§ 7402 — Definitions

Delaware § 7402

• Jurisdiction: Delaware
• Title: 7
• Part: Natural Resources
• Ch. 74: DELAWARE UNDERGROUND STORAGE TANK ACT
• Subch.: General Provisions

Text

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) “Abandoned storage system” means a storage system which:

a. Is not intended to be returned to service;

b. Has been out of service for over 3 years; or

c. Has been rendered permanently unfit for use.

(2) “Ancillary equipment” means any device including, but not limited to, such devices as piping, fittings, flanges, valves and pumps, that are used to distribute, meter or control the flow of petroleum or hazardous substances from an underground storage tank.

(3) “Corrective action” means the sequence of actions, or process, that includes confirming a release, site assessment, interim remedial action, remedial action, monitoring, and termination of remedial action.

(4) “Department” means the Department of Natural Resources and Environmental Control.

(5) “Existing tank” means a tank for which installation began prior to July 12, 1985.

(6) “Facility” means any location or part thereof that contains or had previously contained 1 or more underground storage tanks.

(7) “Fiduciary” means:

a. A person acting for the benefit of another party as a bona fide:

1. Trustee, executor, administrator, custodian, guardian of estates or guardian ad litem, receiver, conservator, committee of estates of incapacitated persons, or personal representative;

2. 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

3. Representative in any other capacity that the Administrator, after providing public notice, determines to be similar to the capacities described in paragraphs (7)a.1. and 2. of this section above.

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, 1 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.

(8) “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.

(9) “Foreclosure” or “foreclose” means:

a. Acquiring, and to acquire, a facility through:

1. Purchase at sale under a judgment or decree, power of sale, or nonjudicial 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.

(10) “Fund” means the Delaware Underground Petroleum Storage Tank Response Fund.

(11) “Heating fuels” means a type of fuel oil that is 1 of 8 technical grades. These grades are: No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light, No. 5-heavy, No. 6 residual and substitutes such as kerosene or diesel when used for heating purposes.

(12) “Lender” means:

a. An insured depository institution (as defined in the Federal Deposit Insurance Act, 12 U.S.C. § 1813(c)(2)) or an insured credit union (as defined in the Federal Credit Union Act, 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 legal entity 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.

(13) “New tank” or “facility” means a tank or facility for which the installation began on or after July 12, 1985.

(14) “Operator” means any person in control of, or having responsibility for, the daily operation of the underground storage tank system.

(15) “Out of service” means a storage system which:

a. Is not in use; that is, which does not have regulated substances added to or withdrawn from the storage system; and

b. Is intended to be placed in service.

(16) “Owner” means:

a. In the case of an underground storage tank in use on November 8, 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use or dispensing of regulated substances; and

b. In the case of any underground storage tank in use before November 8, 1984, but no longer in service on November 8, 1984, any person who owned such tank immediately before the discontinuation of its use.

c. “Owner” does not mean any person who, without participating in the management of an underground storage tank system, and without otherwise being engaged in petroleum production, refining, or marketing, holds indicia of ownership in an underground storage tank system primarily to protect the person’s security interest in it or is a fiduciary which has a legal title to or manages any property for purposes of administering an estate or trust of which such property is part. In the case of foreclosure, such person shall not be deemed the owner of the underground storage system if the person:

1. Provides notification to the Department, using a form provided by the Department, within 30 days of the filing of the complaint for foreclosure, for any real property known by the person to contain an underground storage tank, or for any real property which contains a registered underground storage tank. This notification is required for in-service or out-of-service underground storage tanks; and

2. Empties all known and registered underground storage tanks, located on the foreclosed real property, of regulated substances, within 60 days after confirmation of foreclosure. This emptying is not required if an operator undertakes operational responsibility for the foreclosed real property during this 60-day period. An underground storage tank is empty when all regulated substances have been removed using commonly employed practices, so that no more than 1 inch or 2.5 centimeters of residue, or 0.3 percent by weight of the total capacity of the underground storage tank system, remains in the underground storage tank system.

d. For purposes of this paragraph (16):

1. The term “participate in management” means actually participating in the management or operational affairs of an underground storage tank or facility, but does not include merely having the capacity to influence, or the unexercised right to control, an underground storage tank or facility operations.

2. A person that is a lender or fiduciary and that holds indicia of ownership primarily to protect a security interest in an underground storage tank or facility shall be considered to participate in management only if, while the borrower is still in possession of the underground storage tank or facility encumbered by the security interest, the person:

A. Exercises decision-making control over the environmental compliance related to the underground storage tank or facility, such that the person has undertaken responsibility for the hazardous substance handling or disposal practices related to the underground storage tank or facility; or

B. Exercises control at a level comparable to that of a manager of the underground storage tank or facility, such that the person has assumed or manifested responsibility for the overall management of the underground storage tank or facility encompassing day-to-day decision making with respect to environmental compliance, or over all or substantially all of the operational functions (as distinguished from financial or administrative functions) of the underground storage tank or facility other than the function of environmental compliance;

3. The term “participate in management” does not include performing an act or failing to act prior to the time at which a security interest is created in an underground storage tank or facility.

4. The term “participate in management” does not include:

A. Holding a security interest or abandoning or releasing a security interest;

B. Including in the terms of an extension of credit, or in a contract or security agreement relating to the extension, a covenant, warranty, or other term or condition that relates to environmental compliance;

C. Monitoring or enforcing the terms and conditions of the extension of credit or security interest;

D. Monitoring or undertaking 1 or more inspections of the underground storage tank or facility;

E. Requiring a corrective action or other lawful means of addressing the release or threatened release of a hazardous substance in connection with the underground storage tank or facility prior to, during, or on the expiration of the term of the extension of credit;

F. Providing financial or other advice or counseling in an effort to mitigate, prevent, or cure default or diminution in the value of the underground storage tank or facility;

G. Restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the extension of credit or security interest, exercising forbearance;

H. Exercising other remedies that may be available under applicable law for the breach of a term or condition of the extension of credit or security agreement; or

I. Conducting a corrective action, if the actions do not rise to the level of participating in management (within the meaning of paragraphs (16)d.1. and (16)d.2. of this section).

5. A person who is a lender that did not otherwise participate in the management of a facility as provided in paragraphs (16)d.3. and (16)d.4. of this section shall not be considered to have participated in management, notwithstanding that the person:

A. Forecloses on the property; and

B. After foreclosure, sells, re-leases (in the case of a lease finance transaction), or liquidates the property, maintains business activities, winds up operations, or undertakes corrective actions of this chapter.

e. A fiduciary as described in this section shall not be liable in its personal capacity under this chapter for:

1. Undertaking or directing another person to undertake any other lawful means of addressing a hazardous substance in connection with the facility;

2. Terminating the fiduciary relationship;

3. Including in the terms of the fiduciary agreement a covenant, warranty, or other term or condition that relates to compliance with an environmental law, or monitoring, modifying or enforcing the term or condition;

4. Monitoring or undertaking 1 or more inspections of the facility;

5. Providing financial or other advice or counseling to other parties to the fiduciary relationship, including the settlor or beneficiary;

6. Restructuring, renegotiating, or otherwise altering the terms and conditions of the fiduciary relationship;

7. Administering, as a fiduciary, a facility that was contaminated before the fiduciary relationship began; or

8. Declining to take any of the actions described in paragraphs (16)e.2. through 7. of this section.

f. The liability of a fiduciary under any provision of this chapter for the release or threatened release of a regulated substance at, from, or in connection with a facility held in a fiduciary capacity shall not exceed the assets held in the fiduciary capacity; provided, however, that this limitation shall not apply to the extent that a person is liable under this chapter independently of the person’s ownership of a facility as a fiduciary or actions taken in a fiduciary capacity.

g. The exclusion from liability contained in paragraph (16)c. of this section does not limit liability pertaining to the release or threatened release of a regulated substance if negligence of a fiduciary causes a release.

h. Nothing contained in paragraph (16)c. of this section:

1. Affects the rights or immunities or other defenses that are available under this chapter or other law that is applicable to a person subject to this paragraph; or

2. Creates any liability for a person or a private right of action against a fiduciary or any other person.

i. Nothing in paragraph (16)c. of this section applies to a person if the person:

1. Acts in a capacity other than that of a fiduciary or in a beneficiary capacity, and in that capacity, directly or indirectly benefits from a trust or fiduciary relationship; or

2. Is a beneficiary and a fiduciary with respect to the same fiduciary estate and, as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law.

j. Paragraph (16)c. of this section does not preclude a claim under this chapter against:

1. The assets of the estate or trust administered by the fiduciary; or

2. Nonemployee agent or independent contractor retained by a fiduciary.

(17) “Person” means any individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state or any interstate body. “Person” also includes a consortium, a joint venture, a commercial entity and the United States government.

(18) “Regulated substance” means:

a. Any substance defined in § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601(14)); but not including any substances regulated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act of 1976 as amended [42 U.S.C. § 6921 et seq.];

b. Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (60° Fahrenheit and 14.7 pounds per square inch absolute).

(19) “Release” means any spilling, leaking, emitting, discharging, escaping, leaching or disposing into groundwater, surface water or soils.

(20) “Removal” means the process of removing and disposing of an underground storage tank system, through the use of prescribed techniques for the purging of residues and vapors and removal of the vessel from the ground.

(21) “Responsible party” means any person who:

a. Owns or has a legal or equitable interest in a facility or an underground storage tank;

b. Operates or otherwise controls activities at a facility;

c. At the time of storage of regulated substances in an underground storage tank, operated or otherwise controlled activities at the facility or underground storage tank, or owned or held a legal or equitable interest therein;

d. Arranged for or agreed to the placement of an underground storage tank system by contract, agreement or otherwise;

e. Caused or contributed to a release from an underground storage tank system; or

f. Caused a release as a result of transfer of a regulated substance to or from an underground storage tank system.

(22) “Retrofit” means modification or correction of an underground storage tank system to meet standards contained in regulations promulgated under this chapter through such means as replacement of valves, fill pipes, vents and liquid level monitoring systems, and the installation of overfill protection, transfer spill protection, leak detection and cathodic protection devices; but the term does not include the process of relining an underground tank through application of such materials as epoxy resins, nor does the term include the process of conducting a tightness test to establish the integrity of the tank.

(23) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control or a duly authorized designee.

(24) “Security interest” means an interest in a petroleum UST or UST system or in a facility or property on which a petroleum UST or UST system is located, created or established for the purpose of securing a loan or other obligation. Security interests include but are not limited to mortgages, deeds of trusts, liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, and assignments, if the transaction creates or establishes an interest in an UST or UST system or in the facility or property on which the UST or UST system is located, for the purpose of securing a loan or other obligation.

(25) “State” means the State of Delaware.

(26) “Underground storage tank” means a containment vessel, including underground pipes connected thereto, which is used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is 10 per centum or more beneath the surface of the ground. Such term does not include any:

a. Septic tank;

b. Pipeline facility (including gathering lines) regulated under:

1. The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. § 1671 et seq.) [transferred to Title 49, Chapter 601 of the United States Code];

2. The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. § 2001 et seq.) [transferred to Title 49, Chapter 601 of the United States Code]; or

3. Any intrastate agreement comparable to those acts set forth in paragraphs (26)b.1. and 2. of this section;

c. Surface impoundment, pit, pound, lagoon;

d. Storm water wastewater collection system;

e. Flow-through process tank;

f. Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or

g. Storage tank situated in an underground area (such as basement, cellar, mineworking drift, shaft or tunnel) if the storage tank is situated upon or above the surface of the floor.

(27) “Underground storage tank system” means an underground storage tank and its associated ancillary equipment and containment system, if any.

(28) “Used-oil” means a petroleum-based synthetic oil used as an engine lubricant, engine oil, motor oil or lubricating oil for use in an internal combustion engine, or a lubricant for motor vehicle transmissions, gears or axles which through use, storage or handling has become unsuitable for its original purpose due to the presence of impurities or loss of original properties.

Legislative History

65 Del. Laws, c. 161, § 1 ; 66 Del. Laws, c. 187, § 1 ; 66 Del. Laws, c. 425, § 1 ; 68 Del. Laws, c. 363, §§ 1-4 ; 69 Del. Laws, c. 330, §§ 1, 2 ; 79 Del. Laws, c. 440, §§ 2-4