7 Del. Admin. Code § 1375-6.0

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

Section 1375-6.0 - Consultant Certification

6.1 Consultant certification is required for any person performing, supervising, or designing the following remedies under the Act.

6.1.1 Investigative and remedial action work including facility evaluations, site inspections, remedial investigations, Certified Brownfields investigations, human health risk assessment, feasibility studies, oversight, and long-term stewardship.

6.1.2 Ecological work including ecological risk assessments, and natural resource damage assessments, restorations, and enhancements.

6.2 Consultant certification is not required for persons performing visual inspections or other non-technical long-term stewardship activities as approved by the Department.

6.3 The Department may disapprove any remedy not performed by a certified consultant under the Act.

6.4 Any certified consultant shall notify the Department in writing of any change of name or address of the business, or any change of personnel who were identified in the application for certification or recertification, within sixty (60) days of such change.

6.5 A certified consultant shall notify the Department, in writing, within ten (10) days of the date it becomes aware that it or any of its officers, project managers, supervisors, or personnel identified in the application for consultant certification or recertification, working on any matters within this State, have been:

6.5.1 Convicted of a felony or any crime relating to any environmental activities, or for fraudulent conduct of any kind; or

6.5.2 Found liable in any civil litigation or administrative enforcement action relating to environmental activities.

6.6 Qualification Requirements for Certification

6.6.1 A consultant may apply for certification to be able to perform investigative and remedial action work, ecological work or any combination of these.

6.6.2 All consultants seeking certification shall submit a complete application with appropriate documentation to the satisfaction of the Department, and provide proof of a valid Delaware business license.

6.7 Requirements for Certification for first time applicant

6.7.1 Applications shall be submitted on forms supplied by the Department.

6.7.2 All consultants seeking certification shall submit a complete application with appropriate documentation to the satisfaction of the Department, and provide proof of a valid Delaware business license.

6.7.3 Applications shall contain the appropriate documentation of experience and training as part of the submittal of a qualified consultant seeking certification to perform remedies.

6.7.3.1 To be certified for investigative or remedial action work, an applicant must employ, or contract with, both a Delaware professional engineer (PE) and a Delaware professional geologist (PG).

6.7.3.2 To be certified for ecological work, an applicant must employ, or contract with persons who have demonstrated, to the satisfaction of the Department, competence in biology, wetland delineation and restoration, ecology, eco-toxicology, and environmental economics.

6.7.4 The Department shall notify the applicant in writing of the issuance or denial of the certification, or the need for further information in order to process the application.

6.7.5 Any applicant denied certification may request a public hearing in writing to the Department within twenty (20) days of receipt of denial of certification pursuant to the provisions in Section 6.10.

6.7.6 Certification shall be valid for a period of two (2) years from the date of issuance, unless suspended or revoked in accordance with these Regulations.

6.7.7 The application fee for certification or recertification is $500.

6.8 Standards of Performance for Certified Consultants

6.8.1 All certified consultants are required to meet the following standards of performance:

6.8.1.1 A minimum of one (1) qualified individual, representing the certified consultant, shall be present during the performance of any remedial activities on a site.

6.8.1.2 A certified consultant shall perform remedial activities according to accepted practices and procedures.

6.8.1.3 All required notifications and applications shall be submitted to the Department as specified in the Regulations.

6.8.1.4 Any request to deviate from these Standards of Performance shall be submitted in writing to, and approved by, the Department prior to implementation.

6.9 Requirements for Recertification

6.9.1 At least thirty (30) days prior to expiration of the certification, the certified consultant shall submit a letter to the Department requesting recertification and verifying that the application on file is still accurate, or submit a new application with updated information. The cost of recertification is due at the same time as the request letter.

6.9.2 The Department shall notify the certified consultant in writing of the approval or denial of the request, or the need for further information in order to process the recertification request. The reasons for a denial of certification shall be explained by the Department, in writing, at the time of denial. The Department, at its discretion, may allow an extension of the original certification until all the requirements for recertification are satisfied.

6.9.3 Any certified consultant denied recertification may request a public hearing, in writing, within twenty (20) days of receipt of denial.

6.9.4 Recertification shall be valid for a period of two (2) years from the date of issuance, unless suspended or revoked in accordance with these Regulations.

6.9.5 In the event the certified consultant fails to apply for recertification before the expiration date, the certification will expire at the end of the original two year period. Any certified consultant whose certification has expired shall be required to reapply for certification. If the certification has lapsed for two years or more, the applicant shall apply as a first-time applicant.

6.10 Denial of Certification

6.10.1 The Department may deny certification if it determines that the applicant has not demonstrated the ability to comply fully with applicable requirements or standards of performance. The Department also may deny any request for certification for the following causes:

6.10.1.1 Fraudulent or deceptive information in the application for certification, or in any report or other submission, written or verbal, to the Department;

6.10.1.2 Failure at any time to meet the qualifications for certification or failure to comply with any provision or requirement of any regulation, policy, or guidance adopted by the Department, or any directive issued by the Department to the certified consultant;

6.10.1.3 Denial of certification or decertification by any other state or the federal government;

6.10.1.4 Failure to provide all information required in the application for certification to the satisfaction of the Department;

6.10.1.5 Repeated deficiencies in performing remedial activities under the Act; or

6.10.1.6 Failure to comply with any federal, state, or local law or regulation directly related to the purposes of the Act.

6.11 Suspension or Revocation of Certification or Denial of Recertification

6.11.1 The Department may suspend or revoke any certification or deny recertification in accordance with the Act and these Regulations.

6.11.2 A certified consultant whose certification has been suspended or revoked, or whose recertification has been denied shall not bid on, enter into a contract to perform, or engage in any work involving remedial activities within the State of Delaware during the period of suspension or revocation.

6.11.3 Any employee of a certified consultant whose actions have caused or contributed to the suspension or revocation of the consultant's certification shall not perform remedial activities for any other certified consultant for a period equivalent to the suspension or revocation. No certified consultant shall knowingly employ such a person to perform remedial activities during the period of suspension or revocation of his or her former employer.

6.11.4 In addition to the above, causes for suspension or revocation of certification, or denial of recertification may include the following actions by the consultant or any employee or any entity controlled by the consultant:

6.11.4.1 Providing fraudulent or deceptive information in any report or other submission, written or verbal, to the Department;

6.11.4.2 Failure at any time to meet the qualifications for certification;

6.11.4.3 Failure to comply with any federal, state, or local law or regulation, policy, or guidance directly related to the purpose of the Act;

6.11.4.4 Failure to comply with any applicable Department, Occupational Safety & Health Administration (OSHA) or Environmental Protection Agency (EPA) regulations or procedures at a site regulated under the Act;

6.11.4.5 Failure to follow project specifications or any directive issued by the Department to the certified consultant, or to comply with the standards of performance pursuant to Section 6.8;

6.11.4.6 Failure to comply with the terms of a Secretary's Order issued by the Department;

6.11.4.7 Committing any act of fraud or conviction for an act of fraud;

6.11.4.8 Suspension or revocation of certification or denial of recertification in any state or municipality related to the performance of any environmental work of personnel identified in the certification or recertification application;

6.11.4.9 Repeated deficiencies in performing remedial activities under the Act; or

6.11.4.10 Any other circumstances that the Department determines justify suspension or revocation of certification, or denial of recertification.

6.11.5 If the Department suspends or revokes any certification, or denies certification or recertification, under the provisions of this Section, the Department shall promptly notify the certificate holder in writing, by certified mail, of the reason for suspension or revocation.

6.11.6 A person whose certification is suspended or revoked under this Section shall surrender the Certificate to the Department within the time period specified in the notice.

6.11.7 A person whose certification is revoked may not reapply for certification for two (2) years from the date of revocation.

6.12 Public Hearings

6.12.1 Request for Hearing

6.12.1.1 Any consultant who is denied certification, recertification, or whose certification is suspended or revoked may request a public hearing before a hearing officer appointed by the Secretary.

6.12.1.2 This request shall be made in writing to the Department within twenty (20) days of receipt of the notification of denial, suspension or revocation.

6.12.1.3 The Department shall provide a party requesting a public hearing written notice of the scheduled hearing at least twenty (20) days prior to the hearing.

6.12.2 Public Hearing Procedures

6.12.2.1 The hearing shall be conducted by the Secretary.

6.12.2.2 In connection with such hearings, the Secretary shall be empowered to:

6.12.2.2.1 Issue orders for witnesses and other sources of evidence, either at the request of the affected person or on behalf of the Department;

6.12.2.2.2 Administer oaths to witnesses;

6.12.2.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative or privileged evidence;

6.12.2.2.4 Limit unduly repetitive proof, rebuttal and cross-examination; or

6.12.2.2.5 Hold pre-hearing conferences for the settlement or simplification of issues, for the disposal of procedural issues or disputes or to regulate and expedite the course of the hearing.

6.12.2.3 At all such hearings, the burden of proof shall always be upon the person challenging the initial decision of the Department to deny certification or recertification or to suspend or revoke certification. In addition, as to each hearing, all notices, relevant correspondence between the Department and the person challenging the Department's decision, documents admitted into evidence, and all other documentation relied upon by the Secretary, shall be included in the Department's record of the case and retained by it for a period of 10 years.

6.12.2.4 A record of all testimony from which a verbatim transcript can be prepared shall be made of each hearing. Transcripts shall be made at the request and expense of any party to the hearing.

6.12.2.5 The Secretary shall make his decision based upon the entire record of the case.

6.12.2.6 Every decision of the Department shall be incorporated in a final order which may include, where appropriate, the following:

6.12.2.6.1 A brief summary of the evidence;

6.12.2.6.2 Findings of fact based upon the evidence;

6.12.2.6.3 Conclusions of law;

6.12.2.6.4 A concise statement of the Department's determination or action on the case; and

6.12.2.6.5 The signature of the Secretary.

6.12.2.7 Every final order shall be mailed, or otherwise delivered, to each party and any other person requesting it no later than ten (10) days after the date it is issued.

6.12.3 Appeals to the Environmental Appeals Board

6.12.3.1 A person aggrieved by a decision to deny certification or recertification, or to suspend or revoke the person's certification, may appeal the decision to the Environmental Appeals Board within twenty (20) days of receipt of the decision.

6.12.3.2 No appeal shall operate to stay the implementation of the decision regarding denial of certification or recertification, or suspension or revocation of certification; however, for good cause shown, the Secretary may stay the action pending disposition of the appeal before the Environmental Appeals Board.

6.12.3.3 The appeals to the Environmental Appeals Board of all decisions to deny certification or recertification, or to suspend or revoke a person's certification, shall be conducted in conformity with the provisions of 7 Del.C. § 6008.

7 Del. Admin. Code § 1375-6.0

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