16 Del. Admin. Code § 4459B-9.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4459B-9.0 - Suspending, Revoking, or Modifying an Individual's or Firm's Certification

9.1 Grounds for suspension, revocation, or modification.

9.1.1 Grounds for suspending, revoking, or modifying an individual's certification. The Secretary may, after notice and opportunity for hearing, suspend, revoke, or modify an individual's certification if:

9.1.1.1 The individual fails to comply with Federal lead-based paint statutes or regulations, or Delaware lead-based paint statutes or regulations.

9.1.1.2 The renovator fails to ensure that all assigned renovations comply with Section 4.0.

9.1.1.3 Obtained training documentation through fraudulent means.

9.1.1.4 Gained admission to and completed an accredited training program through misrepresentation of admission requirements.

9.1.1.5 Obtained certification through misrepresentation of certification requirements or related documents dealing with education, training, professional registration, or experience.

9.1.1.6 Performed work requiring certification at a job site without having proof of certification.

9.1.1.7 Permitted the duplication or use of the individual's own certificate by another.

9.1.1.8 Performed work for which appropriate certification has not been received.

9.1.1.9 Failed to comply with the appropriate work practice standards for lead-based paint activities in Section 4.0.

9.1.1.10 Denied the Secretary access to enter premises or facilities where the certified individual conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations.

9.1.2 Grounds for suspending, revoking, or modifying a firm's certification.

9.1.2.1 The Secretary may, after notice and opportunity for hearing, suspend, revoke, or modify a firm's certification if the firm:

9.1.2.1.1 Submits false or misleading information in its application for certification or re-certification.

9.1.2.1.2 Fails to maintain or falsifies records required in Section 5.0.

9.1.2.1.3 Fails to comply, or an individual performing a renovation on behalf of the firm fails to comply, with Federal lead-based paint statutes or regulations or Delaware lead-based paint statutes or regulations.

9.1.2.1.4 Performed work requiring certification at a job site with individuals who are not certified.

9.1.2.1.5 Failed to comply with the work practice standards established in Section 4.0.

9.1.2.1.6 Misrepresented facts in its certification application or letter.

9.1.2.1.7 Failed to maintain required records.

9.1.2.1.8 Denied the Secretary access to enter premises or facilities where the certified firm conducts business, including work sites, to execute reasonable inspection, including taking samples, to ensure compliance with regulations

9.1.3 In addition to an administrative or judicial finding of violation, execution of a consent agreement in settlement of an enforcement action constitutes, for purposes of this section, evidence of a failure to comply with relevant statutes or regulations.

9.2 Process for suspending, revoking, or modifying certification.

9.2.1 Prior to taking action to suspend, revoke, or modify an individual's or firm's certification, the Secretary will notify the affected entity in writing of the following:

9.2.1.1 The legal and factual basis for the proposed suspension, revocation, or modification.

9.2.1.2 The anticipated commencement date and duration of the suspension, revocation, or modification.

9.2.1.3 Actions, if any, which the affected entity may take to avoid suspension, revocation, or modification, or to receive certification in the future.

9.2.1.4 The opportunity and method for requesting a hearing prior to final suspension, revocation, or modification.

9.2.2 If an individual or firm requests a hearing within 20 days of the postmarked date of the Secretary's notification in subsection 9.2.1, the Secretary will:

9.2.2.1 Provide the affected entity an opportunity to offer written statements in response to Secretary's assertions of the legal and factual basis for its proposed action, and any other explanations, comments, and arguments it deems relevant to the proposed action.

9.2.2.2 Provide the affected entity such other procedural opportunities as the Secretary may deem appropriate to ensure a fair and impartial hearing.

9.2.2.3 Appoint an official Hearing Officer. No person shall serve as a Hearing Officer if the person has had any prior involvement with the specific matter.

9.2.3 The Hearing Officer will:

9.2.3.1 Conduct a fair, orderly, and impartial hearing within 90 days of the request for a hearing.

9.2.3.2 Consider all relevant evidence, explanation, comment, and argument submitted.

9.2.3.3 Notify the Secretary in writing within 45 days of completion of the hearing of the Hearing Officer's decision. The Secretary shall either accept or reject the decision. If accepted, the Secretary issues a final order within 45 days of receiving the Hearing Officer's decision. Such an order is a final agency action, which may be subject to judicial review by Superior Court. The order contains the commencement date and duration of the suspension, revocation, or modification.

9.2.4 If the Secretary determines that the public health, interest, or welfare warrants immediate action to suspend the certification of any individual or firm, or if an individual or firm denies the Secretary access for purposes of inspection or taking samples, prior to the opportunity for a hearing, the Secretary will:

9.2.4.1 Notify the affected entity in accordance with paragraph subsections 9.2.1.1 through 9.2.1.3, explaining why it is necessary to suspend the entity's certification before an opportunity for a hearing.

9.2.4.2 Notify the affected entity of its right to request a hearing on the immediate suspension within 15 days of the suspension taking place and the procedures for the conduct of such a hearing.

9.2.5 Any notice, decision, or order issued by the Secretary under this section, any transcript or other verbatim record of oral testimony, and any documents filed by a certified individual or firm in a hearing under this section will be available to the public. Any such hearing at which oral testimony is presented will be open to the public, except that the Presiding Officer may exclude the public to the extent necessary to allow presentation of information which may be entitled to confidential treatment.

9.2.6 The Secretary will maintain a publicly available list of entities whose certification has been suspended, revoked, modified, or reinstated.

9.2.7 Unless the decision and order issued under subsection 9.2.3.3 specify otherwise:

9.2.7.1 An individual whose certification has been suspended must take a refresher training course (Renovator or Dust Wipe Technician) in order to make the individual's certification current.

9.2.7.2 An individual whose certification has been revoked must take an initial Renovator or Dust Wipe Technician course in order to become certified again.

9.2.7.3 A firm whose certification has been revoked must reapply for certification after the revocation ends in order to become certified again. If the firm's certification has been suspended and the suspension ends less than two (2) years after the firm was initially certified or re-certified, the firm does not need to do anything to re-activate its certification.

16 Del. Admin. Code § 4459B-9.0

26 DE Reg. 699( 2/1/2023) (final)