7 Del. Admin. Code § 1375-3.0

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

Section 1375-3.0 - Facility Identification & Prioritization

3.1 Notification Requirements

3.1.1 An owner or operator of a facility who has knowledge of a release of a hazardous substance at concentrations at or above the reporting levels must notify the SIRS in writing of the release prior to undertaking land disturbing activities in any area potentially affected by the release.

3.1.2 If during land disturbing activities there is evidence of a release that was not previously reported pursuant to Subsection 3.1.1, the owner or operator of a facility must, within twenty-four (24) hours of learning of a potential release, notify the Department's 24 Hour Release Hotline by calling 800-662-8802.

3.1.2.1 Evidence of a release includes: appearance of a sheen, soil staining, or odors characteristic of hazardous substances; buried materials that may contain hazardous substances; or presence of free product.

3.1.2.2 For notification made under Subsection 3.1.2 that is referred to SIRS, SIRS will respond to the notice on a priority basis to determine if land disturbing activities can continue in the area potentially affected by the release without entering into a settlement agreement.

3.1.3 If a Certified Brownfields Developer, prospective purchaser, or a person acting on behalf of the Certified Brownfields Developer, the prospective purchaser, or the owner or operator reports a release to the SIRS in compliance with Subsections 3.1.1 and 3.1.2, this notification requirement will be satisfied.

3.1.4 If the Department becomes aware of a release or evidence of a release that requires notification under this section, the Department will notify the owner or operator of the facility.

3.1.5 If notification is required or made under Section 3.1, the owner or operator shall not proceed or continue with land disturbing activities in any area potentially affected by the release without the written approval of the Department, which will not be unreasonably delayed or withheld. The Department may require a remedy before land disturbing activities can proceed or continue.

3.2 The Department shall establish an inventory of hazardous substance release facilities.

3.2.1 Facilities with a release or imminent threat of release of hazardous substances may be identified by the Department through a variety of mechanisms including any of the following:

3.2.1.1 Reports to or from, or investigations by, the Department, including the Site Investigation and Restoration Section, Tank Management Section, Solid and Hazardous Waste Management Section, Emergency Prevention and Response Section, or Division of Water; or from information provided in a Brownfield Certification application by a developer, a prospective purchaser, or a facility owner.

3.2.1.2 Reports to or from, or investigations by, local, state and federal government agencies including the Delaware Department of Health and Social Services, Delaware Department of Transportation, Delaware Emergency Management Agency, State Police or other law enforcement agencies, State Fire Marshal's Office or any Fire Department, United States Environmental Protection Agency, Department of Defense or other Federal agencies.

3.2.1.3 Reports to the Department from real estate transaction-related environmental assessments as part of all appropriate inquiry or AAI requirements.

3.2.1.4 Other reporting sources including potentially responsible parties, impacted public, neighboring facilities, contractors, consultants and other persons with sources of information about the existing releases.

3.2.2 A facility may be removed from the inventory of hazardous substance release facilities list and the priority list of facilities after the Department has determined that no further action is required at the facility.

3.3 Priority List

3.3.1 Applicability

3.3.1.2 The Department shall establish a priority list of facilities from the inventory of hazardous substance release facilities where a further remedy has been determined to be necessary, based on the relative hazard ranking of the facility into categories using the Delaware Hazard Ranking Model. The relative priorities established in the priority list may be considered in the preparation of funding recommendations, and in determining the priority for remedies among facilities. The Department may conduct or require a remedy at a facility even if it is not included on the list.

3.3.2 Criteria for Placement of Facilities on Priority List

3.3.2.1 Facilities may be placed on the priority list if, after the completion of an initial investigation, the Department has determined that further remedy is required at the facility. Placement of a facility on the priority list does not, by itself, constitute a determination that persons associated with the facility are liable under the Act of these Regulations.

3.3.2.2 Facilities placed on the priority list will be given a hazard ranking. The purpose of the hazard ranking is to estimate the relative potential risk posed by the facility to public health or welfare or the environment based on the information compiled during the initial investigation and subsequent investigations.

3.3.2.3 The Department will objectively assess the relative degree of risk of each facility which is to be placed on the priority list using the Delaware Hazard Ranking Model established by the Department. Information obtained in the initial investigation, and any subsequent investigations and any additional data specified by the Department, will be included in the hazard ranking evaluation.

3.3.2.4 The Department will, upon request, make available to the facility owner and operator and any potentially responsible party known to the Department, the final hazard ranking results for a facility to be placed on the priority list.

3.4 Brownfields Certification and Funding

3.4.1 In order to qualify for the Brownfields Development Program, the property must be certified as a Brownfield. To receive a Brownfields Certification, the Brownfield applicant shall submit a Brownfields Certification Application to the Department seeking Brownfield Certification for the property. The property certification request can be initiated by a Certified Brownfields Developer, the current property owner, the Department, or any public agency.

3.4.2 Application for Brownfield Certification

3.4.2.1 Brownfield Certification shall be provided only to those persons who apply for a certification from the Department. Such application shall contain, at a minimum, the following information:

3.4.2.1.1 Name and address of the person seeking the certification, and their relationship to the property;

3.4.2.1.2 Address of the property including tax parcel designation;

3.4.2.1.3 Current use of the property and its zoning classification;

3.4.2.1.4 The proposed development or redevelopment plan;

3.4.2.1.5 Reason to believe that the property may be contaminated and why such contamination may hinder the expansion, redevelopment, or reuse.

3.4.2.2 Upon request by the Department, the applicant shall provide:

3.4.2.2.1 Documentation regarding environmental investigations of the property, or chronic violator status of the applicant pursuant to 7 Del.C. § 7904.

3.4.2.2.2 The factual basis for concluding that the expansion, redevelopment or reuse of the property may be hindered by the reasonable belief that the real property is environmentally contaminated.

3.4.2.2.3 Certification that the Certified Brownfields Developer will comply with all applicable procedural requirements.

3.4.2.3 All items contained in the application shall be addressed by either providing the required information or stating that the item is not applicable. In the event that an item is considered not applicable, the Certified Brownfields Developer must include a written justification in the application that demonstrates to the satisfaction of the Department that the item is not applicable to the application.

3.4.2.4 After a Brownfield Certification Application is submitted to the Department, the Department shall review the application to determine whether the application is complete. After its review, the Department shall issue a letter to the applicant advising either (1) that the property is certified and/or the developer is approved, (2) that the application is incomplete and identifying the specific information that must be submitted or supplemented to make the application complete, or (3) that the certification is denied.

3.4.2.5 The applicant shall promptly update and/or correct information previously submitted as part of the application whenever the applicant discovers that this information is incomplete or inaccurate.

3.4.3 Criteria for Brownfields Property Certification

3.4.3.1 The Department may certify all or part of a parcel of real property as a Certified Brownfield if the property meets the following criteria:

3.4.3.1.1 The expansion, redevelopment or reuse of all or part of the property is hindered by the reasonably held belief that the real property may be environmentally contaminated; and

3.4.3.1.2 All or part of the property is subject to either a current or prospective development or redevelopment plan; and

3.4.3.1.3 All or part of the property meets any one (1) of the following conditions:

3.4.3.1.3.1 The expansion, redevelopment or reuse of the property may be hindered by the reasonably held belief that it may be environmentally contaminated; or

3.4.3.1.3.2 The property is or has been used in whole or part as:

3.4.3.1.3.2.1 A salvage yard;

3.4.3.1.3.2.2 A regulated Tank facility pursuant to 7 Del.C. Ch. 74 or 7 Del.C. Ch. 74A;

3.4.3.1.3.2.3 A drycleaner where any dry cleaning is performed onsite;

3.4.3.1.3.2.4 A historical tannery;

3.4.3.1.3.2.5 A RCRA (Subtitle C) treatment, storage, or disposal facility for which the US EPA or the State RCRA program has expressed in writing no further interest in remediating under these programs;

3.4.3.1.3.2.6 A permitted or non-permitted landfill or dump;

3.4.3.1.3.2.7 A property that contains potentially contaminated material;

3.4.3.1.3.2.8 A known hazardous substance release site that has not been remediated to the standard applicable to the intended land use, including those facilities previously identified by the Department; or

3.4.3.1.3.2.9 A National Priorities List (NPL) or Federal CERCLIS site that has a "No Further Interest" designation from the US EPA.

3.4.3.2 A property that is subject to an enforcement action from any State or Federal environmental agency, and for which an administrative or judicial order is in effect or is proposed, may not be eligible for Brownfield Certification, unless the enforcement action is resolved to the satisfaction of the Secretary.

3.4.3.3 A Certified Brownfields Developer shall be required, at a minimum, to perform a facility evaluation of the Certified Brownfield, as approved by DNREC, within twenty-four (24) months of entering into a BDA.

3.4.3.4 Any Brownfield Certification decision is made at the sole discretion of the Secretary.

3.4.3.5 An inventory of Certified Brownfield properties will be made publicly available.

3.4.4 Criteria for Brownfields Developer Eligibility

3.4.4.1 In order for a person to obtain the rights and protections and assume the obligations of the status of Certified Brownfields Developer, the person must submit an application to the Department for approval of Certified Brownfields Developer status. At the time of application for the Certified Brownfields Development Agreement, an applicant cannot be a potentially responsible party at the property pursuant to 7 Del.C. § 9105 (a)(1)-(6), and cannot be affiliated with any other person that is liable for a release or imminent threat of release at the property. The existence of an affiliation will be determined pursuant to the provisions of 7 Del.C. § 9105 (c)(4)b.5.

3.4.4.2 The Secretary has the discretion to deny Certified Brownfields Developer status to an applicant if the applicant, including any employees or agents thereof, or any entity affiliated with or controlled by the applicant, has been determined to have violated any federal, state, or local environmental law.

3.4.4.3 Prior to approval, the application must be complete and must contain all of the information required by the Department, including the information required by Section 3.4.2 of these Regulations.

3.4.5 Funding under Brownfield Certification

3.4.5.1 Upon the filing of a Brownfield Certification Application (BCA), the applicant may also choose to request financial assistance. Completion of the financial section of the BCA does not guarantee a commitment for funding, nor does it obligate the State of Delaware or any State agency to provide any form of financial assistance.

3.4.5.2 Submission of a funding request is optional and the decision to approve funding is at the discretion of the Department.

3.5 Facility Tracking

3.5.1 The Department may maintain a database recording the actions taken at facilities that have been identified with a release, an imminent threat of release, or an identified potential release of hazardous substances.

3.6 Record Keeping

3.6.1 The Department shall require the following record keeping procedures:

3.6.1.1 Any remedial activities at a facility must be documented by the person performing the action. Such records include factual information or data, relevant decision documents, and any other relevant, facility-specific documents or information. The formats of the documents may include, paper, audio, video, photographs, and electronic files.

3.6.1.2 Records shall be retained for at least ten (10) years from the date of completion of remedial action, site closure, or Conditional No Further Action letter.

3.6.1.3 Records shall be retained by the person taking remedial action, unless the Department requires that they be submitted.

3.6.1.4 The Department shall become the repository of any remedial records if the person files for bankruptcy.

3.6.1.5 The Department shall maintain its records in accordance with these Regulations.

7 Del. Admin. Code § 1375-3.0

19 DE Reg. 65 (7/1/2015)
22 DE Reg. 781 (3/1/2019) (Final)