TITLE 7

Conservation

Natural Resources

CHAPTER 74A. THE JEFFREY DAVIS ABOVEGROUND STORAGE TANK ACT


The General Assembly finds and declares that the containment of petrochemicals, petroleum, petroleum products, hazardous chemicals, hazardous substances, hazardous waste and similar regulated substances in aboveground storage tanks is emerging as a cause of soil, air, surface water and groundwater contamination in the State; that the State's surface water and groundwater resources are vital to the population and economy of the State; that millions of gallons of petroleum and hazardous substances are stored in aboveground storage tanks; that releases of stored, regulated substances are occurring in a significant number of these tanks due to corrosion, structural defect, inadequate maintenance and repair, or improper installation; and that it is therefore necessary to provide for more stringent control of the installation, operation, retrofitting, maintenance, repair, abandonment and/or removal of aboveground storage tanks to prevent releases, and, where releases occur, to detect and remediate them at the earliest possible stage, thus minimizing further degradation of soil, air, surface water and groundwater and promoting public safety. The Department is hereby granted the authority to and shall promulgate standards and regulations to ensure the protection of human health and the environment and to provide for best management practices for aboveground storage tanks.

73 Del. Laws, c. 366, § 1.;

The following words, terms and phrases, when used in this chapter, have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) "Aboveground storage tank" means a single aboveground containment vessel having a capacity of greater than 250 gallons and currently or previously having contained regulated substances on or after January 1, 1992. The term includes all ancillary aboveground pipes and dispensing systems up to the first point of isolation and all ancillary underground pipes and dispensing systems. Within this definition, the word "vessel" includes any container that can be partially visually inspected from the exterior in an underground area. The term "aboveground storage tank" does not include any of the following:

a. Septic tanks;

b. Pipeline facilities (including gathering lines) regulated under the Hazardous Liquid Pipeline Safety Act of 1979, as amended [49 U.S.C. § 60101 et seq.];

c. Surface impoundments, pits, ponds or lagoons;

d. Liquid traps or associated gathering lines directly related to oil or gas production or gathering operations;

e. Flow-through process tanks that contain a regulated substance or substances and that form an integral part of a production process through which there is a steady, variable, recurring or intermittent flow of material during the operation of the process. Flow-through process tanks include, but are not limited to, seal tanks, surge tanks, bleed tanks, check and delay tanks, phase separator tanks or tanks in which physical or chemical change of a material is accomplished. A flow-through process tank does not include:

1. A tank that is used for the storage of material before its introduction into a production process;

2. A tank that is used for storage of products or by-products from the production process; or

3. A tank that is used only to recirculate materials;

f. Transformers, regulators and breakers used for the sole purpose of electrical power distribution and transmission; or

g. Containment vessels operated as part of a publicly owned treatment works as defined pursuant to § 6002 of this title and regulated pursuant to § 6003 of this title or used for the storage and conveyance of wastewater to a treatment plant regulated in accordance with the requirements of the Clean Water Act [33 U.S.C. § 1251 et seq.].

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

(3) "Existing tank" means a tank for which substantial physical installation began prior to July 8, 2002. The term "substantial physical installation" includes, but is not limited to, a permit or contract for the installation.

(4) "Facility" means a location or part thereof containing or having contained 1 or more aboveground storage tanks.

(5) "Heating fuel" means a type of fuel oil that is 1 of 7 technical grades. These grades are: No. 1, No. 2, No 4-light, No. 4-heavy, No. 5-light, No. 5-heavy and No. 6 residual.

(6) "In-service tank" means an aboveground storage tank that:

a. Is being actively maintained or operated;

b. Contains a regulated substance or has a regulated substance regularly added to or withdrawn from the tank; or

c. Is emptied solely for the purpose of cleaning, routine maintenance or a change in product, for a time period not to exceed 45 days.

(7) "New aboveground storage tank" means a tank for which substantial physical installation began on or after July 8, 2002.

(8) "Operator" means a person operating a facility or who has operated a facility, including, but not limited to, by lease, contract or other form of authorization agreement

(9) "Orphan tank" means:

a. A tank for which the last person to operate the tank cannot be identified; or

b. A tank on property as to which the property owner can establish that the owner did not obtain and could not have obtained, through the exercise of reasonable and due diligence, knowledge of the existence of the tank prior to purchase of the property.

(10) "Out-of-service tank" means a tank that is:

a. Designated as an out-of-service tank by the owner or operator; and the owner or operator shall provide notification to the Department on a Department registration form;

b. An empty tank; or

c. Not in use, in that it has not had, within any 45-day period, a regulated substance transferred into or withdrawn from it and has been drained of all contents and is empty.

(11) "Owner" means a person:

a. Who has or has had a legal interest in a facility or aboveground storage tank; or

b. Who has or has had an equitable interest in a facility or aboveground storage tank, except when a person holds an interest in a tank as a security interest, unless through foreclosure or other such action the holder has taken possession of or operated the tank.

(12) "Person" means an entity, individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, company, association, state, municipality, commission, political subdivision of a state, or any interstate body.

(13) "Release" means the spilling, leaking, discharging, leaching or disposing of a regulated substance into groundwater, surface water, soil or air that is not permitted by law, regulation or permit.

(14) "Retrofit" means to modify an aboveground storage tank to meet standards contained in regulations promulgated under this chapter.

(15) "Regulated substance" means a liquid or gas that:

a. Contains 1 percent or more of a hazardous substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. § 9601(14)] and any amendments thereto;

b. Contains 0.1 percent or more of a carcinogen as defined by EPA in the Integrated Risk Information System (IRIS) April 2002 and as updated;

c. Is a petroleum product, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute); or

d. Is a substance determined by the Secretary through regulation to present a risk to public health or welfare or the environment if released into the environment.

(16) "State" means the State of Delaware.

73 Del. Laws, c. 366, § 1.;

(a) The Department shall study and consider the recommendations and standard procedures of the following organizations in developing the regulations required by this chapter:

(1) The National Fire Protection Association (NFPA);

(2) The American Petroleum Institute (API);

(3) The National Association of Corrosion Engineers (NACE);

(4) The Underwriters Laboratories (UL);

(5) The American Society for Testing and Materials (ASTM);

(6) The Petroleum Equipment Institute (PEI);

(7) The Steel Tank Institute (STI); and

(8) Any other organization that has similar standards and has been determined by the Secretary to be relevant and appropriate.

(b) Owners and installers are strictly liable for any failure to install any new aboveground storage tank in accordance with the standards of this chapter and regulations promulgated pursuant to this chapter. Aboveground storage tanks shall be installed in accordance with the standards of this chapter and regulations promulgated by the Department.

73 Del. Laws, c. 366, § 1.;

(a) The following classes of aboveground storage tanks are exempt from this chapter, with the exception of the application of §§ 7402A, 7406A, and 7410A of this title:

(1) Aboveground storage tanks of 1,100 gallons or less in capacity located on a farm and used solely to facilitate the production of crops, livestock or livestock products on the farm;

(2) Aboveground storage tanks used solely to store propane gas;

(3) Aboveground storage tanks of 1,100 gallons or less in capacity used solely to store heating fuel for consumptive use on the premises where stored;

(4) Aboveground storage tanks of 1,100 gallons or less in capacity used solely to store motor fuel or motor oil for noncommercial purposes;

(5) Aboveground storage tanks installed on a temporary basis, not to exceed 6 months;

(6) Aboveground storage tanks excluded by regulations promulgated pursuant to this chapter;

(7) Aboveground storage tanks regulated pursuant to Chapter 74B of this title; and

(8) Aboveground storage tanks and associated equipment regulated as a part of a process regulated pursuant to Chapter 77 of this title.

(b) All aboveground storage tanks greater than 250 gallons and less than 12,499 gallons are exempt from this chapter, with the exception of §§ 7402A, 7405A, 7406A, 7410A and 7415A of this title.

(c) All aboveground storage tanks used solely to store diesel, kerosene or heating fuel with a capacity of less than 20,000 gallons are exempt from this chapter, with the exception of §§ 7402A, 7405A, 7406A, and 7410A of this title.

(d) All aboveground storage tanks used solely to store diesel, kerosene or heating fuel with a capacity of greater than 19,999 gallons and less than 40,000 gallons are exempt from this chapter, with the exception of §§ 7402A, 7405A, 7406A, 7410A and 7415A of this title.

73 Del. Laws, c. 366, § 1; 74 Del. Laws, c. 406, §§ 1-4; 78 Del. Laws, c. 127, § 8.;

The owner shall register all aboveground storage tanks with the Department on forms provided by the Department. Such registration must specify the date of tank installation, location, type of construction, type of substance to be stored, the size of the tank, the material of construction and the owner and operator's name, at a minimum. The owner must register on the following schedule:

(1) For a new aboveground storage tank, the form must be received by the Department at least 60 days prior to installation.

(2) For an existing aboveground storage tank, whether or not in service or out of service, the form must be received by the Department within 60 days of July 8, 2002.

73 Del. Laws, c. 366, § 1.;

(a) All persons, including an owner and an operator, shall not cause or contribute to a release from an aboveground storage tank.

(b) All persons, including an owner and an operator, shall report to the Department a release from an aboveground storage tank in excess of the reportable quantities specified in the regulations promulgated pursuant § 6028 of this title and the Delaware Regulations Governing the Reporting of a Discharge of a Pollutant or an Air Contaminant, as amended.

(c) The owner and operator shall as soon as possible take measures for the prompt control, containment and removal of a released regulated substance to the satisfaction of the Department to achieve the purposes of this chapter. Such measures shall include, but not be limited to, soil removal, soil vapor extraction, groundwater extraction, pump and treat or bioremediation as approved by the Department.

(d) The Department may take measures for the prompt control, containment and removal of a released, regulated substance when it determines that the owner or operator is not responding promptly or appropriately. However, all liability for costs incurred by the Department, including, but not limited to, remediation costs, equipment costs, supply costs, legal costs and administrative oversight costs, remain with the owner and operator. Owners and operators shall reimburse all such costs to the Department within 30 days of receiving written notice of any amount due.

73 Del. Laws, c. 366, § 1.;

(a) The Department, after notice and opportunity for public comment and within 24 months after July 8, 2002, shall promulgate tank performance standards, corrective action regulations and other appropriate regulations necessary and desirable to effectuate the purposes of this chapter.

(b) The Department's standards and regulations must, at a minimum, include the following provisions:

(1) A requirement that a product inventory system or other similar control system, adequate to identify releases from aboveground storage tanks, be maintained;

(2) Procedures to follow when the product inventory system records or other similar control system records indicate an abnormal loss or gain of a regulated substance which is not explainable by spillage, temperature variations or other known causes;

(3) A requirement that appropriate corrective action be taken in response to a release from an aboveground 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 (b)(1) through (3) of this section;

(5) A requirement for an enforcement program;

(6) A requirement for standards that will ensure against any future release from an aboveground storage tank being taken out of service or subsequently reintroduced into service; and

(7) A requirement for appropriate inspection, maintenance, monitoring and repair of aboveground storage tanks and associated equipment. The inspection and monitoring requirements shall require, at a minimum, an inspection report whenever a tank is emptied for maintenance or repair or removed from service. Such reports shall include, but not be limited to, the following information:

a. The structural and material thickness of the tanks;

b. The repairs needed;

c. A completion report for the repairs; and

d. For newly constructed aboveground storage tanks, a report including the welding procedures, welding certification reports, and any nondestructive testing performed on the aboveground storage tank prior to placing the tank into service.

All reports shall be submitted to the Department and shall be kept on file by the owner for the life of the aboveground storage tank. Should any aboveground storage tank have a change of ownership, all reports shall be provided to and maintained by all future owners.

73 Del. Laws, c. 366, § 1.;

(a) For the purpose of developing or assisting in the development of a standard or regulation or of enforcement of this chapter, an owner and operator shall, upon the request of an officer or employee of the State duly designated by the Secretary of the Department, furnish information relating to the tank and/or its contents and shall permit the designated officer or employee at all reasonable times to have access to and to copy all records relating to the tank and/or its contents and to conduct monitoring or require remediation activities, pursuant to § 7406A of this title, which the designated officer or employee deems necessary. For the purpose of developing or assisting in the development of a standard or regulation or of enforcement of this chapter, the designated officer or employee is authorized to:

(1) Enter at reasonable times the facility or other place where an aboveground storage tank or its records are located. The owner and/or operators shall permit unannounced inspections of tanks pursuant to this subsection; and

(2) Inspect and obtain samples from any person of regulated substances and to conduct monitoring of tanks, contents or surrounding soils, water and/or air. An inspection must be commenced and completed with reasonable promptness.

(b) In providing data under this chapter, a person required to provide data may:

(1) Designate the data which the owner or operator of the facility or tank believes constitutes trade secrets and commercial or financial information which the owner or operator believes is of a privileged or confidential nature, and the reasons for such belief; and

(2) Submit the designated secret, privileged or confidential data separately from other data submitted under this chapter, provided that the secret, privileged or confidential data qualifies to be withheld as a nonpublic record in accordance with provisions and regulations of Chapter 100 of Title 29.

73 Del. Laws, c. 366, § 1.;

The Department shall promulgate regulations containing requirements for maintaining evidence of financial responsibility as deemed necessary and desirable for taking reasonable corrective action for property damage and bodily injury caused by accidental release arising from operating an aboveground storage tank. Evidence of financial responsibility may include, but not be limited to, insurance, guarantee, surety bond, letter of credit, proof of assets, or qualification as a self-insurer. In promulgating regulations under this section, the Department is authorized to specify policy or other contractual terms, conditions or defenses which are necessary or are unacceptable in establishing evidence of financial responsibility in order to effectuate the purposes of this section.

73 Del. Laws, c. 366, § 1.;

This chapter is subject to enforcement pursuant to Chapter 60 and § 7906 of this title.

73 Del. Laws, c. 366, § 1.;

(a) A person whose interest is substantially affected by an action of the Department pursuant to a provision of this chapter or the regulations promulgated under this chapter may appeal to the Environmental Appeals Board in accordance with § 6008 of this title.

(b) Appeals from a decision of the Environmental Appeals Board may be taken in accordance with § 6009 of this title.

73 Del. Laws, c. 366, § 1.;

Permanent variances, temporary variances and temporary emergency variances may be granted by the Department from any regulation adopted pursuant to this chapter, in accordance with §§ 6011 and 6012 of this title.

73 Del. Laws, c. 366, § 1.;

(a) Owners and operators must pay to the Department an annual per-tank registration fee. The fee is effective on July 1, 2002, with 6 months of fees due by October 1, 2002, and on or before February 1 of each calendar year thereafter. The fee is based on the schedule below. A registration fee not received by the Department by October 1, 2002, or by February 1 thereafter is subject to a late charge of 10% of the total fee.

      Registration Fee Schedule

Tank Size                  Yearly Fee

12,499 — 39,999 gallons                    $300

40,000 gallons and greater                    $750

These fees shall only be changed or amended with the prior approval of the General Assembly.

(b) The aboveground storage tank registration fee established in subsection (a) of this section must be used by the Department solely for the purpose of administering Chapters 74, 74A, and 74B of this title as well as the regulations of the Department promulgated under said chapters.

(c) The aboveground storage tank registration fee established in subsection (a) of this section must be credited to a dedicated administration fund established in the accounts of the State Treasurer. Money remaining in the fund at the end of the fiscal year does not revert to the General Fund, but remains in the dedicated administration fund. The fund must be maintained in a separate interest-bearing account and be administered by the Department. An accounting of moneys received and disbursed by the fund must be provided annually to the Governor and the General Assembly.

73 Del. Laws, c. 366, § 1; 78 Del. Laws, c. 127, § 9.;

(a) The Department shall assess a 1-time construction permit fee based on the schedule below for an aboveground storage tank constructed after the effective date of the regulations promulgated pursuant to § 7407A of this chapter.

      Construction Fee Schedule

Tank Size                  Construction Permit Fee

12,499 — 39,999 gallons                       $1,500

40,000 gallons and greater                       $3,750

These fees shall only be changed or amended with the prior approval of the General Assembly.

(b) Any person required to pay a fee under Chapter 66 of Title 16 to the State Fire Marshal related to an aboveground storage tank shall receive a 10% reduction in the construction permit fee.

(c) The construction permit fee established in subsection (a) of this section must be used by the Department solely for the purpose of administering this chapter and the regulations of the Department promulgated under this chapter.

(d) The construction permit fee established in subsection (a) of this section must be credited to a dedicated administration fund established in the accounts of the State Treasurer. Money remaining in the fund at the end of the fiscal year does not revert to the General Fund, but remains in the dedicated administration fund. The fund must be maintained in a separate interest-bearing account and be administered by the Department. An accounting of moneys received and disbursed by the fund must be provided annually to the Governor and the General Assembly.

73 Del. Laws, c. 366, § 1.;

Every aboveground storage tank shall have prominently posted thereupon the contents of the tank and the hazards, if any, associated with the contents. If the tank is empty the signage shall so state. For the purposes of this section "prominently posted" and the requirements for labeling shall be specified in the regulations promulgated pursuant to this chapter.

73 Del. Laws, c. 366, § 1.;

(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 aboveground storage tank including, but not limited to, performing inspections, tests and repairs, release detection monitoring, site assessments, removal of regulated substances, removal or closure in place of any part of the aboveground storage tank, actions necessary to abate an emergency situation such as installing water treatment, supplying water, installing wells, and removing contaminated media, and abating hazardous 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 person.

(b) A lien created under this section constitutes record notice and attaches to and is perfected against real property upon which funds have been expended by the State pursuant to § 7406A of this title 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) 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 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 aboveground storage tanks set forth in § 7404A(a)(1), (3) and (4) of this title.

79 Del. Laws, c. 69, § 3.;

This chapter may be referred to as the "Jeffrey Davis Act," in memory of Jeffrey Davis.

73 Del. Laws, c. 366, § 1; 79 Del. Laws, c. 69, § 3.;