Environmental Law Update

March 14, 2008

Publication| Environmental

Legislation has been introduced in the Delaware General Assembly that will affect the transfer or closing of facilities in Delaware where chemical or hazardous substances have been or are located. While versions of this legislation have been introduced in earlier sessions of the General Assembly, there appears to be support for action on this bill before the end of the current legislative calendar in June, 2008. Legislative hearings on the bill could proceed as early as next week.

The significant features of the proposed legislation are as follows.

Regulated Facilities
The legislation applies to two categories of facilities: (1) those required to report a total of one million pounds or more of any combination of "hazardous chemicals", and (2) large-quantity generators. "Hazardous chemicals" include a large range of commonly used chemicals, such as acetone, gasoline, petroleum distillates and sulfuric acid. Depending on the substance used, relatively low quantities of hazardous chemicals may be enough to trigger the requirements of the legislation.

Facility Transfer Requirements
The legislation establishes three principal requirements for affected facilities.

First, prior to the transfer of a facility, “All Appropriate Inquiry” as provided in Delaware’s Hazardous Substances Cleanup Act will be required at the facility, and all documents prepared or identified pursuant to such inquiry must be submitted to DNREC.

Second, if an affected facility terminates its operations or files for bankruptcy, the following requirements must be completed no later than 90 days after termination of all business or activities at the facility:

  • a list of all chemicals or hazardous substances at the facility must be submitted to DNREC, excluding "releases";
  • a plan for disposing of such chemical or hazardous substances must be submitted to DNREC;
  • warning signs and up-to-date contact information must be posted at the facility where soil contamination poses a potential risk;
  • removal of the chemicals or hazardous substances from the facility in accordance with applicable law must be certified to DNREC; and
  • personnel, utilities, security, site management and other measures necessary to stabilize and secure the facility must be maintained.

Third, financial assurance will be required for transferred facilities or new facilities, in an amount to ensure that, upon termination, abandonment or liquidation of activities at the facility, all appropriate means will be taken to stabilize and secure the facility.

Effective Date
As proposed, the legislation will become effective upon the promulgation by DNREC of facility transfer regulations.

A member of Richards, Layton & Finger’s environmental practice, Robert W. Whetzel, participated on an advisory committee that commented on the proposed legislation.

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