7 Del. Admin. Code § 1351-A-9.0

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

Section 1351-A-9.0 - Delivery and Dispensing Prohibitions

9.1 Delivering and Dispensing Prohibition Tags

9.1.1 "Delivery Prohibition Tag" shall mean a tamper resistant tag, 4.5 inches x 7.5 inches, colored red, which shall include without limitation the following wording, printed in white, in all capital letters, in at least 36 point bold-faced type:

9.1.1.1 "PETROLEUM DELIVERY PROHIBITED"; and

9.1.1.2 "No Person shall remove, deface, alter or otherwise tamper with this Delivery Prohibition Tag so that any information contained on it becomes illegible or otherwise is rendered unavailable to any Person considering or commencing delivery of Regulated Substance into the UST System.

9.1.1.3 This Delivery Prohibition Tag is affixed by the Delaware Department of Natural Resources and Environmental Control, pursuant to Part A, Section 9.0. Violators are subject to civil and criminal penalties pursuant to 7 Del.C. §§ 6005, 6013 and 7411." Contact information for the Department shall be included on the Delivery Prohibition Tag.

9.1.1.4 No Person shall order, deliver or accept delivery of a Regulated Substance into an UST System that has a Delivery Prohibition Tag affixed to the UST System.

9.1.2 "Dispensing Prohibition Tag" shall mean a tamper resistant tag, 4.5 inches x 7.5 inches, colored white, which shall include without limitation the following wording, printed in red, in all capital letters, in at least 36 point bold-faced type:

9.1.2.1 "PETROLEUM DISPENSING PROHIBITED"; and

9.1.2.2 "No Person shall remove, deface, alter or otherwise tamper with this Dispensing Prohibition Tag so that any information contained on it becomes illegible or otherwise is rendered unavailable to any Person considering dispensing of Regulated Substance from the UST System.

9.1.2.3 This Dispensing Prohibition Tag is affixed by the Delaware Department of Natural Resources and Environmental Control, pursuant to Part A, Section 9.0. Violators are subject to civil and criminal penalties pursuant to 7 Del.C. §§ 6005, 6013 and 7411. Contact information for the Department shall be included on the Dispensing Prohibition Tag.

9.1.2.4 No Person shall dispense a Regulated Substance from a UST System that has a Dispensing Prohibition Tag affixed to the UST System.

9.1.3 The Department shall retain all other legal rights and remedies for violations upon which a Delivery or Dispensing Prohibition Tag is based, including without limitation all civil, administrative and daily monetary penalties. Affixing of the Delivery or Dispensing Prohibition Tag shall not be construed to preclude, estop or otherwise limit the exercise at any time of any right or remedy by the Department, including without limitation all civil, administrative and daily penalties. Due to the nature of the Delivery or Dispensing Prohibition Tag, an Owner and Operator should expect that additional enforcement action may be taken.

9.1.4 Any failure of the Division to take any action specified in Part A, Requirements for Delivery or Dispensing Prohibition, subsection 9.1, shall not be a condition on the effectiveness of the Delivery or Dispensing Prohibition Tag to prevent deliveries or dispensing under penalty of law, and shall not constitute a defense to any violations under the Regulations Governing Underground Storage Tank Systems or 7 Del.C. Chs. 60 and 74.

9.2 Process for Field Delivery and Dispensing Prohibitions Without Prior Notice

9.2.1 The following conditions warrant immediate Delivery and Dispensing Prohibitions:

9.2.1.1 Department representative determines that an Imminent Threat exists, or

9.2.1.2 Spill prevention, overfill prevention, Release Detection, or corrosion protection equipment is not installed as required by these Regulations, or

9.2.1.3 Failure to comply with an Indicated Release investigation or Release response requirements in accordance with Part E of these Regulations, or

9.2.1.4 Failure to comply with financial responsibility requirements in accordance with Part F of these Regulations.

9.2.2 Department representative shall immediately affix the Delivery Prohibition Tag to the fill Pipe and the Dispensing Prohibition Tag to the affected Dispenser of the UST System(s) involved, so that it is immediately noticeable and available to any Person considering or commencing delivery of Regulated Substances into the UST System or dispensing of Regulated Substances from the UST System(s).

9.2.3 Department representative shall contact the Owner and Operator, as soon as practicable subsequent to the affixing of the Delivery and Dispensing Prohibition Tags and inform the Owner and Operator of:

9.2.3.1 The affixing of the Prohibition Tags, and

9.2.3.2 The violation(s) upon which the prohibition is based and

9.2.3.3 Procedures for filing a Notice of Appeal.

9.2.4 An Owner or Operator may at any time submit a written Notice of Appeal, disputing the underlying violation(s) to the Department. The Notice of Appeal shall provide all information, substantiation, and documentation to allow an informed decision on the appeal, and contact information.

9.2.5 The Department shall issue a written response to the Notice of Appeal within 7 Days of receipt, and shall arrange for it to be delivered to the Owner or Operator submitting the Notice of Appeal as soon as practicable. An Owner or Operator may submit more than one written Notice of Appeal.

9.2.6 Within 7 Days of receipt by an Owner or Operator of the Department's written response, the Owner or Operator may submit a Request for an Expedited Evidentiary Hearing to the Department.

9.2.7 Within 7 Days of receipt of the Request for an Expedited Evidentiary Hearing, the Department shall schedule an Expedited Evidentiary Hearing, with written notice to the Owner or Operator at least 30 Days before the scheduled date of the Expedited Evidentiary Hearing.

9.2.8 At any time information becomes available to the Department that causes it to conclude that the violation(s) upon which the Delivery and Dispensing Prohibition Tags is based no longer exists, including results from the Indicated Release investigation, Department representative shall remove the Delivery or Dispensing Prohibition Tag as soon as practicable.

9.3 Process for Delivery Prohibitions with Prior Notice

9.3.1 Upon determination by the Department of a violation of the Regulations Governing Underground Storage Tank Systems or 7 Del.C. Chs. 60 or 74, other than a violation that poses an Imminent Threat, the Department may give written notice to the Owner or Operator of the following:

9.3.1.1 The violation(s) upon which the prohibition is based, and

9.3.1.2 The scheduling of an Expedited Evidentiary Hearing, with written notice to the Owner or Operator at least 30 Days before the scheduled date of the Expedited Evidentiary Hearing, and

9.3.1.3 The preliminary intention to affix a Delivery Prohibition Tag at the conclusion of the Expedited Evidentiary Hearing, subject to consideration of the evidence submitted and any other pertinent considerations.

9.4 Process for Expedited Evidentiary Hearing

9.4.1 The administrative head of the Department, or his or her designee, shall preside at the Expedited Evidentiary Hearing.

9.4.2 The Owner or Operator may appear at the Expedited Evidentiary Hearing and submit evidence to refute or correct the violation(s).

9.4.3 The administrative head of the Department, or his or her designee, shall issue a written ruling to the Owner or Operator within 7 Days after the Expedited Evidentiary Hearing is concluded.

9.4.4 The Owner or Operator may appeal an adverse determination from the Expedited Evidentiary Hearing by requesting a public hearing pursuant to the procedural provisions for a public hearing found in 7 Del.C. Chs. 60 and 74. The request for a public hearing shall be made by the Owner or Operator to the Secretary's Office in writing within 30 Days of receipt of an adverse determination of the Expedited Evidentiary Hearing.

9.4.5 The focus of the appeal process shall be the existence of the violation(s) underlying the affixing of the Delivery or Dispensing Prohibition Tag, and, by extension, whether the Department should remove the Delivery or Dispensing Prohibition Tag or forbear from affixing it. If at any time during the appeal process, the Division removes the Delivery or Dispensing Prohibition Tag, the appeal process shall be ceased, no further actions need be taken by the Department, and no further proceedings shall be available or provided to the Owner or Operator concerning the Delivery or Dispensing Prohibition Tag. The appeal process shall not act as a stay of the effect of the Delivery or Dispensing Prohibition Tag or any other legal requirements.

7 Del. Admin. Code § 1351-A-9.0

23 DE Reg. 581 (1/1/2020)
27 DE Reg. 533 (1/1/2024) (Final)