2017 Delaware Code
Title 7 - Conservation
CHAPTER 77. EXTREMELY HAZARDOUS SUBSTANCES RISK MANAGEMENT ACT
§ 7710. Inspection.

(a) Inspection program components — Essential components of a facility inspection shall include at a minimum:

(1) A sampling of all required risk management program documentation;

(2) A physical inspection of equipment associated with the process containing the EHS to verify implementation of the risk management program;

(3) Evidence of the application of engineering and maintenance standards associated with EHS substances; and

(4) Sampling interviews of personnel associated with EHS to verify that the provisions of the risk management program have been implemented.

(b) Confidential information — All documents (such as, but not limited to: inspection reports, responses to inspection reports, notices of violation, administrative orders and penalties, correspondences and facility RMPs) submitted to the Department or developed by the Department pursuant to this chapter shall be handled consistent with the Freedom of Information Act (Chapter 100 of Title 29) with the exception of the following which shall be maintained as confidential by the Department:

(1) Sections of inspection notes containing or relating to trade secrets, and/or commercial or financial information observed, viewed or obtained orally during an inspection that may result in substantial harm to a business' competitive edge.

(2) Sections of inspection notes containing the identity of persons interviewed during the inspection.

(c) Inspection schedule. — The Department shall develop and issue a phased initial inspecting program on the basis of degree of risk. Facilities with extremely hazardous substances having the highest substance hazard indexes shall be inspected before facilities with lower indexed extremely hazardous substances. Facility inspections shall continue during the regulation revision process and be an integral part of the revised regulation. The Department shall develop an inspection schedule, so that it can ensure and evaluate compliance with this title, including any regulations or requirements adopted by the Secretary in furtherance of the purposes of this title.

The Department may determine the frequency of inspection of a specific facility, based on:

(1) Risk;

(2) Compliance history;

(3) The recent occurrence of an incident involving an extremely hazardous substance; or

(4) Recent compliance with this chapter.

The Department will provide covered facility owners and/or operators with 24-hour advance notice before inspections, except:

(1) If the Department determines that an inspection without such notice is warranted by exigent circumstances and approves such inspection; or

(2) If any delay in conducting an inspection might be seriously detrimental to safety, and the Department determines that an inspection without notice is warranted.

(d) Inspection protocol. — All inspections shall be conducted by trained state personnel or representatives. All inspections shall be conducted within the limits of a thorough Risk Management Program Inspection Protocol issued by the Department and adopted after public hearing. The Protocol consists of specific questions, facility characteristics, required risk management program components, physical observations and interviews.

(e) Inspectors. — Inspections and audits are conducted by personnel duly authorized and designated for that purpose as "inspectors'' by the Department. An inspector will, on request, present his or her state-issued identification card for examination at a facility being inspected, but the identification card may not be reproduced by the facility.

(f) Access to facilities and records — The Department has the right to enter any facility at any time to verify compliance with this chapter. Inspections for the purpose of document review shall be scheduled with the facility with reasonable advance notice and, when possible, mutual agreement. Inspectors shall comply with all safety regulations of the facility.

(g) A report of compliance or noncompliance — The Department shall issue an inspection report detailing the findings of compliance or noncompliance with the risk management program requirements for each inspection. This report shall contain the Department's recommendations based on inspection for potential improvements to a facility's risk management program. In the event that the Department has a finding of substantial noncompliance, the Department may issue a written notice of violation and may proceed as detailed in § 7714 of this title.

(h) Resolution of unfavorable inspection findings — Responsible person or persons of the facility shall respond to the Department's recommendations from the written inspection report within 60 days and notify the Department of any changes and additions to improve their risk management program or respond with a remediation plan and schedule for the Department's approval. Upon a finding of substantial noncompliance with the risk management program, with the risk management plan or upon a finding of failure to implement the approved remediation plan or schedule, the Department may proceed as detailed in § 7714 of this title.

(i) Written agreement — If the responsible person(s) and the Department agree on measures to correct risk management program deficiencies or omissions, the parties may enter into a written agreement.

(j) Issuance of administrative order — If, after notice to the responsible person or persons of the facility and an administrative hearing with written findings, the parties are unable to reach an agreement on improvements to the facility risk management program to bring it into compliance, the Department shall issue an administrative order requiring correction of deficiencies of the risk management program including a schedule for the corrections as detailed in § 7714 of this title.

(k) Injunctive relief — If, upon Department inspection and notice to the responsible person(s) of the facility, a functioning risk management program is lacking and a situation exists which demonstrates the purpose of this chapter is in real and imminent jeopardy, the Department may promptly seek injunctive relief in Chancery Court.

66 Del. Laws, c. 417, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 308, § 1; 79 Del. Laws, c. 431, § 1.;