Delaware Proposes Significant Changes to Chronic Violator Law
May 5, 2010
Legislation was introduced yesterday in the Delaware General Assembly that would significantly revise the State’s "chronic violator" enforcement program. The legislation is intended to make it easier for the State to identify "chronic violators" and broadens the bases for making such a determination. The bill also grants administrative subpoena power to the state environmental agency to obtain documents and information, and increases the State’s penalty authority.
The State’s current "chronic violator" law was adopted in 2001 following extensive discussions among stakeholder groups. Furthermore, the 2001 legislation created an advisory committee to draft enabling regulations, and this committee spent considerable time developing a regulatory structure to implement the legislation. The newly proposed legislation appears to disavow the extensive efforts of the stakeholders.
The proposed legislation defines a chronic violator as a regulated party that has demonstrated an inability or unwillingness to comply with one or more of the State’s environmental regulatory programs. The bill identifies the relevant criteria as:
The proposed legislation also broadens the authority of the state environmental agency to require applicant background statements for environmental permits. These statements, which include identification of all board members and company officers, may now be required to be submitted for "each and every" initial permit application or other initial regulatory authorization request to any branch, section or other programmatic subdivision of the agency.
The legislation creates significant uncertainty over the conduct that might lead to branding as a "chronic violator" and contains few, if any, standards for making such a determination. Interested parties are encouraged to contact Robert Whetzel for further details.