3 Del. Admin. Code § 401-7.0
Current through Register Vol. 28, No. 5, November 1, 2024
Section 401-7.0 - Procedures and Penalties7.1 To establish an inspection procedure which reinforces and compliments the regulatory authorities contained within Subchapter VI, the Delaware Forest Service has established the following framework: 7.1.1 Informal field visits.7.2 If at any time during the enforcement process any water quality problem is corrected, all proceedings will be terminated, and a letter will be provided to the landowner and operator reflecting compliance with the law.7.3 Informal Field Visits 7.3.1 The Forester will visit a tract, perform a BMP inspection, and complete a BMP inspection form, a copy of which will be provided to the operator and landowner. During the course of this inspection, the field person will determine the status of the effectiveness of BMPs in protecting water quality and record this determination on the inspection form.7.3.2 If, during a routine inspection of a harvest operation, it is discovered that the operator on the site does not have an approved harvest permit for the operation, the Forester will, at the Forester's discretion, issue a verbal or written warning to the operator. The Forester will immediately assist the operator in completing a permit form to bring the operation into compliance with the E & S rules and regulations. If failure to have an approved permit is a second offense, the Forester can, at the Forester's discretion, halt all harvesting operations until a permit has been completed and approved. If more than 2 offenses of this nature within a 12 month period, are on record for the operator/buyer, a fine, not to exceed $2,000 may be levied as specified in 3 Del.C. § 1077.7.3.3 On the BMP inspection form, three categories of water quality classifications will be used: No Water Quality (WQ) problem; potential WQ problem; and severe WQ problem. A potential WQ problem is defined as a typical problem that would cause excessive sedimentation and erosion during a normal rainfall. Examples may include undersized culverts and improper log road or deck stabilization on highly erodible soils. A severe WQ problem is defined as any silvicultural activity which is causing sediment deposition or will immediately create serious sediment deposition in a rainfall event.7.3.4 If no WQ problem exists, the landowner and operator are notified on site, if possible, and in writing within 3 business days following the inspection.7.3.5 If a potential WQ problem exists on an initial field visit, the Forester will note the problem on the BMP inspection form, including written directions to alleviate the potential problem, to the operator and landowner, and a time limitation of up to 5 business days to correct the problem. The Forester will notify the Forester's immediate supervisor of the existence of a potential WQ problem. When the time limitation specified in the recommendation for a potential WQ problem has elapsed, the Forester will return for a second visit. If the problem persists with no extenuating circumstances such as bad weather, all operations will be halted until specified corrective actions have been made to the satisfaction of the Forester.7.3.6 If a severe WQ problem exists, such as skidding logs across a stream or ditch with no bridge, the Forester will cause all operations to cease immediately, issue a written warning containing instructions how to immediately correct the problem.7.3.7 In the event that an operator vacates a harvest site and WQ problems have not been corrected or resolved, the following actions may be taken at the discretion of the Forestry Administrator.7.3.7.1 No further E & S permits will be issued for that permittee (operator), nor may that operator legally operate under any existing DFS E & S permits, until all corrections have been made to the satisfaction of the DFS.7.3.7.2 A fine, not to exceed $2,000 may be levied as specified in 3 Del.C. § 1077.7.4 Formal Hearing 7.4.1 If the parties cannot agree to corrective actions as determined by DFS, a formal hearing will be convened and conducted in accordance with Title 29 Chapter 101 of the Delaware Code, the Administrative Procedures Act (APA). All silvicultural operations on the site will cease until the results of the hearing are known.7.4.2 Twenty days prior to the hearing, formal notice will be given to the parties and such notice will contain the following information:7.4.2.1 A description of the subject matter of the proceedings;7.4.2.2 Notice of the opportunity to proceed with informal fact-finding procedures (a second informal conference) and of the date by which this election must be made;7.4.2.3 The date, time, and place the formal hearing will be held if informal fact-finding is not elected;7.4.2.4 Citation to the law or regulation giving the DFS the authority to act;7.4.2.5 Notice to parties of their right to present evidence, to be represented by counsel, and to appear personally or by other representative; and7.4.2.6 Notice to the parties of the agency's obligation to reach its decision based upon the evidence received.7.4.3 The hearing may be conducted by the Secretary of Agriculture or the Secretary's designee.7.4.4 Any party may request a pre-hearing conference, to discuss, among other things, issues in dispute, documents to be relied upon, witnesses to be called, and any procedural matters.7.4.5 The proceedings shall be recorded to ensure accuracy. A recorded transcript will be taken by a court stenographer upon request and this procedure will be paid for by the requesting party. All testimony shall be taken under oath as administered by the hearing officer. The names and addresses of all interested parties present shall be noted on the official record of the hearing.7.4.6 Any party may present any competent evidence in its behalf and request subpoenas for testimony or production of documents and other tangible evidence. Non-parties shall not present evidence.7.4.7 Strict rules of evidence shall not apply. All evidence having probative value commonly accepted by a reasonably prudent person in the conduct of their affairs shall be admitted. Objections to the admission or the exclusion of evidence shall be brief and shall state the ground for objection. Evidence which is plainly irrelevant, immaterial, insubstantial, cumulative, or unduly repetitive may be excluded.7.4.8 The parties may be represented by counsel. The hearing shall open with a brief statement from each party of what such party intends to establish at the hearing.7.4.9 Following opening statements, each party shall have an opportunity to produce evidence in support of such party's position. The owner/operator shall produce evidence first followed by DFS. After initial testimony and cross-examination by the parties, any witness may be examined by the hearing officer. Following the presentation of the main case, the owner/operator shall have an opportunity to produce rebuttal evidence, subject to cross-examination. Following the presentation of the rebuttal evidence, DFS shall have an opportunity to present surrebuttal evidence, subject to cross-examination.7.4.10 If no procedure is specifically prescribed by this regulation, the hearing officer may proceed in a manner not inconsistent with this regulation.7.4.11 At the conclusion of the hearing, the Secretary of Agriculture or designee may issue a Special Order within 20 days from the date of the hearing. The Special Order shall describe evidence on which the Order was based. Upon issuance of a Special Order, the landowner and operator will implement specified corrective measures within a specified period of time.7.5 Penalties. Any owner or operator who violates, fails, or refuses to obey any Special Order may be assessed a civil penalty by the Forestry Administrator. Such penalty shall not be less than $200 or more than $2,000 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing penalties.
7.6 Superior Court 7.6.1 If the Special Order has not been complied with, the Forestry Administrator may file a complaint in the Superior Court which has jurisdiction over all offenses under this statute. However, within 3 business days of the inspection and prior to the filing of a complaint with the Superior Court, the Forestry Administrator may, at the Forester's discretion, agree to engage in an informal conference process with the landowner and operator to discuss and resolve violations of the Special Order.7.6.2 Any person who intentionally, knowingly, and after written notice to comply violates or refuses to comply with any notice issued by the DFS shall be fined not less than $500 or more than $10,000 for each offense. Such penalty may only be assessed after owner or operator has had the opportunity for a hearing as specified herein. Each day the violation continues shall constitute a separate offense.3 Del. Admin. Code § 401-7.0
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28 DE Reg. 287 (10/1/2024) (Final)