Section l. Amend
paragraph (4) of subsection (a) of section 5028 of Title 29 of the Delaware
Code by inserting after the word “section” and before the comma immediately
following such word the following words and punctuation “and for one or more of
the purposes set forth in paragraphs (1) through (3) of this subsection (a)”.
Section 2. Amend subsection (c) of section 5028 of Title
29 of the Delaware Code by striking the phrase “$50,000” and substituting in
lieu thereof the phrase “$100,000”.
Section
3. Amend Chapter 91 of Title 7 of the
Delaware Code by designating sections 9101 through 9120 as Subchapter I,
entitled “Subchapter I. General
Provisions and Enforcement”.
Section
4. Amend Chapter 91, Title 7, Delaware
Code by adding the following new Subchapter II, to read as follows:
“Subchapter II. Brownfields Development Program.
§ 9121. Short title.
This subchapter shall be known,
and may be cited, as the ‘Brownfields Development Program.’
§ 9122. Declaration of Purposes.
(a) In addition to the provisions
of the foregoing Subchapter I of this Chapter, this Subchapter is intended to
implement a Brownfields Development Program, supplementing the powers and
duties of the Secretary as set forth in section 9104 of this Chapter.
(b) The General Assembly
recognizes that:
(1) There are
Brownfield sites throughout the State of Delaware;
(2) The underutilization of
brownfields in the State of Delaware operates to the economic detriment of the
citizens of the State of Delaware, because the underutilization of these sites
limits employment opportunities and needlessly uses valuable ‘greenfield’
resources; and
(3)
There is a need to establish a program to effectively investigate, remediate,
and redevelop these sites, thus returning these sites to more productive use
and enhancing the economic well being of the citizens of the State of Delaware.
§ 9123. Definitions.
As used in this subchapter:
(1) ‘Brownfields Developer’ shall mean a person
who, with respect to a facility:
(a)
Proposes to conduct investigations and/or development activity at a
facility that is a Certified Brownfield, and seeks to enter into a Brownfields
Development Agreement with the Secretary;
(b) At the time of application for a Brownfields
Development Agreement, is not liable for a release or Imminent threat of
release at the facility under § 9105 (a) (1) – (6); and
(c) Is not affiliated with any other person that
is liable for a release or imminent threat of release at the facility, within
the meaning of §9105(c)(4)b.5.
(2) ‘Brownfields
Development Agreement’ means an agreement between the Secretary and a
Brownfield Developer with respect to a Certified Brownfield that sets forth a
scope and schedule of activities to assess and respond to the actual,
threatened, or perceived release of hazardous substances at the facility.
(3)
‘Certified Brownfield’ means a brownfield, as defined in section 9103(3) of the
Title, that the Secretary has certified pursuant to the Regulations Governing
Hazardous Substance Cleanup.
(4)
‘Existing environmental condition’ means all known or discovered releases of
hazardous substances which are found to be, or to have been, existing at or in
the vicinity of the facility prior to a person entering into a Brownfields
Development Agreement with the Secretary.
(5)
‘Plan(s)’ means any workplan(s) as required by the Secretary for the
performance of an investigation and/or remedy of a site.
§ 9124. Secretary’s powers and
duties.
The Secretary may exercise the following powers in addition
to any other powers granted by law:
(1) The Secretary may plan, study or
conduct, or permit a Brownfields Developer or other persons to plan, study or
conduct, appropriate actions at a Certified Brownfield to perform a remedy of a
release, imminent threat of release, or where there may be a reasonably held
perception of a release or imminent threat of a release.
(2) The Secretary shall, after notice and
public hearing, promulgate and revise regulations as deemed necessary for the
implementation and administration of this Subchapter.
§ 9125. Standard of liability.
(a) Notwithstanding
§9105, a Brownfields Developer who enters into a Brownfields Development
Agreement with the Secretary is not liable with respect to the facility that is
the subject of the Brownfields Development Agreement for any release or
imminent threat of release of hazardous substances existing at the time the
Brownfields Development Agreement is entered into, or for a remedy, or for any
costs incurred by the State or any other person related to a remedy, for such a
release or imminent threat of release at a facility, provided that:
(1) The Brownfields Developer submits
a plan or plans for approval by the Secretary to address the actual or perceived
presence of hazardous substances at the facility; and
(2) Any land disturbing activity at
the facility by the Brownfields Developer in areas affected by the release or
imminent threat of release of hazardous substances is performed in accordance
with a plan, or modified plan or plans, as approved by the Secretary.
(b) Notwithstanding
section (a) above, a Brownfields Developer who causes any exacerbation of the
existing environmental condition is responsible for entering into an agreement
approved by the Secretary to mitigate any increased risk to human health or the
environment or increased remedial costs at the facility caused by such
exacerbation. Furthermore, the Secretary may modify the plan to address any
changed circumstances in the environmental condition of the facility. If the
Brownfields Developer fails or refuses to comply with any modified plan or
plans addressing any exacerbation of the existing environmental condition, it
is liable for the cost of mitigating any increased risk to the public health or
the environment or increased remedial costs caused by the exacerbation of the
existing environmental condition.
(c) Notwithstanding
section (a) above, if a Brownfields Developer, or his successors or assigns,
materially disturbs or interferes with a remedy at the facility in a manner not
approved of by the Secretary, including institutional controls, said person
shall be liable for the reasonable costs of restoring or replacing the affected
portions of the remedy, including any administrative or injunctive relief
allowed by Subchapter I.
(d) The protection
afforded by subsection (a) shall be transferable to the successors or assigns
of the Brownfields Developer. Any person
whose interest in or connection to a facility arises solely from a contractual
relationship with the Brownfields Developer, or his successors or assigns,
subsequent to the entering into of a Brownfields Development Agreement, shall
not be liable for any release or threat of release, remedy, or costs associated
with conditions existing prior to the entry of the Brownfields Development
Agreement.
(e) Nothing in this
section shall affect the liability of a Brownfields Developer for new releases,
or imminent threat of releases of hazardous substances not part of the existing
environmental conditions at a facility.
§ 9126. Public
notice, public comment.
(a) The Secretary shall provide public notice within twenty
days after entering into negotiations for a Brownfields Development Agreement.
Such public notice shall be published in a newspaper of general circulation in
the county in which the facility is located. Such notice shall also be provided
to:
(1) All elected members of the General
Assembly in whose district such facility or any part thereof lies;
(2) If the facility or any part thereof is
located within the boundaries of any municipality, then such notice shall also
be given to the governing body of all municipalities in which the facility or
any part thereof lies;
(3) In the event the facility or any part
thereof is not located within the boundaries of a municipality, then such
notice shall also be given to the governing body of the county in which the
facility or any part thereof lies; and
4) The governing body of any civic,
neighborhood or similar association in which the facility or any part thereof
lies, provided that such association makes itself known to the Department and
provides a legal mailing address.
(b) The Secretary shall provide public notice within twenty
days after entering into a Brownfields Development Agreement. Such notice shall
provide for a twenty day written comment period.
(c) Upon receiving a request following the entry of the
Department into a Brownfields Development Agreement, the Secretary shall
conduct a public meeting to provide the public information regarding the
proposed project, in or near the area where the facility is located.
Section 5. Amend section 9108(a) of Title 7 by adding
the following language after the phrase “facility,” in the first sentence, the
phrase:
“or an operable
unit thereof,”.
Section 6. Amend section 9103 of Title 7 by
re-designating subsections (13) through (23) as subsections (14) through (24)
and by adding a new subsection (13) to read as follows:
“(13) ‘Operable unit’ means any subdivision of a
facility in terms of area or environmental media or any other manner approved
by the Secretary.”
Section 7. Amend the newly designated subsection (15) of
Title 7, Delaware Code, by adding a new paragraph f to read as follows:
“(f) The term 'owner or
operator' does not include a person who, without acquiring legal title,
conducts or directs activities in connection with the actual or potential
acquisition or evaluation of a facility, including due diligence, site
inspections, site assessments, or other pre-closing activities in connection
with the acquisition of a facility."
Section 8. Amend subsection 9113(c) of Title 7 by adding
a new paragraph (8) to read as follows:
“(8) Provide for a remedy, or for
reimbursement of allowable costs, for certified Brownfields.”
