Delaware Environmental Law Blog

When the Hazardous Substance Cleanup Act was passed by the Delaware General Assembly in 1990, included was a section (7 Del. C. Section 9115) requiring that "when a release of a hazardous substance that has been determined by the Secretary to be a threat to public health or the environment has occurred at a facility or property on which the facility is located, the owner of the property shall place a notice in the records of real property kept by the Recorder of Deeds of the county in which the property is located." The notice requires, among other things, that the facility (i.e., the property) be identified, the owner of the property be identified, and the date the release occurred be stated.

This is one loaded requirement, and one that hasn't been chased to the ground or imposed uniformly. DNREC is currently reviewing what would be necessary in order to more closely adhere to the intent and letter of the law. Clearly, real estate attorneys should keep a heads-up in order to understand what might be coming back to them from a title search. In turn, that should lead to the need for advice from environmental attorneys. Interested parties may want to participate on the Hazardous Substance Cleanup Act Advisory Committee (formerly the Brownfields Advisory Committee) and are directed to that portion of DNREC's webpage.

First, when exactly is a release of a hazardous substance determined by the Secretary to be a threat to human health and the environment? When the levels of a contaminant are above the reporting levels? But, as the folks at DNREC will be the first ones to tell you, just because you have a substance present above the reporting level doesn't mean that the substance represents a threat. You also have to have a complete exposure pathway, and a level of the substance that (when coupled with the complete exposure pathway) demonstrates a harm.

Continue reading "Coming Soon: More Environmental Notices to Show Up in the Land Records" »

A case recently decided by the Delaware Superior Court makes it clear that the rules applying to discovery in civil lawsuits among private parties do not translate well in a case between a private party and DNREC. In DNREC v. Mike Davidson Enterprises (2013 Del. Super. LEXIS 116), the Defendant was operating a construction and demolition waste recycling facility under a DNREC Resource Recovery Facility Permit. Under one of the terms of the permit, DNREC reserved its right to enter and inspect the Defendant's facility at any time to ensure compliance with the terms of permit (a standard clause in most, if not all, DNREC permits). So, DNREC inspected the facility - a lot. Between January 2010 and May 2012, there were 14 compliance inspections. It is likely (although not stated in the case) that the number of compliance inspections was related to the continuing violations discovered by DNREC.

After the second compliance inspection, DNREC issued a Notice of Violation to the Defendant requiring the Defendant to come into compliance within 30 days. The 30 days (plus one extension) passed and DNREC determined that the Defendant was still not in compliance. So, DNREC began the march of twelve more inspections over the next two years, sampling of the waste and materials generated by the Defendant, and ultimately an Order to Cease and Desist in June 2012 when DNREC's analyses revealed the mulch being sold by the Defendant had levels of arsenic, chromium and PCBs higher than allowable under its permit.

The Defendant appealed the Cease and Desist Order to the Environmental Appeals Board ("EAB"), but while the matter was pending before the EAB, DNREC filed a 23-count civil complaint against the Defendant alleging numerous solid waste violations under the Delaware Code and the solid waste regulations. In response, the Defendant tried a novel approach and filed a motion for a protective order to, among other things, (1) enjoin DNREC from further inspections unless conducted under Rule 26 of the Delaware Rules of Civil Procedure ("Rule 26"); (2) protect under seal the identity of the Defendants customers and business relations; (3) prohibit DNREC from publishing its sampling analyses; and (4) enjoin DNREC from publishing or releasing any data or findings regarding the compliance status of the Defendant until after the litigation had been concluded.

Continue reading "DNREC Inspections After the Commencement of Litigation: The Non Sequitur With Delaware Superior Court Civil Rule Regarding Discovery" »

While the Delaware coastline was spared the brunt of Tropical Storm Sandy's wrath in October 2012, Delaware's beaches were adversely affected. Large portions of the beaches were lost. In fact, oceanographers at the U.S. Geological Survey's St. Petersburg Coastal and Marine Science Center report that sea levels are rising at a rapid rate along the east coast. According to Gerald Kauffman at the Water Resources Agency of the University of Delaware, sea level rise affects not only how communities and the government need to prepare for storms like Sandy, but also what Delaware residents pay in taxes, where and how homes and highways are built, the quality of food and water, the wildlife in Delaware and the recreation services available.

DNREC's Delaware Sea Level Rise Advisory Committee ("Committee") recognizes the threat Delaware's coastlines' are facing; and therefore, has begun to develop an adaption plan to prepare for the impacts of sea level rise. Developing and implementing a plan to deal with sea level rise is imperative to escape the high costs associated with the legal battles that will certainly ensue if these issues are not faced head-on. (Coastal Adaptation Options for Delaware, Georgetown Climate Center, Jessica Grannis, January 19, 2012). At their March 2013 meeting, the Committee memorialized a timeline for completion of its Sea Level Rise Adaptation Plan. The Committee hopes to approve the Final Adaptation Plan in August 2013 and kick off implementation of the Plan in October 2013. The goal of the Committee is to create a plan that strikes an appropriate balance between the protection of homes, infrastructure and the conservation of natural resources.

Continue reading "Sea Level Rise - Status of Adaptation Plan" »

This is part two of a blog series discussing the impact of Brownfields redevelopment in Delaware. The first article dealt with an assessment of the economic impact, while this article addresses the social impact of Brownfields redevelopment. As was the case with the economic impact, DNREC turned to the University of Delaware to study the issue and report back with their results. The study was conducted by UD's Center for Community Research and Service, School of Public Policy and Administration, and was published in February 2013.

The study reviewed an area in northeast Wilmington bounded by Market Street to the west, the Brandywine River to the south, Amtrak to the east, and roughly East 36th Street to the north ("Northeast Wilmington"). Within this 815-acre area there were 18 Brownfields projects ranging in size from very small properties that will be incorporated into private businesses, to larger properties redeveloped for community services (such as the property redeveloped by Delta Outreach as an educational and vocational community center and the property to be developed by Kappa Mainstream Leadership to provide education and outreach services to at-risk, underserved youth), to even larger affordable housing projects including Speakman Place (a 71-unit mixed income housing development), McMullen Square (38 affordable housing units), and three Habitat for Humanity housing projects.

According to the study, census-based data and public records such as health, crime, licensing, and inspection reports illustrate that Northeast Wilmington is a socially and economically distressed area comprised mostly of minority residents with disproportionately high rates of unemployment, poverty, and health and education disparities. They also experience a high rate of violent and drug-related crime. More than 70% of the dwellings were built before 1960 and more than half are renter-occupied.

Continue reading "Assessment of the Impact of Brownfields Redevelopment in Delaware - Part II: The Social Impact" »

The Delaware Brownfields program has been in place since about 2004. As is the case with many government programs that have both an enforcement hammer and a funding carrot, public reception to the program was lukewarm at first. Well, lukewarm is a generous description. Skepticism and disbelief are probably more accurate descriptions.

Under the Brownfields program, DNREC promised environmental liability protection and grant money to new property owners that agreed to come into the program and perform an investigation and cleanup on a contaminated property prior to taking ownership. Few believed the promise, but slowly over the next two to three years, the word got out that this program was for real.

By 2009, DNREC was interested in measuring the impact the Brownfields program was having on the Delaware economy so they commissioned a study by the University of Delaware's Center for Applied Demography & Survey Research. The study was issued on January 5, 2010, and the results confirmed the positive economic impact that DNREC and others in the Brownfields redevelopment community suspected all along. What wasn't expected was the degree of impact.

For every $1.00 spent under the Brownfields program, property values increased by $17.50. Higher property values mean higher tax assessments, and higher tax assessments mean more money going to the Counties, the school districts, and the City of Wilmington. How much you ask? In New Castle County, the 2008 estimate was an extra $2.7 million with $1.2 million going to the Christina School District and $950,000 going to the City of Wilmington. Sussex County saw somewhat less than $47,000 and Kent County saw less than $2,000.

Continue reading "Assessment of the Impact of Brownfields Redevelopment in Delaware - Part I: The Economic Impact" »

Back in 2004, after the passage of the Delaware Brownfields law, DNREC created a stakeholders group consisting of environmental consultants, public advocacy members, environmental lawyers, interested members from the public, and DNREC staff called the Brownfields Advisory Committee ("BAC"). As one of the original members who is still active on the committee today, I can attest to the vitality of the committee and the influence that the committee has had on our State laws and regulations governing hazardous substance investigation and cleanup, underground and aboveground storage tank leak investigation and cleanup, as well as Brownfields development.

Approximately 30 people consistently attend the quarterly BAC meetings and the meetings are lively. Unfortunately, they run a good three hours and are quite technical in nature, so if you don't have the stamina or the time, you're just kidding yourself about how much you will get out of the experience. Sticking it out over time, though, is very rewarding. Not only are you on the cutting edge of new law and policy, you actually have a voice in crafting it. DNREC deserves a lot credit for putting together this committee, keeping the committee engaged, and giving the committee a voice on many substantive issues facing the Division of Waste and Hazardous Substances.

Although the BAC started out discussing only the implementation of the Brownfields program, its reach has expanded over time. The subject of Brownfields is only one subset of the subjects regulated under the Delaware Hazardous Substance Cleanup Act ("HSCA"). Quite naturally, the expansion of the BAC into other areas under HSCA occurred within a short time. For instance, at recent meetings, BAC members discussed and debated proposed new laws regarding the investigation and cleanup of orchards and golf courses.

Continue reading "Brownfield Advisory Committee Changes to HSCA Advisory Committee" »

It has become fairly well accepted in the environmental community that even the appropriate application of pesticides, herbicides, and fertilizers on land used for golf courses and orchards may result in a residual level of contaminants (arsenic in particular) that is above the level at which DNREC pays attention. Without cleanup, DNREC may be of the opinion that the property is unsuitable for non-agricultural uses such as homes, parks, food gardens, daycare centers, schools, or playgrounds. However, under the current Delaware Hazardous Substance Cleanup Act (7 Del. C. Ch. 91, "HSCA"), the "appropriate application" of these products does not subject the property owner or operator to liability for the property's investigation and cleanup. This is referred to as the "HSCA exclusion".

This issue was brought to the forefront when DNREC was approached by a homeowner that had just moved into a new residential development in Sussex County that had been built upon a former orchard. At some point prior to closing on the property, the homeowner had been asked by the builder to sign a waiver acknowledging that their property had residual levels of arsenic in the soil. Puzzled as to whether or not they could put in a garden or perform other types of residential activities that one typically performs in their backyard, the homeowner approached DNREC for advice. DNREC, in turn, was distressed to learn that they had no prior knowledge of the elevated levels of arsenic in the soil due to the HSCA exclusion. Thus, new legislation was born.

Continue reading "Proposed Legislation Addressing the Redevelopment of Orchards and Golf Courses" »

Under the Delaware Code, a Brownfield is "any vacant, abandoned or underutilized real property the development or redevelopment of which may be hindered by the reasonably held belief that the real property may be environmentally contaminated." 7 Del. C. § 9103(3). Once a property is certified as a Brownfield, up to $200,000 in State grant funds is available to qualified Brownfield Developers for its investigation and remediation. If the Brownfield Developer is a non-profit entity, another government, or redevelopment authority, the amount of grant money available is increased to $625,000.

Although the law clearly states that the property may be vacant, abandoned or underutilized, the difficulty in determining whether a property is actually underutilized has resulted in DNREC generally not considering properties as Brownfields unless they are also vacant or abandoned. This may be about to change, and it is a change that is long overdue.

Continue reading "Brownfields - Determining Whether Property will Qualify as a Brownfield Based Upon Being "Underutilized"" »

The Delaware General Assembly may soon be considering a bill that will require owners of property containing, or previously containing, underground storage tanks to conduct an environmental assessment prior to the transfer of the property or the underground storage tanks. This assessment, called a "Change in Ownership Assessment", is different than an assessment for "all appropriate inquiry" under CERCLA or HSCA, and is part of a larger bill being advanced by the Waste and Hazardous Substances Division of DNREC anticipated to be introduced this session.

The assessment would involve soil sampling and, perhaps, groundwater sampling. By definition in the draft bill, a Change in Ownership Assessment "means to measure for the presence of a release where contamination of regulated substances is most likely to be present on, under, or about a facility. Selection of sample types, sample locations and measurement methods shall be based on the nature of the stored regulated substance, the type of backfill, the depth to groundwater, and other factors appropriate for identifying the presence and scope of a release." The results of the assessment must be provided to DNREC within thirty (30) days of the property transfer.

The requirement for an assessment is tied to another concept in the bill (which I discussed in an earlier blog article) in which DNREC's goal is to shift the burden from the State to prove liability at a contaminated site. Currently, the State carries the burden to show that the actions of the responsible party proximately caused the contamination at the property. Under the proposed bill, contamination at a property will be presumed from the underground storage tanks at (or formerly at) the property, but that presumption could be rebutted. The thinking at this point by DNREC is that one way to rebut the presumption could be by conducting the Change in Ownership Assessment.

Continue reading "DNREC May Soon Require a "Change in Ownership Assessment" Prior to Selling Property with Underground Storage Tanks" »

The Tank Management Section of DNREC ("TMS") has jurisdiction over both underground and aboveground storage tanks. Generally, the tanks contain petroleum (although not always) and usually the tanks are associated with gasoline stations or car service/repair facilities. Many times, these tanks leak and when they do, the property owner and/or operator becomes very familiar with the TMS hydrologists and the law governing liability for petroleum investigation and cleanup.

Ever since 1990, when the Delaware Superior Court decided Clark v. Sun Refining & Marketing Co. (1990 Del. Super. LEXIS 227), DNREC has been in the position of carrying the burden of proof under the traditional proximate causation analysis, but this may soon change.

In Clark, one of the Town of Bridgeville's public drinking water wells was found to be contaminated with petroleum hydrocarbons. Upon investigation, DNREC found underground storage tanks on two nearby properties for the storage of petroleum products and a plume of dissolved petroleum hydrocarbons in the groundwater underneath both properties marching towards the town well.

DNREC was unable to determine which property was the source of the contamination in the town well, or even when the release occurred. Nonetheless, DNREC brought an action against both parties for the cost of the DNREC investigation and the corrective action. The Court found for the defendants in separate actions. DNREC had argued that a relaxed causation standard should apply, like in CERCLA, where the government need only show that the defendant owned or operated the property at the time of disposal of the hazardous substance, but the Clark court disagreed finding that DNREC had the burden to prove that an owner or operator "caused, permitted or knowingly allowed a release of prohibited substances to occur from one or more of the underground storage tanks while [the owner/operator] was the owner." Id. at *13.

Continue reading "Proposed Legislation for a New Standard in Determining Liability for Releases from Underground and Aboveground Storage Tanks" »

In the blog entry for last week, we brought to your attention two new bills being drafted by DNREC to place environmental liens on properties in order for DNREC to recover its past costs of investigation and cleanup on those properties. The main distinguishing characteristic between those two draft bills was that in one bill the lien would receive "super-priority" treatment over other liens currently existing on the property, including the mortgage. Under the other bill, the lien would have priority only over those liens perfected later in time.

We understand now that the super-priority lien bill has been pulled and is no longer under consideration. Lenders everywhere may now heave a sigh of relief and can enjoy the remainder of this sunny weekend secure in the knowledge that, at least for now, the rug is still underfoot.

The Delaware Department of Natural Resources and Environmental Control ("DNREC") has been busy drafting proposed legislation that, for the first time, will explicitly allow the State to place a lien on property in order to recover the government's costs associated with the investigation and cleanup of hazardous substances on a property, including petroleum or hazardous substances from aboveground and underground storage tanks.

You may be surprised to know that DNREC has not felt comfortable exerting its muscle and pushing the interpretation of the law to stand for the proposition that DNREC already has authority to place an environmental lien on property. Instead, when DNREC has paid for the work and they want to get reimbursed, they have generally relied upon their ability to bring an action in Superior Court . Using this route, they can get three times the amount they spent; however, going to court is a long and expensive process, so it is rarely used.

DNREC has drafted, and is currently considering, two somewhat competing bills. Under one, the DNREC lien would be a super-priority lien that would jump ahead of prior recorded liens. Under the other, it would not. That could make a big difference to you if you are the lender.

Continue reading "DNREC Drafts New Environmental Lien Legislation" »

One of the most common problems I find when reviewing Phase I Environmental Site Assessments is that the wrong person has filled out the User Report. This can have disastrous consequences for the person that thinks he or she will be afforded the level of liability protection that would otherwise come from an environmental site assessment whose purpose is to meet the "all appropriate inquiry" standard required under CERCLA.

Under CERCLA, current and former owners and operators (and others not relevant to the discussion here) of properties contaminated with hazardous substances are strictly, jointly and severally liable for the cost of the environmental investigation and cleanup of the property. Because this is strict liability, the liability arises without regard to any fault or negligence on the part of the owner or operator, and arises simply from the fact that the person is, or was, the owner of the property or is, or was, operating on the property at the time of the disposal of the hazardous substances.

In 1986, CERCLA was amended to include an "innocent landowner" defense to this liability, and the defense was broadened to "bona fide prospective purchasers" and "contiguous property owners" in the Brownfields Amendments of 2002 (together, "landowner liability" defenses). All three of these defenses have in common the requirement that the person hoping to claim the defense must have performed "all appropriate inquiries" into the previous ownership and uses of the property before purchasing or operating on the property. The purpose of performing "all appropriate inquiry" (AAI) is to identify "releases and threatened releases of hazardous substances on, at, in or to the property" that would likely trigger a response action of some sort by the environmental agency. The current industry standard for conducting a Phase I environmental site assessment to meet AAI is ASTM E 1527-05.

One element of AAI is the collection of information by the person desiring to establish, and benefit from, one of the landowner liability defenses. This information is then passed on to the environmental professional conducting the Phase I. Generally, the way this works is that the environmental professional provides a user questionnaire or user report to the person that has commissioned the Phase I and waits for the questionnaire/report to be filled out and sent back to him or her.

Continue reading "All Appropriate Inquiry - The User Report" »

It is with a heavy heart that I report the passing of Patricia M. Ellis, Hydrologist IV, of the DNREC Tank Management Branch ("TMB"). Anyone that has been involved in underground storage tank investigation and/or remediation in Delaware has likely had an opportunity to get to know Pat. She was a very bright, devoted, and incredibly calm professional. As the Tank Management Section's only Ph.D., she was also well-known throughout the country for her work on MTBE, oxygenates, and biofuels. Pat began her DNREC career in 1990, in what was then called the Underground Storage Tank Branch. I had the privilege of working with her as a fellow hydrologist in the Branch from 1990 to 1996. Pat will truly be missed. DNREC TMB is in the process of re-assigning Pat's projects and asks for patience during this time.

A memorial service celebrating Pat's life will be held Friday March 8th, 2013 at 11am at Deerfield Country Club, located at 507 Thompson Station Road, Newark, DE 19711. In lieu of flowers, donations in honor of Pat can be sent to the PKD Foundation (www.pkdcure.org).

A hot topic in Delaware for the foreseeable future is planning for the effect that sea level rise will have on land development and infrastructure planning. DNREC's Coastal Management Program and its Sea Level Advisory Committee have been hard at work analyzing sea level rise and talking about how to plan for it for since November of 2010. The committee meetings continue, and so do the DNREC publications addressing what is believed to be coming. First, came the 5-year assessment and strategy (2011) and, more recently, "Preparing for Tomorrow's High Tide: Sea Level Rise Vulnerability Assessment for the State of Delaware" (2012). Importantly, the Vulnerability Assessment comes with maps.

So, what happens when the maps start getting real specific about the chances of a particular property getting washed out during a storm, or assigning vulnerability ratings to a property, or otherwise giving folks an inkling that all may not be well with property that they otherwise believe will stay high and dry? When an unsuspecting landowner purchases property for his house and within a short time water-related problems arise, is there anyone but himself to blame? Since this is a brand new issue in Delaware, there has been no case law at this point. So, I am going to use my crystal ball and posit some theories that may or may not pan out. One thing is for sure, this will be blazing new territory.

Let's say DNREC comes out with a map ("Map") that shows a property (Blackacre - that old law school chestnut) as vulnerable to sea level rise, and in fact, is expected to be underwater even during a somewhat mild storm at high tide most of the time during the next 5 years. Currently, Blackacre is not in an area mapped by FEMA as a floodplain or flood fringe, or a wetland. Mr. Homebuyer purchases Blackacre from Mr. Homebuilder (a professional homebuilder/developer), and soon after moving in, Mr. Homebuyer's basement is flooded and the foundation is showing signs of weakening. Does he have any recourse against Mr. Homebuilder?

Continue reading "Sea Level Rise and Property Disclosures " »