CHAPTER 320

FORMERLY

SENATE BILL NO. 477

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 63. TITLE 7, DELAWARE CODE. RELATING TO THE MANAGEMENT OF HAZARDOUS WASTE AND TO PROVIDE FOR DIRECT ACTION AGAINST GUARANTORS OF BANKRUPT OWNERS AND OPERATORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 6305(a)(2), Title 7 of the Delaware Code by removing the semicolon at the end of Section 6305(a)(2) and adding the following:

"and such other regulations as are necessary to assure that substances identified or listed under §6305(a)(I) which pass through a sewer system to a publicly owned treatment works are adequately controlled to protect human health and the environment:"

Section 2. Amend Section 6305(a)(3), Title 7 of the Delaware Code by removing the semicolon at the end of Sectin 6305(a)(3) and adding the following:

"and regulations providing that permits issued after November 8, 1984. or regulations which. In the case of Interim status facilities under §6307(g) of this Title, require corrective action both on-site and beyond the facility boundary, if necessary to protect human health and the environment. for releases of hazardous waste or constituents from any solid waste management unit at a facility seeking a permit under this Chapter, regardless of when the waste was placed in the unit. Such permits shall contain schedules of compliance for corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing the corrective action; and In addition, regulations relating to qualifying for and termination of interim status under §6307(g);"

Section 3. Amend Section 6305(a)(4), Title 7 of the DelawareCede by removing the period at the end of the first sentence of Section 6305(a}(4) and adding the following:

and regulations regarding the prohibition of disposal of nonhazardous liquids in hazardous waste disposal facilities except upon such terms and conditions as the Secretary may prescribe."

Section 4. Amend Section 6305(a)(11), Title 7 of the Delaware Code by removing the semicolon at the end of Section 6305(a)(11) and adding the following:

"and regulations requiring evidence of financial responsibility to assure adequate resources for corrective action both on and off site:"

Section 5. Amend Section 6305(a)(12, Title 7 of the Delaware Code by removing the semicolon at the end of Section 6305(a)(12) and adding the following:

"including regulations prohibiting the use of waste oil or other materials contaminated with hazardous waste as a dust suppressant and regulations pertaining to fuel containing hazardous waste and all persons who produce, burn, distribute and market fuel containing hazardous waste:"

Section 6. Amend Section 6307(g). Title 7, of the Delaware Code by removing the semicolon in line 3 and adding the following language after the word "title":

"or which is in existence on the effective date of statutory or regulatory changes under this Chapter that render the facility subject to the requirement to have a permit under this Chapter;"

Section 7. Amend Section 6309, Chapter 63, Title 7 of the Delaware Code by adding a new subsection (I) to read as follows:

"(1) Whenever on the basis of any information the Secretary determines that there is or has been a release of hazardous waste into the environment from any facility, the Secretary may issue an order requiring corrective action or such other response measure (Including corrective action beyond the facility boundary) as he deems necessary to protect human health or the environment or the Secretary may commence a civil action in the Superior Court or the Court of Chancery for appropriate relief, including a temporary or permanent Injunction. Any order issued under this subsection may Include a suspension or revocation of authorization to operate under this Chapter, shall state with reasonable specificity the nature of the required corrective action or other response measure. and shall specify a time for compliance. If any person named in an order faits to comply with the order, the Secretary may assess, and such person shall be liable to the Department for, civil penalty in an amount not to exceed $25.000 for each day of noncompliance with the order."

Section 8. Amend Section 6309, Chapter 63, Title 7 of the Delaware Code by adding a new subsection (j) to read as follows:

"Li/ Any expenses or civil penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this Chapter."

Section 9. Amend Chapter 63, Title 7 of the Delaware Code by adding a new Section 6318 to read as follows:

"§6318. Direct Action Against Guarantor

(a) In any case where the owner or operator is in bankruptcy. reorganization, or arrangement pursuant to the Federal Bankruptcy Code or where (with reasonable diligence) jurisdiction in any State court or any Federal Court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.

(b) The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this Act. Nothing in this subsection shall be construed to limit any other State or Federal statutory, contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in falling to negotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liabilluty of any person under Section 107 or Ill of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or other applicable law.

(c) For the purpose of this section. the term 'guarantor' means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this Chapter."

Approved June 27, 1986