SPONSOR: |
Sen. McBride & Rep. Spence & |
|
Rep. Houghton; Sens. Bunting, Blevins, Sokola, Henry, Marshall, Connor; Reps. Thornburg, Mulrooney, Carey, Caulk, Booth |
142nd GENERAL ASSEMBLY |
SENATE
BILL NO. 328 |
AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE PERTAINING TO MATCHING GRANTS FROM THE DELAWARE STRATEGIC FUND FOR THE COSTS OF ENVIRONMENTAL ASSESSMENT AND REMEDIATION AT CERTIFIED BROWNFIELDS AND TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO THE HAZARDOUS SUBSTANCE CLEANUP ACT. |
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
(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
§ 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;
(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:
(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.”
SYNOPSIS
This Act creates a Brownfields Development Program to encourage the redevelopment of brownfields by providing an independent program that includes liability protections to Brownfields Developers, establishes a Brownfields Development Agreement separate from the Voluntary Cleanup Program agreement, and allows for certificates of completion of remedy to be issued for approved operable units. This Act also changes DEDO’s matching grant program to assist in the cost of environmental assessment and remediation of certified brownfields (the “Brownfields Program”) that is part of the Delaware Strategic Fund program. Section 1 makes clear that grants made pursuant to
the Brownfields Program must also be made for one of the primary purposes of
the Delaware Strategic Fund, namely, the retention and expansion of existing
firms, the recruitment of new firms and the formation of new businesses. Section 2
increases the size of matching grant that may be made under the Brownfields
Program with respect to a single certified brownfield to the lesser of
$100,000 (rather than $50,000, as prior to the Act) or 50 percent of the
environmental assessment and remediation costs. Notwithstanding this amendment, the
Chairperson of the Authority retains the existing power set forth in 29 Section 3 of the Bill divides Hazardous Substance Cleanup Act into two Subchapters: Subchapter I entitled General Provisions and Enforcement; Subchapter II entitled Brownfields Development Program. Section 4 of the Bill creates Subchapter II in its entirety. Section 5 of the Bill provides that Certificates of Completion of Remedy may be issued for “operable units”. Section 6 of the Bill defines “Operable Unit”. Section 7 of the Bill clarifies the definition of “owner or operator” by exempting persons who conduct due diligence investigations on properties in anticipation of taking title. Section 8 of the Bill allows monies from the HSCA Trust Fund to be used in the Brownfields Development Program |
Author: Senator McBride