Del. Code tit. 7 § 9103

Current through 2024 Legislative Session Act Chapter 531

Section 9103 - Definitions

As used in this chapter:

(1) "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.

(2) "Allowable interest rate" means a rate of interest 5% over the federal reserve discount rate.

(3) "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.

(4) "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended.

(5) "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.

(6) "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 (6)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.

(7) "Department" means the Department of Natural Resources and Environmental Control.

(8) "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.

(9) "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.

(10) "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.

(11)"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 1 through 10 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, one 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.

(12)"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.

(13)"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 non-judicial 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.

(14) "Fund" means the Hazardous Substance Cleanup Fund created pursuant to § 9113 of this title.

(15) "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.

(16) "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.

(17)"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.

(18) "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.

(19) "Operable unit" means any subdivision of a facility in terms of area or environmental media or any other manner approved by the Secretary.

(20) "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.

(21) "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.

(22) "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.

(23) "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.

(24) "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 (20)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.

(25) "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.

(26) "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.

(27) "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.

(28) "Secretary" means Secretary of the Department or the Secretary's designee.

(29)"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.

(30) "Site assessment" means the assessment of a facility and/or property to determine whether hazardous substances have entered the environment.

7 Del. C. § 9103

Amended by Laws 2019, ch. 180,s 1, eff. 7/31/2019.

Amended by Laws 2015, ch. 359,s 1, eff. 8/3/2016.

Amended by Laws 2013, ch. 441,s 1, eff. 10/6/2014.

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.;