CHAPTER 409

FORMERLY

SENATE BILL NO. 328

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE PERTAINING TO MATCHING GRANTS FROM THE DELAWARE STRATEGIC FUND FOR THE COSTS OF ENVIRONMENTAL ASSESSMENT AND REMEDIATION AT CERTIFIED BROWNFIELDS AND TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO THE HAZARDOUS SUBSTANCE CLEANUP ACT.

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

Section l. Amend paragraph (4) of subsection (a) of section 5028 of Title 29 of the Delaware Code by inserting after the word “section” and before the comma immediately following such word the following words and punctuation “and for one or more of the purposes set forth in paragraphs (1) through (3) of this subsection (a)”.

Section 2. Amend subsection (c) of section 5028 of Title 29 of the Delaware Code by striking the phrase “$50,000” and substituting in lieu thereof the phrase “$100,000”.

Section 3. Amend Chapter 91 of Title 7 of the Delaware Code by designating sections 9101 through 9120 as Subchapter I, entitled “Subchapter I. General Provisions and Enforcement”.

Section 4. Amend Chapter 91, Title 7, Delaware Code by adding the following new Subchapter II, to read as follows:

“Subchapter II. Brownfields Development Program.

§ 9121. Short title.

This subchapter shall be known, and may be cited, as the ‘Brownfields Development Program.’

§ 9122. Declaration of Purposes.

(a) In addition to the provisions of the foregoing Subchapter I of this Chapter, this Subchapter is intended to implement a Brownfields Development Program, supplementing the powers and duties of the Secretary as set forth in section 9104 of this Chapter.

(b) The General Assembly recognizes that:

(1) There are Brownfield sites throughout the State of Delaware;

(2) The underutilization of brownfields in the State of Delaware operates to the economic detriment of the citizens of the State of Delaware, because the underutilization of these sites limits employment opportunities and needlessly uses valuable ‘greenfield’ resources; and

(3) There is a need to establish a program to effectively investigate, remediate, and redevelop these sites, thus returning these sites to more productive use and enhancing the economic well being of the citizens of the State of Delaware.

§ 9123. Definitions.

As used in this subchapter:

(1) ‘Brownfields Developer’ shall mean a person who, with respect to a facility:

(a) Proposes to conduct investigations and/or development activity at a facility that is a Certified Brownfield, and seeks to enter into a Brownfields Development Agreement with the Secretary;

(b) At the time of application for a Brownfields Development Agreement, is not liable for a release or Imminent threat of release at the facility under § 9105 (a) (1) – (6); and

(c) Is not affiliated with any other person that is liable for a release or imminent threat of release at the facility, within the meaning of §9105(c)(4)b.5.

(2) ‘Brownfields Development Agreement’ means an agreement between the Secretary and a Brownfield Developer with respect to a Certified Brownfield that sets forth a scope and schedule of activities to assess and respond to the actual, threatened, or perceived release of hazardous substances at the facility.

(3) ‘Certified Brownfield’ means a brownfield, as defined in section 9103(3) of the Title, that the Secretary has certified pursuant to the Regulations Governing Hazardous Substance Cleanup.

(4) ‘Existing environmental condition’ means all known or discovered releases of hazardous substances which are found to be, or to have been, existing at or in the vicinity of the facility prior to a person entering into a Brownfields Development Agreement with the Secretary.

(5) ‘Plan(s)’ means any workplan(s) as required by the Secretary for the performance of an investigation and/or remedy of a site.

§ 9124. Secretary’s powers and duties.

The Secretary may exercise the following powers in addition to any other powers granted by law:

(1) The Secretary may plan, study or conduct, or permit a Brownfields Developer or other persons to plan, study or conduct, appropriate actions at a Certified Brownfield to perform a remedy of a release, imminent threat of release, or where there may be a reasonably held perception of a release or imminent threat of a release.

(2) The Secretary shall, after notice and public hearing, promulgate and revise regulations as deemed necessary for the implementation and administration of this Subchapter.

§ 9125. Standard of liability.

(a) Notwithstanding §9105, a Brownfields Developer who enters into a Brownfields Development Agreement with the Secretary is not liable with respect to the facility that is the subject of the Brownfields Development Agreement for any release or imminent threat of release of hazardous substances existing at the time the Brownfields Development Agreement is entered into, or for a remedy, or for any costs incurred by the State or any other person related to a remedy, for such a release or imminent threat of release at a facility, provided that:

(1) The Brownfields Developer submits a plan or plans for approval by the Secretary to address the actual or perceived presence of hazardous substances at the facility; and

(2) Any land disturbing activity at the facility by the Brownfields Developer in areas affected by the release or imminent threat of release of hazardous substances is performed in accordance with a plan, or modified plan or plans, as approved by the Secretary.

(b) Notwithstanding section (a) above, a Brownfields Developer who causes any exacerbation of the existing environmental condition is responsible for entering into an agreement approved by the Secretary to mitigate any increased risk to human health or the environment or increased remedial costs at the facility caused by such exacerbation. Furthermore, the Secretary may modify the plan to address any changed circumstances in the environmental condition of the facility. If the Brownfields Developer fails or refuses to comply with any modified plan or plans addressing any exacerbation of the existing environmental condition, it is liable for the cost of mitigating any increased risk to the public health or the environment or increased remedial costs caused by the exacerbation of the existing environmental condition.

(c) Notwithstanding section (a) above, if a Brownfields Developer, or his successors or assigns, materially disturbs or interferes with a remedy at the facility in a manner not approved of by the Secretary, including institutional controls, said person shall be liable for the reasonable costs of restoring or replacing the affected portions of the remedy, including any administrative or injunctive relief allowed by Subchapter I.

(d) The protection afforded by subsection (a) shall be transferable to the successors or assigns of the Brownfields Developer. Any person whose interest in or connection to a facility arises solely from a contractual relationship with the Brownfields Developer, or his successors or assigns, subsequent to the entering into of a Brownfields Development Agreement, shall not be liable for any release or threat of release, remedy, or costs associated with conditions existing prior to the entry of the Brownfields Development Agreement.

(e) Nothing in this section shall affect the liability of a Brownfields Developer for new releases, or imminent threat of releases of hazardous substances not part of the existing environmental conditions at a facility.

§ 9126. Public notice, public comment.

(a) The Secretary shall provide public notice within twenty days after entering into negotiations for a Brownfields Development Agreement. Such public notice shall be published in a newspaper of general circulation in the county in which the facility is located. Such notice shall also be provided to:

(1) All elected members of the General Assembly in whose district such facility or any part thereof lies;

(2) If the facility or any part thereof is located within the boundaries of any municipality, then such notice shall also be given to the governing body of all municipalities in which the facility or any part thereof lies;

(3) In the event the facility or any part thereof is not located within the boundaries of a municipality, then such notice shall also be given to the governing body of the county in which the facility or any part thereof lies; and

4) The governing body of any civic, neighborhood or similar association in which the facility or any part thereof lies, provided that such association makes itself known to the Department and provides a legal mailing address.

(b) The Secretary shall provide public notice within twenty days after entering into a Brownfields Development Agreement. Such notice shall provide for a twenty day written comment period.

(c) Upon receiving a request following the entry of the Department into a Brownfields Development Agreement, the Secretary shall conduct a public meeting to provide the public information regarding the proposed project, in or near the area where the facility is located.

Section 5. Amend section 9108(a) of Title 7 by adding the following language after the phrase “facility,” in the first sentence, the phrase:

“or an operable unit thereof,”.

Section 6. Amend section 9103 of Title 7 by re-designating subsections (13) through (23) as subsections (14) through (24) and by adding a new subsection (13) to read as follows:

“(13) ‘Operable unit’ means any subdivision of a facility in terms of area or environmental media or any other manner approved by the Secretary.”

Section 7. Amend the newly designated subsection (15) of Title 7, Delaware Code, by adding a new paragraph f to read as follows:

“(f) The term 'owner or operator' does not include a person who, without acquiring legal title, conducts or directs activities in connection with the actual or potential acquisition or evaluation of a facility, including due diligence, site inspections, site assessments, or other pre-closing activities in connection with the acquisition of a facility."

Section 8. Amend subsection 9113(c) of Title 7 by adding a new paragraph (8) to read as follows:

“(8) Provide for a remedy, or for reimbursement of allowable costs, for certified Brownfields.”

Approved August 3, 2004