7 Del. Admin. Code § 1375-12.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1375-12.0 - Remedial Actions

12.1 At any facility where the Department determines that a release has occurred, or a release is imminent, the Department may require a person to undertake appropriate remedial actions to reduce the risk of a release or imminent threat of release of hazardous substances to the acceptable risk level.

12.2 Department Oversight of Remedial Actions

12.2.1 A person shall not perform a remedial action without the Department's concurrent oversight, unless the activity is being performed pursuant to another state or federal environmental regulatory authority.

12.2.2 A person must enter into a settlement agreement with the Department in order to obtain oversight from the Department for the remedial action.

12.3 Interim Actions

12.3.1 The Department may require or permit an interim action at a facility or Certified Brownfield prior to issuing the Proposed Plan of Remedial Action for the facility or Certified Brownfield where the Department determines that it is consistent with or will not interfere with potential or final remedial actions.

12.3.2 Interim actions include spill response, drainage controls, site stabilization, removal of drums, tanks or bulk storage containers, free product removal, and excavation of contaminated material.

12.3.3 For any facility or Certified Brownfield at which an interim action has occurred, the Proposed Plan of Remedial Action shall include a description of the interim action and a determination of whether additional remedial action is needed to meet the remedial action objectives.

12.3.4 The Department may adopt an interim action as all or part of the chosen final remedial action for a facility or Certified Brownfield if it determines the interim action is protective of public health or welfare or the environment.

12.4 Remedial Alternative Selection

12.4.1 Prior to the selection of a remedial action, the Department may require a feasibility study depending on site specific factors including the nature of the contamination and the complexity of the facility. The feasibility study shall address each contaminated medium identified in the remedial investigation or risk assessment.

12.4.2 The Department, or any person who has entered into an agreement with the Department concerning a facility or Certified Brownfield, shall propose one or more remedial alternatives for the facility which meet the criteria in 12.4.4.

12.4.3 The Department will evaluate and select the proposed remedial alternatives for the facility or Certified Brownfield according to the threshold and balancing criteria.

12.4.4 At a minimum, an approved remedial action shall meet the following initial threshold criteria:

12.4.4.1 Protection of public health or welfare or the environment;

12.4.4.2 Attainment of remedial action objectives, including applicable, relevant and appropriate local, state, and federal laws and regulations; and

12.4.4.3 Control sources of contamination.

12.4.5 The Department shall consider the following balancing criteria in selecting a preferred remedial action from alternatives meeting the initial threshold criteria:

12.4.5.1 Incorporation of sustainability principles including low energy inputs, restoration of habitat, preservation of cultural resources, land reuse, materials recycling, infrastructure reuse, reduced run-off, permanence and protectiveness without an environmental covenant;

12.4.5.2 Reduction of contaminant toxicity, mobility or volume;

12.4.5.3 Comments or input from the community in which the facility is located;

12.4.5.4 Ease of implementation;

12.4.5.5 Short-term effectiveness;

12.4.5.6 Long-term effectiveness;

12.4.5.7 Life-cycle costs including present and future direct and indirect capital costs, operation and maintenance costs, compliance monitoring costs, and other foreseeable costs.

12.4.6 For remedial action alternatives that satisfy the criteria of 12.4.4 and after the Department considers the balancing criteria of 12.4.5, preference shall be given to the remedial action which is most cost effective.

12.4.7 A remedial action may not be considered cost effective if the incremental cost of the remedial action is substantial and disproportionate to the incremental degree of protection it would achieve.

12.4.8 Upon selection of the remedial alternative, the Department shall issue a Proposed Plan of Remedial Action.

12.5 Proposed Plan of Remedial Action

12.5.1 The Department shall issue a Proposed Plan of Remedial Action describing the proposed remedial action prior to implementation of the remedial action for a facility or Certified Brownfield. When the Department requires or approves an interim action as described in Section 12.3 of these Regulations, the Department may issue a Proposed Plan of Remedial Action after the implementation of the interim action.

12.5.2 The Department shall provide public notice of the Proposed Plan of Remedial Action and the details of the public comment period as described in Section 8.0 of these Regulations.

12.5.3 At the conclusion of the public comment period, the Department shall evaluate questions and comments on the Proposed Plan of Remedial Action.

12.6 Final Plan of Remedial Action

12.6.1 The Department shall issue a Final Plan of Remedial Action with due consideration of the comments on the Proposed Plan of Remedial Action and any additional study or investigation the Department deems useful.

12.6.2 The Proposed and Final Plans of Remedial Action and the basis for them, as well as all comments received by the Department, shall constitute the remedial decision record of the Secretary.

12.6.3 The Department shall provide public notice of the Final Plan of Remedial Action as described in Section 8.0 of these Regulations.

12.7 Remedial Action

12.7.1 No person shall implement a remedial action at a facility or Certified Brownfield without concurrent oversight from the Department.

12.7.2 All of the phases of the remedial action require prior written approval from the Department.

12.7.3 Remedial Action Work Plan

12.7.3.1 A Remedial Action Work Plan (RAWP) shall be prepared for any remedial action. The level of detail of the RAWP will depend on the nature and complexity of the Remedial Action, and will require the Department's written approval prior to implementation. The Department may require the submission of the following documents as part of the RAWP, which may be combined into one document:

12.7.3.1.1 Information as required by the Department including treatability studies, and pilot studies; and

12.7.3.1.2 Construction plans and specifications which shall describe in detail the remedial action to be performed. The plans and specifications shall be prepared in conformity with the currently accepted engineering practices and techniques. Any applicable or required permits shall be documented in the construction plans and specifications.

12.7.3.2 Any revisions to plans and specifications shall require the Department's prior written approval.

12.7.3.3 The Department will require and review a Health and Safety Plan (HASP). The HASP will include criteria to adequately monitor the protection of public health or welfare or the environment.

12.7.4 Remedial Action Implementation

12.7.4.1 Implementation of the remedial action shall be conducted in accordance with the approved Remedial Action Work Plan.

12.7.4.2 Upon request by the Department, interim progress reports for the remedial action must be submitted.

12.7.4.3 The Remedial Action Completion Report (RACR) shall contain as-built drawings and documentation of all aspects of the implementation of the remedial action approved by the Department. The RACR shall be certified by a Delaware licensed professional engineer and/or geologist, as appropriate, based on testing results and inspections as to whether the remedial action work has been implemented in compliance with the Proposed and Final Plans of Remedial Action, the plans and specifications, and other related documents. The RACR is subject to the approval of the Department.

12.7.4.4 The Department may conduct inspections of the facility at any time to ensure compliance with the Final Plan of Remedial Action and long-term stewardship requirements.

12.7.5 Long-Term Stewardship

12.7.5.1 Long-term stewardship (LTS) is addressed in a LTS Plan approved by the Department, and includes operation and maintenance, monitoring, environmental covenant, and periodic review requirements.

12.7.5.2 Operation and Maintenance

12.7.5.2.1 Operation and maintenance refers to measures initiated after the remedial action is determined to be operational and functional. Operation and maintenance includes all activities necessary to ensure the integrity and functionality of the remedial action.

12.7.5.2.2 Any person responsible for operation and maintenance must obtain any necessary permits before initiating activities which require a permit under State or Federal or local laws and regulations. Possession of such permits shall be required for initial, and continuing, Department approval of the operation and maintenance plan.

12.7.5.2.3 Failure to perform operation and maintenance in compliance with a Department approved operation and maintenance plan may result in an enforcement action up to and including rescission of the Certification of Completion of Remedy.

12.7.5.3 Remedial Action Monitoring

12.7.5.3.1 Remedial action monitoring is required to measure the long-term effectiveness of the remedial action.

12.7.5.3.2 Remedial action monitoring ensures the attainment of the cleanup level and confirms the long-term effectiveness of the remedial action objectives.

12.7.5.3.3 Remedial action monitoring requirements are contained in the LTS Plan which is subject to the approval of the Department.

12.7.5.4 Environmental Covenant

12.7.5.4.1 The Department may require the placement of an Environmental Covenant (EC) on a facility, as provided for in 7 Del.C. §§ 7907- 7920, the Uniform Environmental Covenants Act (UECA), as all or part of the remedial action.

12.7.5.4.2 An EC may be used in order to reduce the potential for exposure to hazardous substances, and may include land use restrictions, activity restrictions, groundwater use restrictions, operations and maintenance requirements, or other institutional controls.

12.7.5.5 Periodic Review

12.7.5.5.1 The Department may require periodic review consisting of an evaluation of the continuing long-term effectiveness and protectiveness of the remedial action.

12.7.5.5.2 If the Department selects or approves a remedial action that results in hazardous substances remaining at a facility at concentrations which exceed applicable cleanup levels, the Department shall periodically review the remedial action as it deems necessary to ensure that public health or welfare or the environment is protected.

12.8 Interference with Remedy

12.8.1 This section will apply to the following:

12.8.1.1 A facility for which any person has received notice pursuant to 7 Del.C. § 9107;

12.8.1.2 A facility or Certified Brownfield which is the subject of an application for entry into the Voluntary Cleanup Program or the Brownfields Development Program;

12.8.1.3 A facility or Certified Brownfield undergoing an interim action;

12.8.1.4 A facility or Certified Brownfield undergoing a remedial investigation or remedial action;

12.8.1.5 A facility or Certified Brownfield for which an order has been issued pursuant to 7 Del.C. § 9106 (b) or 7 Del.C. § 9109 (b); or

12.8.1.6 A facility or Certified Brownfield that has restrictions required by the Final Plan of Remedial Action.

12.8.2 No person shall perform any work or construction activities that may interfere with the remedial action at the facility or Certified Brownfield, unless authorized by the Department as part of the remedial action, without doing all of the following:

12.8.2.1 Providing notice to the Department of any such planned work or construction activities;

12.8.2.2 Providing copies of all plans and a description of the planned work or construction activities to be performed at the facility or Certified Brownfield;

12.8.2.3 Providing an explanation of how and why the planned work or construction activities will not interfere with any part of the remedy; and

12.8.2.4 Obtaining the Department's prior written approval for any work or construction activities to be performed at the facility or Certified Brownfield.

12.8.3 For the purpose of Section 12.8, "work or construction activities" shall include:

12.8.3.1 Any building, constructing, drilling, digging, excavating, grading, filling, landscaping, earthmoving, agricultural or any other land disturbing activities;

12.8.3.2 Storage, bulk or not, of inventory, equipment, or materials which limit access to remedial activities; or

12.8.3.3 Any activities that may cause additional or new releases or exacerbation of site conditions.

12.8.4 This subsection shall not apply to any work or construction activities performed at a facility or Certified Brownfield or areas of a facility or Certified Brownfield where any drilling, digging or excavation is carried out to collect samples in accordance with any appropriate plan approved by the Department.

7 Del. Admin. Code § 1375-12.0

22 DE Reg. 781 (3/1/2019)