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Department of State Division of Publications
For Department of State Use Only
312 Rosa L. Parks, 8th Floor Snodgrass/TN Tower Nashville, TN 37243
Sequence Number: ID-ol -17
Phone: 615.741.2650 Notice ID(s): ~'151?
Email: [email protected] File Date: _ _....,,l0..._1=Pf--'/l_7_,____
Notice of Rulemaking Hearing Hearings will be conducted in the manner prescribed by the Uniform Administrative Procedures Act, T. C.A. § 4-5-204. For questions and copies of the notice, contact the person listed below.
Ag~n cyJBoard/~_om_!ll i~~i on: Environment and Conservation - - -Division: Remediation ----- . -- .• 1
Contact Person: Tim Stewart -- -·----William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Avenue, 14th Floor
Address: . Na?J:lville, Tennessee 37243
Phone: 615 741-4998 --------- -- - -·-
Email: I Tim .stewart@tn .gov
Any Individuals with disabilities who wish to participate in these proceedings (to review these filings) and may require aid to facilitate such participation should contact the following at least 10 days prior to the hearing:
I
ADA Cont~ct: L ~DA CoordJ_n~or __ _ _ _ 1 William R. Snodgrass Tennessee Tower ! 312 Rosa L. Parks Avenue, 22nd Floor
Address: _! l:':!_ashville, Ten__t:1essee 37243 _ · 1-866-253-5827 (toll free) or 615-532-0200
Phone: Hearing im_paired calle~s may use the T_N R~ay Service 1-800-_?48-0298
Email: [email protected]
Hearing Location(s) (for additional locations, copy and paste table)
Address 1: Conference Room Address 2: Nashville Environmental Field Office
711 R. S. Gass Boulevard City: Nashville, Tennessee Zip: 37243
Hearing Date : 01/08/18 Hearing Time: 6:00 p.m. I X CST/CDT EST/EDT I
Address 1: Conference Room Address 2: Jackson Environmental Field Office
1625 Hollywood Drive City: Jackson, Tennessee Zip: 38305-1550
Hearinq Date : 01/09/18 Hearing Time: 6:00 p.m. I X CST/CDT EST/EDT I
SS-7037 (July 2014) RDA 1693
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Address 1: Conference Room Address 2: Knoxville Environmental Field Office
3711 Middlebrook Pike, Suite 220 City: Knoxville, Tennessee Zip: 37921-5602
Hearing Date : 01/16/18 Hearinq Time: 6:00 p.m. I CST/CDT X EST/EDT I
Additional Hearing Information:
The abuse and manufacture of illegal methamphetamine continues to be a statewide epidemic in Tennessee. Law enforcement agencies across the state have encountered thousands of Clandestine Methamphetamine Laboratories (CM Ls) from 1998 to present. CM Ls are found on all types of properties ranging from single-family homes, rental properties, hotel and motel rooms, and vehicles. No matter where these laboratories are created or used, they all leave behind hazardous residue that poses a threat to human health. In many cases, this methamphetamine residue renders a property "Unsafe for Human Use" and can be found on hard surfaces, like walls, furniture, appliances and ceiling fans, and soft surfaces, such as carpets, drapes, bedding, clothing, and toys. Tennessee Code Annotated Section 68-212-501, Part 5 of the Hazardous Waste Management Act, allows TDEC to develop rules to determine when a methamphetamine contaminated property is safe for human use again.
The initial cleanup standards were created based upon standards established by other states. After many years of administering the methamphetamine cleanup program and numerous pilot studies including a risk analysis, TDEC is proposing a less stringent cleanup standard that significantly lowers cost, while still appropriately safeguarding human health and the environment. Historically, TDEC has used internal guidance documents to evaluate the qualifications of cleanup contractors and persons that can test and certify that properties are safe to be reoccupied. These amendments move much of the guidance criteria into the rules and also identify actions that can result in contractors being removed from the approved lists for cause.
These proposed rule amendments also include new fees to recover the cost to TDEC for maintaining the statutorily required list of contaminated sites, the list of qualified professionals for sampling, testing, and remediation, and the list of professionals authorized to conduct cleanup and remediation activities. An initial fee is being established for certified industrial hygienists who desire to be added to the list of qualified professionals maintained by TDEC. Persons who apply to be a Certified Methamphetamine Manufacturing Site Specialists and/or Authorized Methamphetamine Cleanup Contractors will be required to pay initial and annual maintenance fees to remain on the list.
Oral or written comments are invited at the hearing. In addition, written comments may be submitted to Tim Stewart at the Division of Remediation, William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue, 14th Floor, Nashville, Tennessee 37243, prior to or following the public hearing. However, the Division must receive comments in its Central Office by 4:30 p.m. (CST), February 10, 2018, in order to assure consideration.
The Department prepared an initial set of draft rules for public review and comment. Copies of these initial draft rules are available for review at the Tennessee Department of Environment and Conservation's (TDEC's) Environmental Field Offices located as follows:
Cookeville Environmental Field Office 1221 South Willow Avenue Cookeville, TN 38506 (931) 432-4015/ 1-888-891-8332
Jackson Environmental Field Office 1625 Hollywood Drive Jackson, TN 38305 (731) 512-1300/ 1-888-891-8332
Columbia Environmental Field Office 1421 Hampshire Pike Columbia, TN 38401 931 380-3371/ 1-888-891-8332
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Johnson City Environmental Field Office 2305 Silverdale Road
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Johnson City, TN 37601 -2162 (423) 854-5400/1-888-891-8332
Chattanooga Environmental Field Office Suite 206 1301 Riverfront Parkway Chattanooga, TN 37402-2013 (423) 634-5745/ 1-888-891-8332
Knoxville Environmental Field Office 3711 Middlebrook Pike Knoxville, TN 37921 -5602 865 594-6035/ 1-888-891 -8332
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I Nashville Environmental Field Office 711 R. S. Gass Blvd. Nashville, TN 37243-1550 (615) 687-7000/1-888-891-8332
Memphis Environmental Field Office 8383 Wolf Lake Drive Bartlett, Tennessee 38133 (901) 371-3000/1-888-891-8332
Copies are available for review also at the Division of Remediation:
Division of Remediation William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Avenue, 14th Floor
Nashville, Tennessee 37243 (615) 532-0900
Office hours are from 8:00 AM to 4:30 PM, Monday through Friday (excluding holidays).
The "DRAFT" rules may be accessed for review also at the Department's World Wide Web Site located at http://tn.gov/environment/ppo/#dor.
Revision Type (check all that apply): X Amendment
New Repeal
Rule(s) (ALL chapters and rules contained in filing must be listed. If needed, copy and paste additional tables to accommodate more than one chapter. Please enter only ONE Rule Number/Rule Title per row.)
i Chapter Number Chapter Title 0400-15-02 Standards for Testing and Cleaning Quarantined Clandestine Druq Manufacturing Sites
I Rule Number Rule Title 0400-15-02-.01 Purpose 0400-15-02-.02 Definitions 0400-15-02-.03 Standards for Determining Whether Living Space is Safe for Human Use 0400-15-02-.04 Use of Qualified Professionals for Sampling, Testinq, and Remediation 0400-15-02-.05 Revocation or Suspension of Certification or Authorization 0400-15-02-.06 Variance for Property Owner to Preform Remediation 0400-15-02-.07 Certificate of Demolition for Disposal of Construction and Demolition Debris 0400-15-02-.08 Compliance with Applicable Laws 0400-15-02-.09 Best Manaqement Practices
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(Place substance of rules and other info here. Statutory authority must be given for each rule change. For information on formatting rules go to http://state.tn .us/sos/rules/1360/1360.htm)
Chapter 0400-15-02 Standards for Testing and Cleaning Quarantined Clandestine Drug Manufacturing Sites
Amendments
Chapter 0400-15-02 Standards for Testing and Cleaning Quarantined Clandestine Drug Manufacturing Sites is amended by deleting it in its entirety and substituting instead the following:
Chapter 0400-15-02 Standards for Testing and Cleaning Quarantined Clandestine Drug Manufacturing Sites
Table of Contents
0400-15-02-.01 Purpose 0400-15-02-.02 Definitions 0400-15-02-.03 Standards for Determining Whether Living Space is Safe for Human Use 0400-15-02-.04 Use of Qualified Professionals for Sampling, Testing, and Remediation 0400-15-02-.05 Revocation or Suspension of Certification or Authorization 0400-15-02-.06 Variance for Property Owner to Perform Remediation 0400-15-02-.07 Certificate of Demolition for Disposal of Construction and Demolition Debris 0400-15-02-.08 Compliance with Applicable Laws 0400-15-02-.09 Best Management Practices
0400-15-02-.01 Purpose
The purpose of these rules is to set standards for the sampling, testing, and remediation of quarantined methamphetamine manufacturing sites located in the State of Tennessee, as well as qualifications for those professionals involved in the cleanup process.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
0400-15-02-.02 Definitions
When used in this chapter, the following terms have the meanings given below unless otherwise specified:
(1) "Amalgam process" means a specific method for illegally manufacturing methamphetamine, which uses phenylpropanone (P2P), lead acetate, and mercuric chloride. This process is rarely utilized, but if encountered could require additional characterization and decontamination for lead and mercury in accordance with the standards of Rule 0400-15-02-.03.
(2) "Authorized Methamphetamine Cleanup Contractor" means a person or entity who, based on their experience and training, have met a minimum set of qualifications and are authorized by the Commissioner to provide decontamination services in accordance with T.C.A. §§ 68-212-501 et seq. Such a person or entity must possess a current identification number and badge issued by the Commissioner; and the person is listed on the Division's webpage to perform these services.
(3) "Certificate of Demolition" means a document signed by a Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist verifying that the requirements of 0400-15-02-.07 have been satisfied, and the resultant waste may be disposed as normal construction and demolition debris in accordance with Chapter 0400-11-01.
(4) "Certified Industrial Hygienist" means an individual with current certification from the American Board of Industrial Hygiene (ABIH) or its successor entity as a Certified Industrial Hygienist.
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(5) "Certified Methamphetamine Manufacturing Site Specialist" means an individual who, through a combination of experience, training, and education meets the qualifications of these rules, and is certified by the Commissioner to test or otherwise evaluate properties contaminated by illegal methamphetamine manufacturing activities, and issue, as appropriate, a Certificate of Fitness, as appropriate. Such a person must possess a current identification number and badge issued by the Commissioner; and the person is listed on the Division's webpage to perform these services.
(6) "Continuous human habitation" means occupancy by human beings on a consistent and ongoing basis.
(7) "Commissioner" means the Commissioner of the Tennessee Department of Environment and Conservation.
(8) "Division" means the Tennessee Department of Environment and Conservation, Division of Remediation.
(9) "Hazardous waste", as used in T.C.A. §§ 68-212-501 et seq. and this chapter (0400-15-02) means residual methamphetamine, lead, mercury, or volatile organic compounds related to the illegal manufacture of methamphetamine at concentrations exceeding a cleanup standard in Rule 0400-15-02-.03; or any other site specific wastes, including biohazards, substances, chemicals, or residues related to the manufacture of methamphetamine that the Certified Methamphetamine Manufacturing Site Specialist or Certified Industrial Hygienist determines may represent a threat or potential threat to human health if the property is reoccupied. This term as used in T.C.A. §§ 68-212-501 et seq. and this chapter has a different meaning than "hazardous waste" in T.C.A §§ 68-212-101 et seq. and Chapter 0400-12-01.
(10) "Methamphetamine" or "meth" is the common name for (2S)-N-methyl-1-phenylpropan-2-amine and includes its salts, isomers and salts of isomers. Methamphetamine is a central nervous system stimulating synthetic drug.
(11) "Normal inhabitable ventilation conditions" means standard interior atmospheric conditions specific to a given property and capable of supporting human life.
(12) "Part per million" means parts of a contaminant per million parts of gas, liquid, or solid by volume. One (1) ppm equals 0.0001 percent by volume.
(13) "Porous" means surfaces, items, articles, and materials that are permeable and readily penetrated by gases, liquids, and aerosols. Used synonymously with absorbent, including but not limited to fabric/cloth, unfinished wood or other unsealed natural surfaces, foam, foam rubber, padding, plastics, fiber board, paper, cardboard, unfinished sheet rock or plaster, drop ceilings, etc., or other surfaces, items, articles, and materials deemed porous at the discretion of the Certified Methamphetamine Manufacturing Site Specialist or Certified Industrial Hygienist.
(14) "Post-abatement testing" means representative samples collected by a Certified Methamphetamine Manufacturing Site Specialist or Certified Industrial Hygienist for the purpose of determining a property's suitability for human occupancy after decontamination and remediation has been completed.
(15) "Pre-abatement screening" means representative samples collected from a quarantined property prior to decontamination activities.
(16) "Quarantined property(ies)" means property (which may include vehicles) designated unfit for human occupancy or usage by law enforcement due to evidence that methamphetamine manufacturing has occurred.
(17) "Representative sample(s)" means a sample(s) of a universe or whole which can be expected to exhibit the average properties of the universe or whole; including those surfaces both horizontal and vertical that when sampled and analyzed, provide a reasonable and defensible characterization of the items, materials, or articles sampled. In the context of illegal methamphetamine manufacturing sites and Rule 0400-15-02-.03, representative samples will always include methamphetamine wipe samples of a combination of floors, walls, ceilings, counter tops, vanities, cabinets, and other porous and non-porous surfaces where the Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist determines methamphetamine may accumulate and may pose the greatest risk to children, if present.
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(18) "Safe for human use" as used in T.C.A. §§ 68-212-501 et seq. and this chapter means that a property has achieved the standards set forth in Rule 0400-15-02-.03 as determined by a Certified Methamphetamine Manufacturing Site Specialist or Certified Industrial Hygienist, and the property is eligible for the issuance of a Certificate of Fitness.
(19) "Shake and bake method" or "one-pot method" means a method for illegally manufacturing methamphetamine, using cold or sinus pills containing pseudoephedrine and other chemicals.
(20) "Vehicle" means a device or structure used for transporting people and goods, such as a car or a truck and extends to recreational vehicles, boats, trailers, and campers.
(21) "Volatile organic compounds" means organic chemical compounds whose composition makes it possible for them to evaporate under normal indoor atmospheric conditions.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
0400-15-02-.03 Standards for Determining Whether Living Space is Safe for Human Use
(1) The standards described in this rule apply to representative samples collected at quarantined methamphetamine manufacturing site properties including vehicles. Representative wipe samples of methamphetamine shall be collected pursuant to paragraph (1) of Rule 0400-15-02-.04 within a structure meant for continuous human habitation.
(a)
(b)
(c)
(d)
(e)
(f)
Quarantined properties used for continuous human habitation may have pre-abatement screening to determine whether the property is contaminated with methamphetamine and requires decontamination and cleanup. During a pre-abatement screening if methamphetamine is detected at a concentration greater than 0.10 µg/100cm2
, contamination is confirmed and the property is subject to decontamination and cleanup requirements.
Alternatively, if pre-abatement representative samples are not collected, the quarantined property is deemed by this rule to have methamphetamine contamination, by using knowledge of methamphetamine manufacturing methods and/or presence of apparatus, chemicals, and other items used in manufacturing.
For structures used for continuous human habitation, properties that either through screening or are determined by the Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist to have contamination above the screening level, shall be decontaminated and cleaned up so that methamphetamine remaining shall not exceed 1.5 micrograms per 100 square centimeters (1 .5 µg/100 cm2
) in any post-abatement representative wipe sample within a structure. Certified Industrial Hygienist, Certified Methamphetamine Manufacturing Site Specialist, and Authorized Methamphetamine Cleanup Contractors shall utilize methods and procedures to properly address these properties to protect human health, minimize unnecessary property damage and expense, and limit the spread of contamination. Contents, including but not limited to carpet, porous furniture, electronics, toys, and other material shall be rendered unusable and properly disposed unless the item was something of real or intrinsic value and addressed under paragraph (2) of this rule
For other structures, methamphetamine shall not exceed 1.5 micrograms per 100 square centimeters (1.5 µg/100 cm2
) in any representative wipe sample within a structure not meant for continuous human habitation, including, but not limited to, detached garages, barns, sheds, livestock enclosures.
Volatile Organic Compounds shall not exceed one part per million (1 ppm) in air as measured by field instrumentation under normal inhabitable ventilation conditions.
If it is determined that lead or mercury were used in the methamphetamine manufacturing process:
1. Lead on any surface shall not exceed 40 micrograms per square feet (40µg/ft2).
2. Mercury shall not exceed 50 nanograms per cubic meter (50 ng/m3) for indoor air.
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(2) Any surfaces, items, articles, and materials requested for salvage or release by the owner or other person, having a right, title, or interest as described in T.C.A. §§ 68-212-501 et seq., or absorbent or otherwise porous surfaces, items, articles and materials, shall be evaluated separately on a site specific basis. Final disposition of these surfaces, items, articles, and materials will be documented and will be determined by the Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist. This provision includes allowing for identification of items of real or intrinsic value to the owner or other person identified above and for those items to be addressed in a manner, in consultation with the owner, considering the following and any other relevant factors:
(a) The ability and feasibility for the item to be decontaminated;
(b) The opportunity for future exposure;
(c) The potential adverse health impacts from future use, considering the susceptibility of sensitive populations, such as children, elderly, and pregnant women; and
(d) The extent to which the item is irreplaceable, such as a family heirloom.
(3) A Certified Industrial Hygienist, Certified Methamphetamine Manufacturing Site Specialist, and Authorized Methamphetamine Cleanup Contractor shall develop documentation for the portion of the work they perform. Documentation shall include rationale for sample locations, sampling methodology, all sampling results, discussion of what was done to decontaminate and cleanup the property, waste disposition, and processes and disposition of items of real or intrinsic value the owner or other person requested for salvage or release. Documentation shall also include photographs to demonstrate the decontamination and cleanup process. If requested by the Commissioner, the Certified Industrial Hygienist, Certified Methamphetamine Manufacturing Site Specialist, and/or Authorized Methamphetamine Cleanup Contractor shall submit this documentation to the Commissioner.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
Use of Qualified Professionals for Sampling, Testing and Remediation .
(1) Professionals Certified to Conduct Sampling and Issue Certificates of Fitness and Demolition. Samples shall be collected and interpreted by a professional certified by the Commissioner as being able to perform the services of an industrial hygienist in accordance with subparagraphs (a) through (c) of this paragraph.
(a) Certified Industrial Hygienist.
1. Any person holding a certification from the American Board of Industrial Hygiene as a Certified Industrial Hygienist is recognized as certified by the Commissioner as being able to perform the services required by this paragraph.
2. Any Certified Industrial Hygienist desiring to be added to the list maintained by the Commissioner on the Division's website and to receive an authorization badge must submit an initial fee of $250.
3. A Certified Industrial Hygienist desiring to remain on the list the next calendar year is requested to notify the Commissioner prior to January 31 of each year; if the notification is not received by April 30, however, the person will be removed from the list maintained by the Commissioner on the Division's website. After removal from the list, the Certified Industrial Hygienist must comply with part 2 of this subparagraph to be added to the list.
(b) Certified Methamphetamine Manufacturing Site Specialist.
1. Any person not certified by the American Board of Industrial Hygiene wishing to perform pre- and post-abatement testing at quarantined methamphetamine manufacturing sites and issue Certificates of Fitness and Demolition must submit an application to the Commissioner in the format requested by the Commissioner containing the following:
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(c)
(i) Documentation of experience, training, and education that demonstrates qualifications as industrial hygienists consistent with T.C.A § 62-40-101;
(ii). Documentation demonstrating that the applicant has completed Commissionerapproved methamphetamine-specific training;
(iii) An initial application fee of $500;
(iv) A certificate of liability insurance issued by an insurance company licensed to do business in Tennessee certifying that the applicant has a general liability insurance policy in an amount of $100,000 per incident for personal or property damage that might occur to third parties arising from the performance of regulated services by the applicant or his agents;
(v) A certificate of insurance for errors and omissions (professional liability) insurance in the amount of $50,000 per occurrence for negligent acts committed in the course of a quarantined methamphetamine manufacturing site investigation and/or remediation; and
(vi). A sworn statement that the person(s) have not been convicted of a crime related to manufacture of methamphetamine or the methamphetamine cleanup program developed pursuant to T.C.A. §§ 68-212-501 et seq., is not subject to suspension or revocation of a certification or authorization under this chapter (0400-15-02); and has not lost certification under the American Board of Industrial Hygiene.
2. Upon acceptance by the Commissioner, the person will be added to the current list of Certified Methamphetamine Manufacturing Site Specialists on the Division's website.
3. A Certified Methamphetamine Manufacturing Site Specialist must remain on the list maintained by the Commissioner on the Division's website to be authorized to perform pre- and post-abatement testing at quarantined methamphetamine manufacturing sites and issue Certificates of Fitness and Demolition.
1. To remain on the list maintained by the Commissioner on the Division's website the Certified Methamphetamine Manufacturing Site Specialist must submit:
(i) An annual renewal of registration to the Commissioner prior to January 31 of each year;
(ii) An update of methamphetamine-specific training at least every three years;
(iii) An annual renewal in a format requested by the Commissioner which includes:
(I) A $250 fee;
(II) Updated insurance certificates;
(Ill) Training certificates, if any; and
(IV) Other requested information.
2. If the annual renewal request is not received by April 30, the person will be removed from the list maintained by the Commissioner on the Division's website and after removal from the list, must submit a new initial application to be added to the list.
(2) Professionals Authorized to Conduct Cleanup and Remediation Activities. Cleanup of properties shall be performed by a professional or company authorized by the Commissioner as being able to perform the services of cleaning up sites used to manufacture methamphetamines in accordance with subparagraphs (a) through (c) of this paragraph.
(a) Certified Industrial Hygienist.
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1. Any person holding a certification from the American Board of Industrial Hygiene as a Certified Industrial Hygienist is recognized as certified by the Commissioner as being able to perform clean up services described by this paragraph at these sites.
2. Any Certified Industrial Hygienist desiring to be added to the list maintained by the Commissioner on the Division's website and to receive an authorization badge must submit, in the format requested by the Commissioner:
(i) Documentation demonstrating current certification as a Certified Industrial Hygienist; and
(i) An initial fee of $750.
(b} Authorized Methamphetamine Cleanup Contractor.
(c)
1. Other persons not certified by the American Board of Industrial Hygiene may make a written request to the Commissioner seeking authorization to perform these services and submit an application to the Commissioner in a format required by the Commissioner containing the following:
(i) Documentation of methamphetamine-specific cleanup training and experience that demonstrates the applicant understands and utilizes procedures required to effectively cleanup properties where methamphetamine was manufactured, protect human health from those properties and residuals, minimize unnecessary property damage and expense, and limit spread of contamination;
(ii) A sworn statement that the applicant will not utilize personnel under 18 years of age in the cleanup of properties subject to quarantine; applicant has not been convicted of a crime related to manufacture of methamphetamine or the methamphetamine cleanup program developed pursuant to T.C.A, §§ 68-212-501 et seq.; is not subject to suspension or revocation of a certification or authorization under this program; has not lost certification under the American Board of Industrial Hygiene; and would not be subject to suspension or revocation for items identified in paragraph (4) of this rule.
(iii) An initial application fee of $750;
(iv) A certificate of liability insurance issued by an insurance company licensed to do business in Tennessee certifying that the applicant has a general liability insurance policy in an amount of $100,000 per incident for personal or property damage that might occur to third parties arising from the performance of regulated services by the applicant or his/her agents;
(v) A certificate of insurance for errors and omissions (professional liability) insurance in the amount of $50,000 per occurrence for negligent acts committed in the course of a quarantined methamphetamine manufacturing site investigation and/or remediation; and
(vi) Any other documentation the Commissioner deems necessary.
2. Upon acceptance by the Commissioner, the person will be added to the current list of Authorized Methamphetamine Cleanup Contractors on the Division's website.
3. An Authorized Methamphetamine Cleanup Contractor must remain on the list maintained by the Commissioner on the Division's website to be authorized to perform the services of cleaning up sites used to manufacture methamphetamines.
1. To remain on the list maintained by the Commissioner on the Division's website the Authorized Methamphetamine Cleanup Contractor must submit:
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(i) An annual renewal of registration to the Commissioner prior to January 31 of each year;
(ii) An update of methamphetamine-specific training at least every three years;
(iii) An annual renewal in a format requested by the Commissioner which includes:
(I) A $500 renewal fee;
(II) Updated insurance certificates;
(Ill) Training certificates, if any; and
(IV) Other requested information.
2. If the annual renewal request is not received by April 30, the person will be removed from the list maintained by the Commissioner on the Division's website and after removal from the list, must submit a new initial application to be added to the list.
(3) Certificate of Fitness. When the quarantined property is determined through representative sampling to either not be contaminated by methamphetamine above the screening level or the property is determine through post-abatement representative wipe sampling to be cleaned to below the applicable cleanup levels specified in these rules, the Certified Methamphetamine Manufacturing Site Specialist or Certified Industrial Hygienist that made the determination shall issue a Certificate of Fitness with supporting documentation.
(4) Appeals. Any application denial submitted under subparagraphs (1)(b) and (2)(b) of this rule may be appealed to the Commissioner or the Commissioner's designee.
(5) Authorization Badges. Provided the certified or authorized person has not been removed from the list of Certified Methamphetamine Manufacturing Site Specialist or Authorized Methamphetamine Cleanup Contractors maintained by the Commissioner on the Division's website, current authorization badge constitutes state authorization to enter a quarantined property pursuant to T.C.A. § 68-212-503(d)(1). Per these rules, this authorization extends to cleanup contractor personnel working under supervision of an on-site badge holder and extends to the property owner only when escorted by a badge holder.
Authority: T.C.A. §§ 68-212-501 et seq., 11 -1-101(f), and 4-5-201 et seq.
0400-15-02-.05 Revocation or Suspension of Certification or Authorization
(1) Removal from List. The Commissioner may initiate proceedings suspending, conditioning, revoking, or establishing probation of an authorization or certification issued pursuant to these rules to either a Certified Methamphetamine Manufacturing Site Specialist or an Authorized Methamphetamine Cleanup Contractor for failing to protect human health or the environment or for any of the following criteria:
(a) Engaging in activities subject to certification or authorization under this chapter without current certification or authorization from the Commissioner;
(b) Obtaining his or her certification or authorization through fraud, misrepresentation, deception, or the submission of inaccurate data;
(c) Failing to provide the standard of care for which the contractor has been certified or authorized to provide under these rules;
(d) Practicing fraud , deception, or misrepresentation during the performance of his or her duties as a Certified Methamphetamine Manufacturing Site Specialist or an Authorized Methamphetamine Cleanup Contractor;
(e) Preparing or signing a Certificate of Fitness or Demolition that contains inaccurate information that he or she knows or should have known to be false;
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(f) Being convicted in a court of competent jurisdiction for manufacturing, possessing, or distributing methamphetamine; theft; robbery; burglary; fraud; or any felony;
(g) Pleading no contest or being ruled against in a civil procedure related to methamphetamine cleanup pursuant to T.C.A, §§ 68-212-501 et seq;
(h) Submitting false information to the Commissioner;
(i) Failing to timely submit information requested by the Commissioner;
U) Failing to submit any items needed for annual renewal including, and not necessarily limited to, insurance certificates and the annual fee;
(k) Failing to complete methamphetamine-specific training every three years; or
(/) Violating T.C.A. §§ 68-212-501 et seq. or rules promulgated thereunder.
(2) Hearings Concerning Authorizations or Certifications
(a) The Commissioner shall give notice by mail to the affected authorization or certification holder of facts or conduct that warrants suspension, revocation , probation, or conditioning of the authorization or certification . The Commissioner shall also give the affected person an opportunity to show compliance with these rules by conducting an informal hearing as provided in T.C.A. § 4-5-320(c).
{b) After the T.C.A. § 4-5-320(c) informal hearing, if the Commissioner determines that the affected operator has failed to demonstrate compliance, the Commissioner shall issue a notice of hearing for revocation.
(c) The notice of hearing for revocation shall contain the information required by part 1 of this subparagraph and be served in accordance with part 2 of this subparagraph.
1. The notice shall include:
(i) A statement of the time, place, nature of the hearing, and the right to be represented by counsel ;
(ii) A statement of the legal authority and jurisdiction under which the hearing is to be held, including a reference to the particular sections of the statute and rules involved; and
(iii) A short and plain statement of the facts or conduct that warrant a revocation. {If the Commissioner is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon timely, written application a more definite and detailed statement shall be furnished ten days prior to the time set the hearing .)
2. A copy of the notice of hearing shall be:
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(i) Served no later than 30 days prior to the hearing date; and
(ii) Served by personal service, return receipt mail or equivalent carrier with a return receipt,
A person making personal service shall return a statement indicating the time and place of service, and a return receipt must be signed by the person affected. However, if the affected person evades or attempts to evade service, service may be made by leaving the notice or a copy of the notice at the affected person's dwelling house or usual place of abode with some person of suitable age and discretion residing therein, whose name shall appear on the proof of service or return receipt card . Service may also be made by delivering the notice or copy to an agent authorized by appointment or by law to receive
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service on behalf of the affected person, or by any other method allowed by law in judicial proceedings.
(d) The revocation hearing shall be held before an administrative judge sitting alone in accordance with T.C.A. §§ 4-5-301 et seq. and Rule Chapter 1360-04-01 Uniform Rules of Procedure for Hearing Contested Cases Before State Administrative Agencies.
(e) A person who receives an order for the revocation of his or her authorization or certification may appeal the order to the Chancery Court of Davidson County within 60 days.
(3) Summary Suspension
(a) The Commissioner may initiate the process of summary suspension and revocation of an authorization or certification when the Commissioner believes that an emergency action is needed to protect the public health, safety, or welfare.
(b) The Commissioner shall give a notice to the affected person by any reasonable means and shall inform the affected person of the intended action, the acts or conduct that warrants summary suspension and revocation of the certificate, and hold an informal hearing, as provided in T.C.A. § 4-5-320(d), to give the person an opportunity to be heard.
(c) The Commissioner shall appoint a hearing officer to conduct this T.C.A. § 4-5-320(d) hearing.
(d) After the informal hearing as provided in T.C.A. § 4-5-320(d), if the Commissioner determines that an emergency action is warranted, the Commissioner shall issue an Order of Summary Suspension and a notice of hearing for revocation.
(e) The Order of Summary Suspension and the notice for revocation shall contain the information required by part (2)(c)1 of this rule and be served in accordance with part (2)(c)2 of this rule.
(4) A person whose certificate or authorization is revoked for failure to use reasonable care, judgment, or the application of technical knowledge in performing one's duties or for incompetency shall be ineligible to again apply for certification or authorization for a minimum of one year. A person whose certificate or authorization is revoked for practicing fraud or deception, willfully violating regulations or permit conditions, or falsifying records and reports shall be ineligible to again apply for certification or authorization for a minimum of five years. When a person whose certificate or authorization has been revoked has applied for a certificate after the minimum time has passed, the Commissioner shall determine whether the person has taken appropriate action to address the circumstances that were the cause of the revocation. The Commissioner may request records and review his/her experience, education, training, and past performance. The Commissioner may request the person's presence at a meeting and interview him/her to assess the potential of future violations. After the reviews, the Commissioner shall decide to accept or refuse the application.
Authority: T.C.A. §§ 68-212-501 et seq., 11 -1-101 (f), and 4-5-201 et seq.
0400-15-02-.06 Variance for Property Owner to Perform Remediation
(1) Any person having a right, title, or interest in a quarantined property as described in T.C.A. §§ 68-212-501 et seq. , who did not cause or contribute to the manufacturing of methamphetamine, may make a written petition to the Commissioner seeking a variance from paragraph (2) of Rule 0400-15-02-.04. Any person making such petition must fill out an application on a form required by the Commissioner and complete a one-day methamphetamine-specific cleanup training class provided or approved by the Commissioner. The Commissioner may request any such proof deemed necessary to make a decision on the variance that does not adversely impact human health and the environment.
(2) The variance, if granted, will be for a maximum of 30 days from the date of issuance and will apply only to the property identified in the Order of Quarantine. The petitioner must be the legal property owner of record, and be at least 18 years of age. Any persons working for and assisting the petitioner with the decontamination must be legally related to the owner (petitioner), at least 18 years of age, and complete the one-day methamphetamine-specific training class provided or approved by the Commissioner.
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(3) This variance process only allows property owners and other parties referenced in paragraph (2) of this rule with an approved variance pursuant to this rule to perform remediation activities in consultation with a Certified Industrial Hygienist or a Certified Methamphetamine Manufacturing Site Specialist. This variance does not authorize any person subject to this variance to perform sampling, evaluation, or other activities reserved for a Certified Industrial Hygienist or a Certified Methamphetamine Manufacturing Site Specialist, and it specifically does not certify the property owner to issue a Certificate of Fitness.
(4) A property owner or other person entering a quarantined property without either a current certification with the American Board of Industrial Hygiene, a variance pursuant to this rule, or an authorization badge pursuant to Rule 0400-15-02-.04 is a violation of T.C.A. § 68-212-503, a Class B misdemeanor.
(5) Variance request denials may be appealed to the Commissioner. The Commissioner's determination is final and not subject to appeal.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
0400-15-02-.07 Certificate of Demolition for Disposal of Construction and Demolition Debris.
(1) A Certificate of Demolition may be issued by a Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist provided the following conditions are satisfied:
(a) Post-abatement or pre-abatement representative wipe sampling of the structure is completed by a Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist in accordance with paragraph (1) of Rule 0400-15-02-.03, and methamphetamine is not detected at a concentration greater than 1.5 µg/100 cm2 in any individual sample (including composites);
(b) The Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist confirms that the method of manufacture was "shake-and-bake", "one pot", or a similar process.
(c) All other items, articles, and materials, including but not limited to furniture, carpet, padding, curtains, drapes, household items, mattresses, bedding, clothing, appliances, toys, etc. have been removed and properly disposed of;
(d) All liquids, hazardous wastes, hazardous chemicals, asbestos, and lab related components have been removed and properly disposed of or abated in accordance with applicable regulations; and
(e) There is no visible lab related staining or gross chemical contamination on any surfaces.
(2) If Red-P or P2P, or similar methods are suspected or the Certified Industrial Hygienist or Certified Methamphetamine Manufacturing Site Specialist is unable to determine the method, a Certificate of Demolition, pursuant to these rules, cannot be issued for the property.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
0400-15-02-.08 Compliance with Applicable Laws
In addition to the requirements in these rules, cleanup of properties where methamphetamine was manufactured may require compliance with other laws and rules with additional requirements. These may be related to asbestos, lead based paint, contractors licensing law, hazardous materials transport and disposal or other requirements. Being certified or authorized under these rules does not negate any other required license or requirements and each person authorized or certified to perform activities under these rules is responsible to ensure their actions and activities under their control are in compliance with all applicable laws, regulations, and requirements.
Authority: T.C.A. §§ 68-212-501 et seq. and 4-5-201 et seq.
0400-15-02-.09 Best Management Practices
(a) Persons certified and authorized under these rules shall use best management practices to effectively cleanup properties where methamphetamine was manufactured, protect human health from those properties and residuals, minimize unnecessary property damage and expense, and limit spread of
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contamination.
{b) Processes to manufacture methamphetamine change over time and methamphetamine-specific training must be updated at least every three years.
Authority: T.C.A. §§ 68-212-501 et seq . and 4-5-201 et seq.
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I certify that the information included in this filing is an accurate and complete representation of the intent and scope of rulemaking proposed by the agency.
Title of Officer:
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