7 Del. Admin. Code § 1375-2.0
2.1 Definitions - The following words, terms and phrases, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise.
"Acceptable risk" means a probability of one additional lifetime incidence of cancer in 100,000 (1x10-5) or less for carcinogens, and a hazard index of one (1) or less for non-carcinogens, as applicable. For certain contaminants, where cancer or non-cancer risk does not apply, the Department may approve or require other methods that it determines are appropriate for determining risk.
"Act" means 7 Del.C. Ch. 91, the Delaware Hazardous Substance Cleanup Act.
"All Appropriate Inquiry" or "AAI" means the requirements for assessing the environmental conditions of a property prior to its acquisition. Detailed requirements for AAI are presented in the EPA's All Appropriate Inquiries Final Rule ( 40 CFR Part 312) (Nov. 1, 2005), as amended, or ASTM International's Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (E 1527-05), as amended.
"Allowable Interest Rate" means a rate of interest 5% over the Federal Reserve discount rate.
"Aquifer" means a geologic formation, group of formations, or a part of a formation capable of yielding groundwater to wells or springs.
"ASTM" means ASTM International.
"Background level" means the concentration of substances widely present in the soil, sediment, air, surface water or groundwater in the vicinity of a facility or Certified Brownfield, or at a comparable reference area, due to natural causes or human activities other than releases from, or activities on, the facility or Certified Brownfield, as determined by the Department.
"Baseline conditions" or "Baseline" means the condition or conditions that would have existed at the natural resource damage assessment area had the release of hazardous substances under investigation not occurred.
"Brownfields Development Program" means the remedial process established by the Department under 7 Del.C. Ch. 91, Subchapter II.
"Carcinogen" means a hazardous substance which causes or induces cancer in humans. The term also includes suspected carcinogen which may cause or induce cancer in humans.
"CERCLA" means the Comprehensive Environmental, Response, Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended.
"Certified Brownfield" means a brownfield, as defined in 7 Del.C. § 9103 (3) and § 9123(3), that the Secretary has certified upon finding that there is an actual, threatened or perceived release of hazardous substances at the real property that is the subject of the brownfield certification.
"Certified Brownfields Developer" means any person as defined in 7 Del.C. §§ 9123 (1).
"Certified Brownfields Development Agreement" means an agreement between the Secretary and a Brownfields Developer with respect to a certified brownfield that sets forth a scope and schedule of activities to assess and respond to the actual, threatened, or perceived release of hazardous substances at the Certified Brownfield.
"Certified Brownfields Investigation" means an evaluation under the Brownfields Development Program which includes the assessment of an actual, threatened, or perceived release of a hazardous substance within the Certified Brownfield to determine the nature, extent, and impact of the actual, threatened, or perceived release, and the evaluation of the feasibility of the proposed development plan to serve as all or a portion of the remedial action. When directed by the Department the Certified Brownfields Investigation shall include an evaluation to establish if the release has migrated off the Certified Brownfield.
"Cleanup level" means the concentration of hazardous substances in the environment that cumulatively meet the acceptable risk for the land use intended by the owner or developer, or the background level established by the Department.
"Conditional No Further Action" means that based on the information available following a facility evaluation or equivalent, the Department determines that: (a) there has been no release or there is no imminent threat of release; (b) a release has occurred which does not pose a threat to public health or welfare or the environment above the acceptable site specific risk under current conditions; or (c) action by another authority is appropriate. The Conditional No Further Action (CNFA) Determination lists all the conditions that have to be met in order to maintain the CNFA Determination under current and future land use scenarios and should be placed in the property record.
"Consultant" means a contractor who is hired to provide professional services for remedies with regard to a facility or Certified Brownfield.
"Contaminant of concern" means a hazardous substance identified during a remedy, which exceeds the HSCA screening level and contributes to the unacceptable site specific risk.
"Contaminant of Potential Concern" means a hazardous substance identified during a remedy where the concentration exceeds the HSCA screening levels.
"Data Quality Objectives" means qualitative and quantitative statements of the overall level of uncertainty that the Department will accept in results or decisions based on environmental data.
"Day" means a calendar day; however, when used to determine when a document is due, or an action is required, and the day falls on the weekend or a holiday, the document may be submitted, or the action started, on the first working day after the weekend or holiday.
"Department" means the Delaware Department of Natural Resources and Environmental Control.
"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous substance into or on any land, water or into the air so that such hazardous substance or any constituent thereof may enter the environment.
"Emergency response" means a remedy undertaken to eliminate or control an immediate threat to public health or welfare or the environment.
"Environment" means the navigable waters, the waters of the contiguous zone, ocean waters, and any other surface water, groundwater, drinking water supply, land surface or subsurface strata or air within the State.
"EPA" means the United States Environmental Protection Agency.
"Facility" means any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, aircraft or any site or area where a hazardous substance has been generated, manufactured, refined, transported, stored, treated, handled, recycled, disposed of, released, placed or otherwise come to be located. Where there is or has been a release or threat of release on real property, a portion of the real property may be considered a facility for the purpose of performing a remedy. A facility also includes real property where hazardous substances have migrated to or come to be located since being released.
"Facility Closure Determination" means that the Department has determined that the facility meets all of the requirements of the Act, and that all requirements of the Final Plan of Remedial Action have been met and no restrictions remain on the facility.
"Facility Evaluation" means an investigation to identify a release of a hazardous substance and generate data to perform an initial screening and make a decision regarding future action at a facility or Certified Brownfield.
"Feasibility Study" means an evaluation to identify the potential remedial alternatives that are applicable to satisfy the remedial action objectives for the facility.
"Final Plan of Remedial Action" means the Department's written determination of the appropriate remedial action under the Act at a facility or Certified Brownfield for the current or anticipated land use to protect public health, welfare and the environment.
"Free product" means a hazardous substance which occurs as a non-aqueous phase liquid in surface water, groundwater, the vadose zone, or the ground surface. This term encompasses free, mobile, or residual product.
"Groundwater" means water below the land surface in the zone of saturation.
"Hazard ranking" means the process of assigning relative rank or priority to a facility using the Delaware Hazard Ranking Model. In ranking facilities, the Department may group them in categories of relative risk.
"Hazardous substance" means: (a) any hazardous waste as defined in 7 Del.C. Ch. 63 or any hazardous waste designated by regulation promulgated pursuant to 7 Del.C. Ch. 63; (b) any hazardous substance as defined in CERCLA or regulations promulgated pursuant thereto; (c) any substance determined by the Secretary through regulation to present a risk to the public health or welfare or the environment if released into the environment; (d) any substance included in the HSCA screening level table that will be updated semiannually; or (e) petroleum, including crude oil or any fraction thereof; however any release of hazardous substances from a storage tank which is regulated by 7 Del.C. Ch. 74 or 7 Del.C. Ch. 74A or regulations promulgated pursuant thereto is not subject to these Regulations except as provided for in Section 1.2. Notwithstanding the Department's determination under Section 1.2 of these Regulations, any release of petroleum, including crude oil or any fraction thereof, is eligible for funding under the Act.
"Hourly rate of wages" means the total annual wages of a State employee divided by 1,650 hours or the monthly wages of an employee divided by the actual number of hours worked by the employee during the month.
"HSCA Reporting levels" means the concentrations of hazardous substances in the environment that are at or above the levels established by the Department, except for groundwater for which the reporting level shall be equivalent to the levels contained in the Delaware and federal drinking water standards.
"HSCA Screening levels" means the concentrations of hazardous substances in the environment that are (a) the background levels established by the Department, (b) risk-based levels associated with a target cancer risk of 1E-06 or a target hazard quotient of 0.1 in an unrestricted use exposure scenario, or (c) other regulatory levels adopted under the Act.
"Imminent threat of release" means potential for a release which requires action to prevent or mitigate damage to the environment or endangerment to public health or welfare or the environment which may result from such a release.
"Indirect cost" means those costs incurred for a common of joint purpose benefitting more than one cost objective, and which are not readily assignable to the cost objectives specifically benefited, without effort disproportionate to the results achieved.
"Indirect cost rate" means the ratio of indirect cost to the projected costs of salaries for facility remediation.
"Initial investigation" means a process for identifying a suspected release or imminent threat of release. It includes review of existing information, facility visits, interviews with facility owner or operator and adjacent property owners, or other persons with knowledge of the facility.
"Initial screening" means the process of comparison of the maximum observed concentrations of analytes found in environmental samples to background levels and performance of a preliminary risk assessment based on the representative concentrations found in each environmental medium from the results of a facility evaluation or equivalent investigation to determine whether a release poses a threat to human health, welfare or the environment above the acceptable site specific risk.
"Injury" means a measurable adverse change, either long- or short-term, in the chemical, biological or physical quality or the viability of a natural resource, including loss thereof, resulting directly or indirectly from exposure to a release, or from attempts to remedy or mitigate a release.
"Interim action" means the containment, cleanup, or removal of a release or imminent threat of release of hazardous substances from a facility, or the taking of other actions, prior to the selection of a remedial action, as may be necessary to prevent, minimize, or mitigate threats to public health or welfare or the environment.
"Land Disturbing Activity" means activities that physically take place on the facility or Certified Brownfield and include digging, drilling, excavating, grading, clearing, earth moving, filling, or performing any subsurface work, but excludes all environmental investigation, planning, designing, or engineering work, as well as any physical activity performed off the facility or Certified Brownfield in preparation for, or related to, construction and development activities that will occur on the facility or Certified Brownfield.
"Long-term effectiveness" means the ability of an implemented remedial action to maintain the desired level of protection over an extended period of time.
"Long-term Stewardship" means the long-term management of contaminated environmental media at sites that is necessary to protect human health and the environment. Long-term stewardship generally includes the establishment and maintenance of physical and legal controls, implementation entities, authorities, accountability mechanisms, information and data management systems, long-term monitoring, operation and maintenance, and/or resources that are necessary to ensure that these sites remain protective of public health or welfare or the environment.
"Maximum Contaminant Level" or "MCL" means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system, as defined by the EPA under the Safe Drinking Water Act, 42 U.S.C. Sec 300(f), et seq., as amended, and/or the State of Delaware under 16 DE Admin. Code 4462.
"Natural Resources" means land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the State of Delaware, the federal government, other states, any foreign government, any local government, or any Indian tribe.
"Natural Resource Damages" or "Damages" means the compensation sought by the Department as a result of injury, destruction, or loss of natural resources or services, or the restoration or replacement of such natural resources or services.
"Natural Resource Damage Assessment" means the process of collecting, compiling, and analyzing information, statistics, or data to determine natural resource damages.
"Natural Resource Services" or "Services" means the physical, chemical and biological function performed by the natural resource including the human use or aesthetic value of those functions.
"Operation and Maintenance" or "O&M" means the activities required by the Department to provide for continued effectiveness and integrity of a Remedial Action.
"Other employee cost rate" means the sum of State contributions to pension, unemployment insurance, Federal Income Contribution Act, health insurance, and worker's compensation for a State employee per year divided by 1,650 hours, or the sum of State contributions to pension, unemployment insurance, Federal Income Contribution Act, health insurance, and worker's compensation for a State employee per month divided by the actual number of hours worked by the employee during the month.
"Oversight" means supervision by the Department of a person's work on any aspect of a remedy during the performance of that work, including the Department's review of any work done prior to the Department's supervision that now requires the Department's approval.
"Owner or Operator" means: (a) any person owning or operating a facility; or (b) any person who previously owned, operated, or otherwise controlled activities at a facility; and (c) the term "owner or operator" does not include an agency of the State or unit of local government that acquired title or control of the facility involuntarily through bankruptcy, tax delinquency, abandonment or other circumstances; (d) the term "control" does not include regulation of the activity by a federal, state or local government agency; (e) the term "owner or operator" does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility; and (f) the term "owner or operator" does not include a person who, without acquiring legal title, conducts of directs activities in connection with the actual or potential acquisition or evaluation of a facility, including due diligence, site inspections, site assessments, all appropriate inquiry or other pre-closing activities in connection with the acquisition of a facility.
"Pathway" means the route or medium through which hazardous substances are or were transported from the source of the release to the injured natural resources, the environment, and/or the exposed human population.
"Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, school district, conservation district, federal government agency, Indian tribe or interstate body.
"Phase I Environmental Site Assessment" or "Phase I" means an investigation performed in accordance with ASTM International's Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (E 1527), as amended.
"Phase II Environmental Site Assessment" or "Phase II" means an investigation performed in accordance with ASTM International's Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process (E 1903), as amended.
"Potentially Responsible Party" or "PRP" means any person identified pursuant to 7 Del.C. §§ 9105 (a)(1) through (6) as a person liable with respect to a facility.
"Proposed Plan of Remedial Action" means a written plan, issued by the Department for public comment, describing the appropriate remedial action under the Act at a facility or Certified Brownfield for the current or anticipated land use to protect public health or welfare or the environment.
"Priority list" means the list established by the Department using the Delaware Hazard Ranking Model to rate the relative risk of the facilities based on the risk they pose to the public health or welfare or the environment. In establishing a priority list, the Department may group facilities in categories of relative risk.
"RCRA" means Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901, et seq., as amended.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a hazardous substance, pollutant or contaminant into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes: (a) any release which results in exposure to a person solely within his or her workplace, with respect to a claim which such person may assert against his or her employer, provided, however, that this exclusion does not apply to any such release which also results in exposure to the environment; (b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; (c) the appropriate application of fertilizers and pesticides; and (d) any discharges in compliance with State permits issued in conformance with Title 7 of the Delaware Code and federally permitted releases under CERCLA.
"Remedial Action" means the containment, contaminant mass or toxicity reduction, isolation, treatment, removal, cleanup, or monitoring of hazardous substances released into the environment, or the taking of such other actions, including natural resource damage restoration and replacement, as may be necessary to prevent, minimize, or mitigate harm or risk of harm to the public health or welfare or the environment which may result from a release or an imminent threat of a release of hazardous substances.
"Remedial Investigation" means an evaluation of a release or imminent threat of release of a hazardous substance at a facility or Certified Brownfield to determine the nature, extent, and impact of the release and the collection of data necessary to conduct a feasibility study of remedial alternatives.
"Remedy" means any action, response or expenditure consistent with the purposes of the Act, or any regulations or guidance developed pursuant thereto to identify, minimize or eliminate any imminent threat posed by any hazardous substances to public health or welfare or the environment including preparation of any plans, conducting of any studies and any investigative, oversight of remedy or monitoring activities with respect to any release or imminent threat of release of a hazardous substance and any health assessments, risk assessments, health effect studies or natural resource damage assessments conducted in order to determine the risk or potential risk to public health or welfare or the environment.
"Replacement" or "Acquisition of the equivalent" means the substitution for the injury or loss of a resource with another resource that provides the same or substantially similar services when such substitutions are in addition to any substitutions made or anticipated as part of remedial actions, and when such substitutions exceed the level of remedial actions determined appropriate to the facility pursuant to the Hazardous Substance Cleanup Act or the National Oil and Hazardous Substances Contingency Plan (NCP), as amended.
"Restoration" means actions undertaken to return an injured resource to its baseline condition, as measured in terms of the injured resource's physical, chemical or biological properties or the services it provided during its baseline conditions, when such actions are in addition to remedial actions completed or anticipated, and when such actions exceed the level of remedial actions determined appropriate to the facility pursuant to the Hazardous Substance Cleanup Act or the National Oil and Hazardous Substances Contingency Plan, as amended.
"Risk assessment" means the analysis of the potential for adverse human health effects or adverse effects on ecological receptors caused by contamination.
"Secretary" means the Secretary of the Department or his or her designee.
"Settlement Agreement" means a written agreement between one or more persons and the Department in which the terms and conditions are embodied in a consent decree, administrative order on consent, memorandum of agreement, or any other type of agreement approved by the Department.
"Short-term effectiveness" means the ability of the selected remedy to maintain the desired level of protection during the implementation phase of the remedy.
"SIRS" means the Department's Site Investigation and Restoration Section.
"Site Assessment" means the assessment of a facility or property to determine whether hazardous substances have entered the environment.
"Site" means facility.
"Site Specific Risk" means the risk of a potential adverse effect to public health or welfare or the environment resulting from exposure to a release of hazardous substances at the site based on its current and potential future use.
"Surface water" means the waters of the State of Delaware occurring on the surface of the earth.
"Trustee" or "Natural Resource Trustee" means any Federal natural resources management agency designated in the National Oil and Hazardous Substances Contingency Plan, as amended, and any State agency designated by the Governor of each state, pursuant to section 107(f)(2)(B) of CERCLA and applicable State statute that may prosecute claims for damages under the Act, Clean Water Act, or section 107(f) or 111(b) of CERCLA, or an Indian tribe, that may commence an action under the Act of section 126(d) of CERCLA.
"Voluntary Cleanup Program" or "VCP" means the remedial process established by the Department under 7 Del.C. Ch. 91, into which a party voluntarily enters into, provided the application is approved by the Department, for the purpose of conducting a remedy at a facility.
"VCP Agreement" means a legal and administrative document entered into between the Department and the VCP applicant that provides for the performance of a remedy at a facility, and the reimbursement of the Department's oversight costs, by the applicant.
2.2 Usage - For the purpose of these Regulations, the following usages shall apply:
2.2.1 Unless the context clearly requires otherwise, the use of the singular shall include the plural and conversely;
2.2.2 "Include" or "including" means including, but not limited to;
2.2.3 "May" means the provision is optional, at the discretion of the Department; and
2.2.4 "Shall" and "will" mean the provision is mandatory.
7 Del. Admin. Code § 1375-2.0
22 DE Reg. 781 (3/1/2019) (Final)