CHAPTER 184

FORMERLY

HOUSE SUBSTITUTE NO. 1

TO

HOUSE BILL NO. 250

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 16, DELAWARE CODE RELATING TO THE ADOPTION AND RESPONSIBILITIES FOR THE IMPLEMENTATION OF FEDERAL REGULATIONS PROMULGATED UNDER TITLE III OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (ALSO KNOWN AS SARA TITLE III OR THE EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT OF 1986), AND FURTHER PROVIDING FOR THE ESTABLISHMENT OF A MECHANISM TO COLLECT FEES FOR THE PURPOSE OF FUNDING THE LOCAL EMERGENCY PLANNING COMMITTEES AND DATA COLLECTION AND MANAGEMENT ACTIVITIES RELATED THERETO.

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

Section 1. Amend Title 16, Delaware Code, by establishing a new Chapter 63 to read as follows:

"CHAPTER 63. EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW §6301.Establishment of State Emergency Response Commission

The Commission on Hazardous Materials established pursuant to the provisions of §8227 of Chapter 82, Title 29, Delaware Code is hereby also designated as the State Emergency Response Commission in compliance with Title III of the Federal Superfund Amendments and Reauthorization Act of 1986 (42 U.S. Code, Chapter 116, Emergency Planning and Community Right-to-Know).

§6302. Adoption of Federal Requirements

The State hereby adopts the following parts of the Code of Federal Regulations, being Title 40, Parts 355, 370, and 372, being lawfully promulgated pursuant to Title III of the Federal Superfund Amendments and Reauthorization Act of 1986 (42 U.S. Code, Chapter 116, Emergency Planning and Community Right-to-Know), with the following exceptions:

(1) The following paragraphs shall be modified and adopted as

follows:

Section 370.20 (b)(1) - The owner or operator of a facility subject to this subpart shall submit a Material Safety Data Sheet on or before October 17, 1992, or within three months after the facility first becomes subject to this subpart, for all hazardous chemicals present at the facility at any one time in amounts equal to or greater than 500 pounds or 55 gallons, whichever is lower, and for all extremely hazardous substances present at the facility in an amount equal to or greater than 500 pounds, 55 gallons or the Threshold Planning Quantity, whichever is lower.

Section 370.20 (b)(2) - The owner or operator of a facility subject to this subpart shall submit the Tier II form, or alternate State generated form approved and mandated by the State Emergency Response Commission containing as a minimum information identical to that contained on the Tier II form, on or before March 1, 1992, or March 1 of the first year after the facility first becomes subject to this subpart, and annually thereafter, covering all hazardous chemicals present at the facility at any one time during the preceding calendar year in amounts equal to or greater than 500 pounds or 55 gallons, whichever is lower, and extremely hazardous substances present at the facility in an amount equal to or greater than 500 pounds, 55 gallons, or the Threshold Planning Quantity, whichever is lower.

(2) The following subparts shall be excluded from adoption:

§355.50 Penalties. §370.5 Penalties. §372.18 Compliance and Enforcement.

(3) Submission of the Tier II form, or alternate State generated form as approved and mandated by the State Emergency Response Commission containing as a minimum information identical to that contained on the Tier II form, is hereby required in this State in lieu of the Tier I form.

Any person covered by the scope of these regulations in the State shall comply with these adopted federal regulations and the adopted modifications, as well as any federal regulations or modifications subsequently adopted by the Commission.

§6303. Definitions

For the purposes of this Chapter, definitions for the following terms and phrases shall be as follows:

(1) PERSON. The term 'person' means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of State, or interstate body.

(2) FACILITY. The term 'facility' means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). 'Facility' shall include manmade structures as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

(3) HAZARDOUS CHEMICAL. The term 'hazardous chemical' means any

hazardous chemical as defined under 1910.1200(c) of Title 29 of the Code of Federal Regulations, except that such term does not include the following substances:

(1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.

(2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.

(1) Any substance to the extent it is used for personal,
family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.

(2) Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual.

(1) Any substance to the extent it is used in routine
agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

(4) PRESENT IN THE SAME FORM AND CONCENTRATION AS A PRODUCT PACKAGED FOR DISTRIBUTION AND USE BY THE GENERAL PUBLIC. This phrase means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public.

(5)  EXTREMELY HAZARDOUS SUBSTANCE. The term 'extremely hazardous substance' means a substance listed in the Appendices to Part 355, Emergency Planning and Notification, of Title 40 of the Code of Federal Regulations.

(1) MIXTURE. The term 'mixture' means a heterogeneous association of substances where the various individual substances retain their identities and can usually be separated by mechanical means. Includes solutions or compounds but does not include alloys or amalgams.

(1) MOTOR VEHICLE FUEL. The term 'motor vehicle fuel' means a petroleum or petroleum—based substance that is motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade of gasohol, and is typically used in the operation of a motor engine.

§6304 Data Collection and Management

(a) The Department of Public Safety is hereby designated as the State agency responsible for overseeing the collection and management of all information reported under the federal requirements adopted and modified under §6302 of this Chapter.

(b) The Department of Public Safety is hereby authorized to assess reasonable charges for public requests for data collected under this Chapter to cover the costs associated with filling such requests.

§6305. Establishment of Authority to Collect Fees

The Department of Public Safety with advice and consent of the State Emergency Response Commission is hereby authorized to impose on and collect fees from facilities reporting under the Federal Regulations adopted and modified under §6302 of this Chapter.

§6306. Reporting Fees

(a) Excluding reports on mixtures, the reporting fees shall be
assessed as follows:

A filing fee not to exceed $40 shall be assessed for each hazardous chemical reported on a Tier II form, or alternate State generated form approved and mandated by the State Emergency Response Commission, under §6302 of this Chapter. A filing fee not to exceed $80 shall be assessed for each extremely hazardous substance reported on a Tier II form, or alternate State generated form approved and mandated by the State Emergency Response Commission, under §6302 of this Chapter.

(a) For reports on mixtures, the reporting fees shall be assessed as follows:

A filing fee not to exceed $40 shall be assessed for each mixture reported on a Tier II form, or alternate State generated form approved and mandated by the State Emergency Response Commission, under §6302 of this Chapter containing extremely hazardous substances in a concentration of less than 10 percent by weight. A filing fee not to exceed $80 shall be assessed for each mixture reported on a Tier II form, or alternate State generated form approved and mandated by the State Emergency Response Commission, under §6302 of this Chapter containing extremely hazardous substances in a concentration of 10 percent or more by weight.

(a) The maximum fee collected under this Section shall not exceed
$5,000 per year per facility.

§6307. Fee Collection and Management

(a) The fees herein authorized shall be assessed and collected
annually based on information required to be submitted under §6302 of this Chapter covering the previous calendar year.

(a) The fees herein authorized shall be appropriated to the State Emergency Response Commission through the Department of Public Safety for

 the purpose of funding the Local Emergency Planning Committees and data collection and management activities related thereto.

(c) The Department of Public Safety shall oversee the assessment and collection of the fees herein authorized. These fees shall be placed in a liquid, interest bearing account, other than the account established under §6310(f), to be selected by the Commission.

(d) The fiscal year for the purposes of this Chapter shall be from March 1 until the last day of February the following year.

(e) Fee monies obtained under this Chapter shall remain available for the purposes of this Chapter and shall not be subject to reversion.

(f) All Local Emergency Planning Committees and State agencies to be funded under this Chapter shall submit to the State Emergency Response Commission for review and approval by January 1 of each year a budget worksheet and a work plan for the fiscal year to begin March 1 of that year.

§6308. Exemptions from Reporting Fee Requirements

(a) Federal, state, county, and local government facilities and non-profit organizations are exempt from the reporting fees under this Chapter.

(a) Motor vehicle fuels at facilities which offer such fuels for retail sale shall also be exempt from the reporting fees under this Chapter. However, hazardous chemicals or extremely hazardous substances at these facilities other than motor vehicle fuels for retail sale shall not be exempt from the reporting fees.

§6309. Regulations

(a) The State Emergency Response Commission and the Secretary of the Department of Public Safety may prescribe such regulations as may be necessary to carry out this Chapter.

(b) Regulations prepared by the Secretary of the Department of Public Safety under the provisions of this Chapter shall be subject to review and approval by the State Emergency Response Commission prior to promulgation.

§6310. Enforcement: Penalties

(a) Any duly authorized designee of the State Emergency Response Commission or any duly authorized designee of the Secretary of the Department of Natural Resources and Environmental Control may, upon presentation of appropriate credentials at any reasonable time, enter upon any private or public property for the purpose of investigating compliance with or enforcing any requirement or regulation authorized by this Chapter, including, but not limited to, the inspecting and copying of any records, reports, or information relating to the purposes of this Chapter.

(b) Upon any refusal of entry, inspection, or copying pursuant to this Section, any duly authorized designee of the State Emergency Response Commission or any duly authorized designee of the Secretary of the Department of Natural Resources and Environmental Control may apply for and obtain a warrant to allow such entry, inspection, or copying in the manner established by the rules and law of criminal procedure.

(c) With the advice and consent of the State Emergency Response Commission, the Secretary of the Department of Natural Resources and Environmental Control is hereby authorized to impose an administrative penalty, as detailed in §6005(b)(3) of Chapter 60, Title 7, Delaware Code, upon any person of not more than $10,000 for each day of violation of the provisions of parts 370 and/or 372 of the federal regulations adopted and modified under §6302 of this Chapter or any rule or regulation promulgated under this Chapter relating thereto, not to include violations of the fee requirements covered under paragraph (d) of this Section. Simultaneous
violations of the provisions of parts 370 and/or 372 of the federal regulations adopted and modified under §6302 of this Chapter or any rule or regulation promulgated under this Chapter relating thereto shall be treated as a single violation for each day.

(d) A surcharge of 20 percent of the appropriate facility fee shall be assessed by the Secretary of the Department of Public Safety to firms who fail to remit the correct fee or the fee itself in accordance with the provisions of this Chapter or any rule or regulation promulgated under this Chapter relating thereto.

(e) Any person found to have violated the provisions of parts 370 and/or 372 of the federal regulations adopted under §6302 of this Chapter or any rule or regulation promulgated under this Chapter relating thereto, or the reporting fee requirements of this Chapter or any rule or regulation promulgated under this Chapter relating thereto, shall be liable for all expenses incurred by the Department of Natural Resources and Environmental Control in abating the violation as detailed in §6005(c) of Chapter 60, Title 7, Delaware Code. Monies collected under this paragraph shall be
appropriated to the Department of Natural Resources and Environmental Control to cover the costs associated with such activities.

(f) Monies collected under paragraphs (c) and (d) of this Section shall be placed in a liquid, interest bearing account, other than the account established under §6307(c), to be selected by the Commission.

(g) Monies collected under paragraphs (c) and (d) of this Section shall be appropriated to the State Emergency Response Commission for the purpose of funding related SARA Title III activities and shall not be subject to reversion.

§6311. Jurisdiction

(a) Jurisdiction of offenses covered under §6310(c) of this Chapter shall be as stated in §6005(b)(3) of Chapter 60, Title 7, Delaware Code.

(b) Justice of the Peace Courts of this State shall have jurisdiction of offenses under §6310(d) of this Chapter.

(c) Jurisdiction of the provisions of §6310(e) of this Chapter shall be as stated in §63005(c) of Chapter 60, Title 7, Delaware Code.

§6312. Implementation and Re-Evaluation of Reporting Fees

(a) Effective July 1, 1991, the fees herein established shall be
assessed at a rate of 66 percentum on reports submitted and/or required to have been submitted in 1991 covering the 1990 calendar year.

(a) For the following two years beginning with reports submitted under §6302 in 1992 covering activities during the 1991 calendar year, the fees herein established shall be assessed at a rate of 100 percentum on reports submitted or required to have been submitted under §6302 by March 1 of each year covering the previous calendar year.

(a) At the conclusion of the two year period covered under paragraph (b) of this Section, the fees imposed under §6305 shall be re-evaluated by the State Emergency Response Commission which shall then propose a fee system adjusted to meet the current and future activities herein authorized."

Approved July 18, 1991.