CHAPTER 218

FORMERLY

SENATE BILL NO. 40

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 91, TITLE 7 OF THE DELAWARE CODE RELATING TO THE DELAWARE HAZARDOUS SUBSTANCE CLEANUP ACT.

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

Section 1. Amend Section 9102, Title 7 of the Delaware Code, by redesignating subsection "(c)" as subsection "(d)" and inserting as new subsection (c) the following:

"(c) The General Assembly recognizes the need to remedy contaminated facilities and to promote opportunities and provide incentives to encourage the remedy of such facilities to yield economic revitalization and redevelopment within the State."

Section 2. Amend Section 9103, Title 7 of the Delaware Code by deleting in its entirety subsection (4).

Section 3. Amend Section 9103, Title 7 of the Delaware Code by deleting in its entirety Subsection (17).

Section 4. Amend Subsection (6) of Section 9103, Title 7 of the Delaware Code by deleting the following: to be emitted into the air, or discharged into any waters including groundwaters".

Section 5. Amend Subsection (8) of Section 9103, Title 7 of the Delaware Code, by inserting between the word "recycled," and the words "disposed of," the following: "released,".

Section 6. Amend Subsection (13)d of Section 9103, Title 7 of the Delaware Code, by inserting between the word "a" and the word "state" the following: "federal,".

Section 7. Amend Subsection (18)a of Section 9103, Title 7 of the Delaware Code, by inserting after the word "employer;" the following:

"provided, however, that this exclusion does not apply to any such release which also results in exposure to the environment;"

Section 8. Amend Section 9103, Title 7 of the Delaware Code, by deleting Subsection (19) in its entirety and inserting in lieu thereof new Subsection (19) as follows:

"(19) "Remedial Action" means the containment, contaminant mass or toxicity reduction, isolation, treatment, removal, cleanup, or monitoring of hazardous substances released into the environment, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate harm or risk of harm to, the public health or welfare or the environment which may result from a release or an imminent threat of a release of hazardous substances."

Section 9. Amend Subsection (20) of Section 9103, Title 7 of the Delaware Code by inserting between the words "investigative and or monitoring activities" the following: ", oversight of remedy" and by deleting at the end of subsection (20) the words "human health." and inserting in lieu thereof the following: "public health or welfare or the environment."

Section 10. Amend Section 9103, of Title 7 of the Delaware Code by renumbering the entire Section 9103 consecutively, i.e. (1) through (20) accordingly.

Section 11. Amend Subsection (b)(2) of Section 9104, Title 7 of the Delaware Code by inserting between existing (b)(2)b. and (b)(2)c. as new subsection "(b)(2)c." the following: "For identifying potentially responsible parties;" and by inserting between existing (b)(2)c. and (b)(2)d. as new subsection "(b)(2)e." the following: "For determining the appropriate type of settlement agreement that may be entered into by potentially responsible parties or any person who agrees to perform a remedy;" and by relettering subsection (b)(2) "(a) through (o)" accordingly.

Section 12. Amend newly lettered Subsection (b)(2)f of Section 9104, Title 7 of Delaware Code by inserting between the words "parties" and "with" the following: "or any other person" and by inserting between the words "parties" and "may" the following: "or any other person".

Section 13. Amend newly lettered Subsection (b)(2)h of Section 9104, Title 7 of the Delaware Code by deleting the words "proposed settlement agreements" and inserting in lieu thereof the following: "the proposed plan of remedial action".

Section 14. Amend Subsection (c)(3) of Section 9105 by deleting the words "commercial lending institution which" and inserting in lieu thereof the following: "person who" and by deleting the period at the end of subsection (c)(3) after the word "part" and inserting the following:

provided, however, that this exemption shall not relieve a person from liability under this Section where such liability is based on conduct entirely independent from that covered by this exemption."

Section 15. Amend Section 9105, Title 7 of the Delaware Code by adding new subsections (e) and (0 the following:

"(e) Where the Secretary has issued a certification of completion of remedy pursuant to § 9108 of this title with respect to a remedy performed at a facility, any person who owns, operates or otherwise controls activities at the facility after the date of issuance of the certification shall not, by virtue of that later ownership, operation or control, be liable for the release or imminent threat of release addressed in the certification, or for any future release or imminent threat of release attributable to conditions existing prior to the issuance of the certification, provided such person does not interfere or permit any interference with any aspect of the remedy addressed by the certification of completion of remedy.

(t) The exemption contained in Subsection (e) shall also apply to any person who, in connection with the sale, lease, acquisition or transfer of a facility, enters into a settlement agreement with the Secretary for a remedy at the facility, provided that the remedy is satisfactorily conducted and the Department issues a certification of completion of remedy. The Secretary, in the settlement agreement, may place conditions or limitations on the scope of the exemption granted under this Subsection."

Section 16. Amend Subsection (a)(1) of Section 9106, Title 7 of the Delaware Code by deleting the period after the word "parties" and inserting a semicolon in lieu thereof and by inserting as new subpart "(a)(I)d." the following:

The financial ability of a potentially responsible party to perform a remedy."

Section 17. Amend Subsection (a) of Section 9107, Title 7 of the Delaware Code by deleting the word "propose" and inserting in lieu thereof the following: "enter into" and by adding to the end of the subsection (a) the following:

"The Secretary may provide any person who has knowledge of a release of a hazardous substance at a facility and agrees to perform a remedy with an opportunity to enter into a settlement agreement providing for a remedy consistent with regulations developed pursuant to Section 9104 of this title."

Section 18. Amend Subsection (b) of Section 9107, Title 7 of the Delaware Code by deleting the sentence "When the Secretary and potentially responsible parties reach a settlement agreement providing for a voluntary remedy, it shall be filed with the Superior Court as a consent decree." and inserting in lieu thereof the following:

The settlement agreement providing for a remedy may be in the form of a consent decree, administrative order of consent, memorandum of agreement, or any other form of agreement consistent with regulations developed pursuant to Section 9104 of this title. When a settlement agreement is entered into in the form of a consent decree pursuant to this chapter, it shalt be filed with the Superior Court."

Section 19. Amend Subsection (b) of Section 9107, Title 7 of the Delaware Code by adding at the end of subsection (b) after the word "entered." the following:

"If the Secretary deems it appropriate to effectuate the purposes of this Chapter,
he or she may choose to resolve a person's liability with the State under this
Section through use of settlement agreements entered into pursuant to CERCLA.".

Section 20. Amend Subsection (e) under Section 9107, Title 7 of the Delaware Code by deleting the word "remedy" and inserting in lieu thereof the following: "remedial action".

Section 21. Amend Subsection (e)(2) under Section 9107, Title 7 of the Delaware Code by adding after the words "comment on the plan" the following: as well as the investigation upon which the plan of remedial action is based;".

Section 22. Amend Subsection (e)(3) under Section 9107, Title 7 of the Delaware Code by deleting the words "based on" and inserting in lieu thereof the following: with due consideration of.

Section 23. Amend Subsection (f) of Section 9107, Title 7 of the Delaware Code by adding at the end of that subsection after the word "Secretary." the following:

The Secretary shall maintain a remedial decision record for a period that he or she deems appropriate based upon the remedy being implemented and the future use of the facility."

Section 24. Amend Subsection (a) of Section 9108, Title 7 of the Delaware code by deleting the words all remedies identified in a consent decree, the parties to the consent decree" and inserting in lieu thereof the following: "a remedy at a facility, the owners, parties to the settlement agreement or parties responding to an order," and by inserting after the first sentence of Subsection (a) the following:

"For the purposes of this Section, the Secretary may consider a remedy complete when the remedial action is operational and functional; provided, however, that the Secretary may place conditions or limitations in the certification of completion of remedy which identify those portions of the final plan of remedial action, including but not limited to operation and maintenance, and compliance monitoring, which must continue to be performed, and which provide for the performance of additional remedies in the event that the remedial goals contained in the final plan of remedial action are not achieved as required by the plan and the regulations promulgated under Section 9104 of this title."

Section 25. Amend Section 9109, Title 7 of the Delaware Code by inserting as new subsection (d) between existing subsections "(c)" and "(d)" the following: "(d) The Secretary may bring an action in the Superior Court to recover from any potentially responsible party all natural resource damages resulting from a release." and by inserting as new subsection(f) the following:

"(t) The Secretary may issue an order as he or she deems appropriate to any person who fails to provide the required information or documents under Section 9106(a)(1), who fails to provide access under Section 9106(a)(2), or who fails to report a release as required by the Regulations promulgated pursuant to this chapter."

By inserting as new subsection (g) the following:

"(g) The Secretary may bring an action in Superior Court to enforce any order issued by the Secretary under Subsection (1) of this Section. Any person refusing to comply, without sufficient cause, with such an order shall be liable pursuant to Subsection (h)(2) of this Section."By relettering previously existing subsection "(d)" as subsection "(e)" and by relettering previously existing subsection "(e)" as subsection"(h)" and by arranging subsections of 9109 alphabetically (a) -(h).

Section 26. Amend Section 9109, Title 7 of the Delaware Code by amending the newly lettered Subsection (e) by deleting the words "as a result of the and inserting in lieu thereof the following: ", or for a" and by amending the newly lettered Subsection (h) by deleting the reference to Subsection "(d)" as it appears between the words "subsection" and "of' and inserting in lieu thereof "(e)" and by inserting after the word "section" and before the comma (",") the following: "for a refusal to comply with an order".

Section 27. Amend Subsection (b)(2) under Section 9110, Title 7 of the Delaware Code by deleting the citation "§ 6008" and inserting in lieu thereof the citation "§ 6009".

Section 28. Amend Section 9111(a), Title 7 of the Delaware Code by deleting ", consent decree".

Section 29. Amend Section 9112, Title 7 of the Delaware Code, by inserting between words "chapter" and "the" the following: "and, if the Secretary receives a meritorious request for a public hearing from any person on" and by deleting the words "settlement agreement" and inserting in lieu thereof the following: "consent decree".

Section 30. Amend Subsection (c)(6) of Section 9113, Title 7 of the Delaware Code by deleting the word "potential" and inserting in lieu thereof the following 'potentially" deleting the words "entered consent decree" and inserting in lieu thereof the following: "executed settlement agreement".

Section 31. Amend Subsection (a) of Section 9115, Title 7 of the Delaware Code, by deleting the sentence "The Secretary shall maintain records that identify the hazardous substance or substances released and the remedial decision record approved by the Secretary.".

Section 32. Amend § 9116, Title 7 of Delaware Code by deleting in the title the words "trade secrets" and inserting in lieu thereof the following: "proprietary information" and by inserting after the word "secrets" the following: "or as confidential financial or commercial information" and by deleting the word "effecting" as it appears between the words "government" and "this" and inserting in lieu thereof the following: to effectuate the purposes of and by inserting between the words "chapter" and "prior" the following:

"Furthermore, nothing in this Section shall prevent the Secretary from including in the remedial decision record information concerning the cost of the remedy or the manner in which it is performed."

and by deleting the word "proprietary" between the words "of" and "information" and inserting between the words "information" and "to" the following: "certified by the Secretary to be proprietary".

Approved July 13, 1995