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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsApril 2014

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7 DE Admin. Code 103
This Order considers proposed regulatory action to repeal 7 DE Admin. Code 103, also known as Delaware’s Chronic Violator Regulation. In 2012, the Chronic Violator Regulation was rendered moot by the passage of legislation (Senate Bill 92) which amended existing state law and eliminated the Department’s role as proposing and determining whether a party is a “chronic violator”. Under the amended law, DNREC proposes the designation to the Environmental Appeals Board. The most recent changes in the law spell out the process, and thus alleviate the need for the existing regulation. This proposed action is based on a recommendation by the Department of Justice to repeal the regulation in its entirety.
The Department’s Office of the Secretary commenced the regulatory development process with Start Action Notice 2013-34. The Department published its initial proposed regulation repeal action in the January 1, 2014 Delaware Register of Regulations, and held a public hearing on February 3, 2014. It should be noted that no members of the public attended said hearing.
7.) The Department shall submit this Order approving the final regulation to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate.
These regulations are promulgated pursuant to the authority granted to the Secretary by 7 Del.C. Ch. 79.
2.2.1 Erosion and Sedimentation Control (7 Del.C. Ch. 40) Control of erosion of sedimentation at construction sites and other land disturbing activities.
2.2.2 Stormwater Management (7 Del.C. Ch. 60) -- Under the NPDES program for storm water from facilities and hard surfaces.
2.2.3 Solid Waste (7 Del.C. Ch. 60) -- Landfill permitting, transportation of solid waste, and illegal dumping of solid waste.
2.2.4 Water Discharges (7 Del.C. Ch. 60) -- NPDES program, all point source discharges into waters of the State.
2.2.5 Air Emissions (7 Del.C. Ch. 60) -- All point source emissions to air, including mobile and stationary sources.
2.2.6 Marinas (7 Del.C. Ch. 60) -- All boat docking facilities, marinas, and vessel pumpout stations.
2.2.7 Scrap Tires (7 Del.C. Ch. 60) -- Storage requirements for scrap tires.
2.2.8 Beverage Containers (7 Del.C. Ch. 60) -- Bottle Bill, requires stores to take returnable containers and pay the refund.
2.2.9 Ocean Dumping (7 Del.C. Ch. 60) -- Prohibits the disposal of solid wastes in the ocean and other waters of the State.
2.2.10 Water Supply (7 Del.C. Ch. 60) -- Permitting of water supply wells.
2.2.11 On-Site Wastewater (7 Del.C. Ch. 60) -- Permitting of on-site wastewater treatment systems.
2.2.12 Debris Pits (7 Del.C. Ch. 60) -- Remediation of debris disposal areas.
2.2.13 Labeling of Plastic Products (7 Del.C. Ch. 60) -- Requires that all plastic containers sold in Delaware contain the triangle enclosed code number of the type of plastic the container is made of.
2.2.14 Oil Pollution Liability (7 Del.C. Ch. 62) -- Prohibits the discharge of oil to the water or land.
2.2.15 Hazardous Waste (7 Del.C. Ch. 63) -- Regulates the generation, storage, transportation, treatment and disposal of hazardous waste.
2.2.16 Coastal Zone (7 Del.C. Ch. 70) -- Control of the location, extent, and type of industrial development in Delaware's coastal areas.
2.2.17 Underground Storage Tanks (7 Del.C. Ch. 74) -- Controls the storage of petroleum products in underground storage tanks.
2.2.18 Aboveground Storage Tanks (7 Del.C. Ch. 74A) -- Controls the storage of petroleum products and hazardous substances in aboveground storage tanks.
2.2.19 Extremely Hazardous Substances (7 Del.C. Ch. 77) -- Prevention of sudden releases of extremely hazardous substances and the generation of pressure waves and thermal exposures beyond the property boundaries of the facility where they occur and the catastrophic health consequences caused by short-term exposures to such accidental releases.
2.2.20 Pollution Prevention (7 Del.C. Ch. 78) -- Establish a program to demonstrate and facilitate the potential for pollution prevention and waste minimization through technical assistance, education, and outreach.
2.2.21 Hazardous Substances Cleanup (7 Del.C. Ch. 91) -- State Superfund program.
2.2.22 Emergency Planning/Community Right-to-Know -- (16 Del.C. Ch. 63) -- Requires the report of hazardous materials meeting specific threshold requirements stored at facilities for the purpose of emergency response and community right-to-know.
2.2.23 Asbestos (16 Del.C. Ch. 78) -- Regulates the practice of asbestos containment, removal, transportation, storage and disposal.
2.2.24 Wetlands (7 Del.C. Ch. 66) -- Protection of tidal wetlands.
2.2.25 Subaqueous Lands (7 Del.C. Ch. 72) -- Control of activities in state-owned subaqueous lands.
The following definitions shall have the meaning ascribed for the purposes of enforcing Chapter 79 and this Regulation only:
3.1 "Chronic Violator" means a facility or regulated party that is unable to maintain compliance or has engaged in a pattern of willful neglect or disregard with respect to the State's environmental permits, laws, or regulations as administered by the Department.
3.2 "Days" means calendar days.
3.3 "Facility" means any site or structure regulated by the Department or subject to the provisions contained in the laws listed under Section 2.2 of this regulation.
3.4 "Department" means the Department of Natural Resources and Environmental Control.
3.5 "Person" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a government corporation or authority), limited liability company, association, state, municipality, commission, political subdivision of a state or any interstate body.
3.6 "Public Meeting" means a forum to receive oral and written comments and other supporting materials from the public and the facility or regulated party as part of the administrative record.
3.7 "Regulated Party" means any person regulated by the Department or subject to the provisions contained in the laws listed under Section 2.2 of this regulation.
3.8 "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary's duly authorized designee.
In determining if a facility or regulated party is a chronic violator, the Secretary shall apply the following criteria with respect to the State's environmental permits, laws or regulations as administered by the Department:
5.2.2 Three (3) or more of any combination of administrative orders, civil judicial actions, court orders, negotiated settlements, and criminal convictions (excluding convictions pursuant to 7 Del.C. §6013(h)) under the same Department regulatory program, as defined in Section 2.0, against the same person at different locations.
The Secretary may consider any relevant factors when deciding whether a facility or regulated party meets one or more of the chronic violator criteria. In conducting his/her review, the Secretary shall consider all relevant and reliable information available or submitted to the Department from all sources. Factors that must be considered are:
The Secretary may consider any violations when conducting his/her review. The types of violations that shall be considered by the Secretary shall include, but not be limited to:
In making a determination, the Secretary shall consider all relevant and reliable information available or submitted to the Department from all sources. The Secretary shall consider the following when determining if a facility or regulated party meets one or more of the chronic violator criteria in Section 4.0:
11.3 Notwithstanding other applicable enforcement provisions contained in relevant sections of Chapters covered by 7 Del.C. §7901(b), the Secretary is authorized to impose an administrative penalty of up to $10,000 per day for each violation against any person that is determined to be a chronic violator in accordance with the provisions of 7 Del.C. §7904(a). The person's right to contest or appeal the assessment of a penalty authorized under this Section shall be in accordance with the applicable provisions of the Delaware Code under which the violation and enforcement action is being taken.
Last Updated: December 31 1969 19:00:00.
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