SPONSOR:

Sen. McBride & Rep. Quillen

Sens. Adams, Blevins, Bunting, Cook, DeLuca, Marshall, McDowell, Sharp, Sokola, Vaughn, Bonini, Cloutier, Connor, Simpson, Sorenson, Still & Winslow; Reps. Carey, Lofink, Oberle, Reynolds, Roy, Spence, Brady, DiLiberto, B. Ennis, Gilligan, Houghton, Keeley, Mulrooney, Price, Schroeder, Scott, Van Sant, Viola, West & Williams

DELAWARE STATE SENATE

141st GENERAL ASSEMBLY

SENATE SUBSTITUTE NO. 1 FOR

SENATE BILL NO. 33

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 7 AND TITLE 29 OF THE DELAWARE CODE WITH RESPECT TO NOTIFICATION OF ENVIRONMENTAL RELEASES, FACILITY PERFORMANCE, AND ESTABLISHMENT OF THE COMMUNITY INVOLVEMENT ADVISORY COUNCIL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 7 § 6002 by adding a new paragraph 63 to read as follows:

"Environmental release" means any spillage, leakage, emission, discharge, or delivery into the air or waters or on or into the lands of this State, of any sewage of 10,000 gallons or more, oil, industrial waste, liquid waste, hydrocarbon chemical, hazardous substance, hazardous waste, restricted chemical material, vessel discharge, air contaminant, pollutant, regulated biological substance or other wastes reportable pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended or regulations enacted pursuant to Title 7 § 6028

Section 2. Amend Title 7 § 6004 (b) by inserting after the word "impact" in the last sentence the following: "The applicant shall be responsible for the cost of any such advertisements and notices made by the Department as required by this section, not to exceed $500.00."

Section 3. Amend Title 7 §6028(a) by inserting after the word "contributes" in the first sentence the following: "to an environmental release or". Further amend §6028 by deleting the words "immediately upon discovery of said discharge" and replacing then with the following " as soon as the person has knowledge of said environmental release or discharge." and adding the words "if appropriate" after the word "plan.". Further amend §6028(a) by inserting after the word "impossible." in the first sentence the following: "Such initial notification shall be made in person or by telephone to a number specifically assigned by the Department for this purpose and shall include, to the maximum extent practicable, the following information:

1) The facility name and location of release.

2) The chemical name or identity of any substance involved in the

release.

3) An indication of whether the substance is an extremely hazardous substance.

4) An estimate of the quantity of any such substance that was released into the environment.

5) The time and duration of the release.

6) The medium or media into which the release occurred.

7) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.

8) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordination pursuant to the emergency plan).

9) The names and telephone number of the person or persons to be contacted for further information; and,

10) Such other information as the Department may require.

This information shall be made available to the public by posting on the Department’s internet web site no later than one business day after the release is reported,

Amend Title 7 §6028(b) by deleting the word "may" and replacing it with "shall" and adding the words "environmental releases" after the word "pollutants."

Amend Title 7 §6028(d) by deleting the words "For the purposes of this section, notification to the Department can be made in person or by telephone communication."

Amend Title 7 §6028(c) by inserting after the word "statutes," the following: "permits."

Amend Title 7 §6028(f) by striking this section and inserting in lieu thereof the following:

"(f) Any person who violates this section or any rule or regulation duly promulgated hereunder shall be punishable in accordance with the enforcement provisions of this chapter."

Section 4. Amend Title 7 § 6014 by striking this Section in its entirety and replacing it with the following:

§ 6014. Regulatory and Compliance Information, Facility Performance and Public Information

  1. The Department shall develop an Environmental Information System that will include general information about facilities and sites under the Department’s regulatory jurisdiction as defined by Title 7, Chapters 40, 60, 62, 63, 66, 70, 72, 74, 77, 78, 91 and Title 16, Chapter 63. The Environmental Information System shall include information on all such facilities and sites related to permitting requirements, emissions and discharge monitoring and reporting data, compliance inspections, violations and enforcement actions. The System shall provide the public with information that indicates when a facility has been inspected, what violations are detected, when the facility comes into compliance, and any enforcement action that results from violations at the facility.
  2. The Secretary shall create or contract with a third party to create a central unified notification system to notify the public in a timely manner of environmental releases. That system shall be designed in a such a manner as to ensure the notification, within 12 hours after the Department is informed of an environmental release, of (1) the State Representative and State Senator in whose district the release occurred, (2) any community or civic group, the majority of whose membership lives within five miles of the reporting facility, that has identified itself to the Department as an entity wishing to receive notice pursuant to this subsection, and (3) any individual who lives within five miles of the reporting facility and who has identified himself or herself to the Department as a person wishing to receive notice pursuant to this subsection.
  3. The facility from which an environmental release has occurred shall pay to the Department the cost of the Department’s notification under subsection (b) of this Section. Such cost shall include a pro-rated share of the annual fixed costs incurred by the Department for the maintenance of the notification system created pursuant to subsection (b) of this Section, and a pro-rated share of the initial development costs of the notification system to be equally distributed over the first five years of the system’s existence, both to be determined in the sole discretion of the Department. The facility shall make payment under this subsection within 30 days of receiving written notice of the amount of payment due. Failure to make payment pursuant to this subsection in a timely fashion shall constitute a violation punishable under Section 6005 of this Title. For purposes of this section facility shall mean any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), wastewater treatment plant, pit, pond, lagoon, impoundment, landfill, storage container, or any site or area where an environmental release has occurred.

(d) Any records, reports or information obtained pursuant to this chapter and any permits, permit applications and related documentation shall be available to the public for inspection and copying; provided, that upon a showing satisfactory to the Secretary by any person that such records, reports, permits, permit applications, documentation or information, or any part thereof (other than effluent data) would, if made public, divulge methods or processes entitled to protection as trade secrets of such person, the Secretary shall consider, treat, and protect such record, report or information, or part thereof, as confidential; provided further, however:

(1) That any such record, report or information accorded confidential treatment may be disclosed or transmitted to other officers, employees or authorized representatives of this State or of the United States concerned with carrying out this chapter or when relevant in any proceeding to effectuate the purpose of this chapter; and
(2) That any report environmental release, air contaminant or water pollutant emissions may be made available to the public as reported and as correlated with any applicable emission standards or limitations.

Section 5. Amend Title 7 § 7901 by deleting (b) in its entirety and replacing it with the following:

(b) It is the purpose of this chapter 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 Title 7 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.

Section 6. Amend Title 7 § 7902 by deleting the first paragraph in its entirety and replacing it with the following:

"Applicants for permits to conduct 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 activities under the authority of Chapters 40, 60, 62, 63, 66, 70, 72, 74, 77, 78 and 91 of Title 7 and Chapter 63 of Title 16, except those facilities which have been permitted by the Department for a period of at least five years, may be required by the Department to submit a statement containing the following information:"

Section 7. Amend Title 7 § 7904 by deleting said Section in its entirety and replacing it with the following:

§ 7904. Permit modification, suspension, denial, revocation.

    1. 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 willful 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 willful neglect or disregard to the permits, laws or regulations of the Department shall include, but not be limited to:

      2. 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

      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;

      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 Title 7, § 6008 and §6009.

    2. 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:

      3. 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.

      Plans to achieve compliance with all applicable laws, regulations or permits.

    3. 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.

Section 8. Amend Title 7 Chapter 79 by adding the following Section:

§ 7906. Penalties for chronic violators.

Notwithstanding other applicable enforcement provisions contained in relevant sections of Chapters covered by § 7901(b) of this Chapter, 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 Chapter. 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.

Section 9. Amend Title 29 by creating § 8016A to read as follows:

§ 8016A. Community Involvement Advisory Council and Community Ombudsman

  1. There is established the Community Involvement Advisory Council.
  2. The Community Involvement Advisory Council shall serve in an advisory capacity to the Secretary of the Department of Natural Resources and Environmental Control and shall consider such matters as the relationships and interactions between the Department and local communities throughout the state, communication and information flow between the Department and these communities, public participation in the decision-making processes of the Department, ensuring, to the extent practicable, that no community in the State is disparately affected by environmental impacts, matters related to addressing adverse environmental impacts on communities and other such matters as may be referred to it by the Governor or the Secretary. The Council may also study, research, plan and advise the Secretary on matters it deems appropriate to enable the Department to relate to and interact with communities in the best manner possible.

(c) The Community Involvement Advisory Council shall be composed of 11 members who shall be appointed by the Governor as follows:

(1) Four members shall be appointed for three-year terms. (2) Four members shall be appointed for initial two-year terms. (3) Three members shall be appointed for initial one-year terms. (4) Thereafter, all new appointees shall serve for a term of three years.

(d) Council membership shall include representatives from communities, community-based non-profit organizations, environmental organizations, health care providers, local government, academic institutions, and business/industry. Community representation shall include representatives of communities that potentially may be adversely impacted by environmental factors or conditions.

(e) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incidental to their duties as members of the Council.

(f) A Chairperson of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for the term of one year and shall be eligible for reelection.

(g) Any replacement appointment to the Council to fill a vacancy prior to the expiration of a term shall be filled for the remainder of the term.

(h) The Department shall establish a position of Community Ombudsman to serve as a liaison between the Department and communities statewide. The Department may establish Community Assistance Providers as may be appropriated by the General Assembly. The Community Ombudsman and Community Assistance Providers shall engage communities in identifying and understanding environmental issues and addressing or resolving environmental problems, advocate for communities, assist communities in obtaining information on environmental issues and serve as a point of contact for the Department with communities and community organizations. The Secretary shall provide to the General Assembly annually a summary of the activities and an assessment of the effectiveness of the Community Ombudsman program.