TITLE 7

Conservation

Natural Resources

CHAPTER 79. ENVIRONMENTAL PERMIT APPLICATION BACKGROUND STATEMENT

Subchapter I. Environmental Permit Application Background Statement


(a) The General Assembly finds that:

(1) The discharge of pollutants to Delaware's air and water, and the management and disposal of solid and hazardous wastes in Delaware's environment can create significant risks to public health and environmental quality;

(2) The protection of Delaware's coastal zone and subaqueous lands from environmental degradation is a matter of public trust as demonstrated by the enactment of the Delaware Coastal Zone Act, Chapter 70 of Title 7, and the Delaware Subaqueous Lands Act, Chapter 72 of Title 7;

(3) The public has a right to clean air and water, and otherwise to a healthy environment; and

(4) Because of the importance of these resources to the health and welfare of Delaware citizens, the State has a right and responsibility to ensure that those regulated parties obtaining permits to discharge pollutants, manage wastes, or make commercial use of the coastal zone and the State's subaqueous lands can be trusted to carry out the responsibilities and conditions of these permits.

(b) It is the purpose of this subchapter to ensure that the State has adequate information about the background of applicants or regulated parties for the purposes of processing permits and conducting other regulatory activities associated with stormwater management, NPDES, oil pollution liability, air, hazardous waste, solid waste, commercial subaqueous, wetlands, coastal zone, underground storage tank, extremely hazardous substances, hazardous substances cleanup and emergency planning and community right-to-know under the authority of Chapters 40, 60, 62, 63, 66, 70, 72, 74, 74A, 77, 78 and 91 of this title, Chapter 63 of Title 16, and § 8028 of Title 29. This includes the ability to identify applicants or regulated parties with histories of environmental violations or criminal activities and/or associations or applicants who cannot demonstrate the required responsibility, expertise or competence which is necessary for the proper operation or activity permitted by the Department.

(c) The purpose of chronic violator status is to provide a mechanism for preventing or correcting circumstances in which:

(1) One or more of the traditional enforcement tools and regulatory programs of the Department appear insufficient to conform behavior and deter future violations by the regulated party; or

(2) The regulated party appears to be treating penalties and other sanctions as merely an on-going business expense rather than as symptomatic of underlying problems and threats to the State's environment that must be addressed and corrected.

68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 5; 78 Del. Laws, c. 177, §§ 1-3.;

(a) Applicants for, and holders of, permits to conduct stormwater management, NPDES, oil pollution liability, air, hazardous waste, solid waste, commercial subaqueous, wetlands, coastal zone, storage tank, extremely hazardous substances, hazardous substances cleanup and emergency planning and community right-to-know activities under the authority of Chapter 40, 60, 62, 63, 66, 70, 72, 74, 74A, 77, 78 or 91 of this title, Chapter 63 of Title 16, § 8028 of Title 29, shall be required by the Department to submit a statement containing the following information on an annual basis:

(1) A complete list of all current members of the board of directors, all current corporate officers, all persons owning more than 20 percent of the applicant's stock or other resources, all subsidiary companies, parent companies and companies with which the applicant's company shares 2 or more directors; provided that, for initial permit applicants that have not been declared chronic violators only, the Department shall have discretion to determine how much of this information to require, based on the likely utility of the information balanced against the burden imposed by requiring it;

(2) The names of the persons serving as the applicant's local chief operating officer with respect to each facility covered by the permit in question.

(3) A description of all notices of violation, criminal citations, arrests, convictions, or civil or administrative penalties assessed against the applicant or any other person identified under paragraph (a)(1) or (2) of this section for the violation of any environmental statute, regulation, permit, license, approval or order, regardless of the state in which it occurred, for the 5 years prior to the date of the statement;

(4) A description of the disposition of any of the items identified pursuant to paragraph (a)(3) of this section and any actions that have been taken to correct the violations that led to such enforcement of actions.

(5) A description of any felony or other criminal conviction for a crime involving harm to the environment or violation of environmental standards of any person identified in paragraph (a)(1) or (2) of this section that resulted in a fine greater than $1,000 or a sentence longer than 7 days, regardless of whether such fine or sentence was suspended;

(6) Copies of any and all settlements of environmental claims involving the applicant, whether or not such settlements were based on agreements where the applicant did not admit liability;

(7) If the applicant has been designated as a chronic violator under § 7904 of this title, or has been found guilty, pled guilty, or pled no contest to any crime involving violation of environmental standards which resulted in serious physical injury or serious harm to the environment, a statement made under oath by the applicant's local chief operating officer with respect to the facilities covered by the permit, stating that:

a. Disclosures made by the applicant under federal and state environmental statutes and regulations during the preceding calendar year have been, to the chief operating officer's knowledge, complete and accurate; and

b. That the facility has implemented policies, programs, procedures, standards or systems reasonably designed, in light of the size, scope and nature of facility operations, to detect, deter and promptly correct any noncompliance with state environmental statutes and regulations.

The statement filed pursuant to this paragraph shall include an acknowledgement by the affiant that intentionally false statements submitted in compliance with this paragraph constitute criminal perjury as defined in §§ 1221 and 1222 of Title 11.

(8) If the applicant has been designated as a chronic violator under § 7904 of this title, a detailed written report from an independent inspector who has inspected the applicant's premises for the purpose of detecting potential safety and environmental hazards to employees and the surrounding community. The Secretary may waive the duty to submit a detailed written report upon a showing of good cause by the applicant. A showing by the applicant that the acts which caused it to be designated as a chronic violator did not jeopardize public health shall constitute "good cause" under this paragraph.

(b) Notwithstanding the above, regulated parties subject to this section shall submit the statements required by this section upon their initial permit application, or other initial request for regulatory authorization within the Department's jurisdiction, provided that:

(1) Chronic violators will be subject to the provisions of paragraphs (a)(1) through (a)(8) of this section on an annual basis as long as they are designated as chronic violators.

(2) Regulated parties that have been found guilty, pled guilty or pled no contest to any crime involving violation of environmental standards which resulted in serious physical injury or serious harm to the environment shall be subject to the provisions of paragraphs (a)(1) through (a)(7) of this section on an annual basis for a period of 5 years from the date of the finding of guilt or plea of no contest.

(3) Except where required by paragraph (b)(1) or (2) of this section, entities which have been permitted by the Department for a period of 5 years or more shall not be required to comply with paragraphs (a)(1) through (a)(8) of this section for new permits.

(c) The following terms shall have the following meanings in connection with this subchapter:

(1) The term "applicant" shall mean any regulated party who or which has applied for or requested a permit or other regulatory authorization from the Department, or is required to apply for or request a permit or other regulatory authorization from the Department.

(2) The term "Department" shall mean the Department of Natural Resources and Environmental Control, the Secretary of the Department of Natural Resources and Environmental Control, or both.

(3) The term "facility" shall mean any site or structure regulated by the Department or subject to the Department's regulatory programs.

(4) The term "independent inspector" shall mean a person or entity, approved by the Department subject to regulations that shall be promulgated by November 27, 2003, which is sufficiently knowledgeable regarding state environmental standards to inspect the facility in question, and which has received no funds (other than funds for conducting other independent inspections) from the applicant, its parents, or its subsidiaries within the 3 years prior to Department approval.

(5) The term "local chief operating officer" shall mean the person physically working within the State who has supervisory authority over all other persons at the facility subject to permitting requirement. A permitted facility in the State of Delaware must have a chief operating officer.

(6) The term "person" shall mean any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a government corporation or authority), limited liability company, business entity, association, state, municipality, commission, political subdivision of a state or any interstate body.

(7) The term "physically working within the State" means spending part of at least of 20% of all weekdays (other than legal holidays) physically present and working within the borders of the State.

(8) The term "regulated party" shall mean a person subject to the Department's regulatory programs.

(9) The term "regulatory program" shall mean any program for the conservation and protection of the environment and the State's natural resources, which includes without limitation:

a. Those programs established by or acting under Chapters 40, 60, 62, 63, 66, 70, 72, 74, 74A, 77, 78, and 91 of this title, Chapters 63 and 78 of Title 16 and § 8028 of Title 29;

b. The permits, rules, policies and regulations issued under said chapters; and

c. Programs administering delegated federal law under said chapters.

(10) The term "serious harm to the environment" shall mean damage to the air, water or soil which has or will, beyond a reasonable doubt, cause serious physical injury to any persons working at the facility in question or persons in the State.

(11) The term "serious physical injury" as used in this section shall have the same meaning assigned to it by Chapter 2 of Title 11.

(d) Upon request by the Department, the person signing the application and statement, described in subsection (a) of this section, shall provide the Department with information sufficient to enable a positive and accurate identification of such person, including without limitation, driver's license state and number and date of birth. If the applicant is a business entity, such person shall provide information sufficient to enable a positive identification of the entity, including without limitation, state incorporation information.

68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 6; 74 Del. Laws, c. 37, § 2; 78 Del. Laws, c. 177, §§ 4-9.;

(a) All information provided pursuant to § 7902 of this title shall be considered public information and shall be considered part of the public record pertaining to the permit application.

(b) Notwithstanding subsection (a) of this section, information provided in response to a request from the Department for information to enable a positive and accurate identification of the person signing the application and statement, which is ordinarily understood to constitute private and sensitive personal information, including without limitation, driver's license state and number and date of birth, shall not be made public or be deemed a public record by the Department except as may be necessary in its investigation and enforcement activities and proceedings. For other information, if the applicant can demonstrate that the information provided pursuant to § 7902 of this title is not a matter of public record at the time of the application, and that the release of such information to the public would constitute an invasion of personal privacy or would seriously affect the applicant's business or competitive situation, the Department may designate such information as confidential information.

(c) Confidential information shall not be released to the public or made part of the public record and shall only be released to law enforcement personnel performing the background investigation, authorized representatives of the office of the Attorney General, or sworn law enforcement personnel of other jurisdictions performing similar investigations on the applicant.

68 Del. Laws, c. 419, § 1; 74 Del. Laws, c. 170, § 1; 78 Del. Laws, c. 177, §§ 10, 11.;

(a) A "chronic violator" is a regulated party that has demonstrated an inability or unwillingness to comply with 1 or more of the Department's regulatory programs.

(1) The criteria for determining whether a regulated party has demonstrated such inability or unwillingness shall include whether the regulated party has engaged in a pattern of wilful neglect or reckless disregard of the permits or regulatory programs of the Department.

(2) The Department shall have discretion to commence, review and reconsider, or not, chronic violator status as to any particular regulated party at any time.

(3) Upon consideration of a person's chronic violator status in accordance with the chapter, the Secretary may seek a determination of a regulated party's status as a chronic violator, by commencing a proceeding before the Environmental Appeals Board, by the filing of an administrative complaint. The administrative complaint shall contain the factual and legal basis on which a chronic violator determination is sought, any proposed limits, requirements or restrictions sought to be imposed on a facility or regulated party, as well as any administrative penalties the complaining party seeks to impose under § 7906 of this title.

(4) The Environmental Appeals Board, as established by § 6007 of this title, is granted jurisdiction to hear and determine the issues presented in an administrative complaint from the Secretary on chronic violator status, on such notice as is legally required. The Board shall have discretion in determining the procedures for the hearing process, provided that:

a. All parties to the complaint may appear personally or by counsel before the Board;

b. The Board shall provide a reasonable opportunity for discovery of the factual and legal contentions of the parties;

c. All parties to the complaint may produce any competent evidence in their behalf, although the Board may exclude any evidence that is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and cross-examination;

d. The burden is on the complaining party to prove that the regulated party is a chronic violator and that the administrative actions and penalties sought are supported by a preponderance of the evidence before the Board.

The Board's order on chronic violator status shall contain findings of fact and conclusions of law based on the record, which shall include but not be limited to: notices and other underlying procedural documents; a transcript of the hearing; documents entered at the hearing; and documents relied upon in deciding chronic violator status. Persons or facilities determined to be chronic violators may appeal the Board's decision, or any part of its order, to the Superior Court under § 6009 of this title.

(5) The Department shall adopt, amend, modify, or repeal its regulations, after public hearing, to make them consistent with this subchapter, and the Department may adopt, amend, modify, or repeal regulations at any time, after public hearing, to effectuate the policy and purposes of this subchapter, including without limitation, to provide a process for determining when a regulated party shall be declared a chronic violator and to set the terms and conditions under which the status of chronic violator may be lifted.

(b) One or more of the factors to be considered in determining whether a regulated party has engaged in a pattern of wilful neglect or reckless disregard of the permits or regulatory programs of the Department shall include:

(1) The nature and extent of the harm caused or threatened;

(2) The impact on the integrity of regulatory programs;

(3) Duration of noncompliance, including without limitation the duration of the violations and the duration over which violations have continued to occur;

(4) Number of violations of a similar nature;

(5) Total number of violations of all types;

(6) Economic benefit attributable to violations and noncompliance;

(7) Relationship and relevance of violations to activity for which permit is sought;

(8) The state of mind of the violator;

(9) The actions of new owners or managers, where ownership or management has changed at the facility;

(10) Actions taken or not taken to prevent, mitigate or respond to harm caused or threatened by the violation;

(11) Whether any or all of the violations were self-reported within 15 consecutive days after the date of discovery;

(12) The amount of an illegal release of a pollutant in proportion to the amount legally authorized to be released, if any;

(13) Whether the regulated party has adequately capitalized, funded or modernized its operations, maintenance, mechanical integrity efforts, training programs and or risk management reviews so that compliance with the Department's regulatory programs can be reasonably expected;

(14) Whether the regulated party has used recognized and generally accepted good engineering and other related professional practices established within the regulated party's field or industry so that compliance with the Department's regulatory programs can be reasonably expected;

(15) The size, scope and complexity of operations and the number of facilities located in the State.

(c) In addition, 1 or more of the types of violations to be considered by the Secretary shall include, but not be limited to:

(1) Violations that cause or threaten harm to the environment or to public health or safety;

(2) Violations resulting in criminal convictions;

(3) Tampering with monitoring or sampling equipment or interfering with samples or analytical results;

(4) Filing false reports or inaccurate or misleading information;

(5) Failing to maintain or use required pollution control equipment, structures or practices;

(6) Repeatedly failing to submit required reports of regulated activity such as Discharge Monitoring Reports;

(7) Repeatedly conducting a regulated activity without a required permit or other authorization;

(8) The extent of deviation from the permit, order, or other requirement;

(9) Noncompliance with court orders including without limitation consent orders;

(10) Alleged violations that were the subject of negotiated settlements notwithstanding any general release of liability and whether such violations have been found or proved in concurrent or subsequent proceeding or public hearings; and

(11) Violations and conduct by related persons, business entities and other regulated parties including without limitation conduct and violations by common employees, managers, officers, directors, shareholders, principals, partners, and owners.

(d) The Secretary may reject any permit application or revoke any permit upon a finding that:

(1) The applicant withheld or misrepresented any of the information required to be submitted pursuant to § 7902 of this title;

(2) The applicant has operated or has been associated with any company or person who has operated a facility in a manner which casts substantial doubt on the ability or willingness of the applicant to operate the facility for which a permit is being requested in a manner that will protect the health and welfare of the citizens of Delaware;

(3) The applicant has offered, conferred or proposed to confer any benefit to an employee of the State in the expectation that such offer will result in or contribute to a positive action on the permit application; or,

(4) The applicant has been determined by the Department to be a chronic violator.

(5) The applicant or permit holder is engaged in a pattern of ongoing violations of the permit, state laws or state regulations, which presents a serious, imminent threat to public health.

The Department shall promulgate regulations or institute procedures providing for expedited hearings with respect to permits revoked under this subsection, and providing for expedited appeals of such suspensions or revocations to the Environmental Appeals Board.

68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 7; 74 Del. Laws, c. 37, § 3; 78 Del. Laws, c. 177, §§ 12-15.;

All applicants, regulated parties and permittees have the continuing duty to provide any assistance or information requested by the Department, and to cooperate in an inquiry or investigation or hearing conducted by the Department.

68 Del. Laws, c. 419, § 1; 78 Del. Laws, c. 177, § 16.;

In addition to other applicable enforcement provisions contained in relevant sections of chapters covered by § 7901(b) of this title, the Secretary is authorized to impose an administrative penalty of up to $10,000 per day for each violation against any regulated party that is determined to be a chronic violator in accordance with the provisions of § 7904(a) of this title, provided that simultaneous violations of more than 1 pollutant or air contaminant parameter or of any other limitation or standard may be treated as separately punishable violations within each day, and multiple, intermittent violations of a single pollutant or air contaminant parameter or any other limitation or standard may be treated as separately punishable violations within each day. Any administrative penalties collected by the Department under this section are hereby appropriated pursuant and subject to the procedures and requirement of § 6005(d) of this title.

73 Del. Laws, c. 117, § 8; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 177, § 17.;