CHAPTER 308

FORMERLY

HOUSE BILL NO. 569

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO EXTREMELY HAZARDOUS SUBSTANCES RISK MANAGEMENT ACT.

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

Section 1. Amend Chapter 77, Title 7 of the Delaware Code by striking said Chapter in its entirety and substituting in lieu thereof the following new Chapter 77 to read as follows:

"Chapter 77. Extremely Hazardous Substances Risk Management Act.

§ 7701. Short title.

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

§ 7702. Findings.

(a) 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.

(b) The General Assembly also finds that although modem 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 can reduce the likelihood of such occurrences.

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

(d) The Department adopted the Delaware "Regulation for the Management of Extremely Hazardous Substances" on September 25, 1989 and modified this regulation on December 18, 1995 in accordance with the provisions of this chapter.

(e) The General Assembly finds that the United States Congress authorized the United States Environmental Protection Agency (EPA) and the United States Department of Labor, Occupational Safety and Health Administration (OSHA) to develop similar federal requirements in the Clean Air Act Amendments of 1990. OSHA promulgated its standard (29 CFR 1910.119) on February 24, 1992. EPA promulgated its list rule (40 CFR 9 and 68) on January 31, 1994. Additionally, EPA promulgated its Accidental Release Requirements rule (40 CFR Part 68) on June 20, 1996. The Clean Air Act Amendments of 1990 allows for the delegation of the federal EPA authority for the Accidental Release Requirement rule to a state implementing agency.

(f) The Department shall undertake the delegation of EPA's authority by the regulatory revision process enacted in this chapter. The Department shall act to maintain EPA's delegated authority once it is obtained, The Delaware "Regulation for the Management of Extremely Hazardous Substances" which became effective on September 25, 1989 and was modified on December 18, 1995 shall remain in effect until the revised regulation becomes effective on or before June 21, 1999.

§ 7703. Purpose, goal and scope.

(a) The purpose of this chapter is to protect the lives and health of citizens of the State living and working in the vicinity of facilities with extremely hazardous substances.

(b) This chapter is concerned with the prevention of sudden releases of EHS and the generation of pressure waves and thermal exposures beyond the property boundaries of the facility where they occur and the catastrophic health consequences caused by short-term exposures to such accidental releases. This chapter has the goal of prevention of such catastrophic events by requiring responsible person(s) 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. The Department may, by regulation, exempt or establish a greater threshold quantity for an agriculture nutrient when exclusively used as an agricultural nutrient and held by a- farmer. 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 exempt a process containing an EHS from all or part of the elements of the risk management program developed under § 7710 of this chapter.

(c) Responsible person(s) from a regulated facility may select cost-effective methods of achieving the purpose of this chapter where a 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 and General Duty.

(a) 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 risk management program that anticipates and minimizes the chances of catastrophic events. The facility risk management plan and the risk management program implementation shall be subject to review by the Department. It shall be the objective of the regulations and programs established under this chapter to prevent accidental releases and to minimize the consequences of any such release of any substance listed pursuant to § 7707 of this title or any other extremely hazardous substance. Every person in control of or associated with any such substance that is produced, processed, handled or stored has a general duty to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.

(b) Nothing in this chapter shall be interpreted, construed, implied or applied to create any liability or basis for suit for compensation for bodily injury or any other injury or property damages to any person that may result from accidental releases of such substances.

§ 7705. Definitions.

As used in this chapter:

(1) "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.

(2) "A 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 may 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.

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

(0) "EPA" means the United States Environmental Protection Agency.

(1) "Extremely hazardous substance list" (EHSL) means a compilation of ENS that meets the criteria set forth in § 7707 of this title.

(2) "Extremely hazardous substance" (EHS) means a substance in the form of a gas, liquid, solid, vapor, powder, aerosol or mixture of these states which is listed pursuant to § 7707 of this title.

(3) "Facility" means an area bounded by a property line where a person has EHS present, or the sum of adjacent such areas separated by less than 100 meters under common management control.

(4) "Inspection Notes" means handwritten statements or descriptions made during an inspection used to aid memory when preparing the inspection report.

(5) "OSHA" means the United States Department of Labor, Occupational Safety and Health Administration.

(0) "Person" means a natural person, partnership, limited partnership, trust, estate, corporation, custodian, association nominee or any other individual entity in its own or any representative capacity.

(1) "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.

(2) "Responsible person(s)" means (i) for a corporation: a president, vice-president, secretary, or treasurer of the corporation or any other person who performs similar policy or decision making functions for the corporation, or a duly authorized representative of such person approved in advance by the Department (which may be the "contact person" as indicated in the RMP), (ii) for a Partnership, Limited Partnership or Sole Proprietorship: a general partner or the proprietor, respectively, or the delegation of authority to a representative approved in advance by the Department (which may be the "contact person" as indicated in the RMP), or (iii) for a Municipality, State, Federal, or other public agency: either a principal executive officer, a ranking elected official, or a duly authorized representative of such person approved by the Department (which may be the "contact person" as indicated in the RMP).

(0) A "risk management plan" (RMP) is information which shall be submitted by each EPA regulated facility in a method and format to a central point as specified by EPA prior to June 21, 1999. This information shall contain an executive summary, registration, five-year accident history, off-site consequence analysis, prevention program summary, summary of the emergency response program, and a certification statement by the facility owner or operator. For substances regulated by Delaware but not regulated by EPA, the risk management plan shall be submitted in a method and format to a central point as specified by the Department, by regulation, prior to June 21, 1999. The RMP from each facility will be made available to the Department, the State Emergency Response Commission, the Local Emergency Planning Committees, to other state agencies involved in emergency planning and preparedness and the citizens of the State.

(1) "Risk management program" means all activities intended to reduce risk, including, but not limited to, the consideration of technology, personnel and facilities, and is more fully described in § 7710 of this title.

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

(16) "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 § 7707 of this title.

(17) " Threshold quantity" (TQ) means the amount of EHS sufficient to cause a catastrophic event. The threshold quantity shall be calculated based on the criterion established in § 7707(b) of this title.

(18) "Unit" as used in § 7714 of this chapter is defined as the actual quantity of EHS on a facility within a process divided by the threshold quantity.

§ 7706. Regulations.

(a) The Secretary may adopt, amend, modify or repeal regulations, after public hearing, to effectuate the policy and purpose of 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 the costs of risk management program provisions be the deciding factor if the result would jeopardize the purpose of this chapter.

(b) When developing regulations, the Department shall establish an ad hoc committee of interested persons. When establishing this committee, the Department shall solicit the involvement of interested persons such as but not limited to the following: 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 Marshal or a 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; and citizens of the State representing public organizations with a concern for the environment. The Department Secretary (or a designated person) shall chair the committee.

(c) The regulations developed for this chapter by the Department shall he periodically reviewed.

(d) In addition, the Department shall develop cooperative agreements as needed with the Division of Public Health, the Department of Public Safety, Office of the State Fire Marshall and any other private, public agency or federal agency.

§ 7707. Extremely hazardous substance list.

(a) The Department shall develop and adopt regulations for the identification of extremely hazardous substances. An EHSL shall be developed based on at least one of the following criteria:

(1) Extremely toxic substances:

Substances are regulated because of their extreme toxicity, ability to disperse, and quantity. Each substance shall be assigned a Substance Hazard Index (SHI) number to rank the risk associated with the substance. Substances with an SHI greater than or equal to 8000 shall be regulated.

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 1 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°C. defined as the substance vapor pressure at 20°C. in millimeters of mercury multiplied by 1,000,000 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 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.

(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. Industry standards such as National Fire Protection Association, NFPA 30 may be used as a basis for defining compliance with the terms and conditions of this chapter.

(4) In developing the EHSL to undertake and maintain the delegation of EPA's authority, the Department shall, by regulation, consider each of the following criterion:

i. The severity of any acute adverse health effects associated with accidental releases of the substance;

. The likelihood of accidental releases of the substance; and

. The potential magnitude of human exposure to the accidental releases of the substance.

(b) The Department shall develop and adopt regulations which determine the TQ of each EHS. In developing the TQ for each regulated substance, the Department shall consider the following:

(1) For extremely toxic substances: The Department shall identify the TQ of EHS that require registration and regulation. For a given EHS, the threshold quantity shall be calculated based on commonly recognized atmospheric modeling procedures and mortality/exposure probabilities calculated for an average individual.

(2) For extremely explosive substances: The threshold quantity shall be calculated based on commonly recognized procedures to predict the potential impact of a given substance.

(3) For extremely flammable substances: The threshold 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 FireProtection Association "Flammable and Combustible Liquids Code" NFPA 30 may be used as a basis for defining compliance with the terms and conditions of this chapter.

(4) In developing the threshold quantities for the EHSL to undertake and maintain the delegation of EPA's authority, the Department shall, by regulation, take into account the toxicity, reactivity, volatility, ability to disperse, combustibility, or flammability of the substance and the amount of the substance which, as a result of an accidental release, is known to- cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health for which the substance was listed.

(c) 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.

(d) When the actual quantity of an EHS is greater than or equal to the TQ established by the Department, a responsible person(s) must:

(1 ) Submit the information required pursuant to § 7709.

(2) Implement a risk management program pursuant to § 7710.

(3) Pay the annual fee pursuant to § 7714.

When the actual quantity of an EHS is less than the TQ or when any other hazardous substance is present at a facility, then responsible person(s) must comply with the General Duty statement pursuant to § 7704(a).

§ 7708. Risk management plan.

(a) Prior to January 1, 1999, the Department shall develop regulations and appropriate guidance to aid the regulated facilities in Delaware in complying with their obligations to submit a risk management plan (RMP). It is the belief of the General Assembly that the federal database of facility RMPs can and should be used to replace the previous system of state registration.

(b) The Department shall have the authority to develop its own Risk Management Plan submission process by regulation should the federal system fail to meet the needs of the Department in carrying out the provisions of this chapter. Should the Department develop its own RMP submission process, the RMP shall be submitted in a method and format to a State of Delaware central point as specified by the Department prior to June 21, 1999.

(c) Each facility RMP shall be made available by the Department to the State Emergency Response Commission, the Local Emergency Planning Committees, to other state agencies involved in emergency planning and preparedness and to citizens of the State.

§ 7709. Risk management program.

(a) The Department shall adopt, pursuant to § 7706 of this title, 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.

(5) Maintenance and inspection procedures and requirements for all equipment in extremely hazardous substance services.

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

(0) 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 these provisions shall be updated as required.

(b) All persons with an actual quantity of an EHS that is equal to or exceeds the threshold quantity must implement a risk management program appropriate to the facility risk Facilities built or modified on or after June 21, 1999 that have a process containing an EHS; or existing facilities implementing a new process containing an EHS; or existing facilities introducing a new EHS into an existing process, must implement a risk management program appropriate to the facility risk prior to introduction of the EHS to the process.

(c) Responsible person(s) are required to certify to the Department that a risk management program that meets Department criteria is in place at the facility. The certification statement that is part of the federal RMP facility submission may act to fulfill this requirement. The risk management program shall be available to the Department for review at each facility at scheduled inspections.

§ 7710. Inspection.

(a) Inspection program components--Essential components of a facility inspection shall include at a minimum:

(1) A sampling of all required risk management program documentation;

(2) A physical inspection of equipment associated with the process containing the EHS to verify implementation of the risk management program;

(0) Evidence of the application of engineering and maintenance standards associated with EHS substances; and

(1) Sampling interviews of personnel associated with EHS to verify that the provisions of the risk management program have been implemented.

(b) Confidential information--All documents (such as, but not limited to: inspection reports, responses to inspection reports, notices of violation, Administrative Orders and Penalties, correspondences, and facility RMPs) submitted to the Department or developed by the Department pursuant to this chapter shall be handled consistent with the Freedom of Information Act (29 del. C Chapter 100) with the exception of the following which shall be maintained as confidential by the Department:

(1) Sections of Inspection Notes containing or relating to trade secrets, and/or commercial or financial information observed, viewed, or obtained orally during an inspection that may result in substantial harm to a business' competitive edge.

(2) Sections of Inspection Notes containing the identity of persons interviewed during the inspection.

(c) Inspection program schedule.—The Department shall develop and issue a phased initial inspecting 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 continue during the regulation revision process and be an integral part of the revised regulation.

The Secretary may determine the frequency of inspection of a specific facility, based on: (1) Compliance history; (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 3 years.

() 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 risk management program components, physical observations and interviews.

(a) Inspection training program -- 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.

(f) 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.

(g) A report of compliance or noncompliance -- The Department shall issue an inspection report detailing the findings of compliance or noncompliance with the risk management program requirements for each inspection. This report shall contain the Department's recommendations based on inspection for potential improvements to a facility's risk management program. In the event that the Department has a finding of substantial noncompliance, the Department may issue a written notice of violation and may proceed as detailed in § 7715 of this chapter.

() Resolution of unfavorable inspection findings -- Responsible person(s) of the facility shall respond to the Department's recommendations from the written inspection report within 60 days and notify the Department of any changes and additions to improve their risk management program or respond with a remediation plan and schedule for the Department's approval. Upon a finding of substantial noncompliance with the risk management program, with the risk management plan, or upon a finding of failure to implement the approved remediation plan or schedule, the Department may proceed as detailed in § 7715 of this chapter.

() Written agreement -- If the responsible person(s) and the Department agree on measures to correct risk management program deficiencies or omissions, the parties may enter into a written agreement.

(j) Issuance of administrative order -- If, after notice to the responsible person(s) of the facility and an administrative hearing with written findings, the parties are unable to reach an agreement on improvements to the facility 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 as detailed in § 7715 of this chapter.

() Injunctive relief -- If, upon Department inspection and notice to the responsible person(s) of 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.

§ 7711. Notification requirements.

Construction and operating permits shall be 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.

§ 7712. Information program.

(a) 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 chapter and regulations adopted 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.

(b) 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.

§ 7713. Fees.

(a) The Department is authorized to charge and collect fees from persons with extremely hazardous substances pursuant to §§ 7707 and 7709 of this title. Fees shall be a minimum of $500 per year for the first whole unit and $25 per year for each additional unit to a maximum of 300 units.

(b) The Department may assess a fee to cover additional actual costs to the Department for any facility whose submitted RMP or whose risk management program records that are made available during inspection are inaccurate or incomplete to the extent that the RMP and/or inspection of the facility cannot be accomplished within a reasonable time. The Department shall include documentation with the assessment of its findings or condition of the records on which the assessment is based.

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

§ 7714. Violations and penalties.

(a) If any person violates any of the provisions of this chapter, or any rule, regulation or order promulgated or issued 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) of this section, one of the following shall apply:

(1) Whenever the Secretary determines that any person has failed to submit a complete risk management plan as required by § 7709 of this title or does not have a substantially complete risk management program in place as required by § 7710 of this title, 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 responsible person(s). 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 noncompliance 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 a 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) (1) Prior to assessment of an administrative penalty, written notice of the Secretary's proposal to impose such a penalty shall be given to the responsible person(s), and the responsible person(s) shall have 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 § 7716 of this title. The amount of the 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.

(2) Simultaneous violations of more than 1 provision of the risk management program shall be treated as a single violation for each day.

(3) In the event of nonpayment 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.

(d) Any person who willfully or intentionally violates a material provision of this chapter or of an risk management program shall be subject to a criminal fine of not more than $25,000 for each day of such violation, or imprisonment for 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.

§ 7715. Hearings.

Any public hearing held by the Secretary pursuant to this chapter shall be held in accordance with § 6006 of this title, as well as any additional notice and hearing requirements the Secretary has adopted by regulation.

§ 7716. Appeals.

(a) Any person(s) whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board in accordance with § 6008 of this title.

(b) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by any decision of the Environmental Appeals Board, may appeal to the Superior Court in accordance with § 6009 of this title."

§ 7717. Inconsistent Laws Superseded.

All 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.

Approved June 25, 1998