Delaware General Assembly

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.

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,

(a) 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.

(b) 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.

(c) 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.

(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 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:

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.

(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.

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.

(a) 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.

Approved July 06, 2001