CHAPTER 417

FORMERLY

HOUSE BILL NO. 555

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 3 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE CREATING THE EXTREMELY HAZARDOUS SUBSTANCES RISK MANAGEMENT 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 Title 7 of the Delaware Code by adding a new chapter to read as

follows:

"CHAPTER 77. EXTREMELY HAZARDOUS SUBSTANCES RISK MANAGEMENT ACT.

7701. Short Title.

This Act shall be known and may be cited as the "Extremely Hazardous Substances Risk Management Act."

7702. Findings.

The General Assembly finds that a portion of Delaware's population Is potentially exposed to accidental releases of extremely hazardous substances (EHS) which could cause deaths or permanent disabilities to persons experiencing short-term exposure to those substances.

The General Assembly also finds that although modern technology, operating systems, inspection and monitoring programs, and other safeguards cannot guarantee that catastrophic releases of EHS, generation of pressure waves, or thermal exposure will not occur, a well conceived and vigorously managed risk management program (RMP) can reduce the likelihood of such occurrences.

The General Assembly further finds that there Is a need to educate the public, the business community, and every person with EHS about the risks of EHS, and the measures that can be taken to minimize the probability of catastrophic events associated with EHS.

7703. Purpose, Goal and Scope

The purpose of this Chapter Is to protect the lives and health of persons living

and working In the vicinity of facilities with extremely hazardous substances.

This Chapter Is concerned with the prevention of sudden releases of EHS and the generation of pressure waves and thermal exposure beyond the property boundaries of the facility where they occur and the catastrophic health consequences caused by short-term exposure to such accidental releases. This Chapter has the goal of prevention of such catastrophic events by requiring persons having extremely hazardous substances on-site to take all feasible actions needed to minimize the probability of catastrophic events. It is the Intent of this Chapter to complement and be enforced In conjunction with other laws. Any equipment or facility regulated by 7 Delaware Code, Chapter 74 shall not be regulated by this Chapter. The Department shall, by regulation, determine whether other laws provide equal or more stringent protection according to the purpose of this Chapter. In such Instances, the Department may exclude a particular EHS at a given facility.

Management may select cost effective methods of achieving the purpose of this Chapter where a Department-approved risk management program appropriate to the risk Is In effect. EHS already under the jurisdiction of other laws may continue to be used subject to the provisions of this Chapter. Individual containers of EHS for retail sale only are not regulated by this Chapter.

7704. Policy.

The General Assembly believes that every person in control of or associated with an EHS Is responsible for operating in a manner consistent with the purpose of this Chapter. It Is their obligation to develop and Implement a RMP that anticipates

and minimizes the chances of catastrophic events. Both the facility RMP and Its

Implementation shall be subject to review and approval by the Department.

The Department shall develop regulations to implement this Chapter. Cost

effectiveness, technical feasibility, risk to public health and risk reduction effectiveness are factors that must be considered by the Department in making its findings and developing regulations. In no case shall costs of risk management program provisions be the deciding factor if the result would jeopardize the purpose of this Chapter.

There is hereby established an Extremely Hazardous Substance Committee which shall include, but not be limited to, the Secretaries or their designees of the Department of Natural Resources and Environmental Control; the Department of Agriculture; the Department of Public Safety and the Department of Health and Social Services; the State Fire Marshall or his designee; a member of the Delaware Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member of the Delaware City Community Awareness Emergency Response Committee; a member of the Citizens Advisory Committee to the Department of Natural Resources and Environmental Control; a member of the Delaware Petroleum Council; a member of the Delaware Citizens for Clean Air; and four members of the General Assembly, two of whom shall be appointed by the Speaker of the House of Representatives and two by the President Pro Tempore of the Senate. The Governor shall designate the

chair. The Committee shall guide development of the regulations and other
In addition to the above Committee, the Department shall develop cooperative agreements as needed with the Division of Public Health, the Department of Public Safety, and any other private or public agency.

7705. Definitions.

As Used In This Chapter:

(a) "Actual Quantity" (AQ) means the sum of all the physical quantities of a
specific EHS In whatever form at the maximum design capacity of the facility.

(b) "Board" means the Environmental Appeals Board.

(c) "Catastrophic Event" means a sudden release of a sufficient quantity of an
EHS, a pressure wave or a thermal exposure beyond the property boundaries of a facility which will cause death or permanent disability to a person because of a
single short-term exposure. In this definition, an accidental fire at a
non-regulated facility is excluded from consideration as a catastrophic event creating EHS.

(d) De minimls quantity means the quantity equal to or less than the amount
which has catastrophic potential.

(e) "Department" means the Department of Natural Resources and Environmental
Control.

(f) "Effective Quantity" (EQ) means that portion of the actual quantity of an
EHS to be considered when calculating whether a sufficient quantity could be released. It may be less than the actual quantity If conditions, such as
temperature, pressure and physical form, would limit its rate of release to the atmosphere

"Extreme)), Hazardous Substance List" (EHSL) means a compilation of EHS

(a) "Extremely Hazardous Substance" means a substance In the form of a gas,
liquid, solid, vapor, powder, aerosol, or mixture of these states which has a Substance Hazard Index above 8,000 or has the potential to create a pressure wave or thermal exposure which may cause death or permanent disability beyond the facility.

(li "Facility" means an area bounded by a property line where a person has EHS

present, or the sum of

(j) "Person" means a natural person, partnership, limited partnership, trust.

estate, corporation, custodian, association nominee or any other individual or

entity in its own or any representative capacity.

(k) "Potential Release Quantity" means that sum of effective quantities of a

specific EHS which might be involved in a catastrophic event. This would not

include those effective quantities which are separated by more than 100 meters or are held within appropriate containment as defined by regulation.

(1) "Registration Quantity" (RQ) means the actual quantity of EHS at or above which a person must register a facility with the Department on an annual basis.

(m) "Release" means the introduction of an EHS into the atmosphere that, by
means of atmospheric dispersion under average atmospheric conditions for Delaware, will cause an EHS to be conveyed outside of a facility or the generation of a pressure wave or a thermal exposure beyond the facility's boundary.

(n) "Risk Management Program" means all activities intended to reduce risk,
including, but not limited to, the consideration of technology, personnel and facilities, and as more fully described in Section 7710 of this Chapter.

(a) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or his designee.

(a) "Substance Hazard Index" (SHI) means a calculated number which relates the relative danger of a substance considering substance toxicity and ability to disperse in the atmosphere as specified in Section 7707 of this Chapter.

(b) "Sufficient Quantity" (SQ) means the amount of EHS sufficient to cause a

catastrophic event. The sufficient quantity shall be calculated based on commonly

recognized atmospheric modeling procedures and mortality/exposure probabilities calculated for an average individual.

7706. Regulations.

(a) The Secretary may adopt, amend, modify or repeal regulations after public hearing, to effectuate the policy and purpose of this Chapter.

(b) Expenses incurred by the Department for the development of this Chapter and its regulations shall be funded from the State General Fund.

(a) The Department shall solicit the involvement of Interested persons in the
development of regulations, at a minimum to include those listed in Section 7704 of this Chapter.

7707. Extremely Hazardous Substance List.

(a) Within 14 months of the effective date of this Chapter, the Department shall develop and adopt regulations for the identification

of extremely hazardous substances. The Department shall Identify the

RQ and SQ of ENS that require registration and regulation. An EHSL shall be

developed based on the following criteria:

(1) Extremely toxic substances:

Substances are regulated because of their extreme toxicity, dispersability and quantity.

Each substance shall be assigned a Substance Hazard Index (SHI) number to rank the risk associated with the substance. The SHI Is derived as follows: SHI EVC

ATC

Where: ATC Is the acute toxicity concentration In parts per million defined as the lowest reported concentration, based on recognized scientific protocols, that will cause death or permanent disability to humans from an exposure

duration of one hour. Extrapolations from various sources of data are

permitted using scientifically recognized methods. If toxicity data based

on recognized scientific protocols are unavailable, the EHS ATC is set at 10.0 parts per million.

Where: EVC is the equilibrium vapor concentration at 20 degree C. defined as the substance vapor pressure at 20 degrees C. in millimeters of mercury multiplied by one million divided by 760. For powders, solids, or aerosols, the substance vapor pressure is replaced by the maximum substance concentration that can be conveyed in air after a settling distance of 100 meters from the point of emission.

(2) Explosive Substances:

Substances are to be regulated because of their extreme

reactivity, instability or explosiveness and creation of associated

pressure waves, either inside of confined spaces or in the open atmosphere. The sufficient quantity shall be calculated

based on commonly recognized procedures to predict the potential Impact of a given substance.

(3) Flammable and Combustible Substances: Substances are regulated because of their ability to Ignite and burn rapidly, thus creating the possibility of high thermal exposure. The sufficient quantity shall be calculated based on commonly recognized procedures to predict the burning characteristics, fire size, thermal radiation generation and dissipation with distance, and the consequences of a fire. Industry
standards such as National Fire Prevention Act 30 may be used as a basis for defining compliance with the terms and conditions of this Chapter.

(b) The Department shall have the power to amend, by regulation, the
identification of EHS and the EHSL on the basis of information or scientific data that may become available to the Department.

(a) For a given EHS, the RQ equals one-half of its SQ and the de minimis quantity equals 10 pounds or less.

7708. Changed Circumstances.

(a) The Department shall Issue regulations which require persons whose EHS
circumstances have changed, to apply for recalculation of the RQ and sufficient quantity. Recalculation shall be considered by the Department in circumstances
where the distance between the location of a sufficient quantity of EHS and the property line exceeds 100 meters or where the Department determines that other scientifically credible factors exist. In such cases, the RQ and sufficient
quantity shall be recalculated using the procedures in Section 7707 and the actual separation distance.

(b) Facilities which have de minimis quantities of EHS are not regulated by this

Chapter. At a given facility, multiple inventories of EHS need not be added

together to determine the PRQ, provided such Inventories are present in separate containment areas with an RMP as determined by regulation.

7709. Reiistration.

(a) Registration of Persons with Extremely Hazardous Substances:
(I) Within 14 months of the effective date of this Chapter

the Department shall prepare a registration form and shall Issue public notice for all persons to register any EHS in an amount equal to or greater than Its RQ Each person shall return the completed registration form and the fee, If required. to the Department within 60 days of the Issuance of the notice and annually thereafter, and attest compliance with the provisions of this Chapter and Its regulations.

The registrant shall provide the following information. - Identifying information . Facility name,

address, telephone number, and contact person.

- A list of each EHS present above Its RQ at each facility, the annual usage actual quantity present,

and the potential quantity present.

- A declaration whether or not a facility's emergency plan is in effect and

available for Department inspection or a schedule for the implementation of such a plan.

- An identification of Insurance coverage with the name, address and telephone number of the carrier or a statement of self-Insurance.

- Other Information essential to the purpose of the Chapter as defined by regulations.

The Department shall hold this Information as confidential unless such information Is already a matter of public record or disclosure Is required by law.

7710. Risk Management Program.

(a) Within 14 months of the effective date of this Chapter, the Department shall

adopt, pursuant to Section 7706 regulations stating the critical provisions of a

risk management program. The provisions will include, but not be limited to:

(1) Design standards review.

(2) Modification control and documentation of equipment and procedural changes.

(3) Hazard review of all processes and equipment associated with EHS with an emphasis on preventing, avoiding, minimizing, and containing extreme risks.

(4) Operating instructions.

(1) Maintenance and Inspection procedures and requirements for all equipment
In extremely hazardous substance services.

(2) Operator training program with a means of determining proficiency.

(3) Incident investigation procedures and remedial action requirement.

(1) Inspection and auditing requirements.

Compliance with each of these provisions must be documented by written records. Each of those provisions shall be updated as required.

(b) All persons with a potential release quantity equal to or exceeding the

sufficient quantity of an EHS must Implement a RKP appropriate to the facility risk within 12 months of the adoption of the regulations.

(c) Persons are required to attest to the Department that a Risk Management

Program which meets Department criteria Is In place at the facility. The RMP shall

be available to the Department for review at each facility at scheduled Inspections.

7711, Inspection.

(a) Inspection Program Components.

Essential components of a facility inspection shall include at a minimum: (I) a

sampling of all required RMP documentation; (2) a physical inspection limited to

equipment associated with EHS to verify implementation of the RMP; (3) evidence of the application of engineering and maintenance standards associated with ENS substances; and (4) sampling interviews of personnel associated with EHS to verify that the provisions of the RMP have been implemented.

(b) Confidential Information:

All information, written, verbal, or observed, obtained pursuant to this Chapter by the Department will be held as confidential unless such information Is already a matter of public record or disclosure Is required by law.

(c) Inspection Program Schedule:

The Department shall develop and issue a phased initial inspection 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 start 12 months after adoption of the risk management program regulations.

The Secretary may determine the frequency of inspection of a specific facility, based on (1) compliance history, or (2) the recent occurrence of an incident involving an extremely hazardous substance, or (3) recent compliance with the provisions of this Chapter. Each facility shall be inspected at least once every three years.

(a) Inspection Protocol:

All inspections shall be conducted by trained and tested 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 RMP components, physical observations, and interviews,

(a) Inspection Training Program:

Within 14 months of the effective date of this Act, the Department shall have a training program to periodically educate and test State employees or representatives responsible for Inspecting regulated facilities. The program shall also be available to personnel responsible for operation of facility risk management programs in accordance

with the purpose of this Chapter. Preparation of such a training program shall make

full use of appropriate available resources. Successful completion of such a training

program is a requirement for all State employees or representatives responsible for inspecting regulated facilities or dealing with implementation of this Chapter.

(a) Access to Facilities and Records:

The Department has the right to enter any facility at any time to verify compliance with the provisions of 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.

(a) A letter of compliance or noncompliance shall be issued promptly by the Department to the facility following inspection and evaluation of Its risk management program.

(a) Resolution of Unfavorable Inspection Findings:

If upon Department inspection, deficiencies or omissions In the facility risk management programs are indentiffed, the Department shall issue a written notice of non-compliance and recommend program improvements. Within 60 days after receiving the Department's recommendations, the person shall notify the Department of changes and additions to improve the risk management program or will present a remediation plan and schedule for the Department's approval.

(I) If the person(s) and the Department agree on measures to correct risk management program deficiencies or omissions, the parties may enter Into a written agreement

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.

(k) If upon Department inspection and notice to 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.

7712. Notification Requirements.

Construction and operating permits shall He granted by State agencies for facilities and equipment involving extremely hazardous substances regulated under this Chapter only after notification by those agencies to the Department, and written confirmation by any person involved that the permit applicant has been notified of the requirements of this Chapter and Its regulations.

7713. Information Program.

(a) (1) Within 14 months of the adoption of the regulations, the Department, assisted by the Division of Public Health of the Department of Health and Social Services. the Department of Public Safety and the Delaware Development Office shall prepare and implement an information program designed to inform the general public, local public officials and the business community about the requirements of this Act and regulations adopted pursuant thereto, about the health risks of accidental releases of extremely hazardous substances and about means available to minimize the chances of accidental catastrophic releases of such substances.

(2) The information program shall include information about current risk management programs of industrial companies and business establishments in Delaware as well as emergency plans, public and private, to protect the public in cases of catastrophic accidental releases of extremely hazardous

substances. The Department may cooperate with other groups for purposes of
this program.

7714. Fees.

(a) The Department is authorized to charge and collect fees from persons with extremely hazardous substances registered pursuant to Section 7709 of this Chapter. Fees shall be $1,000 per year for a facility with one potential release quantity present in excess of the sufficient quantity. The fee shall increase $250 per year for each additional extremely hazardous substance present in excess of the sufficient quantity. Funding requirements in excess of the amount collected by the above registration system shall be provided from the State General Fund.

(a) The Department may assess a fee to cover additional actual cost to the
Department in any facility whose submitted registration data or whose records made available during inspection are inaccurate or incomplete to the extent that the registration and/or inspection of the facility cannot be accomplished within a reasonable time. The Department shall include with the assessment, a documentation
of its findings or condition of the records on which the assessment Is based.

(a) All fees collected under this section are hereby appropriated to the
Department for its use for the purposes of this Chapter.

7715. Violations and Penalties.

(a) If any person violates any of the provisions of this Chapter, or any rule, regulation or order promulgated or issued pursuant thereto, the Department may institute a civil action in Chancery or Superior Court or any other appropriate relief to prohibit or prevent this violation.

(b) In addition to the remedies set forth in subsection (a) one of the following shall apply:

(I) Whenever the Secretary determines that any person has failed to register or does not have a substantially complete Risk Management program in place as required by Section 7710 within 12 months after adoption of the regulations, such person shall be liable for an administrative penalty of up to $10,000 per day of violation and the Secretary may order those operations that present a real and imminent hazard to cease, after notification to the person.

All penalties collected under this subsection are hereby appropriated to the Department for Its use for the purpose of this Chapter.

(2) Whenever the Secretary determines that any person Is In substantial

non-compliance with a provision of the Risk Management Program for the facility, such person shall be liable for an administrative penalty of up to $10,000 for each day of the violation. Upon a finding of significant hazard to the public, the Secretary may seek injunctive or other relief in Chancery Court to order those hazardous operations to cease and desist. All penalties collected under this subsection are hereby appropriated to the Department for its use for the purposes of this Chapter.

(c) Prior to assessment of an administrative penalty, written notice of the
Secretary's proposal to Impose such penalty shall be given to the violator, and the violator shall have thirty (30) days from receipt of the notice to request a public hearing. Any public hearing, right of appeal and judicial appeal shall be

conducted pursuant to Section 7716. The amount of an Administrative Penalty shall be determined based on the nature, circumstances, extent and gravity of the violation or violations, and such other matters as justice may require.

Simultaneous violations of more than one provision of the RMP shall be treated as a single violation for each day.

In the event of non-payment of the Administrative Penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary In a court of competent jurisdiction for the collection of the Administrative Penalty, including Interest, attorney's fees and costs. The validity, and appropriateness of such Administrative Penalty shall not be subject to review.

(a) Any person who willfully or intentionally violates a material provision of
this Chapter or of a RMP shall be subject to a criminal fine of not more than

$25,000 for each day of such violation or imprisonment of 1 year or both. The

Superior Court shall have jurisdiction of offenses under this subsection. The

Secretary may order those operations that pose a hazard to the public to cease.

(e) Compliance with this Chapter shall not constitute a defense for a violation of any other law or regulation of the State of Delaware.

7716. Hearings.

Hearings conducted pursuant to this Chapter shall be conducted as

follows:

(a) Not less than 20 days notice shall be published In a newspaper of general circulation In the county In which the activity occurred or Is to occur, and in a daily newspaper of general circulation throughout the State.

(a) Such notification shall Include: 41) a brief description of the subject
of the hearing, (7) time, date, and place of hearing; and (3) time and place where copies of material may be obtained.

(b) The parties may appear personally or by counsel at the hearing and produce any competent evidence In their behalf. The Secretary or the Board or Its duly authorized designee may administer oaths, examine witnesses and Issue, In the name of the Department, or the Board, notices of hearings or subpoena requiring the testimony of witnesses and production of books, records or other documents relevant to any matter Involved In such hearing. In case of refusal to obey a
notice of hearing or subpoena under this section, the Superior Court In the county In which the hearing Is held shall have jurisdiction upon application of the Secretary, or the Chairman of the Board, to Issue an order requiring such person to appear and testify or produce evidence as the case may require.

(c) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, along with the exhibits and other documents Introduced by the Secretary or other party, constitute the record. The expense of

preparing any transcript shall be borne by the person requesting It. The Secretary or the Board or a duly authorized designee shall make findings of fact based on the record The Secretary or the Board shall then enter an order that will best further the purpose of this Chapter, and the order shall Include reasons. The Secretary shall promptly give written notice to the persons affected by such order.

(e) The Secretary may establish a fee schedule for hearings. Any fees

collected under this Chapter are hereby appropriated to the Department to carry out the purpose of this Chapter. The Secretary shall report through the annual budget process the receipt, proposed use and disbursement of these funds. Hearing fees are to be paid by the person requesting the hearing.

7717. Appeals.

(a) Any person whose Interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board within 20 days after the Secretary has announced the decision. The Board may affirm, modify or
reverse the decision of the Secretary.

(a) Whenever a decision of the Secretary is appealed, the Board shall hold a
public hearing in accordance with Section 7716 of this title.

(b) If the Secretary is overruled by the Board, the Board shall state reasons for its decision.

(a) Any person or persons, jointly or severally, or any taxpayer, or any
officer, department, or board of the State, aggrieved by any decision of the Board, may appeal to the Superior Court in and for the County in which the activity in question is wholly or principally located by filing a petition, duly verified setting forth that such decision is illegal, in whole or in part, specifying the grounds of the Illegality. Any such appeal shall be perfected within 10 days of the decision of the Board. If the Board fails to issue a
decision within 90 days following the receipt of the appeal, the decision of the Secretary shall be considered as affirmed by the Board.

(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the
Court may remand the case to the Board for completion of the record.

(c) No appeal shall operate to stay automatically any action of the Secretary but upon application, and for good cause, the Board or the Court of Chancery may stay the action pending disposition of the appeal.

77)8. Inconsistent Laws Superseded.

Al) laws or regulations Inconsistent with any provision of this Chapter are hereby superseded to the extent of the inconsistency; provided, however, that rights of person(s) to recover damages shall not be affected by this Chapter."

Section 2. If any provision of this Act or the application thereof to any person or

circumstance Is held invalid, such Invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 19, 1988