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Department of Natural Resources and Environmental Control
Division Of Waste And Hazardous Substances
Statutory Authority: Title 7 Delaware Code, Chapter 91
7 DE Admin. Code 1375
 
PROPOSED
 
REGISTER NOTICE
SAN # 2008-26
 
1. TITLE OF THE REGULATIONS:
1375 Delaware Regulations Governing Hazardous Substance Cleanup
 
2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:
The Hazardous Substance Cleanup Act was enacted in 1990, and the Regulations implementing the Act were completed in 1996. There was a revision in 2002 that established criteria for designating a Brownfield property. Since 1996, new protocols, investigatory techniques, legal requirements and the enactment of the Brownfields Development Program have occurred. These changes in the last sixteen years have mandated reviews and changes to meet current practices. Major issues include, but are not limited to, participation in the new brownfields program, consultant certifications, notification requirements, investigation procedures, long term stewardship, facility closure, and natural resource damage assessment.
 
3. POSSIBLE TERMS OF THE AGENCY ACTION:
N/A
 
4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT:
Title 7 Delaware Code, Chapter 91
 
5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL:
N/A
 
6. NOTICE OF PUBLIC COMMENT:
The hearing record on the proposed changes to the Regulations Governing Hazardous Substance Cleanup will be open May 1, 2012. Individuals may submit written comments regarding the proposed changes via e-mail to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901 (302)739-9042. A public hearing on the proposed amendment will be held on May 31, 2012 beginning at 6 pm in the DNREC Auditorium, located at the Richardson & Robbins Building, 89 Kings Highway, Dover, DE 19901.
 
7. PREPARED BY:
Kathryn Durant / kathryn.durant@state.de.us / 302-395-2600
 
Marjorie Crofts, Director
 
1375 Regulations Governing Hazardous Substance Cleanup
 
1.0 Scope and Applicability
1.1 Scope.
These regulations establish the administrative processes and standards to identify, investigate, and cleanup facilities with a release or imminent threat of release of hazardous substances. The goal of these regulations is to implement the purpose and intent declared in 7 Del.C. Ch. 91, the Delaware Hazardous Substance Cleanup Act. These regulations provide a workable process to accomplish effective and expeditious cleanups to protect public health, welfare, and the environment, and provide opportunities to encourage the remedy of facilities to yield economic revitalization and redevelopment within the State.
1.2 Overview of Cleanup Process.
1.2.1 This Subsection provides an overview of the different steps involved in dealing with a facility with a release or imminent threat of release of hazardous substances.
1.2.2 Any facility with a release or imminent threat of release may go through one or more of the following steps in the identification, investigation and cleanup processes.
1.2.2.1 Facility Identification. This process and the requirements shall be in accordance with Section 3.
1.2.2.2 Initial Investigation. This process and the requirements shall be in accordance with Section 4. The purpose of initial investigation is to determine if a suspected release or imminent threat of release may have occurred that warrants further action under these regulations.
1.2.2.3 Facility Evaluation. This process and the requirements are set forth in Section 5.
The Department or any person may conduct, a facility evaluation at a facility suspected of a release or an imminent threat of release. The purpose of facility evaluation is to confirm the release or imminent threat of release at a facility, to develop information to evaluate threat to public health, welfare, or the environment, and to determine the relative hazard ranking of a facility.
1.2.2.4 Identification and Notification of Potentially Responsible Parties. This process and the requirements are set forth in Section 6. The Department, shall, as soon as is practicable, upon identification of a facility, initiate actions to identify and notify the potentially responsible parties associated with a facility where a release or imminent threat of release of hazardous substances has been confirmed. September, 1996 Page 2
1.2.2.5 Priority List. The process of preparing a priority list of the facilities and the requirements are set forth in Section 7. The priority list of facilities shall be prepared based on the hazard ranking established pursuant to a facility evaluation. The priority list may be used in determining priority of response actions and preparation of funding recommendations.
1.2.2.6 Negotiations with Potentially Responsible Parties. The Department may require the potentially responsible parties to perform response actions by issuing a letter inviting negotiations towards preparation of a settlement agreement in the form of a consent decree. The process and the requirements are set forth in Subsections 8.1, 13.2 and 13.3. If the potentially responsible parties fail to enter into a consent decree, the Secretary may issue an administrative order after a hearing. The Department may at any time carry out a response action at a facility if the potentially responsible parties have not carried out the response action in a timely manner or if no potentially responsible parties can be identified.
1.2.2.7 Remedial Investigation. The process and the requirements of conducting a remedial investigation are set forth in Subsections 8.3 and 8.4. A remedial investigation may be conducted at a facility to define the risks to and the extent of the problem that requires remediation. This is usually the first phase of a response action at a facility pursuant to a consent decree or an administrative order.
1.2.2.8 Feasibility Study. The process and the requirements of conducting a feasibility study are set forth in Subsection 8.5. After conducting a remedial investigation at a facility, a feasibility study may be conducted to identify the remedial alternatives.
1.2.2.9 Plan of Remedial Action. A remedial action is selected from among the remedial alternatives developed based on the criterion set forth in Subsection 8.6. The Department shall issue a proposed plan of remedial action outlining the proposed remedial action, for public comment. The process and the requirements for preparation of a plan of remedial action are set forth in Subsection 8.7. After review and consideration of the comments received during the comment period, the Department shall issue a final plan of remedial action. This final remediation plan shall be incorporated into a remedial decision record.
1.2.2.10 Remediation. The process and the requirements for conducting a remedy at a facility are set forth in Subsection 8.8. Based on the final plan of remedial action, the selected remedy is implemented at the facility. The implementation of a remedy may usually consist of distinct phases such as design, construction, operation and maintenance and compliance monitoring. The design phase may consist of preparation of reports including but not limited to "engineering design report", "construction plans and specifications" and "operation and maintenance and compliance monitoring plan". The construction phase usually consists of the actual implementation of the remedy in accordance with construction plans and specifications. Operation and maintenance involves action to maintain the effectiveness of the remedial action whereas compliance monitoring monitors the attainment of cleanup levels and the long-term effectiveness of the remedial action.
1.2.2.11 Interim Response Activity. The process and the requirements of interim response activity are set forth in Subsection 8.2. The Department may require or conduct an interim response activity at any time before the selection of final remedial action to prevent, minimize or mitigate harm to public health, welfare, or the environment.
1.2.3 Oversight by the Department.
1.2.3.1 Concurrent Oversight. Any person may obtain the Department's concurrent oversight of work on any aspect of a remedy by entering into a settlement agreement with the Department for that purpose. By obtaining the Department's concurrent oversight of work, a person will be able to receive the Department's approval that the work which is proposed for a facility satisfies the requirements of HSCA, these Regulations, and all applicable guidances, policies and procedures. The interim response, remedial action, and operation and maintenance portions of a remedy shall not be performed by any person without the concurrent oversight of the Department except as provided under Section 8.2.3.
1.2.3.2 Subsequent Oversight. Any person may perform an initial investigation, facility evaluation, remedial investigation, feasibility study, or remedial design without the concurrent oversight of the Department. A person may obtain subsequent oversight of work not performed with the Department's concurrent oversight by entering into a settlement agreement with the Department for it to review such prior work and determine whether it can be approved as satisfying the requirements of HSCA, these Regulations, and any applicable guidances, policies and procedures. If the Department determines that any portion of the work does not satisfy these requirements, it may require that additional remedial work be performed prior to approving the person's work, or it may disapprove the work entirely.
1.2.3.3 Any person may undertake an emergency response action at a facility after initiation of response actions pursuant to these Regulations without the Department’s oversight provided the person notifies the Department of the details of the action taken, within 48 hours of the initiation of the emergency response action. This does not limit or relieve any person’s liability under other existing Federal or State laws or regulations for undertaking an emergency response action at a facility.
1.3 Authority.
1.3.1 These regulations are enacted pursuant to 7 Del.C. Ch. 91 entitled "Delaware Hazardous Substance Cleanup Act."
1.3.2 These regulations shall be known as, "Delaware Regulations Governing Hazardous Substance Cleanup."
1.4 Applicability; Other Laws and Regulations.
1.4.1 These regulations shall apply to all facilities with a release or imminent threat of a release without regard to whether the facility is publicly or privately owned.
1.4.2 Nothing in these regulations shall be construed to limit the authority of the Department to act pursuant to other existing laws and regulations.
1.5 Compliance with Other Laws and Regulations Required.
Any action taken under the authority of these regulations shall be in compliance with all applicable federal and state laws and regulations. Subject to the provision of 7 Del.C. Ch. 60, §§6011, 6012 and 6314, the Department may waive the requirements of any environmental permits for an on-facility activity during remedial action if substantive requirements of the permit have been met for the selected remedy. At the time of initiation of operation and maintenance, the potentially responsible parties responsible for such operation and maintenance, shall submit a complete application to the Department for all activities which require a permit under Delaware laws and regulations.
2.0 Definitions And Usage
2.1 Definitions.
The following words, phrases, and terms, as used in these regulations, are defined below:
"Act" means 7 Del.C. Ch. 91 relating to the cleanup of hazardous substance release facilities in the State of Delaware.
"Allowable Interest Rate" means a rate of interest 5% over the federal reserve discount rate.
"Ambient Air" means that part of the atmosphere outside of buildings.
"Aquifer" means a geologic formation, group of formations, or a part of a formation capable of yielding groundwater to wells or springs.
"Assessment Area" means the area or areas within which natural resources have been affected by release of hazardous substances and that serves as the geographic basis for the injury assessment.
"Background" or "Natural Background" means the level of contaminants present in the area from naturally occurring substances, excluding contaminants and other contributions resulting from human activity.
"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.
"Carcinogen" means a hazardous substance which may cause or induce cancer in humans. The Integrated Risk Information System (IRIS) may be used as the basis for determining that a particular hazardous substance is a carcinogen. The term also includes suspected carcinogen.
"CERCLA" means the Comprehensive Environmental, Response, Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq, as amended.
"Conditional Cleanup Level" means the concentration of hazardous substances in the environment that is protective of public health, welfare, and the environment under restricted site use conditions.
"Cost Effective" means when two or more activities provide the same or similar levels of benefits, the least costly activity providing that level of benefits is preferred, or when two or more activities provide different levels of benefits, the activity providing more benefits is preferred if the increase in benefits is not disproportionate to the cost of obtaining the benefits.
"Day" means calendar days; however any document due on the weekend or a holiday may be submitted on the first working day after the weekend or holiday.
"Delaware Hazard Ranking Model" means a ranking system developed by the Department used to prioritize facilities based on relative risk to public health, welfare, or the environment.
"Department" means the Delaware Department of Natural Resources and Environmental Control.
"Direct Contact" means exposure to hazardous substances through ingestion, inhalation or dermal contact.
"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 response activity undertaken to eliminate or control an immediate threat to public health, welfare, or the environment from such situations as: (1) human, animal, or food chain exposure to contaminating substances; (2) contamination of drinking water supply; (3) contamination of air; (4) fire and/or explosion; or (5) similarly acute situations.
"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 ambient air within the State.
"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 a parcel of real estate, the entire real estate may be considered the facility for the purpose of performing a remedy. A facility also includes all adjacent properties where hazardous substances may have migrated since being released.
"Facility Evaluation" means investigations to identify the existence, source, nature and extent of a release or imminent threat of release of hazardous substances and the risk to public health, welfare, or the environment.
"Feasibility Study" means a study undertaken to develop, screen and evaluate options for remedial action.
"Final Plan Of Remedial Action" means the written determination by the Secretary, of appropriate action for remediation of a release at or from a facility to protect public health, welfare, or the environment.
"Free Product" means a hazardous substance which occurs as an immiscible (non aqueous phase) liquid in surface water, groundwater, the vadose zone, or the ground surface.
"Fund" means the Hazardous Substance Cleanup Fund created pursuant to Section 9113 of the Act.
"Groundwater" means water below the land surface in the zone of saturation.
"Hazard Index" means the numerical value obtained by dividing a person's expected daily intake of a non-carcinogen by a level which is not expected to produce toxic effects.
"Hazard Ranking" means the process of assigning relative rank or priority to a site using the Delaware Hazard Ranking Model.
"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) petroleum, including crude oil or any fraction thereof; however, any release of hazardous substances from an underground storage tank which is regulated by 7 Del.C. Ch. 74 or regulations promulgated thereto is not subject to these regulations except that such a release is eligible for funding under Subsection 14.1; (d) Any substance in sufficient concentrations which the Secretary through regulation determines may present risk to the public health, welfare, or the environment.
"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.
"Imminent Threat Of Release" means potential for a release which requires action to prevent or mitigate any adverse impact to the environment or endangerment to public health or welfare which may result from such a release.
"Indirect Cost" means those costs incurred for a common or joint purpose benefiting 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.
"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 either directly or indirectly from exposure to release of hazardous substances, or exposure to a product of reactions resulting from the release of hazardous substances.
"Interim Response Activity" 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 threat to public health, welfare, or the environment.
"Long-term Effectiveness" means the ability of a remedy to maintain the desired level of protection over time.
"Loss" means a measurable adverse reduction, either long- or short-term, of a chemical, biological or physical quality or viability of a natural resource, resulting either directly or indirectly from exposure to release of hazardous substances, or exposure to a product of reactions resulting from the release of hazardous substances.
"Maximum Contamination Level" or "MCL" means the level of a specific chemical promulgated by EPA pursuant to the Safe Drinking Water Act, 42 U.S.C. Sec 300 (f) et seq as amended.
"Mixed Funding" means any funding provided to potentially responsible parties from the Hazardous Substance Cleanup Fund, as provided for in Section 9104 (b) (2) m of the Act.
"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 Delaware, the United States, any foreign government, any local government, or any Indian tribe.
"Natural Resource Damages" or "Damages" means the amount of money sought by the Department as compensation for injury, destruction, or loss of natural resources, or the restoration or replacement of such natural resources.
"Natural Resource Damage Assessment" or "Assessment" means the process of collecting, compiling, and analyzing information, statistics, or data to determine damages for injuries to natural resources.
"Natural Resource Services" or "Services" means the physical, chemical and biological function performed by the resource including, but not limited to, the human use or aesthetic value of those functions. These services are the results of the physical, chemical or biological quality of the resource.
"Non-carcinogen" means a hazardous substance which may cause toxic or poisonous effects but will not cause cancer.
"Non-profit Enterprise" means a governmental unit or an organization described in Section 501(c)(3) of the federal Internal Revenue Code [26 U.S.C. Section 501(c)(3)] and exempt from tax under Section 501(a) of the federal Internal Revenue Code [26 U.S.C. Section 501(a)] but only with respect to a trade or business carried on by such organization which is not an unrelated trade or business, determined by applying Section 513(a) of the federal Internal Revenue Code [26 U.S.C. Section 513(a)] to such organization.
"Operation And Maintenance" means the activities necessary to provide for continued effectiveness and integrity of a response activity after implementation of the remedial action is completed.
"Other Employee Costs 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: (1) Concurrent Oversight: concurrent 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, and prior approval of work proposed by the person, and (2) Subsequent Oversight: subsequent review and approval of a person's prior work on any aspect of a remedy which was not conducted with the concurrent supervision of the Department, and which is subsequently submitted to the Department for its approval.
Oversight may be performed by the Department, its consultants or contractors, and it includes the review of documents, studies and test results, and also any necessary administrative decision-making by the Department. The purpose of oversight of a remedy by the Department is to assure that the remedial work is consistent with, and satisfies the requirements of, HSCA, these Regulations, and any applicable guidances, policies or procedures. Oversight may also include, but not be limited to, supervision of activities in the field, the collection of split samples at a facility, and laboratory analyses of the split samples.
"Owner Or Operator" means:
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.
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.
"Pathway" means the route or medium through which hazardous substances are or were transported from the source of the release to the injured resource 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.
"Proposed Plan Of Remedial Action" means a detailed plan describing cleanup actions and related information for the containment or permanent removal and disposal of hazardous substances from a facility to protect public health, welfare and the environment or other measures to protect public health, welfare or the environment from the release of hazardous substances.
"Potentially Responsible Party" means any person identified pursuant to Section 9105 (a) (1) through (6) and these regulations as a person liable with respect to a facility.
"Preliminary Risk Assessment" means a risk assessment based on the limited information gathered during the facility evaluation and focused on the most obvious and significant risks posed at the site.
"Presumptive Remedy" means established and preferred technologies for common categories of releases or facilities based upon historical patterns of remedy selection, and upon scientific and engineering evaluations of performance data on technology implementation.
"Priority List" means the listing established to rank the facilities based on the risk they pose to the public health, welfare, or the environment.
"Quality Assurance Project Plan" means a plan that describes protocols necessary to achieve the data quality objectives defined for all remedial facility sampling activities.
"Reasonable Maximum Exposure" means the highest exposure that could reasonably be expected to occur at a facility. Reasonable maximum exposure is calculated in accordance with the methods contained in the Environmental Protection Agency's "Risk Assessment Guidance for Superfund Volume I Human Health Evaluation Manual (Part A)", (December 1989).
"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:
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;
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 as may be necessary to prevent, minimize, or mitigate harm or risk of harm to the public health, welfare, or the environment which may result from a release or an imminent threat of a release of hazardous substances.
"Remedial Design" means the preparation of a plan and specifications necessary for implementation of a remedial action.
"Remedial Investigation" means an evaluation of a release or imminent threat of release of a hazardous substance at a facility 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, 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 or 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 response actions and when such substitutions exceed the level of response actions determined appropriate to the facility pursuant to the National Oil and Hazardous Substances Contingency Plan (NCP), as amended.
"Response Action" or "Response Activity" means emergency response, interim response, initial investigation, facility evaluation, remedial investigation, feasibility study, remedial design, remedial action, operation and maintenance and compliance monitoring.
"Restoration" or "Rehabilitation" 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 response actions completed or anticipated, and when such actions exceed the level of response actions determined appropriate to the facility pursuant to the National Oil and Hazardous Substances Contingency Plan (NCP), as amended.
"Risk Assessment" means the process of defining the possible health effects of exposure of human populations to hazardous substances. Risk Assessment may also include defining the risk to the environment.
"Risk Based Concentration Values" means levels of concentration of contaminants determined to be protective of human health and the environment.
"Sampling And Analysis Plan" means a plan prepared under Subsection 13.4 of these regulations.
"Secretary" means 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 remedy to maintain the desired level of protection during implementation of the remedy.
"Small Business Enterprise" means a business that employs five-hundred (500) or fewer employees, has a net worth which does not exceed $6 million and the average net income after taxes does not exceed $2 million.
"Surface Water" means the waters of the State of Delaware, occurring on the surface of the earth.
"Type A Assessment" means standard procedures for simplified assessments requiring minimal field observation to determine damages as specified in CERCLA as amended.
"Type B Assessment" means alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages, as specified in CERCLA as amended.
"Voluntary Cleanup Program" means the remedial process established by the Department under 7 Del.C. Ch. 91, that a party willingly enters into, provided its application is approved by the Department, for the purpose of conducting a remedy at a facility.
"10E-05 Cancer Risk" means the potential risk for one additional cancer death caused by exposure to a carcinogen in a human population of 100,000 in a life time.
2.2 Usage.
2.2.1 For the purpose of these regulations, the following shall apply:
2.2.1.1 Unless the context clearly requires otherwise, the use of the singular shall include the plural and conversely;
2.2.1.2 "Include" or "including" means including, but not limited to;
2.2.1.3 "May" means the provision is optional, at the discretion of the Department; and
2.2.1.4 "Shall" and "will" means the provision is mandatory.
3.0 Facility Identification
3.1 Mechanisms to Identify Facilities
Facilities with a release or imminent threat of release of hazardous substances may be identified by the Department through a variety of mechanisms including, but not limited to, any of the following:
3.1.1 Reports to or investigations by the Department;
3.1.2 Reports to or from, or investigations, by the Delaware Department of Health and Social Services;
3.1.3 Reports to or from, or investigations, by the Delaware Department of Transportation;
3.1.4 Reports to or from, or investigations, by other local government agencies;
3.1.5 Reports to or from, or investigations, by the State Police or other law enforcement agencies;
3.1.6 Reports to or from, or investigations, by the State Fire Marshal's Office or any Fire Department;
3.1.7 Reports to or from, or investigations, by the United States Environmental Protection Agency or other Federal agencies;
3.1.8 Other reporting sources including but not limited to impacted public, neighboring facilities, public contractors, consultants and other sources of information about the existing releases; and
3.1.9 Reports to or from, or investigations by, the Delaware Emergency Management Agency.
4.0 Initial Investigation
4.1 Applicability
Whenever the Department or any person receives information that there may be a release or an imminent threat of release the Department or the person may conduct an initial investigation to identify the suspected release. Any person may elect to obtain oversight from the Department by entering into a settlement agreement for the purposes described in Subsection 1.2.3 hereof. Initial investigation may also include an environmental site assessment conducted by a person in connection with transacting real estate and Preliminary Assessments conducted by the Environmental Protection Agency.
4.2 Scope
The Department may determine that existing information constitutes all or part of an initial investigation. At the discretion of the Department, the initial investigation may include a facility visit and documentation of conditions observed.
4.3 Future Action.
4.3.1 Based on the information obtained about the facility during the initial investigation, the Department may decide to do one or more of the following:
4.3.1.1 Conduct a facility evaluation, or review the results of a facility evaluation conducted by any person. Any person may elect to obtain oversight from the Department by entering into a settlement agreement for the purposes described in Subsection 1.2.3;
4.3.1.2 Require an immediate response action;
4.3.1.3 Decide that the facility requires no further action under these regulations at thistime because either:
4.3.1.3.1 There has been no release or there is no imminent threat of release; or
4.3.1.3.2 A release has occurred, but in the Department's judgment, based on a preliminary risk assessment, does not pose a threat to public health, welfare, or the environment; or
4.3.1.3.3 Action under another authority is appropriate;
4.3.1.4 List the facility on an inventory of hazardous substance release sites which represents facilities at which there are suspected releases that may require additional remedial actions. This inventory will not include facilities which are being addressed under the Voluntary Cleanup Program which will be maintained on a separate list.
4.3.1.5 Conduct any other action determined by the Department to be appropriate.
4.3.2 Action pursuant to section 4.3.1 does not preclude the Department from requiring further action, in the future, based on evaluation of the facility or additional information.
 
5.0 Facility Evaluation
5.1 Applicability.
5.1.1 The Department, or any person may conduct a facility evaluation at any facility suspected of a release or imminent threat of release or, the Department, at a person's request, may review the results of a facility evaluation conducted by the person. Any person may elect to obtain oversight from the Department by entering into a settlement agreement for the purposes described in Subsection 1.2.3 hereof. Facility evaluation may also include an environmental site assessment conducted by a person in connection with transacting real estate and Site Inspections conducted by the Environmental Protection Agency.
5.1.2 The Department may determine that existing information constitutes the equivalent of all or part of a facility evaluation.
5.1.3 The purpose of the facility evaluation is to develop sufficient information and sampling data to satisfy one or more of the following:
5.1.3.1 Confirm the release or imminent threat of release;
5.1.3.2 Identify the hazardous substances and collect any information regarding the extent, amount, or concentration of the substances;
5.1.3.3 Identify facility characteristics that could result in the hazardous substances entering and moving through the environment;
5.1.3.4 Perform a preliminary risk assessment;
5.1.3.5 Evaluate the threat to public health, welfare, and the environment;
5.1.3.6 Determine the relative priority of the facility using the Delaware Hazard Ranking Model;
5.1.3.7 Determine if further response action is necessary.
5.1.4 Prior to the Department conducting a facility evaluation, the Department shall attempt to notify the owner or operator of the facility, if known, of the Department's intent to conduct the evaluation, and allow the owner or operator to submit relevant information to the Department.
5.2 Scope.
5.2.1 The scope of the facility evaluation will depend on the specific needs of the facility. The process will remain flexible; however, in all cases sufficient information must be collected, developed, and evaluated to perform a preliminary risk assessment.
5.2.2 A facility evaluation may include one or more of the following:
5.2.2.1 General facility information;
5.2.2.2 Review of existing information;
5.2.2.3 Field investigations that address:
5.2.2.3.1 Surface water and sediments;
5.2.2.3.2 Soils;
5.2.2.3.3 Geology and groundwater systems;
5.2.2.3.4 Air;
5.2.2.3.5 Meteorological data;
5.2.2.3.6 Human population distribution;
5.2.2.3.7 Preassessment for natural resource damages;
5.2.2.4 Land use;
5.2.2.5 Critical Habitats;
5.2.2.6 Hazardous substances and their sources;
5.2.2.7 Receptor identification;
5.2.2.8 Any other information to accomplish the purposes of a facility evaluation;
5.2.2.9 Preliminary risk assessment.
5.3 Further Action
5.3.1 Based on the information obtained about the facility during the facility evaluation, the Department may decide to do one or more of the following:
5.3.1.1 Conduct, or require a potentially responsible party to conduct, a remedial investigation and/or a feasibility study;
5.3.1.2 Enter into a settlement agreement with any person that offers to conduct a remedial investigation and/or feasibility study;
5.3.1.3 Require or conduct an immediate response action;
5.3.1.4 Decide that the facility requires no further action under these regulations at that time because either:
5.3.1.4.1 There has been no release or there is no imminent threat of release; or
5.3.1.4.2 A release has occurred, but in the Department's judgment, based on a preliminary risk assessment, does not pose a threat to public health, welfare, or the environment; or
5.3.1.4.3 Action under another authority is appropriate;
5.3.1.5 Conduct any other action determined by the Department to be appropriate.
5.4 Potentially Responsible Party Update
The Department shall make available, upon request, the results of the facility evaluation to the facility's owner or operator, and any person who has received a potentially responsible party notification letter under Section 6.
 
6.0 Potentially Responsible Parties
6.1 Identification of Potentially Responsible Parties
6.1.1 The Department shall initiate identification of potentially responsible parties associated with the facility, as soon as practicable.
6.1.2 The Department may use existing information-gathering authorities and coordinate such investigations with other state, local, and federal agencies.
6.2 Information Request
If the Department determines that there is reasonable basis to believe that there is a release or imminent threat of release of a hazardous substance, the Secretary may require information or documentation relevant to the release or imminent threat of release from any person who may have pertinent information.
6.3 Notice to Potentially Responsible Parties
6.3.1 Notice Letter. The Department may issue a potentially responsible party notice letter at any time to any person it believes to be a potentially responsible party with respect to the facility as provided for in Section 9105 of the Act. Persons may be notified when the Department has evidence of their potential liability. The notice letter shall be sent by certified mail, return receipt requested. A copy of the notice letter may be provided to the local unit of government in which the facility is located.
6.3.2 Contents of Letter. The notice letter may provide the following:
6.3.2.1 The name of the person the Department believes to be potentially liable;
6.3.2.2 A general description of the location of the facility;
6.3.2.3 The basis for the Department's position that the person has a relationship to the facility;
6.3.2.4 The basis for the Department's position that a release or imminent threat of a release of a hazardous substance poses a threat to public health, welfare, or the environment; and
6.3.2.5 The names of other persons to whom the Department has sent such a notice letter with respect to the facility.
6.3.3 Additional Potentially Responsible Parties. The Department reserves the right to notify additional potentially responsible parties at any time, and may facilitate efforts by potentially responsible parties who have been notified to identify additional potentially responsible parties.
6.4 Public Notice of Liability
6.4.1 In the event that a potentially responsible party cannot be located, so that a notice letter can be sent under Subsection 6.3 hereof, the Department may publish, in a newspaper of statewide circulation, a public notice regarding that potentially responsible party which may provide the following:
6.4.1.1 The name and last known address of the person the Department believes to be a potentially responsible party;
6.4.1.2 A general description of the location of the facility;
6.4.1.3 The basis for the Department's position that the person has a relationship to the facility;
6.4.1.4 The basis for the Department's position that a release or imminent threat of a release of a hazardous substance poses a threat to public health, welfare, or the environment; and
6.4.1.5 The name and address of the person within the Department who the potentially responsible party can contact in order to begin negotiations or obtain further information about the site.
6.4.2 The date of publishing of the public notice shall be deemed to be the start of the negotiation period described in Subsection 13.2.2 hereof.
7.0 Priority List
7.1 Applicability
The Department shall establish a priority list of facilities from the inventory of hazardous substance release sites, where further response has been determined to be necessary, based on the relative hazard ranking of the facility using the Delaware Hazard Ranking Model. The relative priorities established in the priority list may be considered in the preparation of funding recommendations, under Section 14, and in determining the priority for response actions among facilities. The Department may conduct or require a response at a facility even if it is not included on the list.
7.2 Criteria for Placement of Facilities on Priority List
7.2.1 Facilities may be placed on the priority list if, after the completion of a facility evaluation, the Department has determined that further response action is required at the facility. The priority list may be updated at least once every year. Placement of a facility on the priority list does not, by itself, imply that persons associated with the facility are liable under the Act or these regulations.
7.2.2 Facilities placed on the priority list will be given a hazard ranking. The purpose of the hazard ranking is to estimate the relative potential risk posed by the facility to public health, welfare, or the environment based on the information compiled during the facility evaluation.
7.2.3 The Department will objectively assess the relative degree of risk of each facility which is to be placed on the priority list using the Delaware Hazard Ranking Model established by the Department. Information obtained in the facility evaluation, and any additional data specified by the Department, will be included in the hazard ranking evaluation.
7.2.4 The Department will, upon request, make available to the facility owner and operator and any potentially responsible party known to the Department, the final hazard ranking results for a facility to be placed on the priority list.
7.2.5 A facility may be removed from the inventory of hazardous substance release sites list and the priority list of facilities after the Department has determined that no further action is required at the facility or a certificate of completion of remedy is issued by the Department.
7.2.6 The Department will address facilities, to the maximum extent practicable, based upon their ranking on the priority list of facilities. A person may conduct a remedy at a facility, regardless of its priority listing, by entering into a settlement agreement through the Department's Voluntary Cleanup Program.
7.3 Public Notice of Priority List.
The Department may provide, at least once a year, a public notice of the priority list. Such a public notice could be in the form of publication of a list in any report issued by the Department with a wide circulation.
 
8.0 Response Activities
8.1 Response Activities by the Department or Any Other Person
8.1.1 At any facility where the Department determines that there is a release or imminent threat of release of hazardous substances, the Department may require the identified potentially responsible parties to undertake appropriate response activities to abate, minimize, stabilize, mitigate, or eliminate the threat of release or imminent threat of release of hazardous substances.
8.1.2 At any facility where the Department determines that there is a release or imminent threat of release of hazardous substances, the Department may take any action to minimize, stabilize,mitigate, or eliminate the release or imminent threat of release of a hazardous substance when no potentially responsible parties have carried out the necessary activities in a timely manner or no potentially responsible parties can be identified to undertake the response action.
8.1.3 At any facility where there has been a release or imminent threat of release of hazardous substances, any person may conduct a remedial investigation and/or feasibility study without oversight from the Department to characterize the nature, extent and potential response activities if a release has occurred. The person may elect to obtain oversight from the Department of the remedial investigation and/or feasibility study, or evaluation of the results of the remedial investigation and/or feasibility study, by entering into a settlement agreement through the Department's Voluntary Cleanup Program.
8.1.4 After completion of the remedial investigation and feasibility study, no person shall implement a final plan of remedial action without oversight from the Department except as provided for in Subsection 1.2.3.
8.1.5 Combining Steps. Several steps in the cleanup process may be combined into fewer steps when deemed by the Department to be appropriate and protective of public health, welfare, or the environment. For example, the Department may decide that the facility evaluation, remedial investigation, feasibility study, remedial design and remedial action could be combined into a single step.
8.2 Interim Response Activities
8.2.1 The Department may require an interim response activity at a facility. Interim response activities other than those listed in Section 8.2.3 shall only be conducted with concurrent oversight of the Department. An interim response activity must not be inconsistent with and must not interfere with any potential final remedies. When the Department conducts, requires or oversees an interim response activity, the following factors may be considered in determining the appropriateness of performing such activity:
8.2.1.1 Actual or potential exposure to hazardous substances of nearby human population, animals, or foodchain;
8.2.1.2 Actual or potential contamination of drinking water supplies or sensitive ecosystems;
8.2.1.3 Actual or potential injury to natural resources;
8.2.1.4 Presence of hazardous substances in drums, barrels, tanks, or other bulk storage containers that may pose a threat of release;
8.2.1.5 High levels of hazardous substances in soils largely at or near the surface that are likely to migrate;
8.2.1.6 The likelihood that weather conditions will cause hazardous substances to migrate or be released;
8.2.1.7 The threat of fire or explosion;
8.2.1.8 Other factors which pose threats to the public health, welfare, or the environment.
8.2.2 Interim response activities may include, but not be limited to, any of the following:
8.2.2.1 Drainage controls where precipitation or run-off from other sources can enter the release area and spread hazardous substances;
8.2.2.2 Stabilization of berms, dikes, or impoundments where needed to maintain the integrity of the structures;
8.2.2.3 Temporary capping of the contaminated soils or sludges where needed to prevent the migration of hazardous substances into the environment;
8.2.2.4 Using chemicals or other materials to retard the spread of a release or mitigate its effects;
8.2.2.5 Removal of contaminated soil, from the drainage or other areas to reduce the spread of hazardous substances;
8.2.2.6 Removal of drums, barrels, tanks, or other bulk storage containers that contain hazardous substances when it will reduce the likelihood of any of the following:
8.2.2.6.1 spillage,
8.2.2.6.2 leakage,
8.2.2.6.3 exposure to humans, animals, or the foodchain,
8.2.2.6.4 fire or explosion,
8.2.2.7 Groundwater control or removal systems;
8.2.2.8 Removal of free product;
8.2.2.9 Provision of alternate water supply where it will reduce risk to public health;
8.2.2.10 Temporary evacuation to protect public health or welfare;
8.2.2.11 Other measures judged by the Department to be technically sound and necessary to protect public health, welfare, and the environment.
8.2.3 Interim response activities also include the placement of fences and warning signs, securing a facility or taking control precautions, supplying bottled water and human evacuations. These activities may be conducted without oversight from the Department.
8.3 Remedial Investigation.
8.3.1 The Department may require a potentially responsible party to conduct a remedial investigation, may itself conduct a remedial investigation, or may provide subsequent oversight of the results of a remedial investigation conducted by any person at the person's request. Any person may elect to obtain concurrent oversight of the Department by entering into a settlement agreement for the purposes described in Subsection 1.2.3 hereof.
8.3.2 The Department may determine that existing information constitutes the equivalent of all or part of a remedial investigation.
8.3.3 The purpose of the remedial investigation is to clearly describe risks to public health, welfare, or the environment and to identify the specific problems that require remediation. An understanding of these risks forms the basis of all actions to be taken at the facility.
8.3.4 A remedial investigation conducted pursuant to this subsection may address the following:
8.3.4.1 The nature and extent of the contamination at the facility;
8.3.4.2 Routes of exposure;
8.3.4.3 All of the following with respect to hazardous substances that are present:
8.3.4.3.1 amount,
8.3.4.3.2 concentrations,
8.3.4.3.3 characteristics,
8.3.4.3.4 bioaccumulative properties,
8.3.4.3.5 mobility,
8.3.4.3.6 form,
8.3.4.4 All of the following with respect to the physical setting of the facility:
8.3.4.4.1 geology,
8.3.4.4.2 hydrology,
8.3.4.4.3 hydrogeology,
8.3.4.4.4 soils,
8.3.4.4.5 depth to saturated zone,
8.3.4.4.6 hydrologic gradient,
8.3.4.4.7 proximity to human population,
8.3.4.4.8 proximity to drinking water aquifers,
8.3.4.4.9 proximity to surface water,
8.3.4.4.10 proximity to flood planes,
8.3.4.4.11 proximity to wetlands,
8.3.4.5 Current and potential groundwater and surface water use;
8.3.4.6 Climate;
8.3.4.7 Source identification and characterization;
8.3.4.8 Whether substances at the facility can be reused or recycled;
8.3.4.9 The extent to which natural or manmade barriers currently contain the substances and the adequacy of the barriers;
8.3.4.10 The extent to which the substances have migrated or are expected to migrate from the area of release and the impact of the migration;
8.3.4.11 An assessment of ecological injury including injury to natural resources resulting from the release; and
8.3.4.12 Contribution of the substances to contamination of the air, land, water or foodchain.
8.3.5 Risk Assessment. Following the determination of the factors identified in section 8.4, any risk assessment conducted or required by the Department, or conducted by any other person, will consider the following:
8.3.5.1 Carcinogenic risk posed to human health by the release or imminent threat of release of hazardous substances ;
8.3.5.2 Non-carcinogenic risk posed to human health by the release or imminent threat of release of hazardous substances ;
8.3.5.3 Any other risk posed to human health by the release or imminent threat of release of hazardous substances;
8.3.5.4 Risk to the environment including, but not limited to, contamination of groundwater, surface water, air or soil produced by the release or imminent threat of release of hazardous substances; and
8.3.5.5 Risk to public welfare.
8.4 Facility Remedial Action Objectives
8.4.1 During or immediately following the remedial investigation, remedial action objectives shall be developed by either the Department, a potentially responsible party or any person conducting the investigation. Remedial action objectives may consider factors, including but not limited to, current and potential land use, natural resource use, proximity of human populations, use of surrounding properties, level of contamination of surrounding properties and specific environmental issues.
8.4.2 The remedial action objectives, which may include qualitative and quantitative objectives, shall be established before remedial alternatives are developed. In developing remedial alternatives, the focus will be to achieve desired facility remedial action objectives.
8.4.3 Qualitative Objectives. Qualitative objectives may be developed to describe, in general terms, what the ultimate result of remedial action at the facility should be. These qualitative objectives may specifically identify the prospective use of the facility and be developed in consideration of each of the key facility characteristics that may impact the required level of remedial action of the facility. The specific threats to public health, welfare, or the environment are among some of the factors which may be considered while setting qualitative objectives.
8.4.4 Quantitative Objectives. Based on the qualitative objectives, quantitative objectives may be developed that define specific levels of remedial action to achieve protection of public health, welfare, and the environment.
8.4.5 Qualitative and Quantitative Remedial Action Objectives. Remedial action objectives may be developed iteratively to allow the Department to revisit the objectives based on additional information. The final objectives may be established before a remedy is selected considering the following:
8.4.5.1 Current and/or proposed uses selected for areas affected by the release or imminent threat of release of hazardous substances;
8.4.5.2 Any applicable local, state and federal laws and regulations;
8.4.5.3 Facility specific risk assessment; and
8.4.5.4 Potential risk to public health, welfare, or the environment.
8.5 Feasibility Studies
8.5.1 The Department may require a potentially responsible party to conduct a feasibility study, may itself conduct a feasibility study, or may provide subsequent oversight of the results of a feasibility study conducted by any person, at the person's request to identify remedial alternatives at a facility where remedial action is to be undertaken. Any person may elect to obtain concurrent oversight of the Department by entering into a settlement agreement for the purposes described in Subsection 1.2.3 hereof.
8.5.2 The feasibility study conducted may include, but not be limited to, the development of remedial alternatives that provide for meeting the remedial action objectives.
8.5.3 The Department may consider and may approve any presumptive remedy that is determined to satisfy the requirements contained in Subsection 8.6.
8.5.4 Development of alternatives may include, but not be limited to, the following steps:
8.5.4.1 An initial screening of alternatives to narrow the list of potential remedies for further detailed evaluation. The initial screening shall be conducted to eliminate from the evaluation those alternatives which need no further consideration in the context of the following broad criteria:
8.5.4.1.1 The effectiveness in meeting the cleanup level in Section 9 of these regulations to protect public health, welfare, and the environment.
8.5.4.1.2 Acceptable engineering practices based on the following criteria:
8.5.4.1.2.1 applicability to the problem;
8.5.4.1.2.2 feasibility for the locations and conditions of release; and
8.5.4.1.2.3 reliability; and
8.5.4.1.3 Relative cost of the remedial action.
8.5.4.2 After the initial screening is performed, an evaluation shall be conducted of the remaining alternatives considering the following factors:
8.5.4.2.1 The protection of public health, welfare, and the environment. The remedial action that attains compliance cleanup levels, in accordance with Section 9, shall be presumed to demonstrate compliance with this paragraph unless the person undertaking the remedy can demonstrate that conditional cleanup levels, as set forth in section 9.1, are fully protective in accordance with Section 9. ; When the compliance cleanup levels or conditional cleanup levels cannot be established, a remedial action which complies with Section 9.1.5.3 shall be presumed to demonstrate compliance with this paragraph.
8.5.4.2.2 Compliance with all applicable local, state and federal laws and regulations;
8.5.4.2.3 Community acceptance of the alternatives;
8.5.4.2.4 Monitoring the success of the remedial action. In considering this factor the Department will evaluate whether the alternative will provide for monitoring in accordance with Subsection 8.8 of these regulations;
8.5.4.2.5 Technical practicability of the alternative at the facility. In considering this factor, the Department will evaluate whether the alternative will meet the following factors:
8.5.4.2.5.1
8.5.4.2.5.1.1 Technical feasibility;
8.5.4.2.5.1.2 Ability to be implemented.
8.5.4.2.5.2 A remedial action may not be considered technically practicable if the incremental cost of the cleanup action is substantial and disproportionate to the incremental degree of protection it would achieve.
8.5.4.2.6 A reasonable restoration time frame as determined by the Department;
8.5.4.2.7 Reduction of toxicity, mobility, and volume through treatment or containment of the hazardous substances, either on-site or at an approved off-site facility;
8.5.4.2.8 Long-term effectiveness; and
8.5.4.2.9 Short-term effectiveness.
8.5.4.3 For remedial action alternatives which comply with Subsection 8.5.4.2.1 and 8.5.4.2.2, and satisfy the remaining evaluation criteria of subsection 8.5.4.2, preference shall be given to the remedial action which is most cost effective, and cost shall include present and future direct and indirect capital costs, operation and maintenance costs, compliance monitoring costs, and other foreseeable costs.
8.6 Selection of Proposed Remedial Action
The Department shall select a remedial action from the alternatives developed for the facility based on the determination of which remedial actioncomplies with Subsection 8.5.4.2.1 and 8.5.4.2.2 and best complies withthe remaining criteria in Subsection 8.5.4.2, and complies with Subsection 8.5.4.3.
8.7 Proposed Plan of Remedial Action
8.7.1 The Department shall prepare a proposed plan of remedial action to implement the alternative selected by the Department. The proposed plan of remedial action may include the following:
8.7.1.1 Brief summary of all site investigations and the results upon which the proposed remedial action is based;
8.7.1.2 General description of the proposed remedial action including compliance monitoring;
8.7.1.3 Brief summary of other alternative remedial actions evaluated in the remedial investigation/feasibility study and the justification for selecting the proposed remedial action;
8.7.1.4 Cleanup levels for each medium of concern and the point of compliance where the levels will be met;
8.7.1.5 Schedule for implementation of the plan of remedial action including restoration time frame, if known;
8.7.1.6 Institutional controls required for facility use restriction, if any, for the proposed remedial action;
8.7.1.7 Applicable state and federal laws and regulations for the proposed remedial action.
8.7.2 Public Participation. The Department will provide public notice and opportunity to comment on the proposed plan of remedial action in accordance with Section 12.
8.7.3 Final Plan of Remedial Action. After completion of the public comment period, the Department, after review and consideration of the comments received, shall issue a final plan of remedial action which shall designate the final selected remedial action.
8.7.4 Remedial Decision Record. The proposed and final plan of remedial action and the basis for it, as well as all comments received by the Secretary, constitute the remedial decision record of the Secretary.
8.8 Implementation of the Final Plan of Remedial Action
The Department will implement or will require a potentially responsible party to implement the final plan of remedial action. No person shall implement a final plan of remedial action at a facility without concurrent oversight from the Department except as provided for in Subsection 1.2.3.
8.8.1 The implementation of the remedy may follow the following distinct phases.
8.8.1.1 Remedial Design. Engineering documents may be prepared for the remedial action and the level of detail may vary from facility to facility depending on the facility's specific conditions, and the nature and complexity of the proposed remedial action. The information in these various documents may be combined into one report to avoid unnecessary duplication. The Department may require the submission of the following reports:
8.8.1.1.1 Engineering design report. This shall contain information as required by the Department.
8.8.1.1.2 Construction plans and specifications. Construction plans and specifications shall detail the remedial action to be performed. The plans and specifications shall be prepared in conformance with the currently accepted engineering practices and techniques and shall include information as required by the Department.
8.8.1.1.3 Operation, maintenance and compliance monitoring plan. An operation and maintenance plan lists activities, technical guidance and regulatory requirements to ensure effective operation of the remedy under both normal and emergency conditions. The compliance monitoring plan provides for monitoring the attainment of the cleanup level and confirming the long-term effectiveness of the remedy. The operation and maintenance plan and the compliance monitoring plan shall include information as required by the Department.
8.8.1.2 Remedial Action. Construction of the remedy shall be conducted in accordance with the construction plans and specifications, and other plans prepared under this subsection.
8.8.1.2.1 Department inspections.
8.8.1.2.1.1 The Department may perform facility inspections and remedial construction oversight at areas of the facility subject to remediation under these regulations, or other work or construction activities as defined in subsection 13.10 which may interfere with the remedy. If remedial construction or any supporting activities are not consistent with approved plans, or not in compliance with environmental regulations or accepted construction procedures, or endanger public health, welfare, or the environment, the Department may issue a stop order requiring that remedial construction activities be halted at the facility and that all the conditions be brought into compliance with the applicable requirements.
8.8.1.2.1.2 The Department may conduct inspections of the facility following completion of remedial construction, during the operational shake down period and during the operation and maintenance period.
8.8.1.2.2 Construction documentation.
8.8.1.2.2.1 During remedial construction, detailed records shall be kept of all aspects of the work performed including construction techniques and materials used, items installed, and tests and measurements performed.
8.8.1.2.2.2 At the completion of remedial construction, the professional responsible for the supervision of construction shall prepare as-built drawings and a report documenting all aspects of facility construction. The report shall also contain an opinion from the approved professional, based on testing results and inspections, as to whether the remedial action work has been constructed in compliance with the plans and specifications and related documents.
8.8.1.2.3 Changes in the design or construction of the remedial action shall require Department's written approval.
8.8.1.3 Operation and Maintenance, and Compliance Monitoring.
8.8.1.3.1 Operation and maintenance refer to measures initiated after the remedy is determined to be operational and functional. A remedy becomes "operational and functional" either one year after construction is completed, or when the remedy is determined by the Department to be functioning properly and performing as designed, whichever occurs earlier; except that for ground and surface water restoration, this period could be longer as determined by the Department. The Department may grant extensions to the one year period, as appropriate.
8.8.1.3.2 The purposes of compliance monitoring are to provide for:
8.8.1.3.2.1 Protection monitoring. Confirm that public health, welfare, and the environment are adequately protected during construction and during the operation and maintenance period of an interim response activity or remedial action described in the health and safety plan;
8.8.1.3.2.2 Performance monitoring. Confirm that the interim response activity or remedial action has attained cleanup levels and, if appropriate, other performance standards;
8.8.1.3.2.3 Confirmation monitoring. Confirm the long-term effectiveness of the remedial action once cleanup levels and, if appropriate, other performance standards have been attained.
8.9 Periodic Review
If the Department selects or approves a remedial action that results in hazardous substances remaining at a facility at concentrations which exceed compliance cleanup levels established under Section 9, the Department shall review the remedial action no less frequently than every 5 (five) years after the initiation of such remedial action to ensure that public health, welfare, and the environment are being protected; provided, however, that no further review shall be required if the Department determines that public health, welfare, and the environment will continue to be protected by the levels of hazardous substances present at the site.
8.10 Institutional Controls
8.10.1 Institutional controls that restrict the use of the facility and natural resources affected by a release of hazardous substances from the facility may be required to ensure continued protection of public health, welfare, and the environment, or the integrity of any interim response activity or remedial action in the following circumstances:
8.10.1.1 Where a remedial action results in residual concentrations of hazardous substances which exceed compliance cleanup levels established under Section 9, or
8.10.1.2 When the Department determines that the institutional controls are needed to ensure continued protection of public heath or welfare, or the environment, or the integrity of the remedial action.
8.10.2 These institutional controls shall not be used as a substitute for remedial actions that would otherwise be technically practicable. Institutional controls which are used shall be considered remedial actions for the purposes of these Regulations.
8.10.3 Such restrictions shall be described in restrictive covenants executed by the property owner and recorded with the registrar of deeds for the county in which the facility is located. Such restrictive covenants shall be run with the land, and be binding on the owner's successors and assignees.
8.10.4 Any current owner or operator and all future owners and operators of a facility shall comply with all the institutional controls established pursuant to these Regulations.
9.0 Cleanup Levels
9.1 General Procedures
9.1.1 All remedies performed under these regulations shall attain a degree of cleanup of hazardous substances and control of further releases of hazardous substances that ensures protection of public health, welfare, and the environment. The cleanup levels will be determined using a riskbased approach on a site specific basis. The risk-based approach may include consideration of existing and likely future uses of the facility and related natural resources.
9.1.2 Cleanup levels may be based on current and potential future resource uses and reasonable maximum exposures expected to occur under both current and potential future use conditions of areas that could be impacted by a release or imminent threat of a release of hazardous substances.
9.1.3 The Department may consider the use of established risk-based concentration values approved by the Department or cleanup standards and guidances established under 7 Del.C. Ch. 74, as a substitution for a risk assessment. The Department will determine, on a case-bycase basis, the appropriate instances in which any established risk-based values may be used.
9.1.4 Individuals or groups of individuals may be exposed to hazardous substances through more than one exposure pathway. Where the same individuals or groups of individuals are or could be consistently exposed through more than one pathway, the reasonable maximum exposure shall represent the total exposure through all of those pathways. The cleanup levels derived for individual pathways may be adjusted to be more stringent as directed by the Department to take into account multiple exposure pathways.
9.1.5 Methods for determining cleanup levels.
9.1.5.1 Compliance cleanup levels: These will be established at concentrations which are protective of public health, welfare, and the environment and, which require no restrictions on the use of the facility. Compliance cleanup levels shall be established in accordance with Subsections 9.2 - 9.4 and as directed by the Department.
9.1.5.2 Conditional cleanup levels: These represent concentrations which are protective of public health, welfare, and the environment under restricted facility use conditions. Conditional cleanup levels may be established where the person undertaking the remedy can demonstrate that such levels are consistent with state and federal laws, that all practicable methods of treatment are utilized, and that institutional controls are implemented in accordance with conditions as determined to be appropriate by the Department.
9.1.5.3 When there are legitimate risks to public health, welfare and the environment which are not quantifiable under Section 9, the Department may establish cleanup levels or cleanup strategies which are in its best professional judgement, protective of public health, welfare, and the environment.
9.1.6 When multiple carcinogens and/or non-carcinogens exist at a facility for which inadequate toxicological data is available, the Department may set more stringent cleanup levels than those established under Subsections 9.2 through 9.4 of these regulations.
9.2 Groundwater Cleanup Levels
9.2.1 Groundwater cleanup levels may be based on estimates of the highest beneficial use and the reasonable maximum exposure expected to occur under both current and potential future use conditions of areas that could be impacted by the release or imminent threat of release of hazardous substances or may otherwise reasonably be determined by the Department to abate the threat to public health, welfare, and the environment.
9.2.2 The Department has determined that, unless demonstrated otherwise by the potentially responsible parties, the current use or potential for the use of groundwater as drinking water, including domestic uses, is the beneficial use which shall be protected. This beneficial use will require the highest quality of groundwater and exposure to hazardous substances via ingestion of drinking water and other domestic water uses represent the most common exposure pathways. For beneficial uses other than drinking water or domestic uses, appropriate exposure pathways will be determined by the Department consistent with the use. In the event of a release of hazardous substances, treatment, removal, or containment measures shall be implemented to reduce the concentration of the hazardous substances in groundwater to concentrations consistent with its use as follows:
9.2.2.1 When the natural background level exceeds 10E-05 cancer risk level or a level corresponding to a hazard index value of one level, then the natural background level shall be the cleanup level; and
9.2.2.2 When the natural background level is less than 10E-05 cancer risk level or a level corresponding to a hazard index value of one, then the 10E-05 cancer risk level or a level corresponding to a hazard index value of one level shall be the level for cleanup; provided, however, that the MCL may be used as the cleanup level if the Department determines it is protective of human health and the environment and it is consistent with the policy and purposes of the Act and these regulations.
9.2.2.3 When there are multiple contaminants at a facility, the cleanup level of each contaminant shall be such that sum of the risks posed by the contaminants shall not exceed 10E-05 cancer risk or a hazard index value of one.
9.2.3 When the area contains high levels of contaminants as a result of human activity, such as in an urban or industrial area, and where the Department has determined that no active remediation is appropriate, then the goal shall be either no further degradation, or a level established by the Department. The goal is not only prevention of further degradation, but also, with the implementation of improved technology, remediation under other state or federal programs or allowing natural processes to occur, restoring the groundwater to natural background conditions.
9.2.4 Groundwater cleanup levels shall be established so that releases of hazardous substances to groundwater of the State shall not cause violations of surface water, sediments, soil, or air cleanup levels established pursuant to these regulations or other applicable state and federal laws.
9.2.5 In establishing groundwater cleanup levels, risk to the environment shall be considered.
9.2.6 Risk-based concentration values for hazardous substances in groundwater which comply with Subsection 9.2.1 and 9.2.2, or cleanup standards and guidances established under 7 Del.C. Ch. 74 for groundwater, may be used as cleanup levels for groundwater.
9.3 Surface Water Cleanup Levels
Cleanup levels for soils, and cleanup levels for groundwater that discharges to water bodies, shall not be at levels which may cause an exceedance of the State of Delaware Surface Water Quality Standards. Surface water cleanup levels shall meet the State of Delaware Surface Water Quality Standards.
9.4 Soil Cleanup Levels
9.4.1 Soil cleanup levels and the depths to which the cleanup levels will apply, shall be based on estimates of the facility use and the reasonable maximum exposure expected to occur under both current and future facility use conditions or may otherwise reasonably be determined by the Department to abate the threat to public health, welfare, and the environment.
9.4.2 The Department has determined that residential facility use is generally the facility use requiring the most protective cleanup levels and that exposure to hazardous substances in the soil via soil ingestion under residential facility use conditions represents the most common exposure pathway. For facility use other than residential use, appropriate exposure pathways will be determined by the Department consistent with its use. In the event of a release of hazardous substances, treatment, removal, or containment measures shall be implemented to reduce the levels of hazardous substances in soils at a facility to levels consistent with its use as follows:
9.4.2.1 When the natural background level exceeds the 10E-05 cancer risk level or a hazard index value of one level, for direct exposure or inadvertent ingestion, then the background level will be the cleanup level; and
9.4.2.2 When the natural background level is less than the 10E-05 cancer risk level or a level corresponding to a hazard index value of one, for direct exposure or inadvertent ingestion, then the 10E-05 cancer risk level or a level corresponding to a hazard index value equal to one becomes the cleanup level.
9.4.2.3 When there are multiple contaminants at a facility, the cleanup level of each contaminant shall be such that sum of the risks posed by the contaminants shall not exceed 10E-05 cancer risk or a hazard index value of one.
9.4.3 When the area contains high levels of contaminants as a result of human activity, such as in an urban or industrial area, and where the Department has determined that no active remediation is appropriate, then the goal shall be no further degradation or a level established by the Department. The goal is not only prevention of further degradation, but also, with the implementation of improved technology, remediation under other state or federal programs or allowing natural processes to occur, the restoration of the soil to natural background conditions.
9.4.4 Soil cleanup levels will also be such that migration of the contaminants from the soil will not cause a violation of the cleanup levels established for the ground or surface waters.
9.4.5 In establishing soil cleanup levels, risk to the environment shall be considered.
9.4.6 Risk-based concentration values for hazardous substances in soil which comply with Subsection 9.4.1 and 9.4.2, or cleanup standards and guidances established under 7 Del.C. Ch. 74 for soil, may be used as cleanup levels for soil.
 
10.0 Natural Resource Damage Assessment
10.1 Purpose
10.1.1 To ensure timely and comprehensive assessment of injuries to natural resources resulting from a release of a hazardous substance.
10.1.2 To appropriately estimate the damages for injury to the natural resource as a consequence of the release of a hazardous substance.
10.1.3 To ensure that all lost uses are compensated for and appropriate restoration or replacement is carried out, or compensation is received, for resources which are injured by the release of a hazardous substance, but which would not be restored or replaced as part of the remedial action at a facility.
10.2 Natural Resource Damages
10.2.1 Compensation: The Department may require monetary compensation from any potentially responsible party for any injury to natural resources, including any such injury prior to restoration or replacement of the natural resources. The Department shall not require compensation for those portions of natural resources that are replaced or restored after such restoration or replacement. If any restoration or replacement efforts ultimately fail, the Department may require compensation for any periods after such failure.
10.2.2 Restoration or Replacement. The Department may require restoration or replacement of any injured natural resources.
10.2.3 Damage Assessment Costs. The Department may also recover from the potentially responsible party, all costs of performing the natural resource damage assessment.
10.3 Preassessment Phase
10.3.1 Identification. Upon identification of a facility where there is a release or threat of a release of a hazardous substance, the Department shall conduct a preliminary survey to determine whether there are any natural resources affected or potentially affected by the release or threat of release. This survey should be done concurrently, with or as part of, the initial investigation. Upon identification of a facility where there is a release of a hazardous substance, the Department may conduct:
10.3.1.1 A preassessment screen to determine whether the release justifies a natural resource damage assessment;
10.3.1.2 Immediate sampling for the purpose of substantiating injury to resources which would otherwise be lost if sampling were delayed, such as counts of dead or injured organisms; and
10.3.1.3 Emergency response activities to the extent necessary to prevent or reduce the immediate migration of hazardous substances onto or into the resource of concern.
10.3.2 Preassessment Screen. This phase should be done concurrently with, or as part of, the facility evaluation, and should use data and information generated for the facility evaluation to the extent practicable. As determined by the Department the preassessment screen may include, but not be limited to, the following:
10.3.2.1 A review of existing information on the facility;
10.3.2.2 Preliminary identification of natural resources potentially at risk;
10.3.2.3 Sampling;
10.3.2.4 Preliminary identification of the substance released;
10.3.2.5 Preliminary identification of pathways of exposure;
10.3.2.6 Cost consideration of performing an assessment; and
10.3.2.7 A determination based on the information obtained in steps in subsections 10.3.2.1 through 10.3.2.5 of whether a damage assessment is appropriate.
10.4 Assessment Phase
10.4.1 If a damage assessment is determined to be appropriate in the Preassessment phase, an assessment plan may be developed by the Department which will outline the approach to be taken in carrying out the assessment. Assessments may be conducted using the procedures for "Type A" or "Type B" natural resource damage assessments outlined in 43 CFR part 11, as amended, or via other procedures determined to be appropriate by the Department. The damage assessment plan should be incorporated into the Remedial Investigation Work Plan to the maximum extent practicable.
10.4.2 If the damage assessment plan cannot be incorporated into the remedial investigation work plan, then the damage assessment may be done concurrently with the remedial investigation under a separate plan, unless the injury to natural resources is incapable of being quantified at that time, and a later assessment is justified.
10.4.3 The assessment shall be conducted in the following three stages:
10.4.3.1 Injury Determination. The Department shall determine whether an injury to one or more natural resources has occurred or may have occurred, and whether the injury did result or may have resulted from the release of a hazardous substance. The following factors must be considered during this stage:
10.4.3.1.1 Injury Definition. In order to determine whether an injury has occurred or may have occurred to a natural resource, the Department shall take into account the applicable state and federal standards, criteria and other requirements.
10.4.3.1.2 Pathway Determination. Exposure pathways shall be documented.
10.4.3.1.3 Testing and Sampling Methods. Methodologies shall be selected according to the requirements provided in 43 CFR part 11, as amended or as determined to be ppropriate by the Department, and shall be described in the Assessment Plan.
10.4.3.2 Quantification. If the Department determines that there is an injury or may be an injury to a natural resource, the Department shall evaluate the extent of the injury to that resource. The Quantification phase shall consist of the following steps:
10.4.3.2.1 Service Reduction Quantification. The Department shall quantify the effects of a release of a hazardous substance by determining the extent to which natural resource services have been or may have been reduced or impaired as a result of the injuries determined in the Injury Determination stage.
10.4.3.2.2 Baseline Services Determination. After quantifying the reduced natural resource services, the Department shall determine the physical, chemical, and biological baseline conditions and the associated baseline services for injured resources at the assessment area, and compare those baselines with the service reduction quantification.
10.4.3.2.3 Resource Recoverability Analysis. The Department shall determine the time likely to be needed for each injured resource to recover to the state where baseline conditions and services are re-established, whether by restoration, replacement or natural processes.
10.4.3.3 Damage Determination. The Department shall estimate the damages resulting from the release of a hazardous substance based upon the information provided in the Injury Determination and Quantification stages. In order to appropriately estimate the damages for each natural resource or services which have been or may have been injured or degraded as a consequence of the release of a hazardous substance, the Department shall use the Restoration Valuation, and one of the other two Valuation Methodologies outlined below.
10.4.3.3.1 Restoration Valuation. This methodology shall consist of damage estimation based on restoration or replacement of the injured natural resource due to the release of a hazardous substance. An evaluation of restoration alternatives shall be conducted. The evaluation shall consider a range of actions to restore the injured services over various recovery periods, and shall include a "no-action" or natural recovery alternative. The expected present value of alternative restoration methodologies shall be determined.
10.4.3.3.2 Use Value Valuation. These methodologies shall consist of damage estimations based on diminution of use values. The use values of the injured resource shall be estimated by using approaches as specified by the Department.
10.4.3.3.3 Nonuse Value Valuation. These methodologies shall consist of damage estimations based on diminution of the nonuse values. The nonuse values of the injured resource shall be estimated by using approaches as specified by the Department.
10.4.4 The results of the assessment shall be documented in a report which shall be incorporated into the Remedial Investigation Report to the extent practicable.
10.5 Post-Assessment Phase
10.5.1 Upon completion of the assessment, the Department may, as appropriate:
10.5.1.1 Select an appropriate cost-effective restoration alternative from those evaluated in the Damage Determination stage;
10.5.1.2 Present a demand in writing to the potentially responsible parties for compensation for the injury to natural resources;
10.5.1.3 Develop or require development by the potentially responsible parties of a Restoration Plan. The plan should describe the specific actions to be taken to restore or replace, and/or provide compensation for the injured natural resources. The Restoration Plan should be based on the restoration alternative selected by the Department.
10.5.2 Any settlement between the Department and the potentially responsible parties for the payment of damages shall be included in the Remedial Design/Remedial Action consent decree to the extent practicable.
10.5.3 The Restoration Plan shall be incorporated into the facility Remedial Design and implemented during the Remedial Action to the extent practicable.
 
11.0 Certification Of Completion Of Remedy
11.1 Certification of Completion of Remedy
At the completion of remedy, the owner, parties to a settlement agreement or parties responding to an order may submit to the Department, by registered mail, a request for certification of completion of remedy. The request for certification must be signed by the owner, parties to the settlement agreement or parties responding to an order and must be accompanied by documentation supporting the certification. A person who has conducted an initial investigation, facility evaluation, remedial investigation or feasibility study without concurrent oversight from the Department may not request a certification of completion of remedy until they have entered into a settlement agreement with the Department providing for subsequent oversight and approval of the remedial activities conducted by the person.
11.2 Approval
Within one-hundred and eighty (180) days of the receipt of the request, the Department shall accept or deny the request for certification based on the review of the request.
12.0 Public Participation
12.1 Public Notice
12.1.1 General Requirements. Whenever public notice is required by the Act or these regulations, the Department shall, at a minimum, provide or require notice as described in this Subsection. 12.1.1 Newspaper Publication. Notice of the proposed action shall be published in a newspaper circulated in the county of the proposed action, by one or more of the following methods: Display advertisement; legal notice; or any other appropriate format, as determined by the Department. (b) Additional Methods. In addition the Department may provide or require a notice by any other method deemed appropriate. (c) Comment Periods. All public notices shall indicate the public comment period on the proposed action. The comment periods shall be no less than twenty (20) days from the date of the notice. (d) Combining Public Comment Requirements. Whenever reasonable, the Department may consolidate public notice and opportunities for public comment under these regulations with public notice and comment requirements under other laws and regulations.
12.1.2 Consent Decrees. The following notification requirements shall be applicable for consent decrees.
12.1.2.1 Notice of proposed decree. The Department shall provide or require public notice of the proposed consent decree for a twenty (20) day comment period.
12.1.2.2 Revisions. If the Department and the potentially responsible party agree to substantial changes to the proposed consent decree, the Department shall provide additional public notice and at least a twenty (20) day comment period.
12.1.3 Proposed Plan of Remedial Action. The following notification requirements shall be applicable to the plan of remedial action:
12.1.3.1 The Department shall provide or require public notice of the proposed plan of remedial action and of the investigation upon which the proposed plan of remedial action is based. At a minimum, public notice shall briefly:
12.1.3.1.1 Describe the facility;
12.1.3.1.2 Identify the Department's proposed remedial action and provide an explanation for its selection or indicate where the information may be obtained; and