CHAPTER 187

FORMERLY

HOUSE BILL NO. 331

AS AMENDED BY HOUSE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 74, TITLE 7 OF THE DELAWARE CODE RELATING TO DELAWARE UNDERGROUND STORAGE TANK ACT.

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 §7402, Chapter 74, Title 7, of the Delaware Code by adding the following new paragraph (17):

"(17) 'FUND' means the Delaware Underground Petroleum Storage Tank Response Fund."

Section 2. Amend §7404, Chapter 74, Title 7, of the Delaware Code by inserting the words and Section 7409" after the word "Section 7406" in line 2 thereof.

Section 3. Amend §7409, Chapter 74, Title 7, Delaware Code by striking said Section in its entirety and substituting in lieu thereof a new Section 7409 to read as follows:

"§7409. Delaware Underground Petroleum Storage Tank Response Fund.

(a) The Delaware Underground Petroleum Storage Tank Response Fund is hereby established as a nonlapsing revolving fund to be used by the Department for the investigation and remediation of petroleum underground storage tank release. All expenses, costs and judgments recovered pursuant to this Section, and all monies received as reimbursement in accordance with applicable provisions of federal law, shall be and hereby are appropriated to the fund. Interest earned on the fund
shall be credited to the fund. No monies shall be credited to the balance in the fund until they have been received by the fund. The fund shall be established in the accounts of the State Treasurer and any funds remaining in such fund at the end of the fiscal year shall not revert to the general fund but shall remain in the fund.

The fund shall be administered by the Department of Natural Resources and Environmental Control consistent with the provisions of Subtitle I of the Federal Solid Waste Disposal Act. (P.L. 98-616, SS 9001 et seq.). The fund shall be maintained in a separate account. An accounting of monies received and disbursed shall be kept, and furnished upon request to the Governor or the General Assembly.

(b) Disbursements from the fund may be made only in accordance with regulations promulgated by the Department and for the following purposes.

(1) Costs incurred in investigation and assessment of a site otherwise eligible hereunder.

(2) Costs associated with restoration or replacement of potable water supplies.

(3) Costs incurred in taking corrective action for any release of petroleum into the environment from an underground storage tank which are in excess of the minimum financial responsibility requirement imposed up to $1 million per occurrence per facility.

(4) Costs incurred in compensating third parties, for bodily injury and property damage caused by release of petroleum into the environment from an underground storage tank, up to $1 million per occurrence per facility.

(5) Costs incurred in taking immediate corrective action to contain or mitigate the effects of any release of petroleum into the environment from an underground storage tank if such action is necessary, in the judgment of the Department to protect human health and the environment.

(6) Costs associated with maintenance and monitoring of contamination sites. (1) Costs incurred in inspection and supervision of cleanup activities.

(8) The 'cost share' of corrective action with respect to any release of petroleum into the environment from underground storage tanks undertaken under a cooperative agreement with the Administrator of the United States Environmental Protection Agency, as determined by the Administrator of the United States Environmental Protection Agency SS 9003 (h) (7) (B) of the United States Public Law 98-616 (as amended in 1986 by United States Public Law 99-662).

(c) Disbursements from the fund may not be made for any purpose not identified in subsection (b) of this Section including, but not limited to:

(1) Costs incurred in the Department's administration of the underground storage tank program.

(2) Costs incurred by the State to recover from any party costs charged to the fund.

Such expenses will be funded by the tank registration fee established pursuant to §7418 of this Title."

Section 4. Amend Chapter 74, Title 7, Delaware Code by adding a new §7417 to read as follows:

"§7417. Rehabilitation; Participation in reimbursement plan.

The General Assembly finds and declares that in order to provide for rehabilitation of as many contaminated sites as possible, as soon as possible, voluntary rehabilitation of contaminated sites should be encouraged, provided that such rehabilitation is conducted in a manner and to a level of completion which will protect the public health, safety and welfare. To accomplish this purpose, any person conducting site rehabilitation under this Act, either through his on or by contract, shall be entitled to reimbursement from the fund in accordance with regulations promulgated by the Department for the costs defined in §7409 of this title provided such person notifies the Department of such contamination within eighteen months after signature by the Governor, and begins all remediation work within one year after notification. Persons already engaged in site rehabilitation as of the date of enactment of this statute shall be entitled to reimbursements of all expenses incurred on or after the effective date of this Act, provided the person is otherwise eligible for participation in accordance with this Section, and reimbursements expenses are limited to those defined in §7409 of this title. Participation in the reimbursement plan is subject to the following conditions:

(1) The first $2,500 in costs as described in §7409(b)(1) through (7) are not to be reimbursed by the fund.

(2) The facility owner shall not be the Federal Government or any agency or subdivision thereof.

(3) Contamination results from normal aging and/or corrosion, and is not result of intentional damage, or improper handling or installation.

(4) Contamination results from a release from an underground tank containing petroleum.

(5) Reimbursement for site rehabilitation either through a person's own personnel or through responsible response action contractors or subcontractors shall not be considered a state contract or subject to state bid requirements.

(6) Site rehabilitation shall be completed in accordance with criteria established by the Department.

(7) Nothing in this Section shall be construed to authorize any payments for the repair or replacement of any tank or equipment.

(8) Procedural rules of this Section shall have been met.

(9) The release did not result from any gross negligence, including, but not limited to the following:

a. willful intent to conceal existence of a serious discharge,

b. falsified inventory or reconciliation records,

c. intentional damage to a petroleum storage system,

d. willful failure to perform the inventory and reconciliation of records required pursuant to regulations promulgated under this Chapter,

e. failure to meet retrofitting requirements contained in the regulations promulgated pursuant to this Chapter,

f. willful failure to make monthly monitoring system checks required pursuant to regulations promulgated under this Chapter,

g. violation of the Department's regulations."

Section 5. Amend §7410, Chapter 74, title 7, Delaware Code by striking said Section in its entirety and substituting in lieu thereof the following:

§7410. Financial Responsibility.

(a) The Oepartment shall adopt regulations for maintaining evidence of financial responsibility for taking corrective action by all owners and operators, in an amount of not less than $100,000 per occurrence, and for compensating third parties for bodily injury and property damages by all owners and operators in an amount of not less than $300,000 per occurrence in cases of releases arising from operating an underground storage tank. Financial responsibility may be established in accordance with regulations promulgated by the Oepartment by any one or any combination of the following: insurance, guarantee, surety bond, letter of credit. or qualification as a self-insurer in accordance with regulations promulgated by the Insurance Commissioner.

(b) Any claim arising out of conduct for which evidence of financial responsibility must be provided under this Section may be asserted directly against the person guaranteeing or providing evidence of financial responsibility. In such a case, the person against whom the claim is made shall be entitled to invoke all rights and defenses which would have been available to the owner or operator had such action been brought directly against the owner or operator.

(c) This Section shall not limit any other state or federal statutory, contractual, or common law liability of the guarantor for bad faith in negotiating or in failing to negotiate the settlement of any claim. This Section does not
diminish the liability of any person under §107 or §111 of the Comprehensive Environmental Response Compensation and Liability Act of 1980, or other applicable law."

Section 6. Amend Chapter 74, Title 7, Oelaware Code by adding thereto §7418, Tank Registration, as follows:

"§7418. Tank Registration.

(a) All owners/operators of underground storage tanks shall pay to the Oepartment an annual per tank registration fee of fifty dollars ($50) on or before February 1 of each calendar year. Registration fees not received by the Oepartment by February 1 shall be subject to a late charge of thirty dollars ($30). Payment shall be made in accordance with regulations established by the Oepartment.

(b) Underground storage tanks owned or operated by the State of Oelaware, or counties or municipalities or agencies or subdivisions thereof, shall be exempt from payment of the registration fee defined in subsection (a) above.

(c) The tank registration fee established in subsection (a) above shall be used solely for the purpose of administering the Oepartment's programs implementing Chapter 74, Title 7, Oelaware Code and the regulations promulgated thereunder.

(d) The tank registration fee shall be credited to a dedicated administration fund established in the accounts of the Treasurer. Any money remaining in such fund at the end of the fiscal year shall not revert to the general fund, but shall remain in the dedicated administration fund. The fund shall be maintained in a
separate account and shall be administered by the Oepartment. An accounting of monies received and disbursed shall be kept, and furnished upon request to the Governor or the General Assembly."

Section 7. Amend Chapter 74, Title 7, Delaware Code by adding a new §7419 to read as follows:

"§7419. Recovery of expenditures.

The Department shall seek recovery of monies expended from the fund for corrective action under this Chapter where the owner or operator has violated substantive regulations pertaining to underground storage tanks which have been promulgated by the Department or has engaged in grossly negligent conduct."

Approved July 16, 1987.