MCA Chapter 138

MCA Chapter 138
in effect

Miss. Code Ann. § 37-138-1 Short title.

This chapter shall be known as and may be cited as the Asbestos Abatement Accreditation and Certification Act.

Miss. Code Ann. § 37-138-3 Purpose.

The purpose of this chapter is to provide for the accreditation and certification of persons who perform inspections and reinspections, prepare management plans and perform as air monitors, contractors, project designers, supervisors and workers in abatement projects for the purpose of identifying, evaluating and abating the hazard of asbestos-containing material in public and private elementary and secondary school buildings and in all public and commercial buildings in this state. It is the intent of this chapter that the cost of the administration of this chapter shall be borne fully by the certification fees provided for herein.

Miss. Code Ann. § 37-138-5 Definitions.

“Abatement” means removal, encapsulation, enclosure or repair of or an operations and maintenance program for asbestos-containing materials. “Air monitor” means person who collects airborne samples for analysis of asbestos fibers during an abatement project including baseline, area, personal and clearance samples. “Asbestos-containing materials” (ACM) means any material or product which contains more than one percent (1%) asbestos. “Asbestos project” means a project for the abatement of ACM in school buildings, public buildings and commercial buildings except for exclusions adopted by the commission in accordance with Section 37-138-9(a) and except for abatement of asbestos-containing resilient floor tile, sheet vinyl flooring and associated adhesives, provided there is a two-working-day advance notification to the commission of the abatement of asbestos-containing floor tile, sheet vinyl flooring and associated adhesives, unless sanding, grinding, burning or sawing occurs or such abatement is otherwise considered a “response action” or would cause the material to become “friable” as both those terms are defined under 40 C.F.R. Section 763.83. “Certificate” means a document authorizing a person to perform certain specific activities related to the identification, evaluation or abatement of ACM in school buildings, public buildings and commercial buildings as described in this chapter. “Commercial building” means any privately owned building in which the public is invited or allowed access and any other privately owned building so located that the conduct of any asbestos abatement activities therein could reasonably expose any person or persons to ACM hazards, except that a commercial building shall not include any residence. “Commission” means the Mississippi Commission on Environmental Quality. “Contractor” means a person who enters into a contract for the performance of an asbestos project. “Director” means the Executive Director of the Mississippi Department of Environmental Quality. “Inspector” means a person employed to inspect or reinspect for presence of ACM, collect samples of ACM confirmation and provide written assessment of ACM. “Management plan” is a plan for abatement of ACM. “Management planner” means a person employed to develop a management plan. “Model plan” means the Model Accreditation Plan for states promulgated at Section I of Appendix C to Title 40, Part 763, Subpart E of the Code of Federal Regulations. “Operations and maintenance program” means a program of work practices to maintain ACM in good condition, ensure cleanup of asbestos fibers previously released, and prevent further release by minimizing and controlling ACM disturbance or damage. “Person” means the state or other agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, association or other entity, and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation, or the United States or any officer or employee thereof. “Project designer” means a person who specifies engineering methods and work practices to be used during asbestos projects. “Public building” means any building owned by the state, counties, municipalities, institutions of higher learning, community colleges or any political subdivision. “School” means any elementary or secondary school as defined in Section 198 of the Elementary and Secondary Education Act of 1965 (20 U.S.C.S. 2854). “School building” means: Any structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food. Any gymnasium or other facility which is specially designed for athletic or recreational activities or for an academic course in physical education. Any other facility used for the instruction or housing of students or for the administration of educational or research programs. Any maintenance, storage or utility facility, including any hallway, essential to the operation of any facility described in this definition of “school building” under paragraphs (i), (ii) or (iii). Any portico or covered exterior hallway or walkway. Any exterior portion of a mechanical system used to condition interior space. “Supervisor” means a person designated by a contractor to be responsible for direction of day-to-day activities of an asbestos project. “Worker” means a person who works on an asbestos project other than a project designer, contractor, supervisor or management planner. The commission is authorized to adopt by promulgated regulation any or all additional definitions necessary to carry out the intent of this chapter.

Miss. Code Ann. § 37-138-7 Adoption of certification and accreditation plan.

The commission is authorized and directed to adopt regulations for certification of contractors, inspectors, management planners, project designers, air monitors, supervisors and workers. The regulations shall include an accreditation plan which shall be equivalent to paragraphs 1 through 3 of the Model Plan. The accreditation plan shall be no more stringent than the Model Plan, except as provided herein. The regulations and accreditation plan shall include the requirements for all training courses for accreditation of contractors, inspectors, management planners, project designers, air monitors, supervisors and workers. All regulations promulgated by the commission pursuant to this chapter shall not be effective until November 1, 1990. By October 1, 1989, the Board of Trustees of State Institutions of Higher Learning shall designate a university which may offer all training courses set forth in the regulations and accreditation plan and such university may charge reasonable fees to offset costs of the courses offered. The commission shall not approve any training courses offered in Mississippi other than those courses offered at the designated university and those certified abatement worker courses that have received Environmental Protection Agency approval pursuant to Section III of Appendix C to Title 40, Part 763, Subpart E, of the Code of Federal Regulations.

Miss. Code Ann. § 37-138-9 Powers and duties of commission.

The commission shall administer and enforce this chapter and shall have the following powers and duties under this chapter: To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under this chapter, including but not limited to rules and regulations concerning the required accreditation training, the issuance and annual renewal of certificates, the assessment of annual fees and the assessment of penalties, reprimands, and the suspension and revocation of certificates, abatement emergencies and the exclusion of minor abatement and/or routine maintenance activities at commercial buildings, industrial facilities, public buildings and school buildings from any requirements of this chapter; To issue certificates for the positions of management planner, project designer, air monitor, contractor, supervisor, inspector and worker and to renew said certificates annually; To assess penalties, to issue reprimands and to suspend and revoke certificates; To assess annual fees for the issuance and annual renewal of certificates; To approve the accreditation of training courses administered to applicants for issuance and annual renewal of certificates and to develop an examination and grading system for testing applicants, to be administered by the designated university; Administration and expenditure of funds deposited in and expended by legislative appropriation from the Asbestos Abatement Accreditation and Certification Fund; Reciprocal arrangements for accreditation and certification of management planners, project designers, air monitors, contractors, supervisors, inspectors and workers with other states that have established accreditation and certification programs that meet or exceed the accreditation and certification requirements of this chapter; To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source relating to this chapter; To commission or conduct studies relating to this chapter; To enter into, and to authorize the executive director to execute with the approval of the commission, contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution located inside or outside the State of Mississippi, or any person, corporation or association in connection with carrying out the provisions of this chapter; but this authority under this chapter shall not include contracts, grants or cooperative agreements which do not develop data or information usable by the commission in connection with this chapter, or which provide goods, services or facilities to the commission or any of its bureaus, and shall exclude any monies for special interest groups for purposes of lobbying or otherwise promoting their special interests; and To discharge such other duties, responsibilities and powers as are necessary to implement the provisions of this chapter.

Miss. Code Ann. § 37-138-11 Management planner certificate required.

It is unlawful for an individual who does not possess a valid management planner certificate to develop a management plan. To qualify for an asbestos management planner certificate, an applicant shall: Have attained a Bachelor of Science degree in engineering or its equivalent from an accredited university and be licensed by the Mississippi Board of Registration for Professional Engineers and Land Surveyors as a registered professional engineer or, (ii) have attained a Bachelor of Science degree in architecture or its equivalent from an accredited university and be licensed as an architect by the Mississippi Board of Architecture or, (iii) have satisfactorily completed prior to April 1, 1990, an initial management planner training course approved by the United States Environmental Protection Agency and any applicable annual refresher training courses approved by the United States Environmental Protection Agency such that management planner training has been continuously current and is current as of April 1, 1990, for the purpose of satisfying this paragraph (a) only; however, this subparagraph (iii) shall apply only to applicants applying for a certificate prior to November 1, 1991; and Satisfactorily complete a commission-approved training course for asbestos management planners, except that a management planner training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying fully with all applicable federal and state laws and regulations. Any certificate issued by the commission pursuant to this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis. Each applicant for a management planner certificate shall, on an annual basis, submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-13 Project designer certificate required.

It is unlawful for any person who does not possess a valid project designer certificate to specify engineering methods and work practices under an asbestos project to another person. To qualify for a project designer certificate, an applicant shall: Have attained a Bachelor of science degree in engineering or its equivalent from an accredited university and be licensed by the Mississippi Board of Registration for Professional Engineers and Land Surveyors as a registered professional engineer or, (ii) have attained a Bachelor of Science degree in architecture or its equivalent from an accredited university and be licensed as an architect by the Mississippi Board of Architecture or, (iii) have satisfactorily completed prior to April 1, 1990, either a project designer training course or an asbestos abatement contractor training course and a supervisor’s training course, each approved by the United States Environmental Protection Agency, and any applicable annual refresher training courses approved by the United States Environmental Protection Agency such that applicable training has been continuously current and is current as of April 1, 1990, for the purpose of satisfying this paragraph (a) only; however, this subparagraph (iii) shall apply only to applicants applying for a certificate prior to November 1, 1991; Satisfactorily complete a commission-approved training course for project designers, except that a project designer training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and Demonstrate to the satisfaction of the commission that the applicant and applicant’s employees and agents are familiar with and capable of complying with all applicable federal and state laws and regulations. Any certificate issued by the commission pursuant to this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis. Each applicant for a project designer certificate shall, on an annual basis, submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-14 Air monitors; accreditation and certification requirements; application procedure.

After January 1, 1995, it is unlawful for any person who does not possess a valid air monitor certificate to collect air samples for analysis of asbestos fibers during an abatement project. To qualify for an air monitor certificate, an applicant shall: Have earned a high school diploma or its equivalent; Satisfactorily complete a commission-approved training course for supervisors. A supervisor training course approved by the United States Environmental Protection Agency completed satisfactorily shall be sufficient to meet this requirement; Satisfactorily complete a commission-approved training course for collecting and evaluating air samples; and Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying with all applicable federal and state laws and regulations. Any certificate issued by the commission pursuant to this section shall be renewed on an annual basis. Applicants for an air monitor certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of this certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in paragraphs (2)(b) and (2)(c) of this section. The applicant shall pay the applicable annual fee upon submitting his application for the air monitor certificate to the commission.

Miss. Code Ann. § 37-138-15 Contractor certificate required.

It is unlawful for any person who does not possess a valid contractor certificate to contract with another person for asbestos abatement. To qualify for a contractor certificate, an applicant shall: Have earned a high school diploma or its equivalent; Satisfactorily complete a commission-approved training course for contractors, except that a contractor training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and Demonstrate to the satisfaction of the commission that the applicant and the applicant’s employees, subcontractors and agents are familiar with and are capable of complying with all applicable federal and state laws and regulations. Any certificate issued by the commission pursuant to this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis. Applicants for a contractor certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-17 Supervisor certificate required.

It is unlawful for an individual who does not possess a valid supervisor certificate to direct an asbestos project. To qualify for an asbestos abatement supervisor certificate, an applicant shall: Have earned a high school diploma or its equivalent; Satisfactorily complete a commission-approved training course for supervisors, except that a supervisor training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying with all applicable federal and state laws and regulations. Any certificate issued by the commission pursuant to this section and requirement (b) and (c) of subsection (2) of this section shall be renewed on an annual basis. Applicants for a supervisor certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of this certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-19 Inspector certificate required.

It is unlawful for an individual who does not possess a valid inspector certificate to work as an asbestos inspector. To qualify for an inspector certificate, an applicant shall: Have earned a high school diploma or its equivalent; Satisfactorily complete a commission-approved training course for inspectors, except that an inspector training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying with all federal and state laws and regulations. Any certificate issued by the commission pursuant to this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis. Applicants for an inspector certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-21 Worker certificate required.

It shall be unlawful for an individual who does not possess a valid worker certificate to work as a worker on an asbestos project. It shall be unlawful for a contractor to employ a person as a worker on an asbestos project who does not possess a valid worker certificate in accordance with this section. To qualify for a worker certificate an individual shall: Satisfactorily complete a commission-approved training course for abatement workers, except that a worker training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; Demonstrate to the satisfaction of the commission that the applicant is familiar with and is capable of complying fully with all applicable federal and state laws and regulations; and Provide written proof satisfactory to the commission, on forms prepared by the commission, of a physical examination by a physician licensed by the State Board of Medical Licensure or by a physician licensed to practice medicine in any other state approving the applicant to work on an asbestos project. Requirement (c) of subsection (3) shall be renewed every three (3) years. A chest X-ray is not required for either the initial or any renewal application. Any certificate issued by the commission pursuant to this section and requirements (a) and (b) of subsection (3) of this section shall be renewed on an annual basis. Applicants for a worker certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of training course(s) specified in subsection (3)(a) above and shall pay the applicable annual fee.

Miss. Code Ann. § 37-138-23 Denial of issuance or renewal of certificates.

The commission may deny to issue or renew any certificate required by Sections 37-138-11 through 37-138-21 if (a) there has been a failure to comply with the application procedures established by this chapter and by regulations promulgated by the commission, or (b) if the applicant fails to satisfy the application criteria established by this chapter and by regulations promulgated by the commission, or (c) if the applicant fails to pay the applicable annual certificate fee.

Miss. Code Ann. § 37-138-25 Certificate fees and special revenue fund.

The commission is authorized to assess and collect fees for the issuance and annual renewal of certificates for management planner, project designer, air monitor, contractor, supervisor, inspector and worker pursuant to Sections 37-138-11 through 37-138-21 in amounts sufficient to fully administer this chapter. The fees assessed pursuant to this section are conditions precedent to the issuance and renewal of the certificates set forth in Sections 37-138-11 through 37-138-21. There is hereby established a special revenue fund to be known as the Asbestos Abatement Accreditation and Certification Act Fund (the fund) to be deposited in an approved state depository and expended by appropriation approval by the Legislature for the administration of this chapter as provided by law. The interest obtained from any investment or deposit of monies in the fund shall be deposited by the State Treasurer to such fund. Furthermore, all monies collected as fees for certificates provided by this chapter shall, not later than sixty (60) days next succeeding the month in which collections were made, be paid over to the fund. If the total of monies deposited into the fund exceeds the appropriation by the Legislature for the administration of this chapter, the monies shall be retained in the depository for the fund to be expended by appropriation approval by the Legislature for the administration of this chapter as provided by law in the next succeeding fiscal year. The commission shall have authority to promulgate rules and regulations for the administration of and expenditures from the fund.

Miss. Code Ann. § 37-138-27 Penalties, reprimands, suspensions and revocation of certificates.

Any person found by the commission to have violated any of the provisions of this chapter or any rule or regulation or written order of the commission in pursuance thereof or any certificate issued pursuant to this chapter shall be subject to (a) a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation, such penalty to be assessed and levied by order of the commission after notice and hearing in accordance with subsection (5) below of this section, and (b) a reprimand or a suspension or revocation of any certificate issued to the person pursuant to this chapter, such reprimand, suspension or revocation to be assessed and levied by order of the commission after notice and hearing as provided in subsection (5) below of this section. In lieu of, or in addition to, the penalty provided for in subsection (1)(a) of this section, the commission shall have power to institute and maintain in the name of the state any and all proceedings necessary or appropriate to enforce the provisions of this chapter, rules and regulations enforced pursuant thereto, and orders and certificates issued pursuant to this chapter in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent, and it shall not be necessary in such cases that the state plead or prove: (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation. Any person who knowingly submits false or inaccurate information in support of an application for issuance or renewal of a certificate under this chapter or who willfully fails to comply with the conditions of the certificate issued by the commission or who willfully violates this chapter, or any rule, regulation or written order of the commission or emergency order issued by the director in pursuance thereof shall, upon conviction, be guilty of a misdemeanor and fined not less than One Hundred Dollars ($100.00) within the discretion of the court. Each day in which such violation exists or continues shall constitute a separate offense. In addition to or in lieu of filing a criminal complaint for such willful misconduct described in subsection (3) of this section, the commission may impose a civil penalty in accordance with subsection (1)(a) of this section, and shall impose a reprimand or a suspension or revocation of any certificate in accordance with subsection (1)(b) of this section. All proceedings and hearings before the commission regarding violations of this chapter or any rule or regulation, written order of the commission, emergency order of the director or certificate issued or renewed by the commission in pursuance thereof or any certificate issued pursuant to this chapter and all appeals therefrom shall be conducted in accordance with Sections 49-17-31 through 49-17-41, Mississippi Code of 1972. All fines, penalties and other sums recovered or collected by the commission for and on behalf of the state under this section shall be deposited in the Pollution Emergency Fund established under Section 49-17-68, Mississippi Code of 1972, and the commission is authorized to receive and accept, from any funds and all available sources whatsoever, additional funds to be deposited in such fund and expended for the purpose of remedial, clean-up, or abatement actions involving pollution of the land, air or waters of the state in violation of Sections 49-17-1 through 49-17-43, Mississippi Code of 1972, any rule or regulation or written order of the commission in pursuance thereof, or any condition or limitation of a permit.

Miss. Code Ann. § 37-138-29 Reciprocity; rules and regulations.

The commission may establish requirements for reciprocity for accreditation and certification of management planners, project designers, contractors, supervisors, inspectors and workers with other states that have established accreditation and certification programs that meet or exceed the Model Plan and the accreditation and certification requirements of this chapter. The commission shall have the authority to issue orders and promulgate rules and regulations to carry out this section.