Chapter 91

§ 9101 Short title. This chapter shall be known and may be cited as the “Delaware Hazardous Substance Cleanup Act.” 67 Del. Laws, c. 326, §  1 ; § 9102 Declaration of purpose; applicability. (a) The General Assembly recognizes that large quantities of hazardous substances are and have been generated, transported, treated, and stored within the State. The General Assembly also recognizes that some hazardous substances have been stored or disposed of at facilities in the State in a manner insufficient to protect public health or welfare or the environment. The General Assembly finds that the release of a hazardous substance constitutes an imminent threat to public health or welfare or the environment of the State. The General Assembly intends by the passage of this chapter to exercise the powers of the State to require prompt containment and removal of such hazardous substances, to eliminate or minimize the risk to public health or welfare or the environment, and to provide a fund for the cleanup of the facilities affected by the release of hazardous substances. (b) The General Assembly finds that private parties should be provided with encouragement to exercise their responsibility to clean up the facilities for which they are responsible, but that if they refuse to do so, then the State should conduct the cleanup and recover the costs thereof from the private parties. (c) The General Assembly recognizes the need to remedy contaminated facilities and to promote opportunities and provide incentives to encourage the remedy of such facilities to yield economic revitalization and redevelopment within the State. (d) The General Assembly finds that in order to effectuate the purposes of this chapter to remedy contamination resulting from past acts and to address more equitably the issue of who should bear the costs of remediation, § 9105 of this title shall apply to all responsible parties without regard to the date of enactment of this chapter or any amendments thereto. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 218, §  1 ; § 9103 Definitions. As used in this chapter: (1) “Abate” means to perform a remedial action intended to prevent or mitigate harm or the potential for harm to public health or welfare the environment caused by an emergency. (2) “Act of God” means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. (3) “Allowable interest rate” means a rate of interest 5% over the federal reserve discount rate. (4) “Brownfield” means real property, the expansion, redevelopment, or reuse of which may be hindered by the reasonably held belief that the real property may be environmentally contaminated. (5) “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended. (6) “Contractor” means any corporation, company, association, firm, partnership, society, joint-stock company, sole proprietorship or individual that contracts to perform any remedial action under the remedial standards established in this chapter. (7) “Contractual relationship” means, but is not limited to, land contracts, deeds, easements, leases or other instruments transferring title or possession. A “contractual relationship” does not exist if the real property on which the facility concerned is located was acquired by the person after the disposal or placement of the hazardous substance on, in, or at the facility, and 1 or more of the circumstances described in paragraph (7)a., b., or c. of this section is also established by the person by a preponderance of the evidence: a. At the time the person acquired the facility the person did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in or at the facility. b. The person is any of the following: 1. A state, county, or municipal government entity which acquired the facility through seizure or otherwise in connection with law enforcement authority, or through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government entity acquired title or control by virtue of the exercise of its lawful governmental authority. 2. A land bank created pursuant to the provisions of Chapter 47 of Title 31, The Delaware Neighborhood Conservation and Land Banking Act, which acquired the facility in accordance with the requirements of the Act. c. The person acquired the facility by inheritance or bequest. (8) “Department” means the Department of Natural Resources and Environmental Control. (9) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous substance into or on any land, water or into the air so that such hazardous substance or any constituent thereof may enter the environment. (10) “Emergency” means a release, or the imminent threat of a release, which requires immediate action to protect human health or welfare or the environment. (11) “Environment” means the navigable waters, the waters of the contiguous zone, ocean waters, and any other surface water, ground water, drinking water supply, land surface or subsurface strata or ambient air within the State. (12) “Facility” means any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, aircraft, or any site or area where a hazardous substance has been generated, manufactured, refined, transported, stored, treated, handled, recycled, released, disposed of, placed or otherwise come to be located. (13) “Fiduciary” means: a. A person acting for the benefit of another party as a bona fide: 1. Trustee; 2. Executor; 3. Administrator; 4. Custodian; 5. Guardian of estates or guardian ad litem; 6. Receiver; 7. Conservator; 8. Committee of estates of incapacitated persons; 9. Personal representative; 10. 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 11. Representative in any other capacity that the Secretary, after providing public notice, determines to be similar to the capacities described in paragraphs (13)a.1.-10 of this section above; and 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. (14) “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. (15) “Foreclosure”; “foreclose” mean, respectively: 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 3. Repossession, 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. (16) “Fund” means the Hazardous Substance Cleanup Fund created pursuant to § 9113 of this title. (17) “Hazardous substance” means: a. Any hazardous waste as defined in Chapter 63 of this title or any hazardous waste designated by regulation promulgated pursuant to Chapter 63 of this title; b. Any hazardous substance as defined in CERCLA; or c. Any substance determined by the Secretary through regulation to present a risk to public health or welfare or the environment if released into the environment. (18) “Imminent threat of release” means potential for a release which requires action to prevent or mitigate damage to the environment or endangerment to public health or welfare which may result from such a release. (19) “Lender” means: a. An insured depository institution (as defined in the Federal Deposit Insurance Act at 12 U.S.C. § 1813(c)(2)) or an insured credit union (as defined in the Federal Credit Union Act at 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 legally recognized person 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. (20) “Natural resources” means land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by Delaware, the United States, any foreign government, any local government, or any Indian tribe. (21) “Operable unit” means any subdivision of a facility in terms of area or environmental media or any other manner approved by the Secretary. (22) “Owner or operator” means: a. Any person owning or operating a facility. b. Any person who owned, operated, or otherwise controlled activities at a facility. c. The term “owner or operator” does not include any of the following: 1. An agency of the State or unit of local government that acquired title or control through bankruptcy, tax delinquency, abandonment or other circumstances by which it exercised its lawful governmental authority. 2. A land bank created pursuant to the provisions of Chapter 47 of Title 31, The Delaware Neighborhood Conservation and Land Banking Act, which acquired the facility in accordance with the requirements of the Act. d. The term “control” does not include regulation of the activity by a federal, state or local government agency. e. The term “owner or operator” does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect that person’s security interest in the facility. 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. (23) “Person” means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, school district, conservation district, federal government agency, Indian tribe or interstate body. (24) “Plan of remedial action” means a detailed plan describing cleanup actions and related information for the containment or permanent removal and disposal of hazardous substances from a facility. (25) “Potentially responsible party” means any person identified pursuant to § 9105(a)(1) through (6) of this title as a person liable with respect to a facility. (26) “Prospective purchaser” means a person (or a tenant of a person) that acquires or intends to acquire ownership of a facility after the date of the enactment of this subdivision and that establishes each of the following: a. All disposal of hazardous substances at the facility occurred before the person acquired the facility. b. Inquiries. 1. The person made all appropriate inquiries into the previous ownership and uses of the facility in accordance with standards and practices in accordance with paragraphs (26)b.2. and 3. of this section. 2. The standards and practices referred to in § 9105(c)(2)b.1. and 2. of this title, shall be considered to satisfy the requirements of this subsection. 3. In the case of property in residential or other similar use at the time of purchase by a nongovernmental or noncommercial entity, a facility inspection and title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this subsection. c. Notices. The person provides all legally required notices with respect to the discovery or release of any hazardous substance or substances at the facility. (27) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes: a. Any release which results in exposure to a person solely within the workplace, with respect to a claim which such person may assert against an employer provided, however, that this exclusion does not apply to any such release which also results in exposure to the environment; b. Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; c. The appropriate application of fertilizer and pesticide; d. Any discharges in compliance with state permits issued in conformance with this title and federally permitted releases under CERCLA. (28) “Remedial action” means the containment, contaminant mass or toxicity reduction, isolation, treatment, removal, cleanup or monitoring of hazardous substances released into the environment, or the taking of such other actions as may be necessary to prevent, minimize or mitigate harm or risk of harm to the public health or welfare or the environment which may result from a release or an imminent threat of a release of hazardous substances. (29) “Remedy” means any action, response or expenditure consistent with the purposes of this chapter to identify, minimize or eliminate any imminent threat posed by any hazardous substances to public health or welfare or the environment including preparation of any plans, conducting of any studies and any investigative, oversight of remedy or monitoring activities with respect to any release or imminent threat of release of a hazardous substance and any health assessments, risk assessments or health effect studies or natural resource damage assessments conducted in order to determine the risk or potential risk to public health or welfare or the environment. (30) “Removal action” means a short term or interim remedial action taken in response to a release or threatened release to prevent, minimize, contain, stabilize, mitigate, or eliminate a threat to public health or welfare or the environment. (31) “Secretary” means Secretary of the Department or the Secretary’s designee. (32) “Security interest” includes a right under a mortgage, deed of trust, assignment, judgment, lien, pledge, security agreement, factoring agreement, or lease and any other right accruing to a person to secure the repayment of money, the performance of a duty, or any other obligation by a nonaffiliated person. (33) “Site assessment” means the assessment of a facility and/or property to determine whether hazardous substances have entered the environment. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 218, §§  2-10 ; 73 Del. Laws, c. 183, §  2 ; 74 Del. Laws, c. 185, §§  2, 3 ; 74 Del. Laws, c. 409, §§  6, 7 ; 76 Del. Laws, c. 220, §  3 ; 79 Del. Laws, c. 441, §  1 ; 80 Del. Laws, c. 359, § 1 ; 82 Del. Laws, c. 180, § 1 ; 85 Del. Laws, c. 431, § 1 ; § 9104 Secretary’s powers and duties. (a) The Secretary may exercise the following powers in addition to any other powers granted by law: (1) The Secretary shall take any actions necessary to carry out the provisions of this chapter, including but not limited to adoption of emergency or interim regulations, when immediate promulgation of regulations is necessary to implement this chapter prior to the adoption of final regulations. (2) The Secretary shall, after notice and public hearing, promulgate and revise such regulations as deemed necessary for the implementation, administration and enforcement of this chapter. Such regulations may include provisions waiving or limiting the applicability of this chapter which the Secretary determines to be adequately regulated by state or federal statute or regulation. (3) The Secretary may, after notice and public hearing, exempt certain facilities or properties or classes of facilities or properties from the provisions of this chapter upon finding that these facilities or properties do not pose an imminent threat to public health or welfare or the environment. (4) The Secretary shall plan, study or conduct, or order a potentially responsible party to plan, study or conduct, appropriate actions to remedy a release or imminent threat of release. (b) The Secretary shall implement all provisions of this chapter to the maximum extent practicable, including conducting investigations and remedies when appropriate. The Secretary shall, after notice and public hearing, promulgate and revise as appropriate, regulations to: (1) Establish criteria for determining a priority list among facilities. These criteria shall assure that facilities are ranked by a system that objectively assesses the relative degree of risk to public health or welfare or the environment caused by releases from such facilities. (2) Establish procedures: a. For identifying facilities with a release or imminent threat of release; b. For conducting site assessments, preliminary site evaluations and comprehensive site investigations; c. For identifying potentially responsible parties; d. For notifying a person of liability as a potentially responsible party; e. For determining the appropriate type of settlement agreement that may be entered into by potentially responsible parties or any person who agrees to perform a remedy; f. For providing potentially responsible parties or any other person with a reasonable opportunity to enter into a settlement agreement for a remedy by which potentially responsible parties or any other person may propose 1 or more remedial alternatives; g. For identifying cleanup levels based on site specific risks; h. For public notice and an opportunity for public comment on the proposed plan of remedial action and proposed consent decrees; i. For conducting a remedy; j. For public participation in the decision for a remedy at a facility; k. For granting or denying a certificate of completion of remedy; l. For placing a notice in the records of the real property pursuant to § 9115 of this title; m. For managing the Fund established pursuant to § 9113 of this title; n. For assessing natural resource damages; o. For providing criteria governing public funding of remedial costs when the Secretary enters into a settlement agreement that requires the Secretary to provide a specified amount of money from the Fund; p. For certifying part or all of a parcel of real property as a brownfield; q. For listing of Brownfield, or potential Brownfield, sites on a Brownfield redevelopment database; r. To certify and decertify contractors to conduct remedial action. As a prerequisite for certification, the Department shall conduct written examinations, or other qualification criteria as deemed appropriate by the Department, within the State for the purpose of determining ability to conduct a remedial action. The Department may waive the examination for persons who possess a valid certificate from another state, provided such certification is for similar work to be performed in Delaware. A remedial action shall be conducted under the direction and supervision of an individual possessing a valid certificate issued by the Department. Certification requirements for contractors shall commence 6 months after adoption of regulations. Certification shall be valid for 2 years. The fees for certification required pursuant to this chapter shall be established by the Department in its rules and regulations. The fees may be adjusted periodically but shall approximate and reasonably reflect all costs necessary to defray the expenses incurred by the Department in operating the certification program. (3) Establish deadlines for negotiation processes with potentially responsible parties for an agreement providing for a voluntary remedy pursuant to § 9107 of this title, and for initiating an investigation and remedying releases at or from a facility by potentially responsible parties. (c) (1) The Secretary shall, as part of the budget submittal, submit an annual report to the Governor and the General Assembly of the State, setting forth in detail progress on remedies and may submit such additional reports from time to time to the Governor and General Assembly as deemed desirable by the Secretary. (2) The Secretary shall prepare an annual budget for the proposed use of the Fund and cause an audit of the fiscal affairs to be made annually and shall, as part of the budget submittal, furnish a copy of such audit report together with such additional information or data with respect to the affairs as he or she may deem desirable to the Governor and General Assembly of the State. (3) The Secretary shall, as part of the budget submittal, provide 5-year projections of costs and revenues associated with the Fund, and the amount of the obligated and unobligated balance in the Fund. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 218, §§  11-13 ; 73 Del. Laws, c. 183, §  3 ; 74 Del. Laws, c. 185, §  7 ; 76 Del. Laws, c. 220, §  2 ; § 9105 Standard of liability. (a) The following persons are liable with respect to a facility from which there is or has been a release or imminent threat of release, except as provided in subsection (c) of this section: (1) Any person who owned or operated the facility at any time. (2) Any person who owned or possessed a hazardous substance and who by contract, agreement or otherwise arranged for disposal or treatment of a hazardous substance at the facility. (3) Any person who arranged with a transporter for transport, disposal or treatment of a hazardous substance to the facility. (4) Any person who generated, disposed of or treated a hazardous substance at the facility. (5) Any person who accepted any hazardous substance for transport to the facility, when the facility was selected by the transporter. (6) Any person who is responsible in any other manner for a release or imminent threat of release. (b) Each person who is liable under this section is strictly liable, jointly and severally, for all costs associated with a release from a facility and for all natural resource damages resulting from the release. The Secretary may recover all costs and damages from all responsible parties. The amounts recoverable in an action under this chapter shall include interest on the amounts recoverable through regulations developed pursuant to §§ 9104 and 9109 of this title. Such interest shall accrue from the date the expenditure was incurred. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be at the established allowable interest rate. (c) The following persons are not liable under this section: (1) Any person who can establish that the release or imminent threat of release for which the person would be otherwise liable 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 person asserting the defense; or 2. Any person whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly with the person asserting this defense to liability. This defense applies only when the person asserting the defense has exercised due care with respect to the hazardous substance, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions. (2) Any person who is an operator, past operator, owner, or past owner of a facility and who can establish that at the time the facility was acquired or operated by the person, the person had no knowledge or reason to know of any release or imminent threat of release. This paragraph (c)(2) is limited as follows: a. Reason to know. — To establish that the person had no reason to know of the matter described in § 9103(7)a. of this title the person must demonstrate that on or before the date on which the person acquired the facility, the person carried out all appropriate inquiries, as provided in paragraph (c)(2)b. of this section below, into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices. b. All appropriate inquiry. 1. With respect to property purchased on or after May 31, 1997, the procedures of the American Society for Testing and Materials (“ASTM”), including the documents known as “Standard E1527-97” and “Standards E1527-00,” entitled “Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process,” or any other procedure the Secretary may adopt by regulation, shall satisfy the requirements in paragraph (c)(2)a. of this section. 2. With respect to property purchased before May 31, 1997, in making a determination with respect to a person described in paragraph (c)(2)a. of this section, the following factors shall be taken into account: A. Any specialized knowledge or experience on the part of the person; B. The relationship of the purchase price to the value of the property, if the property was not contaminated; C. Commonly known or reasonably ascertainable information about the property; D. The obviousness of the presence or likely presence of contamination at the property; and E. The ability of the person to detect the contamination by appropriate inspection. 3. In the case of property for residential use or other similar use purchased by a nongovernmental or noncommercial entity, a facility inspection and title search that reveal no basis for further investigation shall be considered to satisfy the requirements of paragraph (c)(2)a. of this section. c. Nothing in this subsection shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. d. Notwithstanding this subsection, if the person obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the person owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such person shall be treated as liable under subsection (a) of this section and no defense under this subsection shall be available to such person. e. Nothing in this subsection shall affect the liability under this chapter of a person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility. (3) A person who acquires, for subsequent disposition, title to, or possession of, a property to protect a security interest held by the person and does not participate in management of the property; or 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; provided, however, that this exemption shall not relieve a person from liability under this section where such liability is based on conduct entirely independent from that covered by this exemption. This paragraph (c)(3) is further limited as follows: a. The term “participate in management” as used in this section: 1. Means actually participating in the management or operational affairs of a facility and does not include merely having the capacity to influence, or the unexercised right to control, facility operations. 2. A person that is a lender or fiduciary that holds indicia of ownership primarily to protect a security interest in a property shall be considered to participate in management only if, while the borrower is still in possession of the property encumbered by the security interest, the person: A. Exercises decision-making control over the environmental compliance related to the facility, such that the person has undertaken responsibility for the hazardous substance handling or disposal practices related to the facility; or B. Exercises control at a level comparable to that of a manager of the facility, such that the person has assumed or manifested responsibility: I. For the overall management of the facility encompassing day-to-day decision-making with respect to environmental compliance; or II. Over all or substantially all of the operational functions, as distinguished from financial or administrative functions, of the 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 a property; and, provided the actions do not rise to the level of participating in management (within the meaning of paragraphs (c)(3)a.1. and 2. of this section above), 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 facility; E. Requiring a remedy or other lawful means of addressing the release or threatened release of a hazardous substance in connection with the 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 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 remedy under this chapter or otherwise under the direction of the Department. 4. A person who is a lender that did not otherwise participate in the management of a facility as provided in paragraph (c)(3)a.2. of this section shall not be considered to have participated in management, notwithstanding that the person forecloses on the property and, 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 a remedy under § 9107 of this title with respect to the facility, or takes any other measure to preserve, protect, or prepare the facility prior to sale or disposition, if the person seeks to sell, re-lease (in the case of a lease finance transaction), or otherwise divest the person of the facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market conditions and legal and regulatory requirements. b. A fiduciary as described in this paragraph (c)(3) shall not be liable in its personal capacity under this chapter for: 1. Undertaking or directing another person to undertake a remedy or 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 (c)(3)b.2.-7. of this section. c. The liability of a fiduciary under any provision of this chapter for the release or threatened release of a hazardous 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. d. The exclusion from liability contained in this paragraph (c)(3) does not limit liability pertaining to the release or threatened release of a hazardous substance if negligence of a fiduciary causes or contributes to the release or threatened release. e. Nothing contained in this paragraph (c)(3): 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. f. Nothing in this paragraph (c)(3) 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. g. This paragraph (c)(3) 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. (4) Prospective purchaser agreements. a. Notwithstanding paragraph (c)(5) of this section, a prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long as the prospective purchaser, with or without the participation of the seller of the property, enters into a prospective purchaser agreement in which the parties responsible for completing a site investigation and any subsequent remediation are identified and paragraph (c)(4)b. of this section is met. Such prospective purchaser agreements shall: 1. Define the scope of and financial responsibility for the environmental work to be performed pursuant to the agreement; 2. Define the amount, if any, of assistance to be provided by the Department; and 3. Define the scope of any lien to be secured. b. Requirements for operation under a prospective purchaser agreement. 1. The person shall exercise appropriate care with respect to hazardous substance or substances found at the facility by: A. As a prospective purchaser (i.e. prior to acquisition of the property): I. Not causing a new release of hazardous substances; and II. Not taking any action to exacerbate or contribute to an existing release. B. As owner after acquisition of the property, unless specifically addressed in a prospective purchaser agreement with the Department, by: I. Stopping or mitigating any on-going release; II. Preventing any threatened future release; and III. Preventing or limiting exposure (human, environmental, or natural resource) to any previously released hazardous substance or substances. 2. The person shall provide cooperation, assistance, and access to persons that are authorized to oversee remedies or natural resource restoration at a facility (including the cooperation and access necessary for the installation, integrity, operation and maintenance of any complete or partial remedies or natural resource restoration at the facility). 3. The person shall: A. Be in compliance with any land use restrictions established or relied on in connection with the remedy at a facility; and B. Not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a remedy. 4. The person shall comply with any request for information or administrative subpoena issued by the Secretary under this chapter. 5. The person shall not be affiliated with any other person that is potentially liable pursuant to § 9105(a) of this title, for response costs at a facility through: A. Any direct or indirect familial relationship, to include spouse, domestic partner, parent, grandparent, brother, sister, son, son-in-law, daughter, daughter-in-law, grandson, granddaughter, step-parent, the parent, son or daughter of a son or daughter of the person’s spouse or domestic partner, nephew, niece, aunt, uncle, brother-in-law, sister-in-law, grandparent-in-law or any relative or friend living in the person’s household; or B. Any contractual, corporate, or financial relationship (other than a contractual, corporate, or financial relationship that is created by the instruments by which title to the facility is conveyed or financed or by a contract for the sale of goods or services); or C. The result of a reorganization of a business entity that was potentially liable. c. Lien. 1. If there are unrecovered remedial costs incurred by the State at a facility for which an owner of the facility is not liable by reason of paragraph (c)(4)a. of this section, the State may by agreement with the owner, obtain from the owner a lien on this or on any other property or other assurance of payment satisfactory to the Secretary, for all or any portion of the unrecovered remedial costs. 2. A lien under this subsection: A. Shall be in an amount not to exceed the unrecovered remedial costs incurred by the State; B. Shall be subject to the requirements of paragraph (c)(4)a. of this section; and C. Shall not exceed the value added to the worth of the property by the remedial action. (5) Contiguous properties. a. Not considered to be an owner or operator. 1. A person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a hazardous substance from, real property that is not owned by that person shall not be considered to be an owner or operator of a facility under this paragraph (c)(5)a.1. or paragraph (c)(5)a.2. of this section solely by reason of said release if: A. The person did not cause, contribute or consent to the release or threatened release; B. The person is not: I. Potentially liable, or affiliated with any other person that is potentially liable, for costs at a facility through any direct or indirect familial relationship or any contractual, corporate, or financial relationship (other than a contractual, corporate, or financial relationship that is created by a contract for the sale of goods or services); or II. The result of a reorganization of a business entity that was potentially liable; C. The person takes reasonable steps to: I. Not cause a release of hazardous substances on their property; and II. Not take any action to exacerbate or contribute to contamination migrating onto their property. D. The person provides reasonable cooperation, assistance and access to persons that are authorized to conduct a remedy or natural resource restoration at the facility from which there has been a release or threatened release (including the cooperation and access necessary for the installation, integrity, operation and maintenance of any complete or partial remedy or natural resource restoration at the facility); E. The person: I. Is in compliance with any land use restrictions established or relied on in connection with the remedy at the facility; and II. Does not impede the effectiveness or integrity of any institutional control employed in connection with a remedy; F. The person is in compliance with any written request for information related to the property or contamination or administrative subpoena issued by the Secretary or a court pursuant to this chapter; G. The person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; and H. At the time at which the person acquired the property, the person conducted all appropriate inquiry within the meaning of paragraph (c)(2)b. of this section with respect to the property. 2. To qualify as a person described in paragraph (c)(5)a.1. of this section, a person must establish by a preponderance of the evidence that the conditions in paragraph (c)(5)a.1.A. through H. of this section have been met. 3. Any person that does not qualify as a person described in this paragraph because the person had, or had reason to have, knowledge specified in paragraph (c)(5)a.1.H. of this section at the time of acquisition of the real property may qualify as a prospective purchaser under § 9103 of this title if the person is otherwise described in that section. b. With respect to a person described in this paragraph, nothing in this subsection: 1. Limits any defense to liability that may be available to the person under any other provision of law; or 2. Imposes liability on the person that is not otherwise imposed by paragraph (c)(5)a. of this section. c. The Secretary shall, upon written request: 1. Issue an assurance in writing that no enforcement action under this chapter will be initiated against a person described in paragraph (c)(5)a. of this section; and 2. Grant a person described in paragraph (c)(5)a. of this section protection against a cost recovery or contribution action under § 9107(c) of this title. (d) A person who expends moneys performing a remedy or any remedial action under this chapter or reimbursing the State for any remedial action may bring an action against any responsible party as defined in subsection (a) of this section who has not entered into a settlement agreement with the Secretary. In an action authorized by this section, the person bringing the action shall be entitled to reimbursement for the costs incurred which are consistent with this chapter and contribution for moneys expended to reimburse the State for its expenses. (e) Where the Secretary has issued a certification of completion of remedy pursuant to § 9108 of this title with respect to a remedy performed at a facility, any person who owns, operates or otherwise controls activities at the facility after the date of issuance of the certification shall not, by virtue of that later ownership, operation or control, be liable for the release or imminent threat of release addressed in the certification, or for any future release or imminent threat of release attributable to conditions existing prior to the issuance of the certification, provided such person does not interfere or permit any interference with any aspect of the remedy addressed by the certification of completion of remedy. (f) The exemption contained in subsection (e) of this section shall also apply to any person who, in connection with the sale, lease, acquisition or transfer of a facility, enters into a settlement agreement with the Secretary for a remedy at the facility; provided, that the remedy is satisfactorily conducted and the Department issues a certification of completion of remedy. The Secretary, in the settlement agreement, may place conditions or limitations on the scope of the exemption granted under this subsection. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 218, §§  14, 15 ; 74 Del. Laws, c. 185, §§  4-6 ; 79 Del. Laws, c. 441, §  1 ; 85 Del. Laws, c. 431, § 1 ; § 9106 Investigation and access. (a) (1) If there is a reasonable basis to believe there was a release or is an imminent threat of release, the Secretary may require information or documents relevant to the release or imminent threat of release from any person who may have information pertinent to: a. The identification, nature and volume of materials generated, treated, stored, transported to or disposed of at a facility, and the dates thereof; b. The extent of a release or imminent threat of release from a facility; c. The identity of potentially responsible parties; d. The financial ability of a potentially responsible party to perform a remedy. (2) The Secretary or the Secretary’s authorized employees or agents may enter, at reasonable times, upon any real property, public or private, to conduct sampling, inspection, examination, and investigation evaluating the release or imminent threat of release to determine the need for a remedy or to execute the remedy upon given verbal notice, and after presenting official identification to the owner or operator. The Secretary or the Secretary’s authorized employees or agents gaining access under this section, if requested in advance, shall split a sample with the owner or operator.. If any analysis is made of the samples, a copy of the results of the analysis may be furnished to the owner or operator of the facility. (b) If the Secretary determines there is good cause to believe an emergency exists, the Secretary or the Secretary’s authorized employees or agents, without court order, may enter a facility and take any immediate action necessary to abate the emergency notwithstanding the provisions of § 9107(e) of this title. (1), (2) [Repealed.] 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 218, §  16 ; 85 Del. Laws, c. 431, § 2 ; § 9107 Remedies. (a) (1) When the Secretary or his or her designee has determined that a release or imminent threat of a release of a hazardous substance as defined herein will require a remedy, the Secretary shall, within 20 days of such determination, provide public notice of that fact. The Secretary shall likewise provide public notice within 20 days after entering into negotiations for a voluntary cleanup settlement agreement with any person that agrees to perform a remedy. 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: a. All elected members of the General Assembly in whose district such facility or any part thereof lies; b. 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; c. 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 d. 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. (2) When the Secretary has reason to believe that a release or imminent threat of release will require a remedy, the Secretary shall notify the potentially responsible party with respect to the release or imminent threat of release, and provide the person with an opportunity to enter into a settlement agreement providing for a remedy consistent with regulations developed pursuant to § 9104 of this title. The Secretary may provide any person who has knowledge of a release of a hazardous substance at a facility and agrees to perform a remedy with an opportunity to enter into a settlement agreement providing for a remedy consistent with regulations developed pursuant to § 9104 of this title. (b) The settlement agreement providing for a remedy may be in the form of a consent decree, administrative order of consent, memorandum of agreement or any other form of agreement consistent with regulations developed pursuant to § 9104 of this title. When a settlement agreement is entered into in the form of a consent decree pursuant to this chapter, it shall be filed with the Superior Court or the Court of Chancery. The Secretary shall allow at least 20 days for public comment before the proposed consent decree is entered. If the Secretary deems it appropriate to effectuate the purposes of this chapter, the Secretary may choose to resolve a person’s liability with the State under this section through use of settlement agreements entered into pursuant to CERCLA. (c) A person who has resolved his or her liability to the State under this section is not liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other potentially responsible parties, but it reduces the total potential liability of others to the State by the amount of the settlement exclusive of § 9109 of this title. (d) The Secretary may enter into a settlement agreement that requires the Secretary to provide a specified amount of money from the Fund to help defray the costs of implementing the remedy. These funds may be provided only in circumstances where the Secretary finds it would expedite or enhance remediation or achieve equity with respect to the payment of remedial costs. The Secretary may recover the amount of public funding provided under this section from a potentially responsible party who has not entered into a settlement agreement under this section or fulfilled all obligations under the agreement. For purposes of such a cost recovery, the public funding shall be considered as remedial costs paid by the Secretary. (e) Before conducting a remedial action, the Secretary shall: (1) Propose a plan of remedial action based on any investigation or study conducted by or for the Secretary, the potentially responsible party, or others; (2) Provide public notice of the proposed plan of remedial action and an opportunity to comment on the plan as well as the investigation upon which the plan of remedial action is based; (3) Prepare a final plan of remedial action with due consideration of the comments received and any other study or investigation conducted by or for the Secretary. (f) The proposed and final plan of remedial action and the basis for it, as well as all comments received by the Secretary, constitute the remedial decision record of the Secretary. The Secretary shall maintain a remedial decision record for a period that the Secretary deems appropriate based upon the remedy being implemented and the future use of the facility. (g) Where the Secretary has developed a remedial decision record for a remedy and the Secretary has conducted the remedy in accordance with the record, in any action brought to recover costs, the plan of remedial action shall be presumed reasonable and necessary unless demonstrated to be arbitrary and capricious by clear and convincing evidence. (h) Where the Secretary has good cause to believe that a removal action is necessary to protect human health or welfare, or the environment, the Secretary may authorize a person to perform a removal action notwithstanding the provisions of subsection (e) of this section. A removal action performed under this section must be incorporated into any proposed plan of remedial action by the Department. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 218, §§  17-23 ; 72 Del. Laws, c. 322, §§  1, 2 ; 85 Del. Laws, c. 431, § 3 ; § 9108 Certification of completion of remedy. (a) Upon completion of a remedy at a facility, or an operable unit thereof, the Department may issue, or the owners, parties to the settlement agreement or parties responding to an order, may apply for a certification of completion of remedy from the Secretary pursuant to regulations promulgated under § 9104 of this title. For the purposes of this section, the Secretary may consider a remedy complete when the remedial action is operational and functional; provided, however, that the Secretary may place conditions or limitations in the certification of completion of remedy which identify those portions of the final plan of remedial action, including but not limited to operation and maintenance, and compliance monitoring, which must continue to be performed, and which provide for the performance of additional remedies in the event that the remedial goals contained in the final plan of remedial action are not achieved as required by the plan and the regulations promulgated under § 9104 of this title. (b) The Secretary shall grant or deny an application for a certification of completion of remedy within 180 days of the application with stated reasons. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 218, §  24 ; 74 Del. Laws, c. 409, §  5 ; 80 Del. Laws, c. 359, § 2 ; § 9109 Enforcement. (a) Whenever, in the opinion of the Secretary, a person: (1) Is a potentially responsible party; and (2) Has been notified of such person’s potential liability pursuant to §§ 9104 and 9105 of this title; and (3) Has not submitted a proposed settlement or has submitted a proposed settlement and the Secretary has rejected the proposal, the Secretary may seek to have the potentially responsible party perform a remedy at a facility by giving written notice to the person; a. Specifying the basis of the person’s liability under this chapter for a remedy at the facility; b. Identifying the remedy to be performed by the person at the facility, and the timeframe for its completion; c. Advising that a public hearing, conducted pursuant to §§ 6004 and 6006 of this title, on the person’s alleged liability, and the remedy to be performed and the timeframe for its completion, under this chapter may be had if requested within 30 days of the notice; and d. Notifying that the proposed remedy, and the timeframe for its completion, will be ordered unless a public hearing is requested. (b) Whenever the Secretary determines that there exists an imminent danger that requires immediate remedy to protect public health or welfare or the environment, the Secretary may seek such injunctive relief or issue an order without prior notice or opportunity to submit a proposed settlement agreement. (c) To enforce the order, the Secretary may bring an action in the Court of Chancery against any potentially responsible party who without sufficient cause, fails to comply with an order issued under subsection (a) or (b) of this section. (d) The Secretary may bring an action in a court of competent jurisdiction to recover from any potentially responsible party all natural resource damages resulting from a release. (e) The Secretary may bring an action in a court of competent jurisdiction against any potentially responsible party to collect remedial costs incurred by the Secretary, including those associated with recovering costs such as attorneys’ fees and employee time, or for a party’s refusal to comply, without sufficient cause, with an order issued under subsection (a) or (b) of this section. (f) The Secretary may issue an order as the Secretary deems appropriate to any person who fails to provide the required information or documents under § 9106(a)(1) of this title, who fails to provide access under § 9106(a)(2) of this title, or who fails to report a release as required by the regulations promulgated pursuant to this chapter. (g) The Secretary may bring an action in a court of competent jurisdiction to enforce any order issued by the Secretary under subsection (f) of this section. Any person refusing to comply, without sufficient cause, with such an order shall be liable pursuant to paragraph (h)(2) of this section. (h) In any action brought under subsection (e) of this section for a refusal to comply with an order, the person found responsible shall be liable for payment of: (1) An amount at least equal to, but not greater than 3 times the amount of, any remedial costs incurred by the State as a result of the person’s refusal to comply; and (2) A civil penalty of up to $40,000 per day for each day the person refuses to comply. For purposes of determining a civil penalty, the period of noncompliance shall be deemed to commence on the day of the Secretary’s decision and continue until full compliance with the terms of the order is achieved. 67 Del. Laws, c. 326, §  1 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 218, §§  25, 26 ; 79 Del. Laws, c. 441, §  1 ; 85 Del. Laws, c. 84, § 9 ; 85 Del. Laws, c. 431, § 4 ; § 9110 Public hearings — Violations. (a) Any hearing involving allegations of violations of this chapter held by the Secretary shall be conducted as follows: (1) For any hearing on an alleged violation, notification shall be served upon the alleged violator as summonses are served or by registered or certified mail not less than 20 days before the time of said hearing. Not less than 20 days notice of the hearing shall also be published in a newspaper of general circulation in the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper of general circulation throughout the State. (2) The alleged violator may appear personally or by counsel at the hearing and produce any competent evidence in his or her behalf. The Secretary or the Environmental Appeals Board or its duly authorized designee may administer oaths, examine witnesses and issue, in the name of the Departm