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. d. An individual may only file such a request for adjudicatory hearing in accordance with 310 CMR 80.50 if the individual timely requests reconsideration of the denial in accordance with 310 CMR 80.49(4)(a)2.a. and is denied after reconsideration. 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. c. 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 to the Department on or before the UST facility compliance date in accordance with 310 CMR 80.49(7)(f). 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. ENFORCEMENT AND APPEALS