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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsDecember 2018


Regulatory Flexibility Act Form

Authenticated PDF Version

7 DE Admin. Code 1375
In addition the terminology of "abandoned, vacant or underutilized" to define a potential brownfield has been changed to "the redevelopment, reuse or expansion may be hindered by the reasonable belief that the real property is environmentally contaminated" to mirror the language in the Brownfields Development Program enabling statute, 7 Del.C. Chapter 91. The statutory change was made to more closely align with the federal brownfield statute and regulations. While the change is not required by any federal mandate it will create consistency between the state and federal brownfields program that will assist in grant writing.
7 Del.C. Chapter 91
1.1.1 The Regulations Governing Hazardous Substance Cleanup (Regulations) are promulgated in accordance with 7 Del.C. Ch. 91, Delaware Hazardous Substance Cleanup Act (Act), 7 Del.C. Ch. 60, Environmental Control, and 7 Del.C. Ch. 63, Hazardous Waste Management. The goal of these Regulations is to implement the purposes declared in 7 Del.C. §9102.
1.2.1 The requirements of these Regulations shall apply to any facility or Certified Brownfield with a release or imminent threat of release and any person or Certified Brownfields Developer who conducts an investigation or remedial action at a facility or Certified Brownfield with a release or imminent threat of release.
1.2.2 Pursuant to 7 Del.C. §9104(a), the requirements of these Regulations shall not apply to the following:
1.2.2.1 Releases excluded by 7 Del.C. §9103 (21)(25) a-d; or
1.2.3.2 At the request of the owner or operator or brownfield developer Certified Brownfields Developer; and
Acceptable riskmeans a probability of one additional lifetime incidence of cancer in 100,000 (1x10-5) or less for carcinogens, and a hazard index of one (1) or less for non-carcinogens, as applicable. For certain contaminants, where cancer or non-cancer risk does not apply, the Department may approve or require other methods that it determines are appropriate for determining risk.
Act means 7 Del.C. Ch. 91, the Delaware Hazardous Substance Cleanup Act.
All Appropriate Inquiry (AAI) orAAI means the requirements for assessing the environmental conditions of a property prior to its acquisition. Detailed requirements for AAI are presented in the EPA’s All Appropriate Inquiries Final Rule (40 CFR Part 312) (Nov. 1, 2005), as amended, or ASTM International’s Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (E 1527-05), as amended.
Allowable Interest Rate means a rate of interest 5% over the Federal Reserve discount rate.
Aquifer means a geologic formation, group of formations, or a part of a formation capable of yielding groundwater to wells or springs.
"ASTM" means ASTM International.
Background level means the concentration of substances widely present in the soil, sediment, air, surface water or groundwater in the vicinity of a facility or Certified Brownfield, or at a comparable reference area, due to natural causes or human activities other than releases from, or activities on, the facility or Certified Brownfield, as determined by the Department.
Baseline conditions or Baseline means the condition or conditions that would have existed at the natural resource damage assessment area had the release of hazardous substances under investigation not occurred.
Brownfields Development Program means the remedial process established by the Department under 7 Del.C. Ch. 91, Subchapter II.
Carcinogen means a hazardous substance which causes or induces cancer in humans. The term also includes suspected carcinogen which may cause or induce cancer in humans.
CERCLA means the Comprehensive Environmental, Response, Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended.
"Certified Brownfield" means a brownfield, as defined in 7 Del.C. §9103(3) and §9123(3), that the Secretary has certified upon finding that there is an actual, threatened or perceived release of hazardous substances at the real property that is the subject of the brownfield certification.
Brownfield Certified Brownfields Developermeans any person as defined in 7 Del.C. §§9123(1).
Certified Brownfields Development Agreement means an agreement between the Secretary and a Brownfields Developer with respect to a certified brownfield that sets forth a scope and schedule of activities to assess and respond to the actual, threatened, or perceived release of hazardous substances at the facility Certified Brownfield.
Certified Brownfields Investigation means an evaluation under the Brownfields Development Program which includes the assessment of an actual, threatened, or perceived release of a hazardous substance at a facility within the Certified Brownfield to determine the nature, extent, and impact of the actual, threatened, or perceived release, and the evaluation of the feasibility of the proposed development plan to serve as all or a portion of the remedial action. When directed by the Department the Certified Brownfields Investigation shall include an evaluation to establish if the release has migrated off the Certified Brownfield.
Cleanup level means the concentration of hazardous substances in the environment that cumulatively meet the acceptable risk for the land use intended by the owner or developer, or the background level established by the Department.
Conditional No Further Action means that based on the information available following an initial investigation or a facility evaluation or equivalent, the Department determines that: (a) there has been no release or there is no imminent threat of release; (b) a release has occurred which does not pose a threat to public health or welfare or the environment above the acceptable site specific risk under current conditions; or (c) action by another authority is appropriate. The Conditional No Further Action (CNFA) Determination lists all the conditions that have to be met in order to maintain the CNFA Determination under current and future land use scenarios and should be placed in the property record.
Consultant means a contractor who is hired to provide professional services for remedies with regard to a facility or Certified Brownfield.
Contaminant of concern means a hazardous substance identified during a remedy, which exceeds the HSCA screening level and contributes to the unacceptable site specific risk.
Contaminant of Potential Concern means a hazardous substance identified during a remedy where the concentration exceeds the HSCA screening levels.
Data Quality Objectives means qualitative and quantitative statements of the overall level of uncertainty that the Department will accept in results or decisions based on environmental data.
Day means a calendar day; however, when used to determine when a document is due, or an action is required, and the day falls on the weekend or a holiday, the document may be submitted, or the action started, on the first working day after the weekend or holiday.
Department means the Delaware Department of Natural Resources and Environmental Control.
Disposal means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous substance into or on any land, water or into the air so that such hazardous substance or any constituent thereof may enter the environment.
Emergency response means a remedy undertaken to eliminate or control an immediate threat to public health or welfare or the environment.
Environment means the navigable waters, the waters of the contiguous zone, ocean waters, and any other surface water, groundwater, drinking water supply, land surface or subsurface strata or air within the State.
EPA means the United States Environmental Protection Agency.
Facility means any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, aircraft or any site or area where a hazardous substance has been generated, manufactured, refined, transported, stored, treated, handled, recycled, disposed of, released, placed or otherwise come to be located. Where there is or has been a release or threat of release on real property, a portion of the real property may be considered a facility for the purpose of performing a remedy. A facility also includes all properties real property where hazardous substances may have migrated to or come to be located since being released.
Facility Closure Determination means that the Department has determined that the facility meets all of the requirements of the Act, and that all requirements of the Final Plan of Remedial Action have been met and no restrictions remain on the facility.
Facility Evaluationmeans an investigation to identify a release of a hazardous substance and generate data to perform an initial screening and make a decision regarding future action at the a facility or Certified Brownfield.
Feasibility Study means an evaluation to identify the potential remedial alternatives that are applicable to satisfy the remedial action objectives for the facility.
Final Plan of Remedial Action means the Department’s written determination of the appropriate remedial action under the Act at a facility or Certified Brownfield for the current or anticipated land use to protect public health, welfare and the environment.
Free product means a hazardous substance which occurs as a non-aqueous phase liquid in surface water, groundwater, the vadose zone, or the ground surface. This term encompasses free, mobile, or residual product.
Groundwater means water below the land surface in the zone of saturation.
Hazard ranking means the process of assigning relative rank or priority to a facility using the Delaware Hazard Ranking Model. In ranking facilities, the Department may group them in categories of relative risk.
Hazardous substance means: (a) any hazardous waste as defined in 7 Del.C. Ch. 63 or any hazardous waste designated by regulation promulgated pursuant to 7 Del.C. Ch. 63; (b) any hazardous substance as defined in CERCLA or regulations promulgated pursuant thereto; (c) any substance determined by the Secretary through regulation to present a risk to the public health or welfare or the environment if released into the environment; (d) any substance included in the HSCA screening level table that will be updated semiannually; or (e) petroleum, including crude oil or any fraction thereof; however any release of hazardous substances from a storage tank which is regulated by 7 Del.C. Ch. 74 or 7 Del.C. Ch. 74A or regulations promulgated pursuant thereto is not subject to these Regulations except as provided for in Section 1.2. Notwithstanding the Department’s determination under Section 1.2 of these Regulations, any release of petroleum, including crude oil or any fraction thereof, is eligible for funding under the Act.
Hourly rate of wages means the total annual wages of a State employee divided by 1,650 hours or the monthly wages of an employee divided by the actual number of hours worked by the employee during the month.
HSCA Reporting levels means the concentrations of hazardous substances in the environment that are at or above the levels established by the Department, except for groundwater for which the reporting level shall be equivalent to the levels contained in the Delaware and federal drinking water standards.
HSCA Screening levels means the concentrations of hazardous substances in the environment that are (a) the background levels established by the Department, or ten times lower than the cleanup levels (b) risk-based levels associated with a target cancer risk of 1E-06 or a target hazard quotient of 0.1 in an unrestricted use exposure scenario, or (c) other regulatory levels adopted under the Act.
Imminent threat of release means potential for a release which requires action to prevent or mitigate damage to the environment or endangerment to public health or welfare or the environment which may result from such a release.
Indirect cost means those costs incurred for a common of joint purpose benefitting more than one cost objective, and which are not readily assignable to the cost objectives specifically benefited, without effort disproportionate to the results achieved.
Indirect cost rate means the ratio of indirect cost to the projected costs of salaries for facility remediation.
Initial investigation means a process for identifying a suspected release or imminent threat of release. It includes review of existing information, facility visits, interviews with facility owner or operator and adjacent property owners, or other persons with knowledge of the facility.
Initial screening means the process of comparison of the maximum observed concentrations of analytes found in environmental samples to background levels and performance of a preliminary risk assessment based on the maximum observed representative concentrations found in each environmental medium from the results of a facility evaluation or equivalent investigation to determine whether a release poses a threat to human health, welfare or the environment above the acceptable site specific risk.
Injury means a measurable adverse change, either long- or short-term, in the chemical, biological or physical quality or the viability of a natural resource, including loss thereof, resulting directly or indirectly from exposure to a release, or from attempts to remedy or mitigate a release.
Interim action means the containment, cleanup, or removal of a release or imminent threat of release of hazardous substances from a facility, or the taking of other actions, prior to the selection of a remedial action, as may be necessary to prevent, minimize, or mitigate threats to public health or welfare or the environment.
Land Disturbing Activity means activities that physically take place on the facility or Certified Brownfield and include digging, drilling, excavating, grading, clearing, earth moving, filling, or performing any subsurface work, but excludes all environmental investigation, planning, designing, or engineering work related to the facility, as well as any physical activity performed off the facility or Certified Brownfield in preparation for, or related to, construction and development activities that will occur on the facility or Certified Brownfield.
Long-term effectiveness means the ability of an implemented remedial action to maintain the desired level of protection over an extended period of time.
Long-term Stewardship means the long-term management of contaminated environmental media at sites that is necessary to protect human health and the environment. Long-term stewardship generally includes the establishment and maintenance of physical and legal controls, implementation entities, authorities, accountability mechanisms, information and data management systems, long-term monitoring, operation and maintenance, and/or resources that are necessary to ensure that these sites remain protective of public health or welfare or the environment.
Maximum Contaminant Level or MCL means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system, as defined by the EPA under the Safe Drinking Water Act, 42 U.S.C. Sec 300(f), et seq., as amended, and/or the State of Delaware under 16 DE Admin. Code 4462.
Natural Resources means land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the State of Delaware, the federal government, other states, any foreign government, any local government, or any Indian tribe.
Natural Resource Damages or Damages means the compensation sought by the Department as a result of injury, destruction, or loss of natural resources or services, or the restoration or replacement of such natural resources or services.
Natural Resource Damage Assessment means the process of collecting, compiling, and analyzing information, statistics, or data to determine natural resource damages.
Natural Resource Services or Services means the physical, chemical and biological function performed by the natural resource including the human use or aesthetic value of those functions.
Operation and Maintenanceor O&M means the activities required by the Department to provide for continued effectiveness and integrity of a Remedial Action.
Other employee cost rate means the sum of State contributions to pension, unemployment insurance, Federal Income Contribution Act, health insurance, and worker’s compensation for a State employee per year divided by 1,650 hours, or the sum of State contributions to pension, unemployment insurance, Federal Income Contribution Act, health insurance, and worker’s compensation for a State employee per month divided by the actual number of hours worked by the employee during the month.
Oversight means supervision by the Department of a person’s work on any aspect of a remedy during the performance of that work, including the Department’s review of any work done prior to the Department’s supervision that now requires the Department’s approval.
Owner or Operator means: (a) any person owning or operating a facility; or (b) any person who previously owned, operated, or otherwise controlled activities at a facility; and (c) the term “owner or operator” does not include an agency of the State or unit of local government that acquired title or control of the facility involuntarily through bankruptcy, tax delinquency, abandonment or other circumstances; (d) the term “control” does not include regulation of the activity by a federal, state or local government agency; (e) the term “owner or operator” does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility; and (f) the term “owner or operator” does not include a person who, without acquiring legal title, conducts of directs activities in connection with the actual or potential acquisition or evaluation of a facility, including due diligence, site inspections, site assessments, all appropriate inquiry or other pre-closing activities in connection with the acquisition of a facility.
Pathway means the route or medium through which hazardous substances are or were transported from the source of the release to the injured natural resources, the environment, and/or the exposed human population.
Person means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, school district, conservation district, federal government agency, Indian tribe or interstate body.
Phase I Environmental Site Assessment or Phase I means an investigation performed in accordance with ASTM International’s Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (E 1527), as amended.
Phase II Environmental Site Assessment or Phase II means an investigation performed in accordance with ASTM International’s Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process (E 1903), as amended.
Potentially Responsible Party or PRP means any person identified pursuant to 7 Del.C. §§9105 (a)(1) through (6) as a person liable with respect to a facility.
Proposed Plan of Remedial Action means a written plan, issued by the Department for public comment, describing the appropriate remedial action under the Act at a facility or Certified Brownfield for the current or anticipated land use to protect public health or welfare or the environment.
Priority list means the list established by the Department using the Delaware Hazard Ranking Model to rate the relative risk of the facilities based on the risk they pose to the public health or welfare or the environment. In establishing a priority list, the Department may group facilities in categories of relative risk.
RCRA means Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901, et seq., as amended.
Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a hazardous substance, pollutant or contaminant into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes: (a) any release which results in exposure to a person solely within his or her workplace, with respect to a claim which such person may assert against his or her employer, provided, however, that this exclusion does not apply to any such release which also results in exposure to the environment; (b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; (c) the appropriate application of fertilizers and pesticides; and (d) any discharges in compliance with State permits issued in conformance with Title 7 of the Delaware Code and federally permitted releases under CERCLA.
Remedial Action means the containment, contaminant mass or toxicity reduction, isolation, treatment, removal, cleanup, or monitoring of hazardous substances released into the environment, or the taking of such other actions, including natural resource damage restoration and replacement, as may be necessary to prevent, minimize, or mitigate harm or risk of harm to the public health or welfare or the environment which may result from a release or an imminent threat of a release of hazardous substances.
Remedial Investigation means an evaluation of a release or imminent threat of release of a hazardous substance at a facility or Certified Brownfield to determine the nature, extent, and impact of the release and the collection of data necessary to conduct a feasibility study of remedial alternatives.
Remedy means any action, response or expenditure consistent with the purposes of the Act, or any regulations or guidance developed pursuant thereto to identify, minimize or eliminate any imminent threat posed by any hazardous substances to public health or welfare or the environment including preparation of any plans, conducting of any studies and any investigative, oversight of remedy or monitoring activities with respect to any release or imminent threat of release of a hazardous substance and any health assessments, risk assessments, health effect studies or natural resource damage assessments conducted in order to determine the risk or potential risk to public health or welfare or the environment.
Replacement or Acquisition of the equivalent means the substitution for the injury or loss of a resource with another resource that provides the same or substantially similar services when such substitutions are in addition to any substitutions made or anticipated as part of remedial actions, and when such substitutions exceed the level of remedial actions determined appropriate to the facility pursuant to the Hazardous Substance Cleanup Act or the National Oil and Hazardous Substances Contingency Plan (NCP), as amended.
Restoration means actions undertaken to return an injured resource to its baseline condition, as measured in terms of the injured resource’s physical, chemical or biological properties or the services it provided during its baseline conditions, when such actions are in addition to remedial actions completed or anticipated, and when such actions exceed the level of remedial actions determined appropriate to the facility pursuant to the Hazardous Substance Cleanup Act or the National Oil and Hazardous Substances Contingency Plan, as amended.
Risk assessment means the analysis of the potential for adverse human health effects or adverse effects on ecological receptors caused by contamination.
Secretary means the Secretary of the Department or his or her designee.
Settlement Agreement means a written agreement between one or more persons and the Department in which the terms and conditions are embodied in a consent decree, administrative order on consent, memorandum of agreement, or any other type of agreement approved by the Department.
Short-term effectiveness means the ability of the selected remedy to maintain the desired level of protection during the implementation phase of the remedy.
SIRS means the Department’s Site Investigation and Restoration Section.
Site Assessment means the assessment of a facility or property to determine whether hazardous substances have entered the environment.
Site means facility.
Site Specific Risk means the risk of a potential adverse effect to public health or welfare or the environment resulting from exposure to a release of hazardous substances at the site based on its current and potential future use.
Surface water means the waters of the State of Delaware occurring on the surface of the earth.
Trustee or Natural Resource Trustee means any Federal natural resources management agency designated in the National Oil and Hazardous Substances Contingency Plan, as amended, and any State agency designated by the Governor of each state, pursuant to section 107(f)(2)(B) of CERCLA and applicable State statute that may prosecute claims for damages under the Act, Clean Water Act, or section 107(f) or 111(b) of CERCLA, or an Indian tribe, that may commence an action under the Act of section 126(d) of CERCLA.
Voluntary Cleanup Program or VCP means the remedial process established by the Department under 7 Del.C. Ch. 91, into which a party voluntarily enters into, provided the application is approved by the Department, for the purpose of conducting a remedy at a facility.
VCP Agreement means a legal and administrative document entered into between the Department and the VCP applicant that provides for the performance of a remedy at a facility, and the reimbursement of the Department’s oversight costs, by the applicant.
3.1.3 If a Brownfield Certified Brownfields Developer, prospective purchaser, or a person acting on behalf of the Brownfield 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.
3.4.2.2.2 The factual basis for concluding that the expansion, redevelopment or reuse of the property is abandoned, vacant or underutilized; may be hindered by the reasonable belief that the real property is environmentally contaminated.
3.4.2.2.3 The factual basis for concluding that the facility is contaminated;
3.4.2.2.4 Certification that the Brownfield 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 Brownfield 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.
3.4.3.1 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 All or part of the property is abandoned, vacant, or underutilized; 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
3.4.3.1.3.1 The development or expansion, redevelopment or reuse of the property may be hindered by the reasonably held belief that it may be environmentally contaminated; or
3.4.3.1.3.2.2 A regulated Tank facility pursuant to 7 Del.C. Ch. 74 or 7 Del.C. Ch. 74A;
3.4.3.1.3.2.7 The land A property that contains potentially contaminated material;
3.4.3.2 Sites which are 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 FE facility evaluation of the facility Certified Brownfield, as approved by DNREC, within 24 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 sites properties will be made publicly available.
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 facility property pursuant to 7 Del.C. §9105(a)(1)-(6), and is not cannot be affiliated with any other person that is liable for a release or imminent threat of release at the facility pursuant to 7 Del.C. §9105(c)(4)5 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.
4.2.1 The Department may issue a notice letter to any person or entity it believes to be a potentially responsible party with respect to a facility as provided for in 7 Del.C. §9105. The notice letter shall be sent to the last known address of the potentially responsible party. A copy of the notice letter may be provided to the local unit of government in which the facility is located. The notice letter shall provide the following:
5.0 Settlement Agreements & Certified Brownfields Development Agreements
5.1 Settlement agreements and Certified Brownfields Development Agreements shall include the following:
5.1.1 The name and address of the potentially responsible party, the prospective purchaser, or the Brownfield Certified Brownfields Developer, and any other affiliated corporation, entity, or other person that will perform or pay for a remedy at the facility or Certified Brownfield;
5.1.4 For agreements which require the performance of a remedy at a facility or Certified Brownfield, the Department may include a description of:
5.1.4.1 The areas of the facility or Certified Brownfield where the remedy is to be conducted;
5.2.1.2 Recoverable costs from a Brownfield developer Certified Brownfields Developer include remedial costs incurred by the Department beginning upon its receipt of the application for Brownfield certification of the site into the brownfield program property, including oversight, indirect and administrative costs, and costs associated with long-term stewardship activities as specified in the brownfields development agreement Certified Brownfields Development Agreement, but excluding natural resource damage assessment and restoration costs not caused by the Brownfield developer Certified Brownfields Developer and costs incurred by the Department prior to the Brownfield developer’s Certified Brownfields Developer’s submission of its application for admission into the brownfield program Brownfields Development Program.
5.2.2 Remedial costs with regard to a specific facility or Certified Brownfield are calculated to reflect the actual costs incurred by the Department. Such costs are calculated for each facility or Certified Brownfield as set forth below.
5.2.2.1 The total number of direct hours expended by each employee of the Department with regard to a specific facility or Certified Brownfield is multiplied by the employee's hourly rate of wages and then the figures derived for each employee are added together.
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.
9.3.3 The initial screening shall identify the maximum observed concentrations of analytes found in environmental samples and utilize representative data from each environmental media to perform a preliminary risk assessment. The sample locations shall be in areas of the facility where the highest levels of contamination are likely to exist.
9.5.1 The Brownfield investigation, which is applicable to certified Brownfield sites Certified Brownfields, shall meet the requirements of the RI remedial investigation as specified in Section 9.4.
12.3.1 The Department may require or permit an interim action at a facility or Certified Brownfield prior to issuing the Proposed Plan of Remedial Action for the facility or Certified Brownfield where the Department determines that it is consistent with or will not interfere with potential or final remedial actions.
12.3.3 For any facility or Certified Brownfield at which an interim action has occurred, the Proposed Plan of Remedial Action shall include a description of the interim action and a determination of whether additional remedial action is needed to meet the remedial action objectives.
12.3.4 The Department may adopt an interim action as all or part of the chosen final remedial action for a facility or Certified Brownfield if it determines the interim action is protective of public health or welfare or the environment.
12.4.2 The Department, or any person who has entered into an agreement with the Department concerning a facility or Certified Brownfield, shall propose one or more remedial alternatives for the facility which meet the criteria in 12.4.4.
12.4.3 The Department will evaluate and select the proposed remedial alternatives for the facility or Certified Brownfield according to the threshold and balancing criteria.
12.5.1 The Department shall issue a Proposed Plan of Remedial Action describing the proposed remedial action prior to implementation of the remedial action for a facility or Certified Brownfield. When the Department requires or approves an interim action as described in Section 12.3 of these Regulations, the Department may issue a Proposed Plan of Remedial Action after the implementation of the interim action.
12.7.1 No person shall implement a remedial action at a facility or Certified Brownfield without concurrent oversight from the Department.
12.7.5.4.1 The Department may require the placement of an Environmental Covenant (EC) on a facility, as provided for in 7 Del.C. §§7907-7920, the Uniform Environmental Covenants Act (UECA), as all or part of the remedial action.
12.8.1.2 A facility or Certified Brownfield which is the subject of an application for entry into the Voluntary Cleanup Program or the Brownfields Development Program;
12.8.1.3 A facility or Certified Brownfield undergoing an interim action;
12.8.1.4 A facility or Certified Brownfield undergoing a remedial investigation or remedial action;
12.8.1.5 A facility or Certified Brownfield for which an order has been issued pursuant to 7 Del.C. §9106(b) or 7 Del.C. §9109(b); or
12.8.1.6 A facility or Certified Brownfield that has restrictions required by the Final Plan of Remedial Action.
12.8.2 No person shall perform any work or construction activities that may interfere with the remedial action at the facility or Certified Brownfield, unless authorized by the Department as part of the remedial action, without doing all of the following:
12.8.4 This subsection shall not apply to any work or construction activities performed in at a facility or Certified Brownfield or areas of a facility or Certified Brownfield where any drilling, digging or excavation is carried out to collect samples in accordance with any appropriate plan approved by the Department.
13.1.1 In order to obtain a Certification of Completion of Remedy (COCR) pursuant to 7 Del.C. §9108, a person seeking a COCR shall submit to the Department a signed request for the COCR. The request for certification must be accompanied by the following documentation supporting the request:
13.2.1 All facilities or Certified Brownfield addressed under 7 Del.C. Ch. 91 will be eligible for facility closure. A facility or Certified Brownfield is eligible for closure when the Department determines that all requirements of the Final Plan of Remedial Action have been completed and no restrictions remain on the facility or Certified Brownfield. The Department may require additional remedial activities at the facility or Certified Brownfield after it has achieved closure if circumstances change or if any new information becomes available which shows that the completed remedial action is no longer protective of public health or welfare or the environment.
13.2.2 Facility or Certified Brownfield closure is achieved through the issuance of a facility closure determination by the Department under the following conditions:
13.2.2.3 Based on the information obtained about a facility or Certified Brownfield during an initial investigation or facility evaluation, the Department determined that no action is necessary.
14.1.3 A brownfield developer Certified Brownfields Developer that does not cause or contribute to a release related to the site Certified Brownfield is not liable for natural resource damage assessment and restoration costs related to the release at the site brownfield property, and such brownfield developer Certified Brownfields Developer shall not be subject to or limited by any other provision of these Regulations relating solely to natural resource damages.
Last Updated: December 31 1969 19:00:00.
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