure there will not be similar problems in the future;

(d) A notarized statement, sworn by an executive officer or principal of the company to the effect that neither the company nor any of the company's officers, principals, and employees have been convicted of, pleaded guilty to, or pleaded nolo contendere to violating any of the following or comparable environmental law in another jurisdiction:

(i) Illegal Disposal of Hazardous Waste, Code of Ala. 1975, § 22-30-19.

(ii) Violations of the Alabama Solid Waste Disposal Act, Code of Ala. 1975, § 22-27-1etseq.

(iii) Violations of the Alabama Air Pollution Control Act, Code of Ala. 1975, § 22-28-22.

(iv) Violations of the Alabama Water Pollution Control Act, Code of Ala. 1975, § 22-22-14.

(v) Knowingly provides false information in any written record or report required by law to be submitted to any governmental agency, Code of Ala. 1975, § 13A-10-109.

(e) A notarized statement, sworn by an executive officer or principal of the company to the effect that neither the company nor any of the company's officers, principles, and employees have been convicted of, pleaded guilty to, or pleaded nolo contendere to any of the following or a comparable law in another jurisdiction:

(i) Tampering with governmental records, Code of Ala. 1975, § 13A-10-12.

(ii) Any offense relating to judicial or other proceedings, Code of Ala. 1975, § 13A-10-120etseq.

(iii) Perjury and Related Offenses, Code of Ala. 1975, § 13A-10-100 et. seq.

(iv) Forgery and Related Offenses, Code of Ala. 1975, § 13A-9-1 et. seq.

(v) Any Offense involving Theft, Code of Ala. 1975, § 13A-8-1 et. seq.

(2) ADEC Reimbursement. The ADEC will be reimbursed by the PEP. The payment requests submitted to the FUND will be paid to the PEP and will be in accordance with the reasonable rate schedule as established by the Board;

(3) ADEC Registration and License Requirements. Any company that wishes to be approved to perform Fund eligible work shall have the licenses and registrations required by the State of Alabama to perform the activities that said company proposes to perform.

(4) Reserved

(5) ADEC Approval and Listing. Companies which satisfactorily demonstrate to the Board that the company has: successfully performed significant past activities in facility investigation, assessment and/or remediation of contamination resulting from the release of dense non-aqueous liquids, excluding PCBs, through the site descriptions and letters of reference required in this Rule, has not violated environmental or other laws referenced in the sworn statement, and has completed the other requirements listed above shall be included in the next published approved consultant list in the appropriate category(ies) following receipt by the Board of the required insurance certificate. For initial evaluation to become an ADEC, it shall be assumed by the Board that if a company has sufficient experience and qualifications to perform investigation, assessment, and/or remediation activities at sites contaminated by dense non-aqueous liquids, excluding PCBs, then the company has sufficient qualifications to perform comparable activities at sites contaminated with drycleaning solvents. If the company, its officers, its principals, or any of the employees referenced in the above referenced Rules have previously been removed from the ADEC list or have been the subject of any professional license revocation or suspension proceeding, or have been assessed a civil penalty for violation of any environmental law in Alabama or comparable law in another jurisdiction, the company shall also be required to satisfactorily demonstrate to the Board that the circumstances, including the reason(s) for such actions have been corrected and will not recur.

(6) ADEC Renewal Application. Any ADEC who has not performed work covered under the Fund for a period of five years must submit a renewal application with the Board along with the following:

(a) The ADEC shall update its initial application to include a list of all current personnel who will work on DERTF sites in the upcoming year and each person's job title, job descriptions, office location, and telephone number. For employees who have not had a resume submitted to the DERTF on a previous application, and personnel who have either received or lost licenses or registrations, the ADEC shall submit resumes as described under the initial application process.

(b) A valid insurance certificate showing insurance required in these rules.

(c) For a licensed consultant in the ADEC remediation category, also include documentation of a valid contractor's license to perform hazardous waste or hazardous substance site remediation or the equivalent with a monetary limitation of not less than five hundred thousand dollars ($500,000).

(7) To remain on a list of approved ADECs, the company must comply as follows:

(a) Contract(s) between the ADEC and contractors/subcontractors shall contain provisions that all site workers working under authority of contractors or subcontractors shall have applicable training in accordance with the most current requirements of Title 29 Code of Federal Regulations (CFR) Section 1910.120, Standard for Hazardous Waste Operations and Emergency Response (HAZWOPER). These regulations include the following provisions for employees: training, Section 1910.120(e); medical surveillance, Section 1910.120(f); and PPE, Section 1910.120(g).

(8) The ADEC shall have a written contract with the owner or operator of the facility, or impacted third party for all Fund-eligible work performed at any Fund eligible site and the contract shall contain the following sentence conspicuously located on the first page of the contract:

(Company's Name) WILL/WILL NOT (mark one) USE THE DRYCLEANER ENVIRONMENTAL RESPONSE TRUST FUND PROGRAM'S REASONABLE RATE SCHEDULE WHEN INVOICING (insert name of drycleaner owner, operator, or impacted third parry) FOR THE EXPENSES INCURRED IN THE INVESTIGATION AND/OR CLEANUP OF THIS SITE;

(9) The ADEC's services will be performed in a manner consistent with the level of care and skill ordinarily exercised by members of their profession practicing in the State of Alabama, under similar conditions, and at the time the services were rendered. The ADEC shall not knowingly, willfully, or recklessly cause the spread of contamination nor inhibit response action at the site.

(10) The ADEC will perform activities consistent with these rules and gather and maintain documentation and records necessary or required for supporting and filing claims with the DERTF Program.

(11) The ADEC shall follow methods and procedures established by the Department and the Board for initial investigation, property assessment and/or property remediation of sites. The ADEC shall collect, gather, compile and maintain documentation requested by the Department and the Board.

(12) Unless otherwise specifically approved by the Board, the following shall apply. All work done by the ADEC shall have the prior approval of a Registered Professional Engineer or Professional Geologist who is licensed/registered in the State of Alabama, and the work shall be performed as specified according to a plan approved by the Department. All plans and reports submitted to the Department shall be prepared and signed by the Registered Professional Engineer or Professional Geologist who prepares or is responsible for the plan or report. A Registered Professional Engineer or Professional Geologist shall make periodic site visits to verify whether or not the work performed is as specified by the Registered Professional Engineer or Professional Geologist, and according to a plan approved by the Department. The ADEC shall require a Registered Professional Engineer or Professional Geologist to submit a signed certification based on their personal observation and review of job site records stating whether or not the work is performed as directed by the Registered Professional Engineer or Professional Geologist, and whether the work is performed in accordance with a plan approved by the Department. If the work is not performed according to the above specifications, the certification shall include a listing of how the work performed varies from the approved plan, and/or the authorization of the Registered Professional Engineer or Professional Geologist and the specific reason for each variation. The certification for the appropriate phase of work shall be submitted with the report describing that phase of the work including, but not necessarily limited to, investigation reports, remediation reports, and as-built drawings.

(13) The ADEC shall indemnify, and hold harmless the Department and the Board and their officers, agents and employees from all claims, losses, or suits accruing or resulting to any person, firm, corporation, or other entity which may be injured or damaged as a result of acts or omissions of the ADEC relating to work as an approved consultant.

(14) The ADEC shall have all applicable license(s) and registration(s) required in the State of Alabama and the local government where any work is performed.

(15) The ADEC shall maintain in force during the term of their performance as an approved consultant, and, if applicable, shall require its subcontractors to maintain, insurance as follows:

(a) Worker's Compensation - statutory limits and Employer's Liability - $1,000,000 per occurrence.

(b) Commercial General Liability - $2,000,000 per occurrence - $4,OOO,OOO aggregate.

(c) Professional Services - Professional Liability Insurance - $2,000,000 per occurrence covering claims, damages, and liabilities arising out of or resulting from, the ADEC's negligent acts, errors, and omissions.

(d) Automobile Liability - If the ADEC maintains and operates company vehicles, they shall maintain automobile liability insurance as follows:

Split limits of:

$500,00 (bodily injury per person)

$1,000,000 (bodily injury per occurrence)

$250,000 (property damage per occurrence); or

Combined single limits for bodily injury and property damage:

$1,000,000 (each occurrence), or

(e) If the ADEC shall maintain insurance to cover loss or damage to equipment, materials, and tools that are owned, leased, or rented by or for which the ADEC has responsibility.

(f) Additionally, the ADEC shall maintain insurance to cover loss or damage to equipment, materials, and tools that are owned, leased, or rented by or for which the ADEC has responsibility.

(g) All policies shall:

(i) Include the Board and the State of Alabama as Additional Insured, without regard to the liabilities contained in the Agreement excluding (a) and (c) of Rule 287-1-1-.05(15).

(ii) Contain a waiver of subrogation between the ADEC and the State excluding (a) and (c) of Rule 287-1-1-.05(15), and

(iii) Provide thirty (30) days notice to DERTF in the event of any non-renewal, cancellation, restriction, or modification of insurance.

(h) The ADEC shall provide certificates of such insurance or satisfactory evidence of the above-stated coverages. Obtaining and maintaining the above coverages and providing the certificates of such insurance are conditions precedent to ADEC registration and remaining on the Board's ADEC list

(16) The ADEC shall submit timely annual registration renewal applications as required by Rule 287-1-1 -.O5(6).

(17) The Board will provide notice that applications are to be requested by publication of a legal advertisement which will provide interested firms with the information necessary to request instructions for preparation and submittal of applications and supporting documentation. Applications received within 45 days of the date of the legal advertisement shall be reviewed prior to establishing an ADEC list. Members of a review committee consisting of Board members and its consultant(s) shall independently evaluate applications and supporting documentation. Applicants who fail to submit their applications within 45 days of the date of legal advertisement shall not be included in the initial ADEC list. Such applicants may reapply for inclusion on subsequent ADEC lists without penalty.

(a) A company that previously submitted an application but was not approved as an ADEC may submit a subsequent application for review at such time as the company believes the requirements to be an ADEC are met, except a company shall not file applications for review to be an ADEC more than two (2) times in any calendar year.

(b) An updated ADEC list shall be published at least annually.

(18) An ADEC may be removed from the ADEC list if the ADEC, its principals, officers, or employees does any of the following:

(a) Violates these rules;

(b) Charges the DERTF, the owner or operator of the facility, or impacted third party for work that was not performed;

(c) Fails to obtain or maintain necessary licenses;

(d) Fails to maintain the required insurance;

(e) Files an inaccurate Board reimbursement application with errors in personnel titles, rates, activities performed, equipment used, material used or other items which cause or would cause an overpayment of Fund money to the PEP;

(f) Files false information with the Board or the Department;

(g) Has been the subject of any professional license revocation or suspension, or has been assessed a civil penalty for violation of any environmental law in Alabama or comparable law in another jurisdiction;

(h) Has been convicted of, pleaded guilty, or pleaded nolo contendere to violating any of the following or comparable environmental law in another jurisdiction:

(i) Illegal Disposal of Hazardous Waste, Code of Ala. 1975, § 22-30-19.

(ii) Violations of the Alabama Solid Waste Disposal Act, Code of Ala. 1975, § 22-27-1etseq.

(iii) Violations of the Alabama Air Pollution Control Act, Code of Ala. 1975, § 22-28-22.

(iv) Violations of the Alabama Water Pollution Control Act, Code of Ala. 1975, § 22-22-14.

(v) Knowingly providing false information in any written record or report required by law to be submitted to any governmental agency, Code of Ala. 1975, § 13A-10-109.

(i) Has been convicted of, pleaded guilty, or pleaded nolo contendere to violating any of the following or a comparable law in another jurisdiction:

(i) Tampering with governmental records, Code of Ala. 1975, § 13A-10-12.

(ii) Any offense relating to judicial or other proceedings, Code of Ala. 1975, § 13A-10-120etseq.

(iii) Perjury and Related Offenses, Code of Ala. 1975, §3A-10-100etseq.

(iv) Forgery and Related Offenses, Code of Ala. 1975, § 13A-9-1etseq.

(v) Any Offense Involving Theft, Code of Ala. 1975, § 13A-8-1etseq.

(j) Is found to have engaged in the unauthorized practice of engineering, contracting, or geology under Code of Ala. 1975, § 34-11-1, etseq., Code of Ala. 1975, § 34-8-1, etseq., or Code of Ala. 1975, § 34-41-1, etseq., respectively, or a comparable law in another jurisdiction by the appropriate regulatory agency or court;

(k) Performs a non-approved action that increases costs for the Fund, the drycleaner operator, or the impacted third party;

(l) Files three (3) plans which are rejected by the Department as deficient;

(m) Files plan(s) or report(s) which do not bear the appropriate signature and Alabama license/registration number of a Registered Professional Engineer or Professional Geologist;

(n) Deviates from a plan or scope of work as approved by the Department without the approval of the Department. This includes, but is not limited to, the following:

(i) Failure to follow Quality Assurance and Quality Control approved in the plan;

(ii) Failure to follow the schedule for implementation approved in the plan; or

(iii) Failure to perform the activities listed or described in the plan.

(o) Fails to submit a complete renewal application by the deadline established by the Board in the format required by the Board;

(p) Performs Fund-eligible work at a DERTF site after a stop work or termination date established by the Board or the Department;

(q) Fails to perform activities required in these rules or rules promulgated by the Department or allows activities required in these rules or rules promulgated by Department to not be performed;

(r) Fails to demonstrate the skills, techniques, procedures or knowledge necessary to perform ADEC work to DERTF requirements;

(s) Performs work in a category in which the ADEC is not approved.

(19) The process for removing a consultant from the ADEC list shall be as follows:

(a) The review process shall be initiated when a complaint is referred to the Board's review committee or the Board determines the company's activities as an ADEC should be evaluated.

(b) The review committee shall inform the company via certified mail that the company's activities as an approved consultant under the DERTF are to be reviewed. The company shall submit to the review committee a list of all sites where the company is performing DERTF Fund eligible work and the company shall cooperate with the review committee in any and all ways requested by the Board. The review committee shall perform its investigation and notify the company of the findings.

(c) The Boards review committee may request the company to appear at a meeting to show cause why the Board should not remove the company from the ADEC list.

(d) The company may request a meeting with the review committee.

(e) The Board shall notify the company of the review committee's decision by sending a certified letter to the last known address of the company on file with the DERTF.

(f) If the review committee determines that removal of the company from the ADEC list is warranted, then the certified letter sent by the Board to the company shall specify a date to terminate work on Fund-eligible sites. After the stop work date no activities performed by the company on any DERTF site shall be Fund reimbursable.

(g) The Board shall notify all sites which the company identified as Fund reimbursable sites of the stop work date and that the company's work after said date is not eligible for reimbursement from the DERTF Fund unless otherwise notified.

(h) If a consultant is removed from the list, other ADECs with common officers or principals shall be reviewed to determine whether to remove those ADECs with common officers or principals from the ADEC list.

(i) If a company is removed from the ADEC list, the company or a company with any of its principals or officers can not apply for a period of one (1) year from date of removal. If a company is removed as a result of a conviction or pleaded guilty to, or pleaded nolo contendere to violation of an environmental law listed in (18)(h) of this Rule or other violations listed in (18)(i) of this Rule, the company and any of its officers or principals who were convicted, pleaded guilty or pleaded nolo contendere shall not reapply to become an ADEC under the company name or any other entity.

(j) The ADEC list shall have a category that lists the number of times a company has been removed from the ADEC list. If a company, its principals, or its officers are removed from the list 3 times, then the consultant, its principals, and its officers are not eligible to reapply for addition to the ADEC list.

(20) Once the ADEC receives a stop work notice, the company/ADEC shall file no additional plans, scopes of work, or cost proposals to the DERTF unless the Board removes the stop work date.

(21) The initial application, renewal applications, plans and reports, and Fund reimbursement requests shall include the following certification: "I certify under penalty of law, including but not limited to penalties for perjury, that the information contained in this (select one or another term as appropriate: application, form, report, study) and on any attachments, is true, accurate and complete to the best of my knowledge, information, and belief. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for intentional violation."

(22) The appearance of a company on the ADEC list shall in no way establish liability or responsibility on the part of the Board, the Department, the Fund, or the State of Alabama in regards to the services provided by the company or circumstances which may occur as a result of such services. Furthermore, the appearance on the ADEC list is not an endorsement by the Board, the Department, or the State of Alabama for the company to perform any services outside of the DERTF Program.

(23) A person or company working as a subcontractor under contract to an ADEC is not required to be classified as an ADEC. The subcontractor must maintain all applicable license(s) and/or registration(s) required in the State of Alabama for work performed.

Author: Robert D. Tambling

Ala. Admin. Code r. 287-1-1-.05

New Rule: Filed March 27, 2003; effective May 1, 2003. Amended: Filed June 17, 2004; effective July 22, 2004. Amended: Filed March 29, 2005; effective May 3, 2005.

Statutory Authority:Code of Ala. 1975, § 22-3OD-5(c).