7 Del. Admin. Code § 101-8.0

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

Section 101-8.0 - Permitting

8.1 Permit Application Contents. The applicant shall complete and submit the permit application in an electronic format. The applicant shall provide references and data to support any analyses, citing published, peer reviewed articles, models and modeling results, and data sources, and official government regulations, reports and studies, where available and relevant. The application shall be on a form supplied by the Department and shall contain:

8.1.1 A certification by the applicant, which shall include all entities that have or will have ownership or control of the project site, that the information contained with the application is complete, accurate and truthful;

8.1.2 Evidence of local zoning approval as required by section 7004 (a) of the Act;

8.1.3 An Environmental Permit Application Background Statement as required under 7 Del.C. Ch. 79, if applicable;

8.1.4 An Environmental Impact Statement as described in subsection 8.2 of these regulations;

8.1.5 A description of economic effects described in subsection 8.3 of these regulations;

8.1.6 A description of the aesthetic effects of the proposed project, such as impact on scenic beauty of the surrounding area;

8.1.7 A description of the number and type of supporting facilities required and the impact of such facilities on all factors listed in this section;

8.1.8 A description of the effect on neighboring land uses including, but not limited to, effect on public access to tidal waters, effect on recreational areas and effect on adjacent residential and agricultural areas;

8.1.9 A statement concerning the project or activity's consistency with county and municipal comprehensive plans; and

8.1.10 An offset proposal if required under Section 9.0 of these regulations.

8.1.11 A statement as to the form of financial assurance to be proffered by the applicant, consistent with subsection 8.6.4.1 of these regulations.

8.2 Environmental Impact Statement. An environmental impact statement, certified by a Delaware registered professional engineer or professional geologist, shall be submitted with the permit application and shall contain, at a minimum, an analysis of each of the following:

8.2.1 Probable air, land and water pollution likely to be generated, on an annual basis and as a singular event, by the proposed use, under normal operating conditions as well as during mechanical malfunction and human error. In addition, the applicant shall provide a statement concerning whether, in the certifier's opinion, the project or activity will in any way result in any negative environmental impact on the Coastal Zone;

8.2.2 An assessment of the project's potential impact on the Coastal Zone environmental goals and indicators, when and if such indicators are made publicly available. Coastal Zone environmental goals and indicators may be developed by the Department after promulgation of these regulations and used for assessing applications and determining the long-term environmental quality of the Coastal Zone. In the absence of goals and indicators, applicants must meet all other requirements of this section;

8.2.3 Destruction of wetlands and flora and fauna and their habitat that would result from project site construction and ongoing activity;

8.2.4 Impact of site preparation on the watershed in which the proposed project is located, including any changes in topography, erosion, ground cover and displacement by structures of floodwaters;

8.2.5 Effect of project site preparation and facility operation on the quality and quantity of surface and ground water resources, including withdrawals and discharges, identification of potentially affected water supply sources, and public and private wastewater treatment facilities;

8.2.6 A description of the need for the use of water for processing, cooling, effluent removal, and other purposes;

8.2.7 The likelihood and extent of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors;

8.2.8 The effect of the proposed project on threatened and on endangered species as defined by the regulations promulgated by the State or pursuant to the Federal Endangered Species Act;

8.2.9 The raw materials, intermediate products, byproducts and final products and their characteristics from material safety data sheets (MSDSs), including carcinogenicity, mutagenicity and/or the potential to contribute to the generation of smog; and

8.2.10 For conversion permit applications only, the effect of the project site's proposed boundary on environmental remediation within the footprint of the heavy industry use site, including whether the project site boundary excludes areas known to be or potentially contaminated by past operations.

8.3 Economic Effects Analysis

8.3.1 An Economic Effects Analysis shall be submitted with the permit application and shall contain, at a minimum, an analysis of each of the following elements for the proposed project:

8.3.1.1 The number of jobs created, their classification as part time or full time and temporary or permanent, and their wages and salaries;

8.3.1.2 The amount of tax revenues that will accrue to state and local government of the proposed project, including property, gross receipts, personal income, and any others.

8.3.2 For conversion permits, the applicant shall also submit to the Secretary:

8.3.2.1 An Economic Effects Analysis from the Delaware Division of Small Business of the elements described in subsection 8.3.1, for the most recent heavy industry use of the project site;

8.3.2.2 The project costs, including for demolition, construction, capital costs, operations, remediation, and total investment;

8.3.2.3 A description of the costs of the proposed use to the State, including tax incentives and credits and infrastructure;

8.3.2.4 A statement of the net economic benefit or loss from the proposed project in comparison with the most recent heavy industry use;

8.3.2.5 A description of any local hiring or purchasing preferences, investments in community benefit agreements, workforce development or educational programs that the applicant has implemented; and,

8.3.2.6 A statement from the Delaware Division of Small Business regarding the accuracy of the applicant's economic effects analysis under subsection 8.3.2 of these regulations.

8.4 Application Contents Exclusive to Conversion Permits. For conversion permits, in addition to the requirements of subsections 8.1 through 8.3, the applicant shall also provide:

8.4.1 A certification signed by the applicant or applicants that they agree to pay or ensure all costs of compliance with Delaware Hazardous Substance Cleanup Act and any other relevant State of Delaware or federal environmental remediation statutes; and

8.4.2 A Sea Level Rise and Coastal Storm Plan to prepare for the potential impacts of sea level rise and coastal storms over the anticipated useful life of the project site, including infrastructure. At a minimum, the Sea Level Rise and Coastal Storm Plan shall:

8.4.2.1 Be prepared by a Delaware-registered Professional Geologist or Professional Engineer;

8.4.2.2 Use the anticipated useful life of the facility, which shall be 30 years unless the Secretary finds that the applicant's plans for the project site justify the use of a different time period;

8.4.2.3 Provide a topographic map clearly identifying all of the following:

8.4.2.3.1 All project site grounds, operation facilities, and infrastructure, including shoreline, docks and piers, pipelines, areas that are required to be remediated under federal or state laws, structures, routes of ingress and egress, and the boundary of the footprint of the heavy industry use site;

8.4.2.3.2 Areas that have a 1.0% probability of being flooded in any given year according to the current (at the date of the application) Flood Insurance Rate Map from the Federal Emergency Management Agency;

8.4.2.3.3 Areas that have a 0.2% probability of being flooded in any given year according to the current (at the date of the application) Flood Insurance Rate Map from the Federal Emergency Management Agency;

8.4.2.3.4 Areas that will be flooded during the High Sea Level Rise Scenario, as defined by the Delaware Sea Level Rise Advisory Committee, as described by the Delaware Sea Level Rise Technical Committee in "Recommendation of Sea Level Rise Planning Scenarios for Delaware: Technical Report," November 2017;

8.4.2.3.5 Areas that have a 1.0% probability of being flooded by a storm in a given year, according to the current (at the date of the application) Flood Insurance Rate Map from the Federal Emergency Management Agency, combined with the effects of the High Sea Level Rise Scenario, as defined by the Delaware Sea Level Rise Advisory Committee, and as described by the Delaware Sea Level Rise Technical Committee in "Recommendation of Sea Level Rise Planning Scenarios for Delaware: Technical Report," November 2017.

8.4.2.4 Describe measures, and the total cost of measures, including capital costs, that will be taken to ensure that any facilities or infrastructure within the zone mapped as having a 1.0% probability of being flooded in a given year or exposed during the High Sea Level Rise Scenario do not sustain damage that may cause pollution through such events as, but not limited to, structural destabilization, electrical supply outage, collision with floating debris, inaccessibility, piercing of containment vessels, breaching of seals, valves, seams or wellheads by floodwater, erosion of or blockage of intakes.

8.4.2.5 Describe any structural changes that have been made to the site to control erosion, and describe any actions that could and will be taken to prevent or control it if a permit is granted;

8.4.2.6 Describe the potential effects of sustained winds as great as 95 miles per hour and any measures that could and will be taken to prevent damage to the project site;

8.4.2.7 Describe the potential adverse impacts to upstream and adjacent properties that could result from efforts on the project site to prevent damage from flooding, erosion and high winds, and describe any measures that could and will be taken to prevent such adverse impacts to upstream and adjacent properties.

8.4.3 A timeframe that the applicant anticipates performing and completing the conversion to an additional or alternative heavy industry use or bulk product transfer facility, including milestones for financing, any other necessary environmental and land use permits and major construction or land disturbing and start up events.

8.4.4 A Department-approved Environmental Remediation and Stabilization Plan that conforms to the following:

8.4.4.1 The Environmental Remediation and Stabilization Plan may contain whole or parts of existing Department-approved contamination investigation reports, emergency response, spill response, remediation or other plans, private environmental site assessments, and the environmental baseline report that the Department prepares, pursuant to §7015(b) of the Coastal Zone Permit Act, and shall:

8.4.4.1.1 Identify all past and ongoing sources, locations, and concentrations of contamination or environmental damage that require remediation under federal or state law, including the Hazardous Substance Cleanup Act, in all media on the heavy industry use site, and address such contamination and environmental damage on the project site;

8.4.4.1.2 Address any security measures that may be necessary to stabilize and secure the project site during active operations, during potential emergency shut downs, and upon termination, abandonment or liquidation of project activities to prevent human and wildlife exposures to contaminants or pollutants or other site hazards, including but not limited to explosive gases, charged electrical lines, confined spaces, unsupported foundations, and other potential sources of injury;

8.4.4.1.3 Identify potential sources of accidental releases at the project site and the containment and countermeasures that the permittee shall undertake to prevent, minimize and remediate the consequences of such an incident if it does occur;

8.4.4.1.4 Include an estimate, provided by a third-party with experience in environmental remediation, of the cost to implement the Environmental Remediation and Stabilization Plan, including any actions that will have to be taken by the applicant to comply with remediation requirements under federal or state law, including the Hazardous Substance Cleanup Act, on an annual basis for the anticipated useful life of the facility if the applicant is granted the permit; and

8.4.4.1.5 Include an estimate of the costd 6 PM to implement the Environmental Remediation and Stabilization Plan for incidents ranging from a minor accidental release to a significant incident.

8.4.5 Evidence of financial assurance for the Financial Assurance Amount calculated in subsection 8.4.7 and in a form that accords with subsection 8.6.4.1 of these regulations.

8.4.6 In addition to information submitted in the application in accordance with subsections 8.1 through 8.4, an applicant for a conversion permit for a bulk product transfer facility shall provide the type and quantity of all materials and products that will be transferred from shore to ship, from ship to ship, and from ship to shore, and, except for grains, the source and intended destination of the materials to be shipped.

8.4.7 A statement showing the Coastal Zone Financial Assurance Amount by subtracting the amount of the Environmental Remediation and Stabilization Plan that is covered by financial assurance provided under another federal or state environmental program for the project site from the sum of the total cost of implementing the Environmental Remediation and Stabilization Plan plus the capital cost of implementing the Sea Level Rise and Coastal Storms Plan. The statement shall contain an itemized list of all active financial assurance for the project site, including the type and amount of active financial assurance for each regulatory program relevant to the project site.

8.5 Application Review Process

8.5.1 The Secretary shall consider information supplied in the application and make permitting decisions consistent with the purpose of the Act as specified in 7 Del.C. § 7001. Greater weight shall be accorded to assessments that utilize objective, verifiable and up-to-date sources of data than to assessments that do not utilize objective, verifiable and up-to-date sources of data. The Department reserves the right to request further relevant information after receipt of an application and prior to the application being deemed administratively complete. The Secretary shall notify the applicant by email when the application is deemed administratively complete.

8.5.2 In assessing an application, the Secretary shall consider the proposed project's direct and cumulative environmental impacts, economic effects, aesthetic effects, number and type of supporting facilities and their anticipated impacts on these criteria, neighboring land uses, and compatibility with county and municipal comprehensive plans. In addition, for conversion permits only, the Secretary shall also consider the proposed project's Sea Level Rise and Coastal Storms Plan, Environmental Remediation and Stabilization Plan and Financial Assurance, and the degree to which the project site boundary is compatible with the uses, remediation efforts and environmental goals for the heavy industry use site and Coastal Zone.

8.5.3 Prior to public hearing, the Secretary shall provide a written assessment of the project's likely impact on the criteria listed in subsection 8.1 above and make available the preliminary determination of the sufficiency of the offset project as required in Section 9.0 of these regulations. The Secretary's report will be provided to the applicant and posted on the Department's website prior to the public hearing and made a part of the record.

8.5.4 After the determination that an application is administratively complete and the completion of the Secretary's assessment as required in subsection 8.5.3 above, the Secretary shall issue a public notice as prescribed in Section 14.0 of these regulations and hold a public hearing in accordance with hearing procedures described in Section 14.0 of these regulations.

8.5.5 Within 90 days of receipt of an administratively complete application, not counting the day the application became administratively complete, the Secretary shall reply to the request for a Coastal Zone Act permit either granting the permit, with conditions, or denying the permit. The Secretary shall state the reasons for that decision.

8.5.7 The permit decision shall be sent to the applicant by email and shall be noticed as prescribed in Section 14.0 of these regulations. If no appeal is received within the 14-day appeal period following the date of publication of the legal notice, the decision becomes final and no appeal will be accepted.

8.6 Permits

8.6.1 Permit Duration. Any permit granted under these regulations shall be issued for no longer than 20 years. The Secretary may in his or her discretion issue a permit for a lesser duration and may grant an extension of a permit term for a period of no more than 180 days.

8.6.2 Permit Renewal. A permittee may submit a request for permit renewal. The applicant shall submit a renewal application on a form supplied by the Department and shall submit it no fewer than one hundred eighty (180) days prior to the expiration of the permit that the applicant is seeking to renew.

8.6.2.1 Applications for permit renewal shall be subject to the same procedural requirements, including those for public notice and comment, that apply to initial permit issuance under Section 14.0 of these regulations, except that an application for permit renewal may address only those portions of the permit that the Department determines require revising, supplementing, deleting, or incorporating the remaining permit terms by reference from the previous permit. The Department may similarly, in issuing a renewal permit, specify only those portions that will be revised, supplemented, or deleted, incorporating the remaining permit terms by reference.

8.6.2.2 In reviewing a renewal application, the Secretary will consider the applicant's performance under the existing permit, including compliance with permit terms and conditions, and any violations of the permit or applicable environmental laws, regulations, or other permits.

8.6.2.3 The Secretary may renew a permit with notice to the public as provided in Section 14.0 of these regulations. A public hearing on a permit renewal shall be held upon request.

8.6.3 Permit Modification. A permittee may submit a request for an administrative or a major permit modification to the Secretary. If the Secretary grants a request for modification, only the permit conditions subject to modification are reopened.

8.6.3.1 Administrative Modification. The Secretary may modify a permit without public notice for administrative changes, including corrections of spelling or grammatical errors, a change in only the name of the permittee or other administrative matters that do not affect the ownership, control of the operations or other substantive requirements prescribed by the permit.

8.6.3.2 Major Modification. A permittee may submit a written request for a major permit modification to change ownership, control, or any substantive term of a permit that would not constitute an administrative modification. The Secretary shall provide public notice in accordance with Section 14.0 of these regulations for a major modification, shall provide 20 business days for the public to comment on the proposed modification, and shall schedule a public hearing on a major modification at his or her discretion. A modification of the ownership or operating entity in a permit shall be granted only in the event that the prospective permittee satisfies all the applicable requirements under these regulations.

8.6.4 Requirements Exclusive to Conversion Permits. All conversion permittees shall implement a written Department-approved Sea Level Rise and Coastal Storms Plan, a written Department-approved Environmental Remediation and Stabilization Plan, and shall implement Financial Assurance in accordance with subsection 8.6.4.1.

8.6.4.1 Financial Assurance. All conversion permittees shall establish and maintain financial assurance in the form of either a Fully Funded Trust Fund, a Letter of Credit, an Insurance Policy, a Surety Bond, or a combination of those instruments, or another form of financial assurance approved by the Secretary, for the Coastal Zone Financial Assurance Amount calculated in subsection 8.4.7.

8.6.4.1.1 Financial Assurance Instrument - Fully Funded Trust Fund. A permittee who is approved to use a Fully Funded Trust Fund to satisfy the financial assurance requirements under these regulations shall submit to the Department the executed trust fund agreement, which shall:

8.6.4.1.1.1 Be executed by an entity that is regulated by the United States Federal Deposit Insurance Corporation, is regulated and examined by the State of Delaware, and has the authority to act as Trustee;

8.6.4.1.1.2 Specify that it is fully funded in an amount equal to the Coastal Zone Financial Assurance Amount, or in an amount that, when combined with the face value of any other financial instrument executed in accordance with this subsection equals the Coastal Zone Financial Assurance Amount;

8.6.4.1.1.3 Specify that the fully funded Trust Fund cannot be revoked or terminated without the prior written approval of the Secretary;

8.6.4.1.1.4 Identify the Department as the sole Beneficiary of the Trust Fund.

8.6.4.1.1.5 Specify that the Trustee may only disburse funds at the direction of the Beneficiary, for costs identified in subsection 8.4.7, and with the written approval of the Secretary;

8.6.4.1.1.6 Be effective no later than the date of permit issuance, and prior to any land disturbing or construction activity;

8.6.4.1.1.7 Annually, at least 30 days prior to the anniversary date of permit issuance, have its value confirmed to the Secretary in a written statement, inclusive of any adjustments required of the permittee consistent with subsection 8.4.7.

8.6.4.1.2 Financial Assurance Instrument - Letter of Credit. A permittee who chooses to provide a Letter of Credit as financial assurance to guarantee the availability of funds, consistent with subsection 8.4.7, shall submit to the Department the originally signed and certified Letter of Credit. The Letter of Credit shall:

8.6.4.1.2.1 Be issued by a financial institution that is regulated by the United States Federal Deposit Insurance Corporation, is licensed to transact business in the State of Delaware, and that maintains a financial strength rating of at least BBB+ by a NRSRO;

8.6.4.1.2.2 Include the applicable permit number for which financial assurance is being provided and specify that the face value of the Letter of Credit is in an amount equal to the Coastal Zone Financial Assurance Amount, or in an amount that, when combined with the face value of any other financial instrument executed pursuant to this subsection equals the Coastal Zone Financial Assurance Amount;

8.6.4.1.2.3 Specify that the Letter of Credit is irrevocable and is issued for a period of not less than one year, and that it will be automatically renewed thereafter for a period of at least one year;

8.6.4.1.2.4 Specify that, if the issuer of the Letter of Credit decides not to extend the Letter of Credit beyond the then current expiration date, the issuer shall notify separately the permittee and the Secretary by certified mail at least 120 days before the current expiration date;

8.6.4.1.2.5 Specify that the Beneficiary may draw on the Letter of Credit to pay for costs identified in subsection 8.4.7;

8.6.4.1.2.6 Identify the Department as the sole beneficiary of the Letter of Credit.

8.6.4.1.2.7 Be effective no later than the date of permit issuance, and prior to any land disturbing or construction activity; and

8.6.4.1.2.8 Shall annually, at least 30 days prior to the anniversary date of permit issuance, submit to the Secretary an originally signed and certified amendment to the Letter of Credit confirming the face value of the Letter of Credit in the amount approved by the Department, inclusive of any adjustments required of the permittee consistent with subsection 8.4.7.

8.6.4.1.3 Financial Assurance Instrument - Insurance Policy. A permittee who chooses to provide an Insurance Policy as financial assurance to assure the availability of funds, consistent with subsection 8.4.7, shall submit to the Department a certificate of insurance along with a copy of the Insurance Policy, including all endorsements and attachments. The Insurance Policy shall:

8.6.4.1.3.1 Be issued by an insurance provider who is licensed to transact the business of insurance in the State of Delaware and who maintains a financial strength rating of at least BBB+ or equivalent assigned by a NRSRO;

8.6.4.1.3.2 Be issued for a limit of liability consistent with the requirements of subsection 8.4.7. The term "limit of liability" shall mean the Coastal Zone Financial Assurance Amount or the amount that, when combined with the face value of any other financial assurance instrument executed pursuant to this section equals the Coastal Zone Financial Assurance Amount;

8.6.4.1.3.3 Include the applicable permit number for which the Insurance Policy is being provided;

8.6.4.1.3.4 Provide coverage solely for implementation of the Environmental Remediation and Stabilization Plan, and capital costs of Sea Level Rise and Coastal Storms Plan.

8.6.4.1.3.5 Guarantee that funds will be made available to undertake the activities identified in subsection 8.4, up to an amount equal to the stated limit of liability of the Insurance Policy, solely upon the direction of the Secretary, to such party or parties as the Secretary specifies;

8.6.4.1.3.6 Be effective no later than the date of permit issuance, and prior to any land disturbing or construction activity;

8.6.4.1.3.7 Contain a provision allowing assignment of the Insurance Policy to a successor permittee. Such assignment may be conditional upon consent of the insurer, but such consent shall not be unreasonably withheld;

8.6.4.1.3.8 Explicitly provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the limit of liability of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the insurance policy by sending separate notices by certified mail to the permittee and the Secretary. The insurance provider shall not cancel, terminate, or fail to renew the insurance policy during the 120 days beginning from the date of receipt by the Secretary of the notice of cancellation as shown on the signed return receipt. The provider shall not cancel, terminate, or fail to renew, and the Insurance Policy shall remain in full force and effect, in the event that on or before the date of expiration:

8.6.4.1.3.8.1 The permittee abandons the project site;

8.6.4.1.3.8.2 The permit is terminated or revoked or a new permit or renewal is denied; or

8.6.4.1.3.8.3 The Secretary determines the permittee is in violation of these regulations; or

8.6.4.1.3.8.4 The permittee is named as a debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or

8.6.4.1.3.8.5 The premium due is paid.

8.6.4.1.3.9 Be affirmed through the submission to the Secretary, at least 30 days prior to the anniversary date of permit issuance, of an originally signed and certified endorsement to the Insurance Policy affirming the limit of liability in the amount approved by the Department, inclusive of any adjustments required of the permittee, consistent with subsection 8.4.7.

8.6.5 Financial Assurance Instrument - Surety Bond. A permittee who chooses to provide a Surety Bond as financial assurance to guarantee the availability of funds, consistent with subsection 8.6.4.1, shall submit to the Department the originally signed and certified Surety Bond. The Surety Bond shall:

8.6.5.1 Be issued by an entity that is licensed to transact business in the State, is listed as an approved surety on Department Circular 570 of the U.S. Department of the Treasury, and maintains a financial strength rating of at least BBB+ by a NRSRO;

8.6.5.2 Include the applicable permit number for which Surety Bond is being provided;

8.6.5.3 Specify that if the issuer of the Surety Bond decides not to extend the Surety Bond beyond the then current expiration date of the bond, the issuer shall notify separately the permittee and the Secretary by certified mail of that decision at least 120 days before the current expiration date;

8.6.5.4 Specify that the Secretary may access the Surety Bond to pay for costs identified in subsection 8.4.7;

8.6.5.5 Identify the Department as the sole obligee of the Surety Bond;

8.6.5.6 Be effective no later than the date of permit issuance, and prior to any land disturbing or construction activity;

8.6.5.7 Be affirmed annually, at least 30 days prior to the anniversary date of permit issuance, through submission to the Secretary of an originally signed and certified amendment to the Surety Bond confirming the penal sum of the Surety Bond in the amount then-approved by the Department as the Financial Assurance Amount, consistent with subsection 8.4.7.

7 Del. Admin. Code § 101-8.0

23 DE Reg. 222 (9/1/2019)
23 DE Reg. 322 (10/1/2019) (Final)