CHAPTER 161

FORMERLY

SENATE SUBSTITUTE NO. 1

TO

SENATE BILL NO. 244

AS AMENDED BY SENATE AMENDMENT NOS 1 AND 2 AND

SENATE AMENDMENT NO. 1 TO SENATE AMENDMENT NO. 2

AN ACT TO ADD A NEW CHAPTER 7 4, TITLE 7 OF THE DELAWARE CODE RELA T ING TO THE PREVENTION, DETECTION, INVESTIGATION, AND CORRECTION OF UNDERGROUND STORAGE TANK LEAKS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Title 7 of the Delaware Code by creating a new Chapter 74 to read as fo l lows:

"Chapter 74. Delaware Underground Storage Tank Act.

§7401. Declaration of Purpose.

The Legislature finds and declares that the storage of petroleum products and other hazardous liquids in underground storage tanks is emerging as a major cause of groundwater contamin a tion in the State; that the State's groundwater resources are vital to the population and economy of the State; that millions of gallons of gasoline and other hazardous substances are stored in underground storage tanks; that leaks of stored substances are occurring in a significant nu m ber of these tanks due to corrosion, structural defect, and improper installation; that leaks are often difficult to detect early because of insufficient product inventory or other control sy s tems; and that it is necessary to provide for more stringent control of the installation, oper a tion, retrofitting and abandonment of underground storage tanks to prevent leaks, and where leaks should occur, detect them at the earliest possible stage and thus minimize further degrad a tion of groundwater.

§7402. Definitions.

The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

(a) 'Abandoned storage system' means a storage system which (1) is not intended to be returned to service, or (2) has been out of service for over three years, or (3) has been rendered perm a nently unfit for use.

(b) 'Department' means the Department of Natural Resources and Environmental Control.

(c) 'Existing tank' means a tank for which installation began prior to the effective date of this Chapter.

(d) 'Facility' means any location or part thereof containing one or more underground storage tanks.

(e) 'New tank or facility' means a tank or facility for which the installation began or or after the effective date of this Chapter.

(f) 'Operator' means any person operating a facility whether by lease, contract, or other form of agreement.

(g) 'Out of Service' means a storage system which:

(1) is not in use; that is, which does not have regulated substances added to or withdrawn from the storage system; and

(2) is intended to be placed in service.

(h) 'Owner' means;

(1) in the case of an underground storage tank in use on the effective date of this Chapter, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of regulated substances; and

(2) in the case of any underground storage tank in use before the effective date of this Chapter, but no longer In service on the date of enactment of said Act, any person who owned such tank Immediately before the discontinuation of its use.

(i) 'Person' means any individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state or any interstate body.

(J) 'Release' means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing into groundwater, surface water or soils.

(k) 'Retrofit' means to modify a storage system to meet standards contained in regulations to be promulgated under this Act.

(I) 'Regulated Substance' means;

(1) any substance defined in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and any amendments thereto; but not including any substances regulated as a hazardous waste under Delaware's Regulations Governing Hazardous Wastes;

(2) petroleum, including crude oil or any fraction thereof which is Liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).

(m) 'Secretary' means the Secretary of the Department of Natural Resources and Environmental Control.

(n) 'State' means the State of Delaware.

(o) 'Underground Storage Tank' means a containment vessel, Including underground pipes connected thereto, which is used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10 per centum or more beneath the surface of the ground. Such term does not include any:

(1) septic tank;

(2) pipeline facility (Including gathering lines) regulated under: (I) the Natural Gas Pipeline Safety Act of 1968, or (ii) the Hazardous Liquid Pipeline Safety Act of 1979, or,

(III) any interstate agreement comparable to the provisions of those Acts set forth at §7402(15)(141- 2 of this Title.

(3) surface impoundment, pit, pond, lagoon;

(4) storm water wastewater collection system;

(5) flow through process tank;

(6) liquid trap or associated gathering lines directly related to oil or gas production or gathering operations; or

(7) storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft or tunnel) if the storage tank is situated upon or above the surface of the floor.

(p) 'Used Oil' means a petroleum based synthetic oil used as an engine lubricant, engine oil, motor oil, or lubricating oil for use in an internal combustion engine, or a lubricant for motor vehicle transmissions, gears, or axles which through use, storage or handling has become unsuitable for its original purpose due to the presence of impurities or loss of original properties.

§7403. Referenced Standards.

The Department shall use The recommendations and Standard Procedures of the following organizations in developing the regulations required by this Chapter:

(a) National Fire Protection Association (N.F.P.A.);

(b) American Petroleum Institute (A.P.I.);

(c) National Association of Corrosion Engineers (N.A.C.E.);

(d) Underwriters Laboratories (ILL.); and

(e) American Society for Testing and Materials (A.S.T.M.)

Underground storage tanks installed after the enactment of this Chapter shall be in accordance with

the appropriate standards cited herein and the regulations promulgated by the Department.

§7404. Exemption,

The following classes of tanks are exempt from all provisions of this Chapter with the exception of the application of 57406 of this Title:

(a) agricultural and residential tanks of 1,100 gallons or less used for storing motor fuel for non-commercial purposes; and

(b) tanks containing heating fuels which are used for consumptive purposes on the premises where stored.

§7405. Notification.

(a) Underground storage tank owners shall register the following on forms provided by the Department:

(1) within sixty (60) days after enactment all new underground storage facilities used for storing regulated substances, at least ten days prior to installation. Notice shall specify the date of installation, location, type of construction, size of tanks to be installed and the type of substance to be stored.

(2) All existing undergound storage facilities, used for storing regulated substances, with 180 days of enactment of this Chapter. Notice shall specify, to the extent known, the location, size, type of construction and age of tanks, and the type of substance stored.

(3) All abandoned or non- operational underground storage tanks taken out of service after January 1, 1974. All underground storage tanks covered by this subparagraph (3) must be registered within nine months of the date of enactment of this Chapter (unless the owner knows the tank was subsequently removed from the ground). Notice shall specify, to the extent known, the date taken out of operation, the location, size, type of construction and age of tank, and type of substance stored, and quantity of regulated substances left stored in such tank on the date taken out of operation.

(b) Within 30 days of enactment, the Department shall prescribe the form of the notice and the information to be included in the notification under 67405(a)(2) and (3) of this Title.

§7406. Release, Prohibition, Reportinz. Correction.

(a) No person shall knowingly allow a release from an underground storage tank to continue without taking immediate steps to report the release to the Department,

(b) Responsible parties shall take measures for the prompt control, containment, removal of the released substance to the satisfaction of the Department.

(c) The Department may assume control of any release situation when it is determined that responsible parties are not responding promptly. However, all liability will remain with the responsible Putt.

§7407, Rele_o_e_petectigt, Prevention and Correction Regulations.

(a) The Department, after notice and opportunity for public comment, and within 12 months after enactment of this Chapter, shall promulgate release detection, prevention, and correction regulations applicable to underground storage tanks, as may be necessary to protect human health and the environment.

(b) In promulgating regulations under this Section, the Department shall take Into consideration factors which affect tank integrity, including, but not limited to: tank location, type and age, soil conditions, hydrogeology, compatibility of the stored substances and the materials of which the tank is constructed, current industry recommended practices, national consensus codes, and the impact of the regulations on the regulated community. The Department shall distinguish in such standards between requirements appropriate for new tanks, for tanks in existence on the date of promulgation of the standards and for abandoned tanks. The Department shall require permits for certain classes of tanks or for tanks located in certain environmentally sensitive areas whcre such a permit system would lead to better management of groundwater resources.

(c) The Department's regulations shall, at a minimum, include the following provisions:

(1) a requirement that a product inventory or other such control system, adequate to Identify releases from underground storage tanks, be maintained;

(2) procedures to follow when inventory or other such control system records indicate an abnormal loss or gain which is not explainable by spillage, temperature verifications, or other known causes;

(3) a requirement that appropriate corrective action be taken in response to a release from an underground storage tank as may be necessary to protect human health and the environment;

(4) a requirement to maintain records documenting actions taken In accordance with §7407

(c) (1)- (3) of this Title;

(5) a requirement for an enforcement program; and

(6) a requirement for standards that will ensure against any future release from an underground storage tank being closed or otherwise taken out of operation.

§7408. Inspection and Monitoring.

(a) For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this Chapter. any owner or operator of any underground storage tank used for storing regulated substances shall, upon the request of any duly designated officer or employee of the State. furnish information relating to such tanks or contents and permit such person at all reasonable times and in accordance with the provisions of 7 Del. C. §6024, to have access to. and to copy all records relating to such tanks, and to conduct such monitoring as such officer deems necessary. For the purposes of eveloping or assisting in the development of any regulation or enforcing provisions of this part, such officer. employee, or representative are authorized:

(1) to enter at reasonable times an establishment or other place where an underground storage tank Is located;

(2) to inspect and obtain samples from any person of such regulated substances and to conduct monitoring of the tanks, contents or surrounding soils. Each such inspection shall be commenced and completed with reasonable promptness.

(b) In submitting data under this Chapter, a person required to provide such data may:

(I) designate the data which such owner or operator believes Is entitled to protection under this subsection; and

(2) submit such designated data separately from other data submitted under this Chapter.

(c) Any such records, reports or information obtained shall be entitled to protection under Section 1905 of Title 18 of the United States Code.

§7409. Response Fund.

The Department will investigate within 12 months from the Unto of enactment of this Chapter, the feasibility of establishing a response fund to provide means for cleanup costs and damages directly attributable to releases for which the owner or operator cannot be identified, or for which the cleanup costs and damages exceed the owner or operator's financial capacity.

§7410. Financial Responsibility.

The Department will promulgate regulations containing requirements for maintaining evidence of financial responsibility as deemed necessary and desirable for taking reasonable corrective action for property damages caused by accidental releases arising from operating an underground storage tank.

Such means of financial responsibility may include, but not be limited to, insurance, guarantee, surety bond. letter of credit, proof of assets, or qualification as a self insurer. In promulgating requirements under this subsection, the Department is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary or are unacceptable in establishing such evidence of financial responsibility in order to effectuate the purposes of this section.

§7411. Enforcement.Whenever, on the basis of any information, the Secretary determines that any person is in violation of any requirement of this Chapter, or any rule or regulation promulgated hereunder, the Secretary shall give notice to the violator of his failure to comply with such requirement. If such violation extends beyond the 3Othe day after the Secretary's notification, the Department may issue an order requiring compliance within a specified time period.

(a) If such violator fails to take corrective action within the time specified in the order, he shall be liable for a civil penalty of not more than ;25,000 for each day of continued noncompliance and the Secretary may suspend or revoke any permit Issued to the violator.

(b) Any order or any suspension or revocation of a permit shall become final unless, not later than 30 days after the order or notice of the suspension or revocation is served, the person or persons named therein request a public hearing. Upon such request, the Secretary shall conduct a public hearing in accordance with section 6006 of this Title. In connection with any proceeding under this paragraph, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents, and may promulgate rules for discovery procedures.

(c) Any order issued under this Section shall state with reasonable specificity the nature of the violation and specify a time for compliance and assess a penalty, if any, which the Secretary determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with the applicable requirements.

(d) In lieu of the compliance order procedure in section 7411 (a) of this Title, any person who violates a provision of this Chapter, any rule or regulation, or any order of the Secretary. shall be liable for a civil penalty of not less than S1,000, nor more than S25,000 for each day violation. The Superior Court shall have jurisdiction of offenses under this subchapter.

§7512. Appeals

(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board in accordance with section 6008 of this Title.

(b) Any person or party to an appeal before the Board who is substantially affected by a decision of the Board may appeal to the Superior Court in accordance with section 6009 of this Title.

§7513. Variances.

Variances and temporary emergency variances may be granted by the Secretary from any regulation adopted pursuant to this Chapter in accordance with section 6011 and section 6012 of this Title.

§7414. Leaking Underground Storage Tank Committee.

There is hereby established a Leaking Underground Storage Tank Committee which shall be composed of, but not limited to, the Secretary of the Department of Natural Resources and Environmental Control, the Secretary of the Department of Administrative Services, the Director of the Delaware Geological Survey, the State Fire Marshal, a member of the Delaware Petroleum Council. a member of the Pennsylvania/Delaware Services Station Dealers Association. an installer of underground storage tanks, a representative of the insurance industry, the Insurance Commissioner or his designee, a representative of the agricultural community, a representative of the chemical industry, a representative from an environmental interest group. two State Senators who shall be appointed by the President Pro Tempore of the Senate, and two State Representatives who shall be appointed by the Speaker of the House of Representatives. The Governor shall designate the Chairperson. The whole Committee shall guide development of the regulations and other requirements of this chapter.

§7415. Implementation and Rep rting Requirements.

The Department, in conjunction with the Delaware Geological Survey, shall conduct a study to demonstrate the feasibility of a comprehensive inventory of underground storage tanks to include new. existing and abandoned tanks. It shall be conducted within an area of the State to be designated by the Department and the Committee. The Delaware Geological Survey shall investigate the feasibility of utilizing aerial photographs and other new or advanced techniques for locating abandoned tanks. The Department shall report to the legislature within six months of the date of adoption of implementation and reporting requirements. The report shall include a critique of the management experience gained which will serve as a basis for identifying staff and automated data processing needs for a comprehensive inventory."

§7416. Risk Assessment.

Because groundwater protection and management is an underlying issue related to leaking underground storage tanks. Information on the risks to groundwater resources will be needed to facilitate implementation of the regulations.

The Delaware Geological Survey shall, under the auspices and direction of the Committee, and in cooperation with the Department, examine the need for prioritizing possible leak risks. The Survey may assist the Committee by identifying areas where existing or abandoned leaking underground storage tanks would pose the most significant risk."

Approved July 12, 1985.