(a) A “chronic violator” is a regulated party that has demonstrated an inability or unwillingness to comply with 1 or more of the Department’s regulatory programs.
(1) The criteria for determining whether a regulated party has demonstrated such inability or unwillingness shall include whether the regulated party has engaged in a pattern of wilful neglect or reckless disregard of the permits or regulatory programs of the Department.
(2) The Department shall have discretion to commence, review and reconsider, or not, chronic violator status as to any particular regulated party at any time.
(3) Upon consideration of a person’s chronic violator status in accordance with the chapter, the Secretary may seek a determination of a regulated party’s status as a chronic violator, by commencing a proceeding before the Environmental Appeals Board, by the filing of an administrative complaint. The administrative complaint shall contain the factual and legal basis on which a chronic violator determination is sought, any proposed limits, requirements or restrictions sought to be imposed on a facility or regulated party, as well as any administrative penalties the complaining party seeks to impose under § 7906 of this title.
(4) a. The Environmental Appeals Board, as established by § 6007 of this title, is granted jurisdiction to hear and determine the issues presented in an administrative complaint from the Secretary on chronic violator status, on such notice as is legally required. The Board shall have discretion in determining the procedures for the hearing process, provided that:
1. All parties to the complaint may appear personally or by counsel before the Board.
2. The Board shall provide a reasonable opportunity for discovery of the factual and legal contentions of the parties.
3. All parties to the complaint may produce any competent evidence in their behalf, although the Board may exclude any evidence that is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal, and cross-examination.
4. The burden is on the complaining party to prove that the regulated party is a chronic violator and that the administrative actions and penalties sought are supported by a preponderance of the evidence before the Board.
b. The Board’s order on chronic violator status shall contain findings of fact and conclusions of law based on the record, which shall include but not be limited to: notices and other underlying procedural documents; a transcript of the hearing; documents entered at the hearing; and documents relied upon in deciding chronic violator status. Either party may appeal the Board’s decision, or any part of its order, to the Superior Court under § 6009 of this title.
(5) The Department shall adopt, amend, modify, or repeal its regulations, after public hearing, to make them consistent with this subchapter, and the Department may adopt, amend, modify, or repeal regulations at any time, after public hearing, to effectuate the policy and purposes of this subchapter, including without limitation, to provide a process for determining when a regulated party shall be declared a chronic violator and to set the terms and conditions under which the status of chronic violator may be lifted.
(b) One or more of the factors to be considered in determining whether a regulated party has engaged in a pattern of wilful neglect or reckless disregard of the permits or regulatory programs of the Department shall include:
(1) The nature and extent of the harm caused or threatened.
(2) The impact on the integrity of regulatory programs.
(3) Duration of noncompliance, including without limitation the duration of the violations and the duration over which violations have continued to occur.
(4) Number of violations of a similar nature.
(5) Total number of violations of all types.
(6) Economic benefit or harm attributable to violations and noncompliance.
(7) Relationship and relevance of violations to activity for which permit is sought.
(8) [Repealed.]
(9) The actions of new owners or managers, where ownership or management has changed at the facility.
(10) Actions taken or not taken to prevent, mitigate or respond to harm caused or threatened by the violation.
(11) Whether any or all of the violations were self-reported within 15 consecutive days after the date of discovery.
(12) The amount of an illegal release of a pollutant in proportion to the amount legally authorized to be released, if any.
(13) Whether the regulated party has adequately capitalized, funded or modernized its operations, maintenance, mechanical integrity efforts, training programs and or risk management reviews so that compliance with the Department’s regulatory programs can be reasonably expected.
(14) Whether the regulated party has used recognized and generally accepted good engineering and other related professional practices established within the regulated party’s field or industry so that compliance with the Department’s regulatory programs can be reasonably expected.
(15) The size, scope and complexity of operations and the number of facilities located in the State.
(16) Whether any violation constitutes a high priority violation according to the United States Environmental Protection Agency.
(c) In addition, 1 or more of the types of violations to be considered by the Secretary shall include, but not be limited to:
(1) Violations that cause or threaten harm to the environment or to public health or safety;
(2) Violations resulting in criminal convictions;
(3) Tampering with monitoring or sampling equipment or interfering with samples or analytical results;
(4) Filing false reports or inaccurate or misleading information;
(5) Failing to maintain or use required pollution control equipment, structures or practices;
(6) Repeatedly failing to submit required reports of regulated activity such as Discharge Monitoring Reports;
(7) Repeatedly conducting a regulated activity without a required permit or other authorization;
(8) The extent of deviation from the permit, order, or other requirement;
(9) Noncompliance with court orders including without limitation consent orders;
(10) Alleged violations that were the subject of negotiated settlements notwithstanding any general release of liability and whether such violations have been found or proved in concurrent or subsequent proceeding or public hearings; and
(11) Violations and conduct by related persons, business entities and other regulated parties including without limitation conduct and violations by common employees, managers, officers, directors, shareholders, principals, partners, and owners.
(d) The Secretary may reject any permit application or revoke any permit upon a finding that:
(1) The applicant withheld or misrepresented any of the information required to be submitted pursuant to § 7902 of this title;
(2) The applicant has operated or has been associated with any company or person who has operated a facility in a manner which casts substantial doubt on the ability or willingness of the applicant to operate the facility for which a permit is being requested in a manner that will protect the health and welfare of the citizens of Delaware;
(3) The applicant has offered, conferred or proposed to confer any benefit to an employee of the State in the expectation that such offer will result in or contribute to a positive action on the permit application; or,
(4) The applicant has been determined by the Department to be a chronic violator.
(5) The applicant or permit holder is engaged in a pattern of ongoing violations of the permit, state laws or state regulations, which presents a serious, imminent threat to public health.
The Department shall promulgate regulations or institute procedures providing for expedited hearings with respect to permits revoked under this subsection, and providing for expedited appeals of such suspensions or revocations to the Environmental Appeals Board.