TITLE 7

Conservation

Natural Resources

CHAPTER 62. OIL POLLUTION LIABILITY


(a) The General Assembly finds and declares that the highest and best uses of the seacoast of the State are as a source of public and private recreation and solace from the pressures of an industrialized society and as a source of public use and private commerce in fishing, crabbing and gathering other marine life used and useful in food production and other commercial activities.

(b) The General Assembly further finds and declares that the preservation of these uses is a matter of the highest urgency and priority and that such uses can only be served effectively by maintaining the coastal waters, estuaries, tidal flats, beaches and public lands adjoining the seacoast in as close to a pristine condition as possible, taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interest with the least possible conflicts in such diverse uses.

(c) The General Assembly further finds and declares that the transfer of oil, petroleum products and their by-products between vessels and vessels and onshore facilities and vessels within the jurisdiction of the State and state waters is a hazardous undertaking; that spills, discharges and escape of oil, petroleum products and their by-products occurring as a result of procedures involved in the transfer and storage of such products pose threats of great danger and damage to the marine, estuarine and adjacent terrestrial environment of the State; to owners and users of shorefront property; to public and private recreation; to citizens of the State and other interests deriving livelihood from marine related activities; and to the beauty of the Delaware coast; that such hazards have frequently occurred in the past, are occurring now and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the State as herein set forth and that such state interests outweigh any restrictions or burdens imposed by the General Assembly upon those engaged in transferring oil, petroleum products and their by-products and related activities.

(d) The General Assembly intends by the enactment of this legislation to exercise the police power of the State through the Department of Natural Resources and Environmental Control by conferring upon said Department the exclusive power to deal with the hazards and threats of danger and damage posed by such transfers and related activities; to require the prompt containment and removal of pollution occasioned thereby; to provide procedures whereby persons suffering damage from such occurrences may be promptly made whole; and to guarantee that all persons using the waters of the State for the transportation or transfer of oil, petroleum products and their by-products meet minimum requirements of financial responsibility.

(e) The General Assembly further finds and declares that the preservation of the public uses referred to herein is of grave public interest and concern to the State in promoting its general welfare, preventing disease, promoting health and providing for the public safety, and that the State's interest in such preservation outweighs any burdens of absolute liability imposed by the General Assembly upon those engaged in transferring oil, petroleum products and their by-products and related activities.

61 Del. Laws, c. 127, § 1.;

The following words and phrases shall have the meanings ascribed to them in this chapter unless the context clearly indicates otherwise:

(1) "Claim" shall mean a demand in writing for damages.

(2) "Claimant" shall mean anyone who asserts a claim.

(3) "Cleanup costs" shall mean costs of reasonable measures taken, after an incident has occurred, to prevent, minimize or mitigate further oil pollution from that incident.

(4) "Discharge" shall mean any emission, intentional or unintentional, and shall include spilling, leaking, pumping, pouring, emptying or dumping.

(5) "Facility" shall mean a structure or group of structures (other than a vessel or vessels) including trucks, pipelines, bulk storage tanks and tank cars, used for the purpose of transporting, producing, processing, storing, transferring or handling oil.

(6) "Guarantor" shall mean the person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator.

(7) "Incident" shall mean any occurrence or series of occurrences, involving 1 or more vessels, facilities or any combination thereof, which causes or poses any threat of oil pollution in or upon the waters and lands of the State.

(8) "Offshore facility" means any facility of any kind located in, on, or under any of the navigable waters of the United States, and any facility of any kind which is subject to the jurisdiction of the United States and is located in, on, or under any other waters, other than a vessel or a public vessel;

(9) "Oil" shall mean oil of any kind or in any form, including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil, but does not include any substance which is specifically listed or designated as a hazardous substance under § 101(14)(A)-(F) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601) and which is subject to the provisions of that Act (42 U.S.C. § 9601 et seq.) enacted as of June 6, 2013.

(10) "Oil pollution" shall mean any discharge of oil that results in a film on, emulsion in or sludge beneath the waters of the State or its shoreline.

(11) "Operator" shall mean:

a. In the case of a vessel, a charterer by demise or any other person who is responsible for the operation, manning, victualing and supplying of the vessel; or

b. In the case of a facility, any person responsible for the operation of the facility by agreement with the owner.

(12) "Owner" shall mean any person holding title to, or, in the absence of title, any other indicia of ownership of a vessel or facility, but does not include a person having only a security interest in, or security title to, a vessel or facility, under a contract of conditional sale, an equipment trust, a chattel or corporate mortgage, a lease which is the functional equivalent of an extension of credit or any similar instrument.

(13) "Person" shall mean an individual, firm, corporation, association or partnership.

(14) "Person in charge" shall mean the individual immediately responsible for the operation of a vessel or facility.

(15) "Refinery" shall mean a terminal which receives crude oil for the purpose of refinement.

(16) "Secretary" shall mean the Secretary of the Department of Natural Resources and Environmental Control.

(17) "Terminal" shall mean a facility, located within the boundaries of the State which receives oil in bulk directly from any vessel, offshore production facility, offshore port facility or onshore pipeline.

(18) "Vessel" shall mean every description of watercraft or other artificial contrivance used, or capable of being used, as a means of water transportation.

(19) "Waters of the State" shall mean those waters within the boundaries of the State as defined in § 201 of Title 29, including those waters of the territorial sea which are in direct contact with the coast of Delaware and extending from the line of ordinary low water seaward for a distance of 3 geographical miles.

61 Del. Laws, c. 127, § 1; 79 Del. Laws, c. 38, § 1.;

The discharge of oil which causes an incident is prohibited.

61 Del. Laws, c. 127, § 1.;

Any person determined by the Secretary to be responsible for causing an incident shall immediately undertake to remove such oil pollution to the Secretary's satisfaction. If the person responsible fails immediately to undertake to remove the oil pollution to the Secretary's satisfaction, the Secretary may undertake the removal of such oil pollution and may retain agents and contractors for such purpose who shall operate under the direction of the Secretary. The Secretary may authorize a third person, affected by such oil pollution, to expend funds to remove said oil pollution at the expense of the person responsible for same. All moneys expended by the Secretary under this section and recovered under § 6205 of this title are hereby appropriated to the Department of Natural Resources and Environmental Control to carry out the purposes of this chapter.

61 Del. Laws, c. 127, § 1.;

(a) Any person who violates a provision of this chapter or any rule or regulation promulgated thereunder shall be liable in any court of competent jurisdiction for a civil penalty of not less than $1,000 nor more than $10,000 for each day of violation. Any civil penalties collected under this section are hereby appropriated to the Department to carry out the purposes of this chapter.

(b) The Secretary may seek appropriate relief, including injunctive relief, in any court of competent jurisdiction to prohibit and prevent such violation or violations from continuing.

(c) The Secretary may also bring an action in any court of competent jurisdiction for the collection of expenses incurred by the Department resulting from the violation of this chapter or any rule or regulation promulgated thereunder.

61 Del. Laws, c. 127, § 1; 65 Del. Laws, c. 319, § 1.;

(a) Any nonresident who, either in person or through others, owns or operates a vessel or facility in or upon the lands or waters of this State or any nonresident who, either in person or through others, owns or operates a vessel or facility outside the State, which while located outside the State causes an incident in or upon the lands or waters of the State shall be deemed thereby to have submitted himself or herself to the jurisdiction of the courts of this State and to have appointed and constituted the Secretary of State of this State or the Secretary's designee as his or her agent for the acceptance of legal process in any action under this chapter. The force, validity and effect of service of process under this subsection as well as the procedure for effectuating said service shall be governed in all respects by § 3104 of Title 10.

(b) Any corporation, not incorporated in this State, which itself or through others owns or operates a vessel or facility in or upon the lands or waters of this State or any such corporation which itself or through others owns or operates a vessel or facility outside the State which, while outside the State, causes an incident in or upon the lands or waters of this State, shall be deemed thereby to have sufficient contacts with this State to have submitted itself to the jurisdiction of the courts of this State. The force, validity and effect of service of process under this subsection as well as the procedure for effectuating said service shall be governed in all respects by § 3111 of Title 10.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

(a) In addition to all necessary costs of investigation and prosecution claims for damages for economic loss, arising out of or directly resulting from oil pollution, may be asserted for:

(1) Cleanup costs;

(2) Injury to, or destruction of, real or personal property;

(3) Loss of use of real or personal property;

(4) Injury to, or destruction of, natural resources;

(5) Loss of use of natural resources;

(6) Loss of profits or impairment of earning capacity due to injury or destruction of real or personal property or natural resources; and

(7) Loss of tax revenue for a period of 1 year due to injury to real or personal property.

(b) A claim authorized by subsection (a) of this section may be asserted:

(1) Under any items, by the Attorney General on behalf of the State, its citizens or subdivisions; however, the right of any claimant or claimants to proceed in their own behalf shall not be impaired;

(2) Under paragraph (a)(1) of this section, by any claimant;

(3) Under paragraphs (a)(2), (3) and (5) of this section, by any claimant, if the property involved is owned or leased, or the natural resource involved is utilized, by the claimant;

(4) Under paragraph (a)(4) of this section, by the Governor, as trustee for natural resources over which the State has sovereign rights;

(5) Under paragraph (a)(6) of this section, by any claimant, if the claimant derives at least 15 percent of his or her income from activities which utilize the property or natural resource;

(6) Under paragraph (a)(7) of this section, by the State or political subdivision thereof.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Subject to subsection (b) of this section, the owner and operator of a vessel or of a facility, which is the source of, or poses a threat of, oil pollution, shall be jointly, severally and strictly liable for all damages for which a claim may be asserted under § 6207 of this title.

(b) There shall be no liability under subsection (a) of this section:

(1) To the extent that the incident is caused by an act of war, hostilities, civil war or insurrection, or by a natural phenomenon of an unforeseen, exceptional, inevitable and irresistible character;

(2) As to a particular claimant, where the incident or the economic loss is caused by the gross negligence or wilful misconduct of that claimant.

(c) In addition to the damages for which claims may be asserted under § 6207 of this title, the owner, operator or guarantor shall be liable to the claimant for such interest as may be awarded in the discretion of the court as well as court costs and attorneys' fees.

(d) Nothing in this chapter shall bar a cause of action that an owner or operator, subject to liability under subsection (a) of this section, or a guarantor has or would have, by reason of subrogation or otherwise, against any person or governmental entity other than the State and its agencies or subdivisions.

61 Del. Laws, c. 127, § 1; 79 Del. Laws, c. 38, § 2.;

(a) The owner or operator of a vessel or offshore facility shall establish and maintain evidence of financial responsibility by obtaining a Certificate of Financial Responsibility issued by the United States Coast Guard pursuant to the requirements of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. § 2701, et seq., and regulations promulgated thereunder, enacted as of June 6, 2013. An owner or operator of a vessel or offshore facility that is not required by OPA to establish and maintain such evidence of financial responsibility shall be exempt from the requirements of this subsection, and from subsections (b) and (c) of this section.

(b) The master or operator of any vessel or offshore facility subject to this chapter shall have in his or her possession at all times certification that the financial responsibility provisions of this section have been complied with. Pilots of vessels holding a license issued by the State shall demand that such certification of financial responsibility be produced before providing any pilot service to said vessel.

(c) The owner or operator of any vessel or offshore facility subject to this chapter who, upon request, does not produce a COFR issued by the United States Coast Guard pursuant to OPA shall be punished by a fine of not less than $5,000 nor more than $15,000 for each such violation.

(d) Any claim authorized by § 6207 of this title may be asserted directly against any guarantor providing evidence of financial responsibility as required by the United States Coast Guard pursuant to OPA. In defending such claim, the guarantor shall be entitled to invoke all rights and defenses which would be available to the owner or operator under this title. He or she shall also be entitled to invoke the defense that the incident was caused by the wilful misconduct of the owner or operator, but shall not be entitled to invoke any other defense which he or she might have been entitled to invoke in proceedings brought by the owner or operator against him or her.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 38, § 3.;

(a) The person in charge of a vessel or facility, which is subject to this chapter, as soon as he or she has knowledge of an incident in which the vessel or facility is involved, shall immediately notify the Secretary of the incident.

(b)(1) When the Secretary receives information, pursuant to subsection (a) of this section or otherwise, of an incident which involves oil pollution, the Secretary shall, where possible, designate the source or sources of the oil pollution and shall immediately notify the owner and operator of such source, and the guarantor, of that designation as well as the Attorney General of the State.

(2) When a source designated under paragraph (b)(1) of this section is a vessel or a facility, and the owner, operator or guarantor fails to inform the Secretary, within 5 days after receiving notification of the designation, of his or her denial of such designation, such owner, operator or guarantor, in accordance with regulations promulgated by the Secretary, shall advertise the designation and the procedures by which claims may be presented to him or her. If advertisement is not otherwise made in accordance with this paragraph, the Secretary shall, at the expense of the owner, operator or guarantor involved, advertise the designation and the procedures by which claims may be presented to that owner, operator or guarantor.

(c) Advertisement under subsection (b) of this section shall commence no later than 15 days from the date of the designation made thereunder to continue for a period of no less than 30 days.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Except as provided in subsection (b) of this section, all claims shall be presented to the owner, operator or guarantor.

(b) In the case of a claim presented in accordance with subsection (a) of this section, and in which:

(1) The person to whom the claim is presented denies all liability for the claim, for any reason; or

(2) The claim is not settled by any person by payment to the claimant within 60 days of the date upon which the claim was presented, or advertising was commenced pursuant to § 6210(b)(2) of this title, whichever is later,

the claimant may elect to commence an action in Superior Court against the owner, operator or guarantor.

(c)(1) In any action brought against an owner, operator or guarantor, both the plaintiff and defendant shall serve a copy of the complaint and all subsequent pleadings therein upon the Attorney General and Secretary at the same time those pleadings are served upon the opposing parties.

(2) The Attorney General may intervene in the action as a matter of right.

(3) In any action to which the Secretary is a party, if the owner, operator or guarantor admits liability under this chapter, the Secretary upon his or her motion shall be dismissed therefrom.

(d) No claim may be presented, nor may an action be commenced for damages recoverable under this chapter, unless that claim is presented to, or that action is commenced against, the owner, operator or guarantor, as to their respective liabilities, within 3 years from the date of discovery of the economic loss for which a claim may be asserted under § 6207(a) of this title or within 6 years of the date of the incident which resulted in that loss, whichever is earlier.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

In lieu of any action under § 6211(a) or (b) of this title, the claimant may elect to submit his or her claim to the Secretary for adjudication, that election to be irrevocable and exclusive.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

Any person whose interest is substantially affected by the adjudication of the Secretary under § 6212 of this title may appeal to the Environmental Appeals Board within 20 days after the Secretary has announced his or her decision. The Board may affirm, modify or reverse the decision of the Secretary. If the decision of the Secretary is overruled or modified by the Board, then the Board shall state reasons for its decision. No decision of the Board shall be valid unless signed by a minimum of 5 members.

61 Del. Laws, c. 127, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Any person or persons, jointly or severally, aggrieved by any decision of the Board, may appeal to the Superior Court in and for the county in which the incident in question wholly or principally occurred by filing a petition, duly verified, setting forth the grounds of the appeal. Any such appeal shall be perfected within 30 days of the receipt of the written decision of 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.

61 Del. Laws, c. 127, § 1.;

Any person or governmental entity who shall pay compensation to any claimant for an economic loss, compensable under § 6207(a) of this title, shall be subrogated to all rights, claims and causes of action which that claimant has under this chapter.

61 Del. Laws, c. 127, § 1.;

The Secretary may, after public hearing in accordance with § 6006 of this title, adopt, amend, modify or repeal rules or regulations to effectuate the policies and purposes of this chapter.

61 Del. Laws, c. 127, § 1.;