7 DE Code § 7406. (2021)
2021 Delaware Code|Title 7 - Conservation|Chapter 74. Delaware Underground Storage Tank Act|Subchapter I. General Provisions|§ 7406. Release of substances prohibited; correction of substance release; Department intervention.

§ 7406. Release of substances prohibited; correction of substance release; Department intervention. (a) No person shall knowingly allow a release from an underground storage tank to continue without taking immediate steps to report the release to the Department. (b) Responsible parties shall take measures for the prompt control, containment, and removal of the released regulated substances to the satisfaction of the Department. (c) The Department may assume control of any release situation when it is determined that responsible parties are not responding promptly. However, all liability will remain with the responsible party. (d) Responsible parties are liable for remediation and corrective action pursuant to subsections (b) and (c) of this section, and the regulations promulgated under this chapter. This remedial liability has attached and shall continue to attach at any time prior to January 1, 2016, and survives subsequent to that date. (e) Responsible parties who own, owned, operate, or operated, a facility or an underground storage tank located at a facility, on or after January 1, 2016, shall be liable for remediation and corrective action, in accordance with this chapter and the regulations promulgated under it, for all released regulated substances on or under the facility, or on or under other real property but which originated or emanated from the facility, regardless of whether any responsible party proximately caused any release or not, and regardless of when and how the regulated substances were released. The ownership or operational association with the facility establishes the nexus for liability under this section to attach to these responsible parties. (1) A responsible party is not liable under this section for remediation and corrective action of and for regulated substances only if the responsible party can establish that the release of the regulated substances was caused solely by:  a. An act of God; b. An act of war; or c. An act or omission of a third party other than:  1. An employee or agent of the responsible party; or 2. Any person whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the responsible party, but not including a contractual relationship in connection with the sale or transfer of the facility by or from the responsible party to a third party. 3. This defense applies only when the responsible party asserting the defense has exercised due care with respect to the facility, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions; notwithstanding the foregoing, where the contractual relationship arises in connection with the sale or transfer of the facility by or from the responsible party to a third party, the defense applies if the responsible party asserting the defense has exercised due care with respect to the facility during the period of ownership or operation of the facility by the responsible party, and with respect to the foreseeable acts or omissions of the third party based on the responsible party's knowledge and information at the time of the sale or transfer of the facility. (2) A responsible party is not liable under this section for remediation and corrective action of and for regulated substances which were released before the time period when the responsible party owned or operated the facility and/or underground storage tank, only if the responsible party had no knowledge or reason to know, at the commencement of the ownership or operation, of any prior release. This paragraph (e)(2) is limited as follows:  a. To establish that the responsible party had no reason to know of any prior release, the responsible party must demonstrate that on or before the date on which the responsible party acquired or began operations at the facility, the responsible party carried out all appropriate inquiries, as provided in paragraph (e)(2)b. of this section, into the previous ownership and operation of the facility in accordance with generally accepted good commercial and customary standards and practices. b. The procedures of the American Society for Testing and Materials (“ASTM”), including the documents known as “Standard E1527-05” and “Standard E1527-13,” entitled “Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process,” or the procedures in 40 C.F.R. § 312.20, shall satisfy the requirements of all appropriate inquiries in paragraph (e)(2)a. of this section, but the Secretary may, by regulation, update or augment these 2 alternative methods of satisfying all appropriate inquiries, and may add additional methods of satisfying the requirements of all appropriate inquiries. c. Notwithstanding this paragraph (e)(2), if the responsible party obtained actual knowledge of any current or prior release or threatened release of regulated substances at the facility when the responsible party owned or operated the facility and then subsequently transferred ownership or operation of the facility to another person without disclosing this knowledge, the responsible party shall be treated as liable under this subsection (e) and no defense under this paragraph (e)(2) shall be available to the responsible party. d. Nothing in this subsection (e) shall affect or diminish the liability under this chapter of a responsible party who, by any act or omission, caused or contributed to the release of regulated substances which is the subject of the action relating to the underground storage tank or facility. (3) A person approved as a brownfields developer who enters into a Brownfields Development Agreement with the Secretary pursuant to the provisions of Chapter 91 of this title, is not liable for any release or imminent threat of release of regulated substances existing at the facility when the Brownfields Development Agreement is entered into. The person is also not liable for any corrective actions or for the costs of any corrective actions incurred by the State or any other person upon the signing of the Brownfields Development Agreement provided that all of the following conditions are met:  a. The person is not a responsible party with respect to a petroleum release from an underground storage tank system regulated under this chapter. b. The person proposes to conduct investigations at the facility where the release occurred. c. The person agrees to comply with the provisions of the Brownfields Development Program as well as all other applicable laws, regulations, guidance, and directives of the Department related thereto. (f) Subsections (g), (h), (i), and (j) of this section apply to each and every responsible party, regardless of whether the remedial liability arose or attached, before or after January 1, 2016. (g) The remedial liability of responsible parties is strict liability, joint and several. (h) The remedial liability of responsible parties includes a right of contribution. In resolving contribution claims, the Superior Court may allocate costs among the responsible parties using such principles of fairness and justice as the Superior Court deems appropriate. (i) The Department may assume control of any release situation when responsible parties are not responding promptly or effectively for the control, containment, and removal of released regulated substances. Control of any release situation by the Department includes without limitation the entry by the Department upon the facility and any other real property, public or private, on or under which the released regulated substances are present, to install water treatment on contaminated drinking water systems, vent indoor air contaminants, remove and remediate regulated substances and substrate from the subsurface, remove or close in place leaking underground storage tanks, investigate the extent of the release through environmental sampling, undertake corrective action, and take any other such action to control, contain, and remove the released regulated substances. The Department, its contractors and agents, shall not be deemed to be responsible parties based on any actions they may take in assuming control of a release situation. (j) The Department may file an action in Superior Court against any responsible party, for cost recovery and for reimbursement of funds expended, for corrective action, in control and remediation of any release situation, and activities associated with underground storage tank removals and closures in place. Any cost recovery and reimbursement collected by the Department shall be credited to and expended by the Department for control of underground storage tank releases and to support the purposes of this chapter. A responsible party shall have an affirmative defense to a cost recovery action under this section by showing that the responsible party was responding promptly and effectively for the control, containment, and removal of released regulated substances at the time that the Department assumed control of the release situation. 65 Del. Laws, c. 161, §  1;  79 Del. Laws, c. 440, §  5;  82 Del. Laws, c. 161, § 1;