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Qualified Underground Storage Tank Consultants – Do you need one for your cleanup or don’t you?

Recent amendments were made to Michigan’s Part 213, Leaking Underground Storage Tanks, of the Natural Resources and Environmental Protection Act (NREPA).  These amendments became effective on May 1, 2012, and included a provision that repealed the Department of Environmental Quality’s (DEQ’s) obligation to evaluate, maintain, and annually update a list of Qualified Consultants (QCs) and Certified Professionals (CPs) who are approved to perform investigations and cleanups at leaking underground storage tank (LUST) sites.

What does this mean?  Can you hire anyone to investigate and conduct corrective action at your LUST site?  The newly amended Part 213 includes a definition for “Qualified Underground Storage Tank Consultant” or QUSTC.  QUSTC means a person who meets the requirements of Section 21325 of Part 213, which includes the following:

• Experience in all phases of underground storage tank (UST) work and possesses or employs at least one of the following:
  • A professional engineer license with 3 or more years of relevant corrective action experience, preferably involving USTs.
  • A professional geologist certification (or professional hydrologist or certified groundwater professional) with 3 or more years of relevant corrective action experience, preferably involving USTs.
  • A person that was certified by the DEQ as an UST professional at the time of the effective date of the amendatory act.

• The person has all of the following insurance policies (there are requirements for the carriers, insurance ratings, and per occurrence amounts):
  • Worker’s compensation insurance
  • Professional liability errors and omissions (E&O) insurance
  • Contractor pollution liability insurance
  • Commercial general liability insurance
  • Automobile liability insurance

• The person has demonstrated compliance with the Occupational Safety and Health Act (OSHA), the Michigan OSHA (MIOSHA) and the rules promulgated under these acts.

To confuse matters, while the definition for QUSTC is included in the recent Part 213 amendments, the requirement for an owner/operator to retain a QUSTC was inadvertently removed.  Representatives of the DEQ recently stated that they are working on fixing this situation by amending Part 213 in the near future to clearly include the requirement to use a QUSTC for LUST work.

The bottom line is this – you still need a QUSTC for LUST work and for preparation/submittal of the Initial Assessment Report (IAR), Final Assessment Report (FAR) and Closure Report (CR).  The difference now is that DEQ is no longer reviewing QUSTC information and maintaining an approved QUSTC list.  Furthermore, the QUSTC who prepares the CR must sign an affidavit attesting to the information in the report, compliance with the risk-based corrective action (RBCA) standard, and that the information is true and accurate.  The QUSTC must also attach a certificate of insurance demonstrating that the insurance requirements of Section 21325 have been met.

Before you hire a consultant for your LUST site, make sure that they provide you with a certificate of insurance, and require that they demonstrate how they meet the qualification/experience requirements of Section 21325 of Part 213.

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