7 Del. Admin. Code § app C § 101-C-4.0

Current through Register Vol. 28, No. 4, October 1, 2024

Section 101-C-4.0 - Principles for Assessing an Application

4.1 Any negative environmental impact associated with a proposed project must be more than offset, thus assuring continuing improvement in the Coastal Zone environment. The Secretary will only grant Coastal Zone permits in those cases where the overall environmental impacts of the total application, both positive and negative, assure improvement in the quality of the environment in the Coastal Zone.

4.2 Therefore, activities proposed for a Coastal Zone permit which would measurably increase air emissions, water discharges, or would cause negative impacts on the Coastal Zone environment, shall include provisions for net environmental improvement of the Coastal Zone environment. These environmental improvements may be part of the permitted activity itself or realized through an enforceable offset proposal that will be implemented by a date agreed to by the company and the Department, and incorporated into the permit.

4.3 The regulations require that all owners and operators of a site certify the accuracy and veracity of a permit application. The certifiers will become the permittees and the owners and operators will be held responsible for compliance.

4.4 All permit applicants must describe the economic effects associated with the proposed development. These include the number and types of jobs that will be created, the associated wages, and tax revenues. Conversion permit applicants will be required to also provide comparative data about the most recent heavy industry of the site. The Delaware Department of State, Division of Small Business is the repository of relevant economic data about the most recent heavy industry uses of the non-conforming use sites, therefore, the Department requires the applicant to supply information that has either been generated or verified by the Division of Small Business.

4.5 Financial assurance is required of all conversion permittees. The amount of financial assurance required depends on several factors. First, the "Financial Assurance Amount" must include the cost of any remediation required of the permitted site under the Hazardous Substance Cleanup Act, and any other applicable state or federal environmental laws, less the amount of financial assurance that the permittee may already have for that site under an applicable state or federal remediation program. A second element of the Financial Assurance Amount is the capital costs associated with the approved Sea Level Rise and Coastal Storms Plan. The applicant must assess these costs and provide in the permit application a detailed calculation of the costs and any qualified, existing financial assurance that already covers the project site. The form of the financial assurance may be a Fully Funded Trust Fund, a Letter of Credit, an Insurance Policy, a Surety Bond or a combination of two or more of those instruments. Because the purveyors of those instruments typically do not provide coverage until a permit is granted, the application must contain evidence of the commitment to provide financial assurance, which will be effective upon permit issuance. The Secretary may consider forms of Financial Assurance other than the four listed above, however, under those circumstances the Department would potentially seek external expertise in reviewing the application and will require the permittee to bear the cost of such external assistance. The Secretary also has the discretion to reject financial assurance proposals that do not conform to the standard forms that are described in the regulations, in accordance with the Department's resources and the Secretary's discretion.

4.6 Subsection 8.4.4 requires an applicant for a conversion permit to present a Department-approved Environmental Remediation and Stabilization Plan (ERSP). The applicant should develop a draft ERSP as part of the process of developing its application. Most of the nonconforming use sites have undergone or are undergoing some type of remediation that required or requires contact with the Department. The applicant should develop an ERSP that complies with the requirements of these regulations, and submit the draft ERSP to the project officer from the Department who is overseeing their remediation work for review. The project officer may confer with staff from the Coastal Zone program, so it is important to plan ahead and provide time for review and revision, if necessary. The final ERSP should contain a line for an approval signature, which represents verification from the Department, that the ERSP:

Accurately depicts the status of remediation activities under Department-administered environmental remediation programs, and specifically the Hazardous Substances Control Act (HSCA) if the site is regulated under HSCA.

Accurately describes the remediation that the site is required to undergo.

The Department may develop internal processes for coordinating between the Coastal Zone program and other divisions, but the initial contact in obtaining Department approval on the ERSP should be with the remediation project officer, regardless of which of the remediation program or programs has authority over the activities at the site. In cases where the site is regulated under more than one remediation program, the applicant may choose any project officer from the Department to initiate the dialogue and the Department will coordinate internally among different programs, if necessary. Once a representative of the Department has approved the ERSP, it can be included in the application and evaluated for administrative completeness.

7 Del. Admin. Code § app C § 101-C-4.0

23 DE Reg. 222 (9/1/2019) (final)