Delaware Proposes Significant Changes to Chronic Violator Law

May 5, 2010

Publication| Environmental

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:  

a)  whether the regulated party has engaged in a pattern of willful neglect or reckless disregard of the permits or regulatory programs;
b)  whether the regulated party has adequately capitalized, funded or modernized its operations, maintenance, mechanical integrity efforts, training programs and risk management reviews so that compliance with the  regulatory programs can be reasonably expected; and
c)  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  regulatory programs can be reasonably expected.

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.

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