§ 7401 Declaration of purpose.
The General Assembly finds and declares that the storage of petroleum products and other hazardous liquids in underground storage tanks is emerging as a major cause of groundwater contamination in the State; that the State's groundwater resources are vital to the population and economy of the State; that millions of gallons of gasoline and other hazardous substances are stored in underground storage tanks; that leaks of stored substances are occurring in a significant number of these tanks due to corrosion, structural defect and improper installation; that leaks are often difficult to detect early because of insufficient product inventory or other control systems; that it is necessary to provide for more stringent control of the installation, operation, retrofitting and abandonment of underground storage tanks to prevent leaks, and where leaks should occur, detect them at the earliest possible stage and thus minimize further degradation of groundwater; and that responsible parties should be required and encouraged to remediate, take corrective action, and clean up released regulated substances, and contaminated soils and groundwater, on or about the facilities with which they are associated; and that the costs of such remediation and clean up should be fairly apportioned if more than 1 responsible party is liable.
§ 7402 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(1) "Abandoned storage system" means a storage system which:
a. Is not intended to be returned to service;
b. Has been out of service for over 3 years; or
c. Has been rendered permanently unfit for use.
(2) "Ancillary equipment" means any device including, but not limited to, such devices as piping, fittings, flanges, valves and pumps, that are used to distribute, meter or control the flow of petroleum or hazardous substances from an underground storage tank.
(3) "Corrective action" means the sequence of actions, or process, that includes confirming a release, site assessment, interim remedial action, remedial action, monitoring, and termination of remedial action.
(4) "Department" means the Department of Natural Resources and Environmental Control.
(5) "Existing tank" means a tank for which installation began prior to July 12, 1985.
(6) "Facility" means any location or part thereof that contains or had previously contained 1 or more underground storage tanks.
(7) "Fiduciary" means:
a. A person acting for the benefit of another party as a bona fide:
1. Trustee, executor, administrator, custodian, guardian of estates or guardian ad litem, receiver, conservator, committee of estates of incapacitated persons, or personal representative;
2. Trustee (including a successor to a trustee) under an indenture agreement, trust agreement, lease, or similar financing agreement, for debt securities, certificates of interest or certificates of participation in debt securities, or other forms of indebtedness as to which the trustee is not, in the capacity of trustee, the lender; or
3. Representative in any other capacity that the Administrator, after providing public notice, determines to be similar to the capacities described in paragraphs (7)a.1. and 2. of this section above.
b. "Fiduciary" does not mean:
1. A person that is acting as a fiduciary with respect to a trust or other fiduciary estate that was organized for the primary purpose of, or is engaged in, actively carrying on a trade or business for profit, unless the trust or other fiduciary estate was created as part of, or to facilitate, 1 or more estate plans or because of the incapacity of a natural person; or
2. A person that acquires ownership or control of a facility with the objective purpose of avoiding liability of the person or of any other person.
(8) "Fiduciary capacity" means the capacity of a person in holding title to a facility, or otherwise having control of or an interest in the facility, pursuant to the exercise of the responsibilities of the person as a fiduciary.
(9) "Foreclosure" or "foreclose" means:
a. Acquiring, and to acquire, a facility through:
1. Purchase at sale under a judgment or decree, power of sale, or nonjudicial foreclosure sale;
2. A deed in lieu of foreclosure, or similar conveyance from a trustee; or
b. If the facility was security for an extension of credit previously contracted:
1. Conveyance pursuant to an extension of credit previously contracted, including the termination of a lease agreement; or
2. Any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession of a facility in order to protect the security interest of the person.
(10) "Fund" means the Delaware Underground Petroleum Storage Tank Response Fund.
(11) "Heating fuels" means a type of fuel oil that is 1 of 8 technical grades. These grades are: No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, No. 6 residual and substitutes such as kerosene or diesel when used for heating purposes.
(12) "Lender" means:
a. An insured depository institution (as defined in the Federal Deposit Insurance Act, 12 U.S.C. § 1813(c)(2)) or an insured credit union (as defined in the Federal Credit Union Act, 12 U.S.C. § 1752(7)) authorized by law to do business in this State;
b. A bank or association chartered under the Farm Credit Act of 1971 (12 U.S.C. § 2001 et seq., as amended) authorized by law to do business in this State;
c. A leasing or trust company that is an affiliate of an insured depository institution authorized to do business in this State;
d. Any person (including a successor or assignee of any such person) that makes a bona fide extension of credit to or takes or acquires a security interest from a nonaffiliated person;
e. Any legal entity authorized, to buy or sell loans or interests in loans in a bona fide manner in this State;
f. A person that insures or guarantees against a default in the repayment of an extension of credit, or acts as a surety with respect to an extension of credit, to a nonaffiliated person; and
g. A person that provides title insurance and that acquires a facility as a result of assignment or conveyance in the course of underwriting claims and claims settlement.
(13) "New tank" or "facility" means a tank or facility for which the installation began on or after July 12, 1985.
(14) "Operator" means any person in control of, or having responsibility for, the daily operation of the underground storage tank system.
(15) "Out of service" means a storage system which:
a. Is not in use; that is, which does not have regulated substances added to or withdrawn from the storage system; and
b. Is intended to be placed in service.
(16) "Owner" means:
a. In the case of an underground storage tank in use on November 8, 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use or dispensing of regulated substances; and
b. In the case of any underground storage tank in use before November 8, 1984, but no longer in service on November 8, 1984, any person who owned such tank immediately before the discontinuation of its use.
c. "Owner" does not mean any person who, without participating in the management of an underground storage tank system, and without otherwise being engaged in petroleum production, refining, or marketing, holds indicia of ownership in an underground storage tank system primarily to protect the person's security interest in it or is a fiduciary which has a legal title to or manages any property for purposes of administering an estate or trust of which such property is part. In the case of foreclosure, such person shall not be deemed the owner of the underground storage system if the person:
1. Provides notification to the Department, using a form provided by the Department, within 30 days of the filing of the complaint for foreclosure, for any real property known by the person to contain an underground storage tank, or for any real property which contains a registered underground storage tank. This notification is required for in-service or out-of-service underground storage tanks; and
2. Empties all known and registered underground storage tanks, located on the foreclosed real property, of regulated substances, within 60 days after confirmation of foreclosure. This emptying is not required if an operator undertakes operational responsibility for the foreclosed real property during this 60-day period. An underground storage tank is empty when all regulated substances have been removed using commonly employed practices, so that no more than 1 inch or 2.5 centimeters of residue, or 0.3 percent by weight of the total capacity of the underground storage tank system, remains in the underground storage tank system.
d. For purposes of this paragraph (16):
1. The term "participate in management" means actually participating in the management or operational affairs of an underground storage tank or facility, but does not include merely having the capacity to influence, or the unexercised right to control, an underground storage tank or facility operations.
2. A person that is a lender or fiduciary and that holds indicia of ownership primarily to protect a security interest in an underground storage tank or facility shall be considered to participate in management only if, while the borrower is still in possession of the underground storage tank or facility encumbered by the security interest, the person:
A. Exercises decision-making control over the environmental compliance related to the underground storage tank or facility, such that the person has undertaken responsibility for the hazardous substance handling or disposal practices related to the underground storage tank or facility; or
B. Exercises control at a level comparable to that of a manager of the underground storage tank or facility, such that the person has assumed or manifested responsibility for the overall management of the underground storage tank or facility encompassing day-to-day decision making with respect to environmental compliance, or over all or substantially all of the operational functions (as distinguished from financial or administrative functions) of the underground storage tank or facility other than the function of environmental compliance;
3. The term "participate in management" does not include performing an act or failing to act prior to the time at which a security interest is created in an underground storage tank or facility.
4. The term "participate in management" does not include:
A. Holding a security interest or abandoning or releasing a security interest;
B. Including in the terms of an extension of credit, or in a contract or security agreement relating to the extension, a covenant, warranty, or other term or condition that relates to environmental compliance;
C. Monitoring or enforcing the terms and conditions of the extension of credit or security interest;
D. Monitoring or undertaking 1 or more inspections of the underground storage tank or facility;
E. Requiring a corrective action or other lawful means of addressing the release or threatened release of a hazardous substance in connection with the underground storage tank or facility prior to, during, or on the expiration of the term of the extension of credit;
F. Providing financial or other advice or counseling in an effort to mitigate, prevent, or cure default or diminution in the value of the underground storage tank or facility;
G. Restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the extension of credit or security interest, exercising forbearance;
H. Exercising other remedies that may be available under applicable law for the breach of a term or condition of the extension of credit or security agreement; or
I. Conducting a corrective action, if the actions do not rise to the level of participating in management (within the meaning of paragraphs (16)d.1. and (16)d.2. of this section).
5. A person who is a lender that did not otherwise participate in the management of a facility as provided in paragraphs (16)d.3. and (16)d.4. of this section shall not be considered to have participated in management, notwithstanding that the person:
A. Forecloses on the property; and
B. After foreclosure, sells, re-leases (in the case of a lease finance transaction), or liquidates the property, maintains business activities, winds up operations, or undertakes corrective actions of this chapter.
e. A fiduciary as described in this section shall not be liable in its personal capacity under this chapter for:
1. Undertaking or directing another person to undertake any other lawful means of addressing a hazardous substance in connection with the facility;
2. Terminating the fiduciary relationship;
3. Including in the terms of the fiduciary agreement a covenant, warranty, or other term or condition that relates to compliance with an environmental law, or monitoring, modifying or enforcing the term or condition;
4. Monitoring or undertaking 1 or more inspections of the facility;
5. Providing financial or other advice or counseling to other parties to the fiduciary relationship, including the settlor or beneficiary;
6. Restructuring, renegotiating, or otherwise altering the terms and conditions of the fiduciary relationship;
7. Administering, as a fiduciary, a facility that was contaminated before the fiduciary relationship began; or
8. Declining to take any of the actions described in paragraphs (16)e.2. through 7. of this section.
f. The liability of a fiduciary under any provision of this chapter for the release or threatened release of a regulated substance at, from, or in connection with a facility held in a fiduciary capacity shall not exceed the assets held in the fiduciary capacity; provided, however, that this limitation shall not apply to the extent that a person is liable under this chapter independently of the person's ownership of a facility as a fiduciary or actions taken in a fiduciary capacity.
g. The exclusion from liability contained in paragraph (16)c. of this section does not limit liability pertaining to the release or threatened release of a regulated substance if negligence of a fiduciary causes a release.
h. Nothing contained in paragraph (16)c. of this section:
1. Affects the rights or immunities or other defenses that are available under this chapter or other law that is applicable to a person subject to this paragraph; or
2. Creates any liability for a person or a private right of action against a fiduciary or any other person.
i. Nothing in paragraph (16)c. of this section applies to a person if the person:
1. Acts in a capacity other than that of a fiduciary or in a beneficiary capacity, and in that capacity, directly or indirectly benefits from a trust or fiduciary relationship; or
2. Is a beneficiary and a fiduciary with respect to the same fiduciary estate and, as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law.
j. Paragraph (16)c. of this section does not preclude a claim under this chapter against:
1. The assets of the estate or trust administered by the fiduciary; or
2. Nonemployee agent or independent contractor retained by a fiduciary.
(17) "Person" means any individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state or any interstate body. "Person" also includes a consortium, a joint venture, a commercial entity and the United States government.
(18) "Regulated substance" means:
a. Any substance defined in § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601(14)); but not including any substances regulated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act of 1976 as amended [42 U.S.C. § 6921 et seq.];
b. Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (60° Fahrenheit and 14.7 pounds per square inch absolute).
(19) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching or disposing into groundwater, surface water or soils.
(20) "Removal" means the process of removing and disposing of an underground storage tank system, through the use of prescribed techniques for the purging of residues and vapors and removal of the vessel from the ground.
(21) "Responsible party" means any person who:
a. Owns or has a legal or equitable interest in a facility or an underground storage tank;
b. Operates or otherwise controls activities at a facility;
c. At the time of storage of regulated substances in an underground storage tank, operated or otherwise controlled activities at the facility or underground storage tank, or owned or held a legal or equitable interest therein;
d. Arranged for or agreed to the placement of an underground storage tank system by contract, agreement or otherwise;
e. Caused or contributed to a release from an underground storage tank system; or
f. Caused a release as a result of transfer of a regulated substance to or from an underground storage tank system.
(22) "Retrofit" means modification or correction of an underground storage tank system to meet standards contained in regulations promulgated under this chapter through such means as replacement of valves, fill pipes, vents and liquid level monitoring systems, and the installation of overfill protection, transfer spill protection, leak detection and cathodic protection devices; but the term does not include the process of relining an underground tank through application of such materials as epoxy resins, nor does the term include the process of conducting a tightness test to establish the integrity of the tank.
(23) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or a duly authorized designee.
(24) "Security interest" means an interest in a petroleum UST or UST system or in a facility or property on which a petroleum UST or UST system is located, created or established for the purpose of securing a loan or other obligation. Security interests include but are not limited to mortgages, deeds of trusts, liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, and assignments, if the transaction creates or establishes an interest in an UST or UST system or in the facility or property on which the UST or UST system is located, for the purpose of securing a loan or other obligation.
(25) "State" means the State of Delaware.
(26) "Underground storage tank" means a containment vessel, including underground pipes connected thereto, which is used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10 per centum or more beneath the surface of the ground. Such term does not include any:
a. Septic tank;
b. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. § 1671 et seq.) [transferred to Title 49, Chapter 601 of the United States Code];
2. The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. § 2001 et seq.) [transferred to Title 49, Chapter 601 of the United States Code]; or
3. Any intrastate agreement comparable to those acts set forth in paragraphs (26)b.1. and 2. of this section;
c. Surface impoundment, pit, pound, lagoon;
d. Storm water wastewater collection system;
e. Flow-through process tank;
f. Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or
g. Storage tank situated in an underground area (such as basement, cellar, mineworking drift, shaft or tunnel) if the storage tank is situated upon or above the surface of the floor.
(27) "Underground storage tank system" means an underground storage tank and its associated ancillary equipment and containment system, if any.
(28) "Used-oil" means a petroleum-based synthetic oil used as an engine lubricant, engine oil, motor oil or lubricating oil for use in an internal combustion engine, or a lubricant for motor vehicle transmissions, gears or axles which through use, storage or handling has become unsuitable for its original purpose due to the presence of impurities or loss of original properties.
§ 7403 Referenced standards.
The Department shall use the recommendations and standard procedures of the following organizations in developing the regulations required by this chapter:
(1) National Fire Protection Association (N.F.P.A.);
(2) American Petroleum Institute (A.P.I.);
(3) National Association of Corrosion Engineers (N.A.C.E.);
(4) Underwriters Laboratories (U.L.); and
(5) American Society for Testing and Materials (A.S.T.M.).
Underground storage tanks installed after the enactment of this chapter shall be in accordance with the appropriate standards cited herein and the regulations promulgated by the Department.
§ 7404 Exemptions.
The following classes of tanks are exempt from this chapter with the exception of the application of §§ 7406 and 7409 of this title:
(1) Agricultural and residential tanks of 1,100 gallons or less used for storing motor fuel for noncommercial purposes; and
(2) Tanks containing heating fuels of 1,100 gallons or less which are used for consumptive purposes on the premises where stored.
§ 7405 Registration by owner.
(a) Underground storage tank owners shall register the following on forms provided by the Department:
(1) Within 60 days after July 12, 1985, all new underground storage facilities used for storing regulated substances, at least 10 days prior to installation. Notice shall specify the date of installation, location, type of construction, size of tanks to be installed and the type of substance to be stored.
(2) All existing underground storage facilities, used for storing regulated substances, within 180 days of July 12, 1985; provided, however, that existing heating fuel tanks of greater than 1,100 gallon capacity shall be registered within 180 days of July 20, 1988. Notice shall specify, to the extent known, the location, size, type of construction and age of tanks, and the type of substance stored.
(3) All abandoned or nonoperational underground storage tanks taken out of service after January 1, 1974. All underground storage tanks covered by this paragraph must be registered within 9 months of July 12, 1985 (unless the owner knows the tank was subsequently removed from the ground); provided, however, that abandoned or nonoperational heating fuel tanks of greater than 1,100 gallons capacity shall be registered within 180 days of July 20, 1988. Notice shall specify, to the extent known, the date taken out of operation, the location, size, type of construction and age of tank, and type of substance stored, and quantity of regulated substances left stored in such tank on the date taken out of operation.
(b) Within 30 days of July 12, 1985, the Department shall prescribe the form of the notice and the information to be included in the notification under paragraphs (a)(2) and (3) of this section.
§ 7406 Release of substances prohibited; correction of substance release; Department intervention.
(a) No person shall knowingly allow a release from an underground storage tank to continue without taking immediate steps to report the release to the Department.
(b) Responsible parties shall take measures for the prompt control, containment, and removal of the released regulated substances to the satisfaction of the Department.
(c) The Department may assume control of any release situation when it is determined that responsible parties are not responding promptly. However, all liability will remain with the responsible party.
(d) Responsible parties are liable for remediation and corrective action pursuant to subsections (b) and (c) of this section, and the regulations promulgated under this chapter. This remedial liability has attached and shall continue to attach at any time prior to January 1, 2016, and survives subsequent to that date.
(e) Responsible parties who own, owned, operate, or operated, a facility or an underground storage tank located at a facility, on or after January 1, 2016, shall be liable for remediation and corrective action, in accordance with this chapter and the regulations promulgated under it, for all released regulated substances on or under the facility, or on or under other real property but which originated or emanated from the facility, regardless of whether any responsible party proximately caused any release or not, and regardless of when and how the regulated substances were released. The ownership or operational association with the facility establishes the nexus for liability under this section to attach to these responsible parties.
(1) A responsible party is not liable under this section for remediation and corrective action of and for regulated substances only if the responsible party can establish that the release of the regulated substances was caused solely by:
a. An act of God;
b. An act of war; or
c. An act or omission of a third party other than:
1. An employee or agent of the responsible party; or
2. Any person whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the responsible party, but not including a contractual relationship in connection with the sale or transfer of the facility by or from the responsible party to a third party.
3. This defense applies only when the responsible party asserting the defense has exercised due care with respect to the facility, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions; notwithstanding the foregoing, where the contractual relationship arises in connection with the sale or transfer of the facility by or from the responsible party to a third party, the defense applies if the responsible party asserting the defense has exercised due care with respect to the facility during the period of ownership or operation of the facility by the responsible party, and with respect to the foreseeable acts or omissions of the third party based on the responsible party's knowledge and information at the time of the sale or transfer of the facility.
(2) A responsible party is not liable under this section for remediation and corrective action of and for regulated substances which were released before the time period when the responsible party owned or operated the facility and/or underground storage tank, only if the responsible party had no knowledge or reason to know, at the commencement of the ownership or operation, of any prior release. This paragraph (e)(2) is limited as follows:
a. To establish that the responsible party had no reason to know of any prior release, the responsible party must demonstrate that on or before the date on which the responsible party acquired or began operations at the facility, the responsible party carried out all appropriate inquiries, as provided in paragraph (e)(2)b. of this section, into the previous ownership and operation of the facility in accordance with generally accepted good commercial and customary standards and practices.
b. The procedures of the American Society for Testing and Materials ("ASTM"), including the documents known as "Standard E1527-05" and "Standard E1527-13," entitled "Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process," or the procedures in 40 C.F.R. § 312.20, shall satisfy the requirements of all appropriate inquiries in paragraph (e)(2)a. of this section, but the Secretary may, by regulation, update or augment these 2 alternative methods of satisfying all appropriate inquiries, and may add additional methods of satisfying the requirements of all appropriate inquiries.
c. Notwithstanding this paragraph (e)(2), if the responsible party obtained actual knowledge of any current or prior release or threatened release of regulated substances at the facility when the responsible party owned or operated the facility and then subsequently transferred ownership or operation of the facility to another person without disclosing this knowledge, the responsible party shall be treated as liable under this subsection (e) and no defense under this paragraph (e)(2) shall be available to the responsible party.
d. Nothing in this subsection (e) shall affect or diminish the liability under this chapter of a responsible party who, by any act or omission, caused or contributed to the release of regulated substances which is the subject of the action relating to the underground storage tank or facility.
(f) Subsections (g), (h), (i), and (j) of this section apply to each and every responsible party, regardless of whether the remedial liability arose or attached, before or after January 1, 2016.
(g) The remedial liability of responsible parties is strict liability, joint and several.
(h) The remedial liability of responsible parties includes a right of contribution. In resolving contribution claims, the Superior Court may allocate costs among the responsible parties using such principles of fairness and justice as the Superior Court deems appropriate.
(i) The Department may assume control of any release situation when responsible parties are not responding promptly or effectively for the control, containment, and removal of released regulated substances. Control of any release situation by the Department includes without limitation the entry by the Department upon the facility and any other real property, public or private, on or under which the released regulated substances are present, to install water treatment on contaminated drinking water systems, vent indoor air contaminants, remove and remediate regulated substances and substrate from the subsurface, remove or close in place leaking underground storage tanks, investigate the extent of the release through environmental sampling, undertake corrective action, and take any other such action to control, contain, and remove the released regulated substances. The Department, its contractors and agents, shall not be deemed to be responsible parties based on any actions they may take in assuming control of a release situation.
(j) The Department may file an action in Superior Court against any responsible party, for cost recovery and for reimbursement of funds expended, for corrective action, in control and remediation of any release situation, and activities associated with underground storage tank removals and closures in place. Any cost recovery and reimbursement collected by the Department shall be credited to and expended by the Department for control of underground storage tank releases and to support the purposes of this chapter. A responsible party shall have an affirmative defense to a cost recovery action under this section by showing that the responsible party was responding promptly and effectively for the control, containment, and removal of released regulated substances at the time that the Department assumed control of the release situation.
§ 7407 Release detection, prevention and correction regulations.
(a) The Department, after notice and opportunity for public comment, and within 12 months after July 12, 1985, shall promulgate release detection, prevention and correction regulations applicable to underground storage tanks, as may be necessary to protect human health and the environment.
(b) In promulgating regulations under this section, the Department shall take into consideration factors which affect tank integrity, including, but not limited to, tank location, type and age, soil conditions, hydrogeology, compatibility of the stored substances and the materials of which the tank is constructed, current industry recommended practices, national consensus codes and the impact of the regulations on the regulated community. The Department shall distinguish in such standards between requirements appropriate for new tanks, for tanks in existence on the date of promulgation of the standards and for abandoned tanks. The Department shall require permits for certain classes of tanks or for tanks located in certain environmentally sensitive areas where such a permit system would lead to better management of groundwater resources.
(c) The Department's regulations shall, at a minimum, include the following provisions:
(1) A requirement that a product inventory or other such control system, adequate to identify releases from underground storage tanks, be maintained;
(2) Procedures to follow when inventory or other such control system records indicate an abnormal loss or gain which is not explainable by spillage, temperature verifications, or other known causes;
(3) A requirement that appropriate corrective action be taken in response to a release from an underground storage tank as may be necessary to protect human health and the environment;
(4) A requirement to maintain records documenting actions taken in accordance with paragraphs (c)(1)-(3) of this section;
(5) A requirement for an enforcement program; and
(6) A requirement for standards that will ensure against any future release from an underground storage tank being closed or otherwise taken out of operation.
(d) All underground storage tank system fill lines shall be clearly marked to indicate the size of the tank and the type of regulated substances stored, within 180 days of July 20, 1987; as provided in regulations established under this chapter.
§ 7408 Inspection and monitoring.
(a) For the purposes of developing or assisting in the development of any regulation or enforcing this chapter, any owner or operator of any underground storage tank, and any owner of a facility, shall, upon the request of any duly designated officer or employee of the State, furnish information relating to such tanks or contents and permit such person at all reasonable times and in accordance with § 6024 of this title, to have access to, and to copy all records relating to such tanks and to conduct such monitoring as such officer or employee deems necessary. For the purposes of developing or assisting in the development of any regulation or enforcing this chapter, such officer or employee is authorized:
(1) Designate the data which such owner or operator believes is entitled to protection under Delaware's Freedom of Information Act [Chapter 100 of Title 29]; and
(2) To inspect and obtain samples from any person of such regulated substances and to conduct monitoring of the tanks, contents or surrounding soils. Each such inspection shall be commenced and completed with reasonable promptness.
(b) In submitting data under this chapter, a person required to provide such data may:
(1) Designate the data which such owner or operator believes is entitled to protection under Delaware's Freedom of Information Act [Chapter 100 of Title 29]; and
(2) Submit such designated data separately from other data submitted under this chapter.
(c) The Department, its contractors and agents, may enter a facility, at reasonable times, upon giving the owner, operator, or real property owner, verbal notice, to investigate if a release has occurred from an underground storage tank system. This includes but is not limited to performing release detection activities as well as sampling soils and groundwater to evaluate whether a release of a regulated substance has occurred.
(d) The Department, its contractors and agents, may enter a facility, at reasonable times, upon giving the owner, operator, or real property owner, written notice, to remove regulated substances from underground storage tanks that are suspected of leaking, or that have been out of service for longer than 12 months, to perform sampling of soil and groundwater to determine the nature and extent of a confirmed release, to determine the need for corrective action, and to perform corrective action.
(e) The Department is authorized to petition the Superior Court for an order for access to real property, to investigate the possibility of underground migration of released regulated substances, from an underground storage tank or facility, to the real property, to control or contain released regulated substances that may be on the real property, and to undertake corrective action on the real property. The Superior Court shall schedule a hearing on the petition, giving due consideration to the immediacy of the facts presented in the petition. The Department shall give the owners of record of the real property notice of the hearing on the petition at least 10 days before the hearing, by hand delivery, by certified U.S. mail to the real property owner's last known address, or by leaving the notice at the real property. The notice shall be in writing and shall contain a copy of the petition, a description of the real property to be accessed, the actions proposed and expected to be taken by the Department, and the date, time and location of the hearing. For good cause shown, the Superior Court shall grant the petition and order access to the real property in furtherance of the purpose of this chapter and for protection of the environment, for specified actions and goals, and on such terms and conditions, as may be supported by the facts and circumstances presented. This section shall not be construed as impairing in any way the authority of the Department and real property owners from entering into voluntary agreements for access at any time. The liability of responsible parties for costs incurred by the Department includes costs incurred by the Department on real property covered by an order issued under this section.
(f) If the Department determines that an emergency exists that requires immediate action to protect public health, safety, welfare, or the environment, and the owner, operator, or property owner is unwilling, unavailable, or unable to take such immediate action, the Department is authorized to enter upon a facility and adjacent or related real property and take any immediate action necessary to abate the emergency.
§ 7409 Delaware Underground Petroleum Storage Tank Response Fund.
(a) The Delaware Underground Petroleum Storage Tank Response Fund is hereby established as a nonlapsing revolving fund to be used by the Department for the investigation and remediation of petroleum underground storage tank release. All expenses, costs and judgments recovered pursuant to this section, and all moneys received as reimbursement in accordance with applicable provisions of federal law, shall be and hereby are appropriated to the Fund. Interest earned on the Fund shall be credited to the Fund. No moneys shall be credited to the balance in the Fund until they have been received by the Fund. The Fund shall be established in the accounts of the State Treasurer and any funds remaining in such Fund at the end of the fiscal year shall not revert to the General Fund but shall remain in the Fund.
The Fund shall be administered by the Department of Natural Resources and Environmental Control consistent with the provisions of Subtitle I of the federal Solid Waste Disposal Act (P.L. 98-616, § 9001 et seq.) [42 U.S.C. § 6991 et seq.]. The Fund shall be maintained in a separate account. An accounting of moneys received and disbursed shall be kept, and furnished upon request to the Governor or the General Assembly.
(b) Disbursements from the Fund may be made only in accordance with regulations promulgated by the Department and for the following purposes:
(1) Costs incurred in investigation and assessment of a site otherwise eligible hereunder.
(2) Costs associated with restoration or replacement of potable water supplies.
(3) Costs incurred in taking corrective action for any release of petroleum into the environment from an underground storage tank which are in excess of the minimum financial responsibility requirement imposed up to $1,000,000 per occurrence per facility.
(4) Costs incurred in compensating third parties for bodily injury and property damage caused by release of petroleum into the environment from an underground storage tank, up to $1,000,000 per occurrence per facility.
(5) Costs incurred in taking immediate corrective action to contain or mitigate the effects of any release of petroleum into the environment from an underground storage tank if such action is necessary, in the judgment of the Department, to protect human health and the environment.
(6) Costs associated with maintenance and monitoring of contamination sites.
(7) Costs incurred in inspection and supervision of cleanup activities.
(8) The "cost share" of corrective action with respect to any release of petroleum into the environment from underground storage tanks undertaken under a cooperative agreement with the Administrator of the United States Environmental Protection Agency, as determined by the Administrator of the United States Environmental Protection Agency, § 9003(h)(7)(B) of P.L. 98-616 (as amended in 1986 by P.L. 99-499) [42 U.S.C. § 6991b(h)(7)(B)].
(c) Disbursements from the Fund may not be made for any purpose not identified in subsection (b) of this section including, but not limited to:
(1) Costs incurred in the Department's administration of the underground storage tank program.
(2) Costs incurred by the State to recover from any party costs charged to the Fund.
Such expenses will be funded by the tank registration fee established pursuant to § 7418 of this title.
§ 7410 Financial responsibility.
(a) The Department shall adopt regulations for maintaining evidence of financial responsibility by all owners and operators for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases from the operation of underground storage tank systems in the following amounts:
(1) An amount of not less than $1,000,000 per occurrence for taking corrective action and for compensating third parties for bodily injury and property damage for underground storage tank systems located at petroleum marketing facilities or that handle an average of more than 10,000 gallons of regulated substance per month based on an annual throughput for the previous calendar year or that store hazardous substances, or in an amount not less than $500,000 per occurrence for all other underground storage tank systems; and
(2) An amount of not less than $1,000,000 annual aggregate for taking corrective action and for compensating third parties for bodily injury and property damage for owners and operators of 1 to 100 underground storage tank systems or an amount of not less than $2,000,000 annual aggregate for taking corrective action and for compensating third parties for bodily injury and property damage for owners and operators of more than 100 underground storage tank systems.
(b) Financial responsibility may be established in accordance with regulations promulgated by the Department and may include the following: insurance, guarantee, surety bond, irrevocable letter of credit, trust fund, or qualification as a self-insurer. In addition, local governments may establish evidence of financial responsibility by any of the following: local government bond rating test, local government financial test, local government guarantee, or local government fund. The owner and operator shall provide written notification to the Department within 30 days of any substantive change in the financial responsibility mechanism, including but not limited to cancellation, nonrenewal, substitution of alternate financial responsibility mechanism, or change in financial responsibility provider. Such written notification shall include but not be limited to the names and addresses of the providers involved, the financial responsibility mechanisms involved, and the effective date of change.
(c) Any claim arising out of conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the person guaranteeing or providing evidence of financial responsibility. In such a case, the person against whom the claim is made shall be entitled to invoke all rights and defenses which would have been available to the owner or operator had such action been brought directly against the owner or operator.
(d) This section shall not limit any other state or federal statutory, contractual or common-law liability of the guarantor for bad faith in negotiating or in failing to negotiate the settlement of any claim. This section does not diminish the liability of any person under § 107 or § 111 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9607 or § 9611), or other applicable law.
§ 7411 Enforcement.
(a) Whenever, on the basis of any information, the Secretary determines that any person is in violation of any requirement of this chapter, or any rule or regulation promulgated hereunder, the Secretary shall give notice to the violator of said violator's failure to comply with such requirement. If such violation extends beyond the thirtieth day after the Secretary's notification, the Department may issue an order requiring compliance within a specified time period.
(b) If such violator fails to take action to correct the violation within the time specified in the order, he or she shall be liable for a civil penalty of not more than $25,000 for each day of continued noncompliance and the Secretary may suspend or revoke any permit issued to the violator.
(c) Any order or any suspension or revocation of a permit shall become final unless, not later than 30 days after the order or notice of the suspension or revocation is served, the person or persons named therein request a public hearing. Upon such request, the Secretary shall conduct a public hearing in accordance with § 6006 of this title. In connection with any proceeding under this subsection, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may promulgate rules for discovery procedures.
(d) Any order issued under this section shall state with reasonable specificity the nature of the violation and specify a time for compliance and assess a penalty, if any, which the Secretary determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with the applicable requirements.
(e) In lieu of the compliance order procedure in subsection (a) of this section, any person who violates a provision of this chapter, any rule or regulation, or any order of the Secretary shall be liable for a civil penalty of not less than $1,000, nor more than $25,000 for each day of violation. The Superior Court shall have jurisdiction over offenses under this chapter.
(f) If the violation consists solely of a failure to register an underground storage tank or submit other notifications as required, the Secretary may elect to bring a civil action in the Justice of the Peace Court for a penalty not to exceed $1,000. Each day of violation shall be considered as a separate violation.
(g) Any expenses or civil penalties collected by the Department under this action shall be credited to the administration fund established under § 7418(d) of this title.
§ 7412 Appeals.
(a) Any person 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 party to an appeal before the Board who is substantially affected by a decision of the Board may appeal to the Superior Court in accordance with § 6009 of this title.
§ 7413 Variances.
Variances and temporary emergency variances may be granted by the Secretary from any regulation adopted pursuant to this chapter in accordance with §§ 6011 and 6012 of this title except that no variance or temporary emergency variance shall be granted which would be inconsistent with the no less stringent requirements of § 9004 of the Resource Conservation and Recovery Act of 1976, Pub. L. 94-580 as amended by Pub. L. 98-616 [42 U.S.C. § 6991c] (or regulations promulgated thereunder).
§ 7414 Leaking Underground Storage Tank Committee.
There is hereby established a Leaking Underground Storage Tank Committee which shall be composed of, but not limited to, the Secretary of the Department of Natural Resources and Environmental Control, the Director of the Office of Management and Budget, the Director of the Delaware Geological Survey, the State Fire Marshal, a member of the Delaware Petroleum Council, a member of the Pennsylvania/Delaware Service Station Dealers Association, an installer of underground storage tanks, a representative of the insurance industry, the Insurance Commissioner or the Commissioner's designee, a representative of the agricultural community, a representative of the chemical industry, a representative from an environmental interest group, 2 state Senators who shall be appointed by the President Pro Tempore of the Senate and 2 state Representatives who shall be appointed by the Speaker of the House of Representatives. The Governor shall designate the Chairperson. The whole Committee shall guide development of the regulations and other requirements of this chapter.
§ 7415 Implementation and reporting requirements.
The Department, in conjunction with the Delaware Geological Survey, shall conduct a study to demonstrate the feasibility of a comprehensive inventory of underground storage tanks to include new, existing and abandoned tanks. It shall be conducted within an area of the State to be designated by the Department and the Committee. The Delaware Geological Survey shall investigate the feasibility of utilizing aerial photographs and other new or advanced techniques for locating abandoned tanks. The Department shall report to the General Assembly within 6 months of the date of adoption of implementation and reporting requirements. The report shall include a critique of the management experience gained which will serve as a basis for identifying staff and automated data processing needs for a comprehensive inventory.
§ 7416 Groundwater risk assessment.
(a) Because groundwater protection and management is an underlying issue related to leaking underground storage tanks, information on the risks to groundwater resources will be needed to facilitate implementation of the regulations.
(b) The Delaware Geological Survey shall, under the auspices and direction of the Committee, and in cooperation with the Department, examine the need for prioritizing possible leak risks. The Survey may assist the Committee by identifying areas where existing or abandoned leaking underground storage tanks would pose the most significant risk.
§ 7417 Use of Hazardous Substance Cleanup Act funding.
The Department may use funding from the Hazardous Substance Cleanup Fund (§ 9113 of this title) to support the implementation of this chapter, including but not limited to preventing releases from underground storage tanks, removing or properly closing in place underground storage tanks that are suspected of leaking or that have been out of service for longer than 12 months, providing financial assistance to remove underground storage tanks containing heating fuel, detecting releases as early as possible, investigating the nature and extent of a release, and performing necessary corrective actions to minimize degradation of groundwater and protect human health and the environment.
§ 7418 Tank registration fee.
(a) All owners/operators of underground storage tanks shall pay to the Department an annual per tank registration fee of $50 on or before February 1 of each calendar year. Registration fees not received by the Department by February 1 shall be subject to a late charge of $30. Payment shall be made in accordance with regulations established by the Department.
(b) Underground storage tanks owned or operated by the State, or counties or municipalities or agencies or subdivisions thereof, shall be exempt from payment of the registration fee defined in subsection (a) of this section.
(c) Underground storage tanks owned or operated by the volunteer fire companies and ambulance companies within this State shall be exempt from payment of the registration fee defined in subsection (a) of this section.
(d) The tank registration fee established in subsection (a) of this section shall be used solely for the purpose of administering the Department's programs implementing this chapter and the regulations promulgated thereunder.
(e) The tank registration fee shall be credited to a dedicated administration fund established in the accounts of the Treasurer. Any money remaining in such fund at the end of the fiscal year shall not revert to the General Fund, but shall remain in the dedicated administration fund. The fund shall be maintained in a separate account and shall be administered by the Department. An accounting of moneys received and disbursed shall be kept, and furnished upon request to the Governor or the General Assembly.
§ 7419 Environmental liens; recovery of expenditures [For application of this section, see 79 Del. Laws, c. 69, § 5]
(a) Pursuant to the provisions of this section, all reasonable costs expended by the State related to investigating a release or suspected release of a regulated substance from an underground storage tank system including, but not limited to, performing inspections, release detection monitoring, site assessments, removal of regulated substances, removal or closure in place of any part of the underground storage tank system, actions necessary to abate an emergency situation such as installing water treatment, supplying drinking water, installing wells and venting petroleum vapors, as well as other necessary corrective actions for which a person is liable under this chapter or the regulations promulgated pursuant thereto shall constitute a lien in favor of the State upon the real property where such activities take place and which belongs to such liable party.
(b) A lien created under this section constitutes record notice and attaches to and is perfected against real property upon which any corrective action has been undertaken by the State and which is owned by a person liable under this chapter when:
(1) No less that 30 days prior to the effective date of the lien, a notice of lien is sent by the Secretary, by means of certified or registered mail, to the last known address of all record owners of the property and to all persons holding liens or security interests of record. The notice of lien shall state the amount of and basis for the lien;
(2) No less than 30 days prior to the effective date of the lien, a notice of lien is filed by the Secretary with the office of the recorder of deeds in the county in which the property is located; and
(3) Costs associated with corrective action at the property as described in subsection (a) of this section are incurred by the State.
(c) A person whose interest is substantially affected by any action of the Secretary taken pursuant to subsection (a) of this section may contest the imposition of a lien to the Environmental Appeals Board in accordance with § 6008 of this title. This section shall not preclude any equitable claims by an aggrieved person in the Court of Chancery to contest the imposition of a lien, including actions to quiet title. In any action seeking to contest or enforce a lien, the burden of establishing entitlement to such lien shall be consistent with the burden of proof applicable in an action brought by the Secretary pursuant to this chapter.
(d) A lien created under this section has priority over all other liens and encumbrances perfected after the date that the lien recorded pursuant to this section is perfected, except for liens and encumbrances which relate back to before the perfection of the lien recorded pursuant to this section.
(e) A lien created under this section continues until fully satisfied or otherwise discharged in accordance with law. The Secretary shall, on written request, make available the documentation upon which such lien is based within 10 days of such request.
(f) Upon satisfaction of the liability secured by a lien created under this section, the Secretary shall file a notice of release of lien with the office of recorder of deeds in the county in which the real property is located.
(g) No lien or obligation created under this chapter may be limited or discharged in a bankruptcy proceeding. All obligations imposed by this chapter shall constitute regulatory obligations imposed by the State.
(h) If the Secretary determines that the funds projected to be available in order to satisfy the lien provided pursuant to subsection (a) of this section will be insufficient to permit the State to recover fully its costs, the Secretary may file a petition in the Court of Chancery seeking to impose an additional lien or liens upon other real property in this State owned by the same liable person or persons as the property where the costs are incurred.
(1) A petition filed by the Secretary pursuant to this subsection shall describe with particularity the real property to which the lien will attach.
(2) Upon filing of a petition by the Secretary, the Court shall schedule a hearing to determine whether the petition should be granted. Notice of the hearing shall be provided to the Secretary, the record owner or owners of the real property which is the subject of the petition, and any person holding a lien or a perfected security interest in the property.
(i) A person whose interest is substantially affected by any action of the Secretary taken pursuant to this section, while contesting the imposition of such environmental lien in accordance with the procedures set forth herein, shall have the right to discharge said lien upon payment into the Court of Chancery or entry of security as follows:
(1) Cash deposit. — Any environmental lien filed hereunder shall, upon petition of the owner or any party in interest, be discharged as a lien against the property whenever a sum equal to the amount of the claim shall have been deposited with the Court in said proceedings for application to the payment of the amount finally determined to be due. Said petition shall include an affidavit by the owner or party in interest setting forth which parts of the claim filed hereunder are disputed and which parts are not disputed. The nondisputed part of the claim shall be paid to the Secretary before the lien against the property is discharged. If it is finally determined by the Court that the disputed portion of the claim has been grossly overstated by the affiant, the Court may, in its discretion, award damages to the Secretary against the affiant in an amount up to twice the figure stated by the affiant to be disputed.
(2) Refund of excess. — Any excess of funds paid into Court as aforesaid, over the amount of the claim or claims determined and paid therefrom, shall be refunded to the owner or party depositing same upon application.
(3) Security in lieu of cash. — In lieu of the deposit of any such sum or sums in cash, approved security may be entered in such proceedings in an amount which the Court shall approve, which, however, shall in no event be less than the full amount of such required deposit; and the entry of such security shall entitle the owner to have such liens discharged to the same effect as though the required sums have been deposited in Court as aforesaid.
(4) Authority of Court. — The Court, upon petition filed by any party, and after notice and hearing, may upon cause shown:
a. Require the increase or decrease of any deposit or security;
b. Strike off security improperly filed;
c. Permit the substitution of security and enter an exoneration of security already given.
(j) The provisions of this section shall not apply to those classes of underground storage tanks set forth in § 7404(1) and (2) of this title.