Section 1. Amend Title 7 of the Delaware Code by adding thereto a new chapter to read:

"CHAPTER 74A. THE JEFFREY DAVIS ABOVEGROUND STORAGE TANK ACT

§7401A. Purpose.

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

§7402A. Definitions.

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

(1) 'Aboveground storage tank' means a single aboveground containment vessel having a capacity of greater than 250 gallons. The term includes all associated aboveground and underground pipes and dispensing systems. Within this definition, the word “vessel” includes any vessel that can be visually inspected, from the exterior, in an underground area. The term does not include any of the following:

a. septic tank;

b. pipeline facility (including gathering lines) regulated under:

1. the Natural Gas Pipeline Safety Act of 1968 as amended [49 U.S.C. §1671 et seq.], or

2. the Hazardous Liquid Pipeline Safety Act of 1979 as amended [49 U.S.C. §2001 et seq.];

c. surface impoundment, pit, pond, or lagoon;

d. liquid trap or associated gathering lines directly related to oil or gas production or gathering operations;

e. process vessel of less than 1000 gallons, in which a regulated substance resides for less than 48 hours while the regulated substance undergoes a mechanical, physical, or chemical change.

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

(3) 'Empty tank' means an aboveground storage tank which contains a regulated substance of no more than one inch in depth and no more than 0.3 percent by weight of total tank capacity.

(4) 'Existing tank' means a tank for which substantial physical installation began prior to the effective date of this chapter. The term 'substantial physical installation' includes, but is not limited to, a permit or contract for the installation.

(5) 'Facility' means a location or part thereof containing or having contained one or more aboveground storage tanks.

(6) 'Heating fuel' means a petroleum based fuel used in the operation of heating equipment, boilers, or furnaces.

(7) 'In service tank' means an aboveground storage tank that:

a. is being actively maintained or operated;

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

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

(8) 'New aboveground storage tank' means a tank for which substantial physical installation began on or after the effective date of this chapter.

(9) 'Operator' means a person operating a facility, including, but not limited to, by lease, contract, or other form of agreement.

(10) 'Orphan tank' means

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

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

(11) 'Out-of-service tank' means a tank that is:

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

b. an empty tank, as defined in §7402A(3) of this chapter; or

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

(12) 'Owner' means a person:

a. who owns or has owned a facility; or

b. who has or has had a legal or equitable interest in a facility or aboveground storage tank; or

c. who arranged for or agreed to the placement of an aboveground storage tank, including, but not limited to, by contract, agreement, or otherwise.

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

(14) 'Release' means the spilling, leaking, emitting, discharging, escaping, leaching, or disposing of a regulated substance into groundwater, surface water, soil, or air.

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

(16) 'Regulated substance' means a substance, regardless of physical state, that is a:

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

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

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

(17) 'State' means the State of Delaware.

(18) 'Used oil' means an oil that has been refined from crude oil or a synthetic oil that has been used and, as a result of such use, is contaminated by physical or chemical impurities.

§7403A. Referenced standards.

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

(1) National Fire Protection Association (NFPA);

(2) American Petroleum Institute (API);

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

(4) Underwriters Laboratories (UL);

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

(6) Petroleum Equipment Institute (PEI);

(7) Steel Tank Institute (STI);

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

(b) New aboveground storage tanks must be installed in accordance with the standards of this chapter and regulations promulgated by the Department.

§7404A. Exemptions.

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

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

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

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

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

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

(6) aboveground storage tanks excluded by regulations promulgated pursuant to this chapter.

§7405A. Registration by owner.

The owner of an aboveground storage tank shall register with the Department on forms provided by the Department. Registration must specify the date of tank installation, location, type of construction, type of substance to be stored, and the owner and operator’s name. Registration must occur on the following schedule:

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

(2) for an existing aboveground storage tank, whether or not in service or out of service, and whether or not currently or previously used for storing regulated substances, the form must be received by the Department within 60 days of the effective date of this chapter.

§7406A. Release of substances prohibited; correction of substance release; Department intervention.

(a) A person shall report to the Department a release from an aboveground storage tank in excess of the reportable quantities specified in the Delaware Regulations Governing the Reporting of a Discharge of a Pollutant or an Air Contaminant, as amended, immediately upon discovering the release.

(b) The owner and/or operator of an aboveground storage tank shall take measures for the prompt control, containment, and removal of a released regulated substance to the satisfaction of the Department.

(c) The Department may take measures for the prompt control, containment, and removal of a released, regulated substance when it determines that the owner or operator is not responding promptly or appropriately. However, all liability for costs incurred by the Department, including, but not limited to, remediation costs, equipment costs, supply costs, legal costs, and administrative oversight costs, remain with the owner and/or operator.

(d) A person shall not cause or contribute to a release from an aboveground storage tank.

§7407A. Tank performance standards; release detection, prevention, and correction regulations.

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

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

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

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

(3) a requirement that appropriate corrective action be taken in response to a release from an aboveground storage tank, as may be necessary to protect human health and the environment;

(4) a requirement to maintain records documenting actions taken in accordance with paragraphs (1) through (3) of this subsection;

(5) a requirement for an enforcement program;

(6) a requirement for standards that will ensure against any future release from an aboveground storage tank being closed or otherwise taken out of service; and

(7) a requirement for appropriate inspection, maintenance, monitoring, and repair of aboveground storage tanks and associated equipment.

§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 or operator of an aboveground storage tank used for the containment of regulated substances 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 and remediation activities 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;

(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 non-public record in accordance with provisions and regulations of Title 29, Chapter 100.

§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.

§7410A. Enforcement.

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

§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.

§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.

§7413A. Aboveground storage tank registration fee.

(a) Owners and operators of aboveground storage tanks are jointly and severally liable to the Department for an annual per tank registration fee. The fee must be received by the Department on or before July 1, 2002 for six months of fees 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 July 1, 2002 or by February 1 thereafter is subject to a late charge of 10% of the total fee.

Fee Schedule

Tank Size Yearly Fee

251 – 9,999 gallons $100.00

10,000 – 39,999gallons $300.00

40,000 gallons and greater $750.00

(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 this chapter and the regulations of the Department promulgated under this chapter.

(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 or the General Assembly.

§7414A. Aboveground storage tank construction permit fee.

(a) The Department shall assess a one-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.

Fee Schedule

Tank Size Construction Permit Fee

251 - 550 gallons $100.00

551 – 9,999 gallons $500.00

10,000 - 39,999 gallons $1,500.00

40,000 gallons and greater $3,750.00

(b) 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.

(c) 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 or the General Assembly.

§7415A. Short title.

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

SPONSOR:	Sen. McBride & Sen. Connor
	& Rep. Price; Sen. Cloutier