2015 Delaware Code
Title 7 - Conservation
CHAPTER 74A. THE JEFFREY DAVIS ABOVEGROUND STORAGE TANK ACT
§ 7408A Inspection and monitoring.

(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.;

§ 7409A Financial responsibility.

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.;

§ 7410A Enforcement.

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

73 Del. Laws, c. 366, § 1.;

§ 7411A Appeals.

(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.;

§ 7412A Variances.

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.;

§ 7413A Aboveground storage tank registration fee.

(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.;

§ 7414A Aboveground storage tank construction permit fee.

(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.;

§ 7415A Required signage.

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.;

§ 7416A 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 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) 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 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; 79 Del. Laws, c. 439, § 5.;

§ 7417A Short title.

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.;