Current through Register Vol. XLI, No. 50, December 13, 2024
Section 60-3-5 - Licensed Remediation Specialists5.1. Professional Responsibilities of Licensed Remediation Specialists.5.1.a. Any individual who wishes to practice as a licensed remediation specialist in the State of West Virginia must hold a valid remediation specialist license. Each individual has the burden of demonstrating to the Secretary's satisfaction that he or she meets the requirements for licensing.5.1.b. It is the licensed remediation specialist's duty to protect the safety, health, and welfare of the public in the performance of his or her professional duties. If he or she is unable to meet this duty, the licensed remediation specialist may either sever the relationship with the client or employer or refuse professional responsibility for the work plan, report, or design. If the relationship is severed, the applicant shall notify the Department within 72 hours of the severing of the relationship.5.1.c. Specific areas of professional responsibility of the licensed remediation specialist are as follows: 5.1.c.1. The licensed remediation specialist is responsible for any release of contaminants during assessment and remediation activities undertaken pursuant to and contemplated in the approved remediation agreement, work plans, or reports. The act of moving contaminants within a site in the course of remediation activities is not considered a release;5.1.c.2. Where a release of contaminants in excess of those identified in the work plan occurs at the site during remediation activities, the licensed remediation specialist shall immediately notify the Department, unless the release does not exceed reportable quantities found in 40 CFR Part 302;5.1.c.3. A licensed remediation specialist shall only perform assignments for which the specialist is qualified by training and experience in those specific technical fields;5.1.c.4. A licensed remediation specialist shall be objective in work plans, reports, and opinions and avoid any conflict of interest with employer, clients, and suppliers;5.1.c.5. A licensed remediation specialist shall not solicit or accept gratuities, directly or indirectly, from contractors, agents, or other parties dealing directly with the employer or client in regard to professional services the licensed remediation specialist is performing at the work site;5.1.c.6. A licensed remediation specialist shall not accept any type of bribe, falsify or permit misrepresentation of professional qualifications, intentionally provide false information to the Secretary, or knowingly associate with one who is engaging in business or professional practices of fraudulent or dishonest nature; and5.1.c.7. A licensed remediation specialist shall not charge any special fees above usual and customary professional rates for being licensed.5.1.d. The Secretary may revoke a license, suspend a license for not more than five years, or impose lesser sanctions as appropriate for acts or omissions in violations of this rule or W. Va. Code § 22-22-1, et seq.5.2. Application for Licensure. - Any individual who wishes to obtain a license to practice as a licensed remediation specialist must submit a complete and accurate application to the Secretary on forms supplied by the Secretary. The applicant shall submit an application fee, as specified in Table 60-3A of this rule, with the application. In order to qualify for the licensed remediation specialist examination, the applicant must demonstrate to the Secretary that he or she meets the following eligibility requirements: 5.2.a. Minimum Education Requirements: All individuals applying for a license shall meet the requirements of one of the following tracks: 5.2.a.1. Standard Track: The individual has earned a baccalaureate, masters, or doctorate degree from an accredited educational institution in one of the following areas: biology, chemistry, earth sciences, environmental sciences, geology, hydrogeology, microbiology, soil sciences, toxicology, scientific sub-disciplines of public health, risk assessment, hazardous waste management, engineering, or in a curriculum the Secretary determines is equivalent. The charter or accreditation of the recognized educational institution must have been effective as of the date the individual's degree(s) was granted; or5.2.a.2. Alternative Track: The individual has earned at least a high school diploma, but does not meet the requirements for the standard track.5.2.b. Minimum Experience Requirements: Each individual shall demonstrate to the Secretary's satisfaction that he or she meets the requirements for relevant professional experience, which means that the applicant has performed work of a professional grade and character that indicates the individual is competent to perform professional services pursuant to the requirements of the Act. 5.2.b.1. Relevant professional experience includes, at a minimum, practical knowledge of the following: 5.2.b.1.A. Remediation activities;5.2.b.1.B. Procedures necessary to remediate a site;5.2.b.1.C. Management of contaminants at a site, including, but not limited to: 5.2.b.1.C.1. Site investigation;5.2.b.1.C.2. Health and safety protocol; and 5.2.b.1.C.3. Quality assurance. 5.2.b.1.D. Feasibility studies; and5.2.b.1.E. Remedial design.5.2.b.2. Standard Track: The individual must have six years of relevant professional experience, one of which is supervisory or project management related.5.2.b.3. Alternative Track: The individual must have ten years of relevant professional experience, one of which is supervisory or project management related.5.2.b.4. In addition to the practical knowledge criteria pursuant to paragraph 5.2.b.1 of this rule, the Secretary will also consider the following criteria in evaluating whether an individual's remediation and practical experience, considered both individually and collectively, constitute sufficient relevant professional experience: 5.2.b.4.B. Broad knowledge of the various remediation technologies;5.2.b.4.C. Number of individuals and disciplines of other professionals supervised or coordinated;5.2.b.4.D. Duration of employment;5.2.b.4.E. Nature of work performed (including, but not limited to, whether such experience includes work at sites where subsurface investigations have occurred); and5.2.b.4.F. Any other factors the Secretary deems relevant.5.2.b.5. The individual applying for licensing shall also provide the Secretary with three professional references, each of which, at a minimum, address the individual's range of practical knowledge and professional experience with regard to providing professional services under the Act.5.2.b.6. Work performed during a period of full-time undergraduate study at an educational institution is considered part of the educational program, but is not considered acceptable professional experience; provided, that the Secretary may accept work performed for periods of at least two and one-half consecutive months per calendar year when not enrolled as a full-time student, during or incidental to undergraduate education as relevant professional experience, if the individual did not receive college credits for that work.5.2.b.7. The individual applying for licensing shall submit evidence of any degrees earned from accredited educational institutions which demonstrate ability to meet minimum education requirements.5.2.c. Credits: Individuals who have earned degrees from recognized educational institutions in addition to those required to meet the minimum educational requirements set forth in subdivision 5.2.a. may request that the Secretary credit some or all of that additional education toward the requirements for relevant professional experience in accordance with the following: 5.2.c.1. Standard Track: One year credit for each master's degree and two years credit for a doctorate degree, if the degrees are from a recognized educational institution in one of the academic areas identified in paragraph 5.2.a.1;5.2.c.2. Alternative Track: One-half year credit for each associate degree in one of the academic areas identified in paragraph 5.2.a.1; and5.2.c.3. The Secretary will grant to an individual up to two years maximum credit for additional education under the Standard Track, or up to one year maximum credit for additional education under the Alternate Track.5.2.c.4. The individual applying for licensing and requesting credit toward the minimum relevant professional experience requirements shall submit evidence of any degrees earned from accredited educational institutions which demonstrate education beyond the minimum education requirements.5.3. Licensing Examination: The Secretary is responsible for implementing the following requirements, at a minimum, of the licensed remediation specialist examination: 5.3.a. Frequency and Scheduling: The Secretary shall administer a licensing examination at least every six months to all individuals who have met the requirements for licensure. Examinations shall be held at the time(s) and location(s) set by the Secretary. The Secretary shall provide public notice at least 15 days prior to the application due date for the next scheduled examination;5.3.b. Examination Format and Content: Examinations shall test the individual's overall regulatory understanding and overall technical understanding. Overall regulatory understanding means an understanding of the relevant State and federal environmental regulations and related written policies. Overall technical understanding means demonstrating an understanding of basic concepts and methods in those scientific and technical fields related to assessment, containment, and remediation actions; 5.3.c. The Secretary shall prepare the licensing examination;5.3.d. The Secretary shall initially develop a minimum of three separate examinations. The Secretary shall not repeat one single examination until he or she has given the other two examinations;5.3.e. After the Secretary has used any of the individual examinations twice, he or she shall prepare a minimum of three new examinations;5.3.f. An individual may take an examination only if he or she has paid the applicable examination fee established by this rule. The applicant shall pay the examination fee, as specified in Table 60-3A of this rule, after the Secretary has confirmed his or her eligibility to take the exam. The applicant shall pay the examination fee in full by check made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund. The examination fee is non-refundable, except when the applicant shows, to the Secretary's satisfaction, that his or her failure to appear for the examination was due to circumstances beyond his or her reasonable control, in which case the applicant may either request a refund or request that the Secretary hold open his or her application until he or she can take a subsequent examination. The applicant shall take the make-up examination within two years of the Secretary's approval of the applicant's written application.5.3.g. Examination Procedures and Rules: Each individual shall present some form of photographic identification prior to taking the test. Use of any books, notes, memoranda, scratch paper, calculators, or other materials during the examination is prohibited unless explicitly permitted by the Secretary. No individual may discuss the examination or other procedures during or after the examination, and no individual may make copies of the examination;5.3.h. The passing score for the examination shall be 70 percent;5.3.i. Examination Results: The Secretary shall grade the examinations and deliver the results to each individual within 30 days of the examination. The Secretary will not return the examination papers to the individual;5.3.j. Reapplication for Examination: Individuals who fail to achieve a passing score on the examination may take a subsequent examination subject to the following procedures: 5.3.j.1. An individual shall be allowed to take a subsequent examination that is scheduled to occur on a date not more than two years after the date the Secretary approved the individual's written application, upon receipt by the Secretary of the following items: 5.3.j.1.A. A letter stating the individual's intention to take the subsequent examination; and5.3.j.1.B. The examination fee as provided in Table 60-3A.5.3.j.2. Individuals who seek to take a subsequent examination that is scheduled for a date that is greater than two years after the date the Secretary approved the individual's written application must submit the following prior to taking the examination: 5.3.j.2.A. The licensing application as per the procedures set forth in subsection 5.2; and5.3.j.2.B. The full application fee as provided in Table 60-3A.5.3.k. Waiver of Examination. - If an individual requests a waiver of the examination for licensure as a remediation specialist, the application shall include any and all information that the applicant wants the Secretary to consider including, but not limited to, relevant licenses and certifications. The Secretary may issue a one-time waiver of the examination for the purpose of submitting an application to participate in the Voluntary Remediation Program. This waiver is only valid for six months after its effective date. No person shall implement a remediation work plan unless and until the remediation specialist has passed the examination. However, to be eligible for a waiver, these individuals shall meet all other requirements for licensing, including, but not limited to, education, relevant professional experience, and practical knowledge. 5.3.k.1. The applicant shall submit an application and application fee regardless of whether the applicant is requesting a waiver of the examination.5.4. License renewal. 5.4.a. A licensed remediation specialist in good standing may renew his or her license every two years. The Secretary shall consider a renewal application filed in accordance with all appropriate timeframes, which includes the appropriate license renewal fee found in Table 60-3A, and a complete renewal application. A renewal application shall include evidence of continuing education as outlined in Section 5.5.5.4.b. The Secretary will provide a license renewal notice to the licensed remediation specialist 90 days prior to his or her license expiration. Any individual who fails to renew his or her license shall not continue to practice as a licensed remediation specialist after the day of license expiration. Any individual who fails to renew his or her license within 30 days after the expiration must reapply for examination and is subject to the same requirements as a new applicant.5.4.c. An individual who has timely completed all of the license renewal requirements will receive a renewed license and may continue to practice as a licensed remediation specialist prior to receiving the renewed license.5.4.d. Where the applicant has timely filed a renewal application but the Secretary determines that grounds exist for non-renewal of the license, the Secretary shall follow the same procedure for suspension or revocation of licenses set forth in subsection 5.6 of this rule and, pending a final decision by the Secretary on such renewal, the license shall remain in effect.5.5. Continuing Education Requirements 5.5.a. Licensed remediation specialists must obtain twelve professional development hours every 24 months to be eligible for license renewal. Professional development hours may be earned by attending and successfully completing college courses, continuing education courses, seminars, workshops, and conferences pertaining to investigation, assessment, or remediation of hazardous substances or petroleum. Safety training does not meet the requirements for continuing education. 5.5.a.1. Two of the twelve required professional development hours shall be earned during each license renewal period by successfully completing West Virginia Voluntary Remediation Program training conducted by the West Virginia Department of Environmental Protection. 5.5.a.2. Additional professional development hours earned shall be calculated as follows: 5.5.a.2.A. One college semester hour equals 20 professional development hours.5.5.a.2.B. One college quarter hour equals 15 professional development hours.5.5.a.2.C. One continuing education unit (CEU) equals 10 professional development hours.5.5.a.2.D. One hour of attendance at a seminar, workshop, or professional or technical presentation at a meeting, convention, or conference equals one professional development hour.5.5.b. Documents used to support professional development hours must be submitted with the renewal application and must include an attendance verification document showing the date of the activity, type of activity claimed, sponsoring organization, and the actual hours of instruction.5.5.c. The Secretary may excuse or modify the continuing education requirements of this rule for any certification period if a licensed remediation specialist demonstrates to the Secretary's satisfaction that the licensed remediation specialist is unable to complete the minimum requirements due to health reasons, as certified by a medical doctor, or active service in the United States Armed Forces.5.6. Suspension and Revocation of Licenses. The provisions set forth in this subsection are in addition to and shall not limit the procedures regarding enforcement orders contained in W. Va. Code § 22-22-12. 5.6.a. Criteria for suspension or revocation of license. - A license issued to a licensed remediation specialist may be suspended or revoked for the following reasons: 5.6.a.1. For fraud by the licensed remediation specialist in the license application process;5.6.a.2. For fraud, dishonesty, intentional misrepresentation, or gross incompetence by the licensed remediation specialist in the performance of any work required in a work plan or pursuant to a Voluntary Remediation Agreement; or5.6.a.3. For any act by the licensed remediation specialist in violation of the Act or this rule.5.6.a.4. Any circumstances that justify revocation of a license under this rule may also justify the non-renewal of a license.5.6.b. Issuance of Notice of Intent. - If the Secretary finds that sufficient grounds exist to suspend or revoke the license of a licensed remediation specialist, prior to the suspension or revocation, the Secretary shall notify the licensed remediation specialist of his or her intent to suspend or revoke the license. The Secretary shall provide the licensed remediation specialist with a Notice of Intent to Suspend or Revoke by U.S. certified mail, return receipt requested. The Notice shall set forth the specific reasons for the proposed suspension or revocation and shall state that the licensed remediation specialist may request either an informal conference or a hearing on the proposed suspension of revocation pursuant to the Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq. The purpose of the informal conference and the contested case hearing is to determine the rights, duties, interests, and privileges of the licensed remediation specialist. The Secretary may appoint an impartial hearing officer to conduct an informal conference or contested case hearing.5.6.c. Request for Informal Conference or Contested Case Hearing. - The licensed remediation specialist has 30 calendar days from the receipt of the notice to make a written request for an informal conference or contested case hearing. A request is deemed served on the day it is deposited in the U.S. mail. Failure to respond will result in the imposition of the proposed suspension or revocation. The licensed remediation specialist has a right to an informal conference prior to a formal hearing. The licensed remediation specialist may request an informal conference or a contested case hearing, but the request for and holding of an informal conference does not preclude the licensed remediation specialist from requesting a contested case hearing following the disposition reached in the informal conference. 5.6.c.1. The issuance of a notice of intent to suspend or revoke the license of a licensed remediation specialist shall not prevent the licensed remediation specialist from rendering services under the Voluntary Remediation Program pending a final decision from the Secretary following an informal conference and, if requested, a contested case hearing. 5.6.d. In all proceedings under this section, the licensed remediation specialist may be represented by counsel. The Secretary shall send all notices required by this rule to counsel in the same manner as he or she provides them to the licensed remediation specialist.5.6.e. Informal Conference. - If the licensed remediation specialist requests an informal conference within the 30-day period, the Secretary shall schedule the conference to be held within 30 days of the request in accordance with the following requirements: 5.6.e.1. The Secretary shall notify the licensed remediation specialist and the primary representative of the Department who was involved in the decision to suspend or revoke the licensed remediation specialist's license of the time and place of the informal conference. In scheduling the location of the informal conference, the Secretary shall consider the location of the licensed remediation specialist's business and any particular sites that may have given rise to the decision to revoke or suspend;5.6.e.2. The Secretary shall notify the licensed remediation specialist of the informal conference at least 15 calendar days prior to the date of the informal conference; and5.6.e.3. The Secretary may continue the informal conference upon the agreement of the licensed remediation specialist and for good cause shown.5.6.f. Informal Conference Procedures. - An informal conference, as provided by this rule, is intended to be an informal discussion of the facts which gave rise to the issuance of the decision to suspend or revoke a license. The Secretary shall conduct the conference in the following manner:5.6.f.1. The Secretary shall be guided by, but need not strictly apply, the West Virginia Rules of Civil Procedure; however, the Secretary shall follow the West Virginia Rules of Evidence as applied in civil cases in the circuit courts of this State; 5.6.f.2. A record of the informal conference is not required but any party may request that a record be made at that party's expense. Any other parties to the conference may obtain copies of the record at their own expense;5.6.f.3. During an informal conference, the licensed remediation specialist may submit to the Secretary any evidence or demonstration of mitigating circumstances as to why the Secretary should alter the decision to suspend or revoke the license; and5.6.f.4. At any review proceedings that may occur later, no evidence as to any oral statement made by one party at the informal conference may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal conference.5.7. Written Decision. 5.7.a. If the licensed remediation specialist and the Secretary are able to reach an agreement, the Secretary shall prepare a written decision signed by the licensed remediation specialist and the Secretary implementing the decision reached in the informal conference. 5.7.b. If the licensed remediation specialist and the Secretary are unable to reach an agreement within 30 calendar days following the informal conference, the Secretary shall issue and furnish to the licensed remediation specialist a written decision affirming, modifying, or dismissing the initial proposal to suspend or revoke the license and give the specific reasons for the decision. The Secretary shall send notice of his or her decision to the licensed remediation specialist by U.S. certified mail return receipt requested.5.7.c. Within 30 calendar days of the receipt of the Secretary's written decision, the licensed remediation specialist may demand a formal hearing as provided herein to determine his or her rights and privileges. The licensed remediation specialist must serve a request in writing upon the Secretary within 30 days of receipt of the written decision. A request is deemed served on the day it is deposited in the U.S. mail. Failure to request a formal hearing on the written decision within the time specified shall cause the decision to become a final unappealable order of the Secretary.5.8. Contested Cases, Right to a Formal Hearing. - As set forth above, within 30 calendar days after notification of a written decision rendered as a result of an informal conference, the licensed remediation specialist may request a formal hearing before the Secretary in accordance with the Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq. If requested, the Secretary shall grant the request and schedule a contested case hearing.5.9. Appeals. - An appeal from any final order or ruling entered in a contested case in accordance with this rule shall be to the Circuit Court of Kanawha County in accordance with the provisions of the Administrative Procedures Act, W. Va. Code § 29A-5-4.5.10. Alternative Procedure. - When imminent or substantial harm is threatened or posed at a voluntary remediation site which, in the Secretary's opinion, is attributable to the negligence or incompetence of the licensed remediation specialist at the site, the Secretary may, in lieu of the notice of intent under subdivision 5.6.b. of this rule, issue an order in accordance with W. Va. Code § 22-22-12(a)(1). If the licensed remediation specialist files a request for reconsideration as provided in W. Va. Code § 22-22-12(b), the Secretary shall conduct a contested case hearing within ten days of the filing of the request.