Delaware Code Title 7 Sec. 9107 – Remedies
(a) (1) When the Secretary or his or her designee has determined that a release or imminent threat of a release of a hazardous substance as defined herein will require a remedy, the Secretary shall, within 20 days of such determination, provide public notice of that fact. The Secretary shall likewise provide public notice within 20 days after entering into negotiations for a voluntary cleanup settlement agreement with any person that agrees to perform a remedy. 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:
a. All elected members of the General Assembly in whose district such facility or any part thereof lies;
b. 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;
c. 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
d. 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.
(2) When the Secretary has reason to believe that a release or imminent threat of release will require a remedy, the Secretary shall notify the potentially responsible party with respect to the release or imminent threat of release, and provide the person with an opportunity to enter into a settlement agreement providing for a remedy consistent with regulations developed pursuant to § 9104 of this title. The Secretary may provide any person who has knowledge of a release of a hazardous substance at a facility and agrees to perform a remedy with an opportunity to enter into a settlement agreement providing for a remedy consistent with regulations developed pursuant to § 9104 of this title.
Terms Used In Delaware Code Title 7 Sec. 9107
- CERCLA: means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U. See Delaware Code Title 7 Sec. 9103
- Department: means the Department of Natural Resources and Environmental Control. See Delaware Code Title 7 Sec. 9103
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- 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
- Fund: means the Hazardous Substance Cleanup Fund created pursuant to § 9113 of this title. See Delaware Code Title 7 Sec. 9103
- Hazardous substance: means :
- 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
- 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. See Delaware Code Title 7 Sec. 9103
- 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. 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:
- 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. See Delaware Code Title 7 Sec. 9103
- 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
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- 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) The settlement agreement providing for a remedy may be in the form of a consent decree, administrative order of consent, memorandum of agreement or any other form of agreement consistent with regulations developed pursuant to § 9104 of this title. When a settlement agreement is entered into in the form of a consent decree pursuant to this chapter, it shall be filed with the Superior Court. The Secretary shall allow at least 20 days for public comment before the proposed consent decree is entered. If the Secretary deems it appropriate to effectuate the purposes of this chapter, the Secretary may choose to resolve a person’s liability with the State under this section through use of settlement agreements entered into pursuant to CERCLA.
(c) A person who has resolved his or her liability to the State under this section is not liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other potentially responsible parties, but it reduces the total potential liability of others to the State by the amount of the settlement exclusive of § 9109 of this title.
(d) The Secretary may enter into a settlement agreement that requires the Secretary to provide a specified amount of money from the Fund to help defray the costs of implementing the remedy. These funds may be provided only in circumstances where the Secretary finds it would expedite or enhance remediation or achieve equity with respect to the payment of remedial costs. The Secretary may recover the amount of public funding provided under this section from a potentially responsible party who has not entered into a settlement agreement under this section or fulfilled all obligations under the agreement. For purposes of such a cost recovery, the public funding shall be considered as remedial costs paid by the Secretary.
(e) Before conducting a remedial action, the Secretary shall:
(1) Propose a plan of remedial action based on any investigation or study conducted by or for the Secretary, the potentially responsible party, or others;
(2) Provide public notice of the proposed plan of remedial action and an opportunity to comment on the plan as well as the investigation upon which the plan of remedial action is based;
(3) Prepare a final plan of remedial action with due consideration of the comments received and any other study or investigation conducted by or for the Secretary.
(f) The proposed and final plan of remedial action and the basis for it, as well as all comments received by the Secretary, constitute the remedial decision record of the Secretary. The Secretary shall maintain a remedial decision record for a period that the Secretary deems appropriate based upon the remedy being implemented and the future use of the facility.
(g) Where the Secretary has developed a remedial decision record for a remedy and the Secretary has conducted the remedy in accordance with the record, in any action brought to recover costs, the plan of remedial action shall be presumed reasonable and necessary unless demonstrated to be arbitrary and capricious by clear and convincing evidence.
67 Del. Laws, c. 326, § ?1; 70 Del. Laws, c. 186, § ?1; 70 Del. Laws, c. 218, §§ ?17-23; 72 Del. Laws, c. 322, §§ ?1, 2;