Subchapter I. Environmental Permit Application Background Statement
§ 7901. Findings; purpose.
(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 persons 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, 77, 78 and 91 of this title and Chapter 63 of
Title 16. 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 5.;
§ 7902. Statement required.
(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 or Chapter 63 of Title 16, 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;
(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 (1) or (2) of this subsection 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 (3) of this subsection 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 (1) or (2) of this subsection 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, persons or entities subject to this section shall submit the statements required by this section
only upon their initial permit application, 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) Entities 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 (1) or (2) of this subsection, 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 section:
(1) 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.
(2) 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.
(3) 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.
(4) The term "serious physical injury" as used in this section shall have the same meaning assigned to it by Chapter 2 of
Title 11.
(5) 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 6; 74 Del. Laws, c. 37, § 2.;
§ 7903. Confidential information.
(a) All information provided pursuant to § 7902(2) of this title shall be considered public information and shall be considered
part of the public record pertaining to the permit application.
(b) If the applicant can demonstrate that 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.;
(a) The Secretary, in conjunction with a committee of stakeholders including an equal number of representatives of Delaware
environmental organizations and industry to be appointed by the Secretary, shall define criteria and establish a process for
determining when a facility or regulated party should be declared a chronic violator by virtue of its inability to maintain
compliance with the State's environmental permits, laws, or regulations.. Such criteria shall include, but not be limited
to, whether the facility or regulated party has engaged in a pattern of wilful neglect or disregard with respect to the requirements
of the Department. The Department shall adopt regulations to include the definition of chronic violator and process for determining
when a facility or regulated party shall be declared a chronic violator and the terms and conditions under which the designation
of a chronic violator would be lifted. Factors that shall be considered in determining whether a person or facility has engaged
in a pattern of wilful neglect or disregard to the permits, laws or regulations of the Department shall include, but not be
limited to:
The nature and extent of the harm caused or threatened;
The impact on the integrity of regulatory programs;
Duration of noncompliance;
Number of violations of a similar nature;
Total number of violations of all types;
Economic benefit attributable to violations;
Relationship/relevance of violations to activity for which permit is sought; and
Whether any or all of the violations were willful or grossly negligent.
In addition, the types of violations that shall be considered by the Secretary shall include, but not be limited to:
Violations that cause or genuinely threaten harm to the environment or to public health or safety;
Violations resulting in criminal convictions;
Tampering with monitoring or sampling equipment or interfering with samples or analytical results;
Filing false reports or inaccurate or misleading information;
Failing to maintain or use required pollution control equipment, structures or practices;
Repeatedly failing to submit required reports of regulated activity such as Discharge Monitoring Reports; and
Repeatedly conducting a regulated activity without a required permit or other authorization.
Persons or facilities determined by the Secretary to be chronic violators shall be provided due process under §§ 6008 and
6009 of this title.
(b) The Secretary may impose such limits, requirements or restrictions on facilities or regulated parties determined to be
a chronic violator by virtue of the exercise of its authority over such facilities through permitting provisions or enforcement
actions. Such limits, requirements or restrictions may include, but not be limited to, denying permit applications or modifying,
suspending or revoking operating permits, or requiring an annual environmental performance statement. Such a statement shall
include, but not be limited to:
A description of the operations of the facility;
A listing of environmental permits held by the facility;
Emissions and discharges from the facility;
Disclosure of environmental violations of enforcement actions taken against the facility during the previous year;
A description of any pollution prevention or waste reduction activities undertaken at the facility during the previous year
and the results of those activities; and
Plans to achieve compliance with all applicable laws, regulations or permits.
(c) 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 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.;
§ 7905. Additional information; duty to cooperate.
All applicants 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.;
§ 7906. Penalties for chronic violators.
Notwithstanding other applicable enforcement provisions contained in relevant sections of chapters covered by § 7901(b) of
this subchapter, the Secretary is authorized to impose an administrative penalty of up to $10,000 per day for each violation
against any person that is determined to be a chronic violator in accordance with the provisions of § 7904(a) of this subchapter.
The person's right to contest or appeal the assessment of a penalty authorized under this section shall be in accordance with
the applicable provisions of the title and chapter under which the violation and enforcement action is being taken.
73 Del. Laws, c. 117, § 8; 70 Del. Laws, c. 186, § 1.;
Subchapter I. Environmental Permit Application Background Statement
§ 7901. Findings; purpose.
(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 persons 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, 77, 78 and 91 of this title and Chapter 63 of
Title 16. 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 5.;
§ 7902. Statement required.
(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 or Chapter 63 of Title 16, 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;
(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 (1) or (2) of this subsection 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 (3) of this subsection 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 (1) or (2) of this subsection 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, persons or entities subject to this section shall submit the statements required by this section
only upon their initial permit application, 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) Entities 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 (1) or (2) of this subsection, 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 section:
(1) 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.
(2) 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.
(3) 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.
(4) The term "serious physical injury" as used in this section shall have the same meaning assigned to it by Chapter 2 of
Title 11.
(5) 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 6; 74 Del. Laws, c. 37, § 2.;
§ 7903. Confidential information.
(a) All information provided pursuant to § 7902(2) of this title shall be considered public information and shall be considered
part of the public record pertaining to the permit application.
(b) If the applicant can demonstrate that 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.;
(a) The Secretary, in conjunction with a committee of stakeholders including an equal number of representatives of Delaware
environmental organizations and industry to be appointed by the Secretary, shall define criteria and establish a process for
determining when a facility or regulated party should be declared a chronic violator by virtue of its inability to maintain
compliance with the State's environmental permits, laws, or regulations.. Such criteria shall include, but not be limited
to, whether the facility or regulated party has engaged in a pattern of wilful neglect or disregard with respect to the requirements
of the Department. The Department shall adopt regulations to include the definition of chronic violator and process for determining
when a facility or regulated party shall be declared a chronic violator and the terms and conditions under which the designation
of a chronic violator would be lifted. Factors that shall be considered in determining whether a person or facility has engaged
in a pattern of wilful neglect or disregard to the permits, laws or regulations of the Department shall include, but not be
limited to:
The nature and extent of the harm caused or threatened;
The impact on the integrity of regulatory programs;
Duration of noncompliance;
Number of violations of a similar nature;
Total number of violations of all types;
Economic benefit attributable to violations;
Relationship/relevance of violations to activity for which permit is sought; and
Whether any or all of the violations were willful or grossly negligent.
In addition, the types of violations that shall be considered by the Secretary shall include, but not be limited to:
Violations that cause or genuinely threaten harm to the environment or to public health or safety;
Violations resulting in criminal convictions;
Tampering with monitoring or sampling equipment or interfering with samples or analytical results;
Filing false reports or inaccurate or misleading information;
Failing to maintain or use required pollution control equipment, structures or practices;
Repeatedly failing to submit required reports of regulated activity such as Discharge Monitoring Reports; and
Repeatedly conducting a regulated activity without a required permit or other authorization.
Persons or facilities determined by the Secretary to be chronic violators shall be provided due process under §§ 6008 and
6009 of this title.
(b) The Secretary may impose such limits, requirements or restrictions on facilities or regulated parties determined to be
a chronic violator by virtue of the exercise of its authority over such facilities through permitting provisions or enforcement
actions. Such limits, requirements or restrictions may include, but not be limited to, denying permit applications or modifying,
suspending or revoking operating permits, or requiring an annual environmental performance statement. Such a statement shall
include, but not be limited to:
A description of the operations of the facility;
A listing of environmental permits held by the facility;
Emissions and discharges from the facility;
Disclosure of environmental violations of enforcement actions taken against the facility during the previous year;
A description of any pollution prevention or waste reduction activities undertaken at the facility during the previous year
and the results of those activities; and
Plans to achieve compliance with all applicable laws, regulations or permits.
(c) 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 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.;
§ 7905. Additional information; duty to cooperate.
All applicants 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.;
§ 7906. Penalties for chronic violators.
Notwithstanding other applicable enforcement provisions contained in relevant sections of chapters covered by § 7901(b) of
this subchapter, the Secretary is authorized to impose an administrative penalty of up to $10,000 per day for each violation
against any person that is determined to be a chronic violator in accordance with the provisions of § 7904(a) of this subchapter.
The person's right to contest or appeal the assessment of a penalty authorized under this section shall be in accordance with
the applicable provisions of the title and chapter under which the violation and enforcement action is being taken.
73 Del. Laws, c. 117, § 8; 70 Del. Laws, c. 186, § 1.;
Subchapter I. Environmental Permit Application Background Statement
§ 7901. Findings; purpose.
(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 persons 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, 77, 78 and 91 of this title and Chapter 63 of
Title 16. 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 5.;
§ 7902. Statement required.
(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 or Chapter 63 of Title 16, 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;
(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 (1) or (2) of this subsection 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 (3) of this subsection 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 (1) or (2) of this subsection 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, persons or entities subject to this section shall submit the statements required by this section
only upon their initial permit application, 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) Entities 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 (1) or (2) of this subsection, 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 section:
(1) 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.
(2) 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.
(3) 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.
(4) The term "serious physical injury" as used in this section shall have the same meaning assigned to it by Chapter 2 of
Title 11.
(5) 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.
68 Del. Laws, c. 419, § 1; 73 Del. Laws, c. 117, § 6; 74 Del. Laws, c. 37, § 2.;
§ 7903. Confidential information.
(a) All information provided pursuant to § 7902(2) of this title shall be considered public information and shall be considered
part of the public record pertaining to the permit application.
(b) If the applicant can demonstrate that 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.;
(a) The Secretary, in conjunction with a committee of stakeholders including an equal number of representatives of Delaware
environmental organizations and industry to be appointed by the Secretary, shall define criteria and establish a process for
determining when a facility or regulated party should be declared a chronic violator by virtue of its inability to maintain
compliance with the State's environmental permits, laws, or regulations.. Such criteria shall include, but not be limited
to, whether the facility or regulated party has engaged in a pattern of wilful neglect or disregard with respect to the requirements
of the Department. The Department shall adopt regulations to include the definition of chronic violator and process for determining
when a facility or regulated party shall be declared a chronic violator and the terms and conditions under which the designation
of a chronic violator would be lifted. Factors that shall be considered in determining whether a person or facility has engaged
in a pattern of wilful neglect or disregard to the permits, laws or regulations of the Department shall include, but not be
limited to:
The nature and extent of the harm caused or threatened;
The impact on the integrity of regulatory programs;
Duration of noncompliance;
Number of violations of a similar nature;
Total number of violations of all types;
Economic benefit attributable to violations;
Relationship/relevance of violations to activity for which permit is sought; and
Whether any or all of the violations were willful or grossly negligent.
In addition, the types of violations that shall be considered by the Secretary shall include, but not be limited to:
Violations that cause or genuinely threaten harm to the environment or to public health or safety;
Violations resulting in criminal convictions;
Tampering with monitoring or sampling equipment or interfering with samples or analytical results;
Filing false reports or inaccurate or misleading information;
Failing to maintain or use required pollution control equipment, structures or practices;
Repeatedly failing to submit required reports of regulated activity such as Discharge Monitoring Reports; and
Repeatedly conducting a regulated activity without a required permit or other authorization.
Persons or facilities determined by the Secretary to be chronic violators shall be provided due process under §§ 6008 and
6009 of this title.
(b) The Secretary may impose such limits, requirements or restrictions on facilities or regulated parties determined to be
a chronic violator by virtue of the exercise of its authority over such facilities through permitting provisions or enforcement
actions. Such limits, requirements or restrictions may include, but not be limited to, denying permit applications or modifying,
suspending or revoking operating permits, or requiring an annual environmental performance statement. Such a statement shall
include, but not be limited to:
A description of the operations of the facility;
A listing of environmental permits held by the facility;
Emissions and discharges from the facility;
Disclosure of environmental violations of enforcement actions taken against the facility during the previous year;
A description of any pollution prevention or waste reduction activities undertaken at the facility during the previous year
and the results of those activities; and
Plans to achieve compliance with all applicable laws, regulations or permits.
(c) 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 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.;
§ 7905. Additional information; duty to cooperate.
All applicants 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.;
§ 7906. Penalties for chronic violators.
Notwithstanding other applicable enforcement provisions contained in relevant sections of chapters covered by § 7901(b) of
this subchapter, the Secretary is authorized to impose an administrative penalty of up to $10,000 per day for each violation
against any person that is determined to be a chronic violator in accordance with the provisions of § 7904(a) of this subchapter.
The person's right to contest or appeal the assessment of a penalty authorized under this section shall be in accordance with
the applicable provisions of the title and chapter under which the violation and enforcement action is being taken.
73 Del. Laws, c. 117, § 8; 70 Del. Laws, c. 186, § 1.;
