Delaware Code Title 7 Sec. 9125 – Standard of liability
(a) Notwithstanding § 9105 of this title, a brownfields developer who enters into a Brownfields Development Agreement with the Secretary is not liable with respect to the facility that is the subject of the Brownfields Development Agreement for any release or imminent threat of release of hazardous substances existing at the time the Brownfields Development Agreement is entered into, or for a remedy, or for any costs incurred by the State or any other person related to a remedy, for such a release or imminent threat of release at a facility, provided that:
(1) The brownfields developer submits a plan or plans for approval by the Secretary to address the actual or perceived presence of hazardous substances at the facility; and
(2) Any land disturbing activity at the facility by the brownfields developer in areas affected by the release or imminent threat of release of hazardous substances is performed in accordance with a plan, or modified plan or plans, as approved by the Secretary.
Terms Used In Delaware Code Title 7 Sec. 9125
- Brownfields developer: shall mean a person who, with respect to a facility:
- Brownfields Development Agreement: means an agreement between the Secretary and a brownfield developer with respect to a certified brownfield that sets forth a scope and schedule of activities to assess and respond to the actual, threatened, or perceived release of hazardous substances at the facility. See Delaware Code Title 7 Sec. 9123
- Contractual relationship: means , but is not limited to, land contracts, deeds, easements, leases or other instruments transferring title or possession. See Delaware Code Title 7 Sec. 9103
- 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. See Delaware Code Title 7 Sec. 9103
- 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. See Delaware Code Title 7 Sec. 9123
- 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. See Delaware Code Title 7 Sec. 9103
- 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. See Delaware Code Title 7 Sec. 9103
- 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. See Delaware Code Title 7 Sec. 9103
- 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:
- 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. See Delaware Code Title 7 Sec. 9103
- Secretary: means Secretary of the Department or the Secretary's designee. See Delaware Code Title 7 Sec. 9103
- State: means the State of Delaware; and when applied to different parts of the United States, it includes the District of Columbia and the several territories and possessions of the United States. See Delaware Code Title 1 Sec. 302
(b) Notwithstanding subsection (a) of this section, 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 subsection (a) of this section, above, if a brownfields developer, or the developer’s 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 of this chapter.
(d) The protection afforded by subsection (a) of this section 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 the developer’s 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.