CHAPTER 59

FORMERLY

HOUSE BILL NO. 90

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 63, TITLE 16, DELAWARE CODE RELATING TO EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 63, Title 16 of the Delaware Code by striking §§ 6302 through 6312 in their entirety and substituting new §§ 6302 through 6315 to read as follows:

"§ 6302. Definitions.

For the purposes of this chapter, definitions for the following terms and phrases shall be as follows:

(1) PERSON. - The term 'person' means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of State or interstate body.

(2) FACILITY. - The term 'facility' means all buildings, equipment, structures and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). 'Facility' shall include man-made structures as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

(3) HAZARDOUS CHEMICAL. - The term 'hazardous chemical' means any hazardous chemical as defined under § 1910.1200(c) of Title 29 of the Code of Federal Regulations, except that such term does not include the following substances:

(a) Any food, food additive, color additive, drug or cosmetic regulated by the Food and Drug Administration.

(b) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.

(c) Any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.

(d) Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual.

(e) Any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

(4) PRESENT IN THE SAME FORM AND CONCENTRATION AS A PRODUCT PACKAGED FOR DISTRIBUTION AND USE BY THE GENERAL PUBLIC. - This phrase means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public.

5) EXTREMELY HAZARDOUS SUBSTANCE. - The term 'extremely hazardous substance' means a substance included in the list established under § 6303 of this chapter.

6) MIXTURE. - The term 'mixture' means a heterogeneous association of substances where the various individual substances retain their identities and can usually by separated by mechanical means. Includes solutions or compounds but does not include alloys or amalgams.

7) MOTOR VEHICLE FUEL. - The term 'motor vehicle fuel' means a petroleum or petroleum-based substance that is motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade of gasohol, and is typically used in the operation of a motor engine.

8) DEPARTMENT. - The term 'Department' means the Department of Natural Resources and Environmental Control.

9) SECRETARY. - The term 'Secretary' means the Secretary of the Department of Natural Resources and Environmental Control.

10) ADMINISTRATOR- The term 'Administrator' means the Administrator of the United States Environmental Protection Agency.

11) ENVIRONMENT. - The term 'environment' includes water, air and land and the interrelationship which exists among and between water, air, and land and all living things.

12) RELEASE. - The term '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) of any hazardous chemical, extremely hazardous substance, or toxic chemical.

13) TOXIC CHEMICAL. - The term 'toxic chemical' means a substance included on the list established under § 6307 of this chapter.

14) LOCAL EMERGENCY PLANNING COMMITTEE. - The term 'Local Emergency Planning Committee' means the local emergency planning committee appointed by the State Emergency Response Commission.

15) MANUFACTURE. - The term 'manufacture' means to produce, prepare, import, or compound a toxic chemical.

16) PROCESS. - The term 'process' means the preparation of a toxic chemical, after its manufacture, for distribution in commerce:

(i) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such chemical, or

(ii) as part of an article containing the toxic chemical.

17) SOURCE REDUCTION. - The term 'source reduction' means any practice which

(i) reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, energy recovery, treatment, or disposal; and

(ii) reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.

The term includes equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training or inventory control. The term does not include any practice which alters the physical, chemical, or biological characteristics or the volume of a hazardous substance, pollutant, or contaminant through a process or activity which itself is not integral to and necessary for the production of a product or the providing of a service.

§ 6303. Emergency planning notifications.

(a) A list of Extremely Hazardous Substances shall be established by the Secretary for the purposes of this chapter. In establishing this list, the Secretary shall take into account the toxicity, reactivity, volatility, dispersability, combustibility, or flammability of a substance. For purposes of the preceding sentence, the term "toxicity" shall include any short-term or long-term health effect which may result from a short-term exposure to the substance. These substances will be the primary focus of community emergency planning activities to be conducted by the local emergency planning committees as set forth in 42 USCS § 11003.

(b) The Secretary shall establish Threshold Planning Quantities for each Extremely Hazardous Substance established under paragraph (a) taking into account the criteria described in paragraph (a).

(c) The Secretary may revise the list and thresholds established under paragraphs (a) and (b) from time to time. Any revisions to the list shall take into account the criteria established in paragraph (a).

(d) Any facility having an Extremely Hazardous Substance present at the facility in an amount which equals or exceeds the Threshold Planning Quantity established for such substance shall be subject to the requirements of this section.

(e) Not later than six months after the date of the enactment of this section the owner or operator of each facility subject to the requirements of this section shall notify the Department and the Local Emergency Planning Committee that such facility is subject to the requirements of this section. Thereafter, if a substance on the list of extremely hazardous substances becomes present at such facility in an amount which equals or exceeds the threshold planning quantity established for such substance, or if there is a revision of such list and the facility has present a substance on the revised list in an amount which equals or exceeds the threshold planning quantity established for such substance, the owner or operator of the facility shall notify the Department and the local emergency planning committee within 60 days after such acquisition or revision that such facility is subject to the requirements of this section.

(f) Notification to the Department under paragraph (e) of this section shall serve as notification to the State Emergency Response Commission as set forth under 42 USCS § 11002 (c) and regulations established under that act.

(g) Notification under paragraph (e) of this section must also include identification of a facility representative who will participate in the emergency planning process as a facility emergency coordinator.

(h) The owner or operator of a facility subject to this section shall promptly inform the local emergency planning committee of any relevant changes occurring at such facility as such changes occur or are expected to occur.

(i) Upon request from the local emergency planning committee, the owner or operator of a facility subject to this section shall promptly provide information to such committee necessary for developing and implementing emergency plans.

(j) For purposes of emergency planning, the State Emergency Response Commission or the Secretary may designate additional facilities which shall be subject to the requirements of this section, if such designation is made after public notice and opportunity for comment. The Secretary shall notify the facility concerned of any facility designation under this paragraph.

§ 6304. Emergency release notifications.

(a) Emergency release notification requirements shall be as established under Title 7, Chapter 60, § 6028 of the Delaware Code.

(b) Concerning the requirements for immediate notice to the Community Emergency Coordinator as established under 42 USCS § 11004(b) and regulations established under that act, notification to the 911 emergency dispatch center shall serve as notification of the Community Emergency Coordinator.

(c) Concerning the requirements for immediate notice to the State Emergency Response Commission as established under 42 USCS § 11004(b) and regulations established under that act, notification to the Department shall serve as notification to the State Emergency Response Commission.

(d) Concerning the submission of written followup reports as established under 42 USCS § 11004(c) and regulations established under that act, written followup emergency notices shall be provided to the Department.

§ 6305. Material safety data sheets.

(a) The owner or operator of any facility which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act (15 U.S.C. 651 et seq.) or the Delaware Hazardous Chemical Information Act and regulations promulgated under that Act (Title 16, Chapter 24 of the Delaware Code) shall submit a material safety data sheet for each such chemical present at the facility in an amount which equals or exceeds the threshold quantities established under paragraph (c) of this section, or a list of such chemicals, as described in paragraph (d) of this section, to the Department.

(b) Submission to the Department under this section shall serve as submission to the appropriate local emergency planning committee, the State Emergency Response Commission and the fire department with jurisdiction over the facility as set forth under 42 USCS § 11021 and regulations established under that act.

(c) The threshold quantities for the purpose of this section shall be as follows:

(1) For substances identified as hazardous chemicals, except as provided in subparagraphs (c)(2) and (c)(3), the threshold shall be 55 gallons or 500 pounds, whichever is lower.

(2) For substances included in the list of extremely hazardous substances under § 6303 of this chapter, the threshold shall be 55 gallons, 500 pounds, or the Threshold Planning Quantity, whichever is lower.

(3) For a substance used solely for the purpose of heating a building or buildings at a facility, the threshold for that substance at that facility shall be 10.000 pounds.

(4) For the purposes of requests under paragraph (f), the threshold shall be Zero.

(d) The list referred to under paragraph (a) shall include each of the following:

(1) A list of the hazardous chemicals for which a material safety data sheet is required under the Occupational Safety and Health Act of 1970 and regulations promulgated under the Act or the Delaware Hazardous Chemical Information Act and regulations promulgated under that Act (Title 16, Chapter 24 of the Delaware Code), grouped in categories of health and physical hazards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under the Act, or in such other categories as the Secretary may prescribe under paragraph (e).

(2) The chemical name or the common name of each such chemical as provided on the material safety data sheet.

(3) Any hazardous component of each such chemical as provided on the material safety data sheet.

(e) For purposes of the list under paragraph (d) of this section, the Secretary may modify the categories of health and physical hazards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act by requiring information to be reported in terms of groups of hazardous chemicals which present similar hazards in an emergency.

(f) Upon request by the Local Emergency Planning Committee or the Department, the owner or operator of a facility subject to this section shall submit the material safety data sheet for a chemical to the person making the request.

(g) The initial material safety data sheet or list required under this section shall be submitted before the later of:

(1) 12 months after the date of the enactment of this requirement, or

(2) 3 months after the owner or operator of a facility is required to prepare or have available a material safety data sheet for the chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act or the Delaware Hazardous Chemical Information Act and regulations promulgated under that Act (Title 16, Chapter 24 of the Delaware Code), or

(3) 3 months after a chemical requiring a material safety data sheet becomes present in an amount which equals or exceeds the threshold quantity.

(h) Within 3 months following discovery by an owner or operator of significant new information concerning an aspect of a hazardous chemical for which a material safety data sheet was previously submitted, a revised sheet shall be submitted.

§ 6306. Emergency and hazardous chemical inventory reporting.

(a) The owner or operator of any facility which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act or the Delaware Hazardous Chemical Information Act and regulations promulgated under that Act shall prepare and submit an emergency and hazardous chemical inventory form, hereafter in this chapter referred to as an "inventory form", for each such chemical present at the facility in an amount which equals or exceeds the threshold quantities established under paragraph (d) to the Department.

(b) Submission to the Department under this section shall serve as submission to the appropriate local emergency planning committee, the State Emergency Response Commission and the fire department with jurisdiction over the facility as set forth under 42 USCS § 11022 and regulations established under that act.

(c) The inventory form shall be submitted on or before March 1 annually and shall contain data with respect to the preceding calendar year.

(b) The thresholds quantities for the purpose of this section shall be as follows:

(1) For substances identified as hazardous chemicals, except as provided in subparagraphs (d)(2) and (d)(3), the threshold shall be 55 gallons or 500 pounds, whichever is lower.

(2) For substances included in the list of extremely hazardous substances under § 6303 of this chapter, the threshold shall be 55 gallons, 500 pounds, or the Threshold Planning Quantity, whichever is lower.

(3) For a substance used solely for the purpose of heating a building or buildings at a facility, the threshold for that substance at that facility shall be 10,000 pounds.

(4) For the purposes of requests under paragraph (h), the threshold shall be zero.

(e) A hazardous chemical subject to the requirements of this section is any hazardous chemical for which a material safety data sheet or a listing is required under § 6305 of this chapter.

(f) Inventory forms shall contain the following information, as a minimum, for each hazardous chemical present at the facility:

(1) The chemical name or the common name of the chemical as provided on the material safety data sheet.

(2) The categories of health and physical hazards as set forth under the Occupational safety and Health Act of 1970 and regulations promulgated under that Act. The Secretary may modify the categories of health and physical hazards by requiring information to be reported in terms of groups of hazardous chemicals which present similar hazards in an emergency.

(3) An estimate of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year.

(4) An estimate of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year.

(5) A brief description of the manner of storage of the hazardous chemical.

(6) The location at the facility of the hazardous chemical.

(7) An indication of whether the owner elects to withhold location information of a specific hazardous chemical from disclosure to the public under § 6308(h) of this chapter.

(g) With the advice and consent of the State Emergency Response Commission, the Secretary shall publish a uniform format for inventory forms, and may include additional items on the inventory forms as necessary to support the needs of emergency planning and response organizations.

(h) Upon request by the local emergency planning committee, the fire department with jurisdiction over the facility, or the Department, the owner or operator of a facility subject to this section shall submit the inventory form for a chemical to the person making the request.

§ 6307. Toxic chemical release reporting.

(a) The owner or operator of a facility subject to the requirements of this section shall complete a toxic chemical release form as published under paragraph (k) for each toxic chemical listed under paragraph (e) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by paragraph (i) during the preceding calendar year at such facility. Such form shall be submitted to the Department annually on or before July 1 and shall contain data reflecting releases during the preceding calendar year.

(b) The requirements of this section shall apply to owners and operators of facilities that have the equivalent of 10 of more full-time employees and that are in Standard Industrial Classification Codes 20 through 39 (as in effect on July 1, 1985) and that manufactured, processed, or otherwise used a toxic chemical listed under paragraph (e) in excess of the quantity of that toxic chemical established under paragraph (i) during the calendar year for which a release form is required under this section.

(c) The Secretary may add or delete Standard Industrial Classification Codes for purposes of paragraph (b), but only to the extent necessary to provide that each Standard Industrial Code to which this section applies is relevant to the purposes of this section.

(d) The Secretary may apply the requirements of this section to the owners and operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical listed under paragraph (e) if the Secretary determines that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that releise the toxic chemical or to population centers, the history of releases of such chemical at such facility, or such other factors as the Secretary deems appropriate.

(e) A list of Toxic Chemicals subject to the requirements of this section shall be established by the Secretary

(f) The Secretary may add or delete a chemical from the list described in paragraph (e) at any time.

(g) Additions. A chemical may be added if the Secretary determines, in his judgment, that there is sufficient evidence to establish any one of the following:

(1) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.

(2) The chemical is known to cause or can reasonably be anticipated to cause in humans-

(i) cancer or teratogenic effects, or

(ii) serious or irreversible-

(I) reproductive dysfunctions,

(II) neurological disorders,

(III) heritable genetic mutations, or

(IV) other chronic health effects.

(3) The chemical is known to cause or can reasonably be anticipated to cause, because of

(i) its toxicity,

(ii) its toxicity and persistence in the environment, or

(iii) its toxicity and tendency to bioaccumulate in the environment,

a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Secretary, to warrant reporting under this section. The number of chemicals included on the list described in paragraph (e) on the basis of the preceding sentence may constitute in the aggregate no more than 25 percent of the total number of chemicals on the list.

A determination under this paragraph shall be based on generally accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other population studies, available to the Secretary.

(h) A chemical may be deleted if the Secretary determines there is not sufficient evidence to establish any of the criteria described in paragraph (g).

(i) The Threshold amounts for purposes of reporting toxic chemicals under this section are as follows:

(1) With respect to a toxic chemical used at a facility, 10,000 pounds of the toxic chemical per year.

(2) With respect to a toxic chemical manufactured or processed at a facility, 25,000 pounds of the toxic chemical per year.

(j) The Secretary may establish a threshold amount for a toxic chemical different from the amount established by paragraph (i). Such revised threshold shall obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to the requirements of this section. The amounts established under this paragraph may, at the Secretary's discretion, be based on classes of chemicals or categories of facilities.

(k) The Secretary shall publish a uniform toxic chemical release form for facilities covered by this section. If the Secretary does not publish such a form, owners and operators of facilities subject to the requirements of this section shall provide the information required under this section by letter postmarked on or before the date on which the form is due. Such form shall-

(1) provide for the name and location of, and principal business activities at, the facility;

(2) include an appropriate certification, signed by a senior official with management responsibility for the person or persons completing the report, regarding the accuracy and completeness of the report; and

(3) provide for submission of each of the following items of information for each listed toxic chemical known to be present at the facility at or above threshold amounts:

(i) Whether the toxic chemical at the facility is manufactured, processed, or otherwise used, and the general category or categories of use of the chemical.

(ii) An estimate of the maximum amount (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year.

(iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream.

(iv) The annual quantity of the toxic chemical entering each environmental medium.

(l) Each owner or operator of a facility required to file an annual toxic chemical release form under this section for any toxic chemical shall include with each such annual filing a toxic chemical source reduction and recycling report for the preceding calendar year. The toxic chemical source reduction and recycling report required under this paragraph shall set forth each of the following on a facility-by-facility basis for each toxic chemical:

(1) The quantity of the chemical entering any waste stream (or otherwise released into the environment) prior to recycling, energy recovery, treatment, or disposal during the calendar year for which the report is filed and the percentage change from the previous year. The quantity reported shall not include any amount reported under subparagraph (8). When actual measurements of the quantity of a toxic chemical entering the waste streams are not readily available, reasonable estimates should be made on best engineering judgement.

(2) The amount of the chemical from the facility which is recycled (at the facility or elsewhere) during such calendar year, the percentage change from the previous year, and the process of recycling used.

(3) The amount of the chemical from the facility which is used for energy recovery (at the facility or elsewhere) during such calendar year, the percentage change from the previous year, and the process of energy recovery used.

(4) The source reduction practices used with respect to that chemical during such year at the facility. Such practices shall be reported in accordance with the following categories unless the Secretary finds other categories to be more appropriate.

(i) Equipment, technology, process, or procedure modifications.

(ii) Reformulation or redesign of products.

(iii) Substitution of raw materials.

(iv) Improvement in management, training, inventory control, materials handling, or other general operational phases of industrial facilities.

(5) The amount expected to be reported under subparagraphs (1) and (2) for the two calendar years immediately following the calendar year for which the report is filed. Such amount shall be expressed as a percentage change from the amount reported in subparagraphs (1) and (2).

(6) A ratio of production in the reporting year to production in the previous year. The ratio should be calculated to most closely reflect all activities involving the toxic chemical. In specific industrial classifications subject to this section, where a feedstock or some variable other than production is the primary influence on waste characteristics or volumes, the report may provide an index based on that primary variable for each toxic chemical.

(7) The techniques which were used to identify source reduction opportunities. Techniques listed should include, but are not limited to, employee recommendations, external and internal audits, participative team management, and material balance audits. Each type of source reduction listed under subparagraph (4) should be associated with the techniques or multiples of techniques used to identify the source reduction technique.

(8) The amount of any toxic chemical released into the environment which resulted from a catastrophic event, remedial action, or other one-time event, and is not associated with production processes during the reporting year.

(9) The amount of the chemical from the facility which is treated (at the facility or elsewhere) during such calendar year and the percentage change from the previous year.

(m) The Secretary may require the reporting of additional items of information as necessary to provide a comprehensive review of toxic chemical use, including the flow of toxic materials through a community to a facility; an understanding of the processes, release patterns, and potential exposures within a facility; and an understanding of the final disposition of toxic materials.

(n) To simplify reporting, the Secretary may modify the form established under paragraph (k) of this section to include the items of information established under paragraphs (k), (I) and (m) of this section.

(o) In order to provide the information required under this section, the owner or operator of a facility may use readily available data (including monitoring data) collected pursuant to other provisions of law, or, where such data are not readily available, reasonable estimates of the amounts involved. Nothing in this section requires the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of law or regulation. In order to assure consistency, the Secretary shall require that data be expressed in common units.

§ 6308. Data collection and management.

(a) The Department is hereby designated as the State agency responsible for the collection and management of all information reported under the requirements established within this chapter.

(b) The Department is hereby authorized to assess reasonable charges for public requests for data collected under this chapter to cover the costs associated with filling such requests.

(c) The State Emergency Response Commission shall oversee the collection and management of information by the Department under paragraph (a) of this section.

(d) The Department may establish procedures for the submission of information under this Chapter by computerized and electronic methods, including but not limited to the submission of information on magnetic media. The submission of information in accordance with such procedures by owners or operators of facilities covered by the requirements of this Chapter shall satisfy the associated requirement to submit the information in a paper format.

(e) The requirements of this chapter are intended to provide information to State and local government organizations to support emergency planning and response activities; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines, and standards; and for other similar purposes. In addition, the reports and information collected under this chapter are to be made available to the public, including citizens of communities surrounding covered facilities, consistent with paragraphs (0, (g) and (h) of this section to promote public participation in identifying, preparing for, and managing chemical risks in the community.

(f) With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemical, any person required under this chapter to submit information to any other person may withhold from such submittal the specific chemical identity (including the chemical name and other specific identification) providing such person successfully demonstrates, to the satisfaction of the Secretary and in accordance with regulations prescribed under § 6313, each of the following:

(1) Such person has not disclosed the information to any other person other than a member of a local emergency planning committee, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures.

(2) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law.

(3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person.

(4) The chemical identity is not readily discoverable through reverse engineering.

(g) Any person withholding information under paragraph (f) of this section must submit to the Secretary the following:

(1) A copy of the relevant submittal.

(2) The information such person believes is entitled to be withheld under paragraph (f) of this section.

(3) A detailed explanation of how such information meets the criteria established under paragraph (f) of this section.

(h) Upon request by an owner or operator of a facility subject to the requirements of § 6306, the location of any specific chemical required to be contained in an inventory form under § 6306 shall be withheld from disclosure.

(i) Any such record, report or information accorded confidential treatment under this section may be disclosed or transmitted to other officers, employees or authorized representatives of Federal, State or local government organizations, including local emergency planning and response organizations, concerned with carrying out this chapter, or when relevant in any proceeding to effectuate the intent of this chapter. Any such record, report or information may also be disclosed or transmitted to health care professionals as necessary for possible emergency medical situations (j) Any person to whom confidential information is provided under this section shall maintain the confidentiality of the information. Such persons may be required to agree in a written confidentiality agreement that the information will be used for no purpose other than to carry out the intent of this chapter.

§ 6309. Establishment of authority to collect fees.

The Department with advice and consent of the State Emergency Response Commission is hereby authorized to impose on and collect fees from facilities reporting under § 6306 of this chapter.

§ 6310. Reporting fees.

(a) Excluding reports on mixtures, the reporting fees shall be assessed as follows:

A filing fee not to exceed $40 shall be assessed for each hazardous chemical reported on an inventory form under § 6306 of this title. A filing fee not to exceed $80 shall be assessed for each extremely hazardous substance reported on an inventory form under § 6306 of this title.

(b) For reports on mixtures, the reporting fees shall be assessed as follows:

A filing fee not to exceed $40 shall be assessed for each mixture reported on an inventory form under § 6306 of this title containing extremely hazardous substances in a concentration of less than 10 percent by weight. A filing fee not to exceed $80 shall be assessed for each mixture reported on an inventory form under § 6306 of this title containing extremely hazardous substances in a concentration of 10 percent or more by weight.

(c) The maximum fee collected under this section shall not exceed $5,000 per year per facility.

(d) Using procedures established by the Department, the owner and/or operator of each facility subject to the fee provisions of this section must calculate the facility reporting fee and submit such fee along with the associated inventory form to the Department on or before the deadline for submission of such form.

§ 6311. Fee collection and management.

(a) The fees herein authorized shall be assessed and collected annually based on information required to be submitted under § 6306 of this title covering the previous calendar year.

(b) The fees herein authorized shall be appropriated to the State Emergency Response Commission through the Department for the purpose of funding the local emergency planning committees and data collection and management activities related thereto.

(c) The Department shall oversee the assessment and collection of the fees herein authorized. These fees shall be placed in a liquid, interest-bearing account to be selected by the Commission.

(d) Fee monies obtained under this chapter shall remain available for the purposes of this chapter and shall not be subject to reversion.

(e) All Local Emergency Planning Committees and state agencies to be funded under this chapter shall submit to the State Emergency Response Commission for review and approval each year a budget worksheet for the next fiscal year.

§ 6312. Exemptions from reporting fee requirements.

(a) Federal, state, county and local government facilities and nonprofit organizations are exempt from the reporting fees under this chapter.

(b) Motor vehicle fuels at facilities which offer such fuels for retail sale shall also be exempt from the reporting fees under this chapter. However, hazardous chemicals or extremely hazardous substances at these facilities other than motor vehicle fuels for retail sale shall not be exempt from the reporting fees.

§ 6313. Regulations.

(a) The Secretary may prescribe such regulations as may be necessary to carry out this chapter.

(b) Regulations prepared by the Secretary under the provisions of this chapter shall be subject to review and approval by the State Emergency Response Commission prior to promulgation.

(c) Concerning the list of Extremely Hazardous Substances and Threshold Planning Quantities established under §6303 and the list of Toxic Chemicals established under §6307, the lists shall be established and maintained consistent with the corresponding lists of chemicals established and maintained by the Administrator under 42 USCS Chapter 116. In establishing regulations under this Chapter, consideration shall be given to maintaining consistency with Federal regulations established by the Administrator under 42 USCS Chapter 116.

(d) With advice and consent of the State Emergency Response Commission, the Secretary may establish additional exemptions or alternate threshold amounts for specific chemical substances or situations of chemical use or storage, provided the reporting burden or the concerns posed by such substances or situations do not justify reporting per the requirements specified in this chapter. With the advice and consent of the State Emergency Response Commission, the Secretary may also establish variances from the reporting requirements and procedures specified within this chapter, provided such variances are intended to promote more efficient implementation and do not unnecessarily jeopardize the purposes of this chapter.

§ 6314. Enforcement; penalties.

(a) Any duly authorized designee of the State Emergency Response Commission or any duly authorized designee of the Secretary of the Department of Natural Resources and Environmental Control may, upon presentation of appropriate credentials at any reasonable time, enter upon any private or public property for the purpose of investigating compliance with or enforcing any requirement or regulation authorized by this chapter, including, but not limited to, the inspecting and copying of any records, reports or information relating to the purposes of this chapter.

(b) Upon any refusal of entry, inspection or copying pursuant to this section, any duly authorized designee of the State Emergency Response Commission or any duly authorized designee of the Secretary of the Department of Natural Resources and Environmental Control may apply for and obtain a warrant to allow such entry, inspection or copying in the manner established by the rules and law of criminal procedure.

(c) In his discretion, the Secretary of the Department of Natural Resources and Environmental Control is hereby authorized to enforce this chapter and impose penalties as follows upon any person for violation of this chapter or any rule or regulation promulgated under this chapter relating thereto:

(1) Administrative penalties may be imposed as outlined in § 6005(6)(3) of Title 7.

(2) Civil penalties, notices of conciliation and orders may be imposed as outlined in § 6005(b)(1), § 6005(b)(2) and §6005 (b)(3) of Title 7.

(3) Public hearings concerning penalties imposed under subparagraphs (c)(1) and (c)(2) of this section shall be conducted as outlined in § 6006 of Title 7.

(4) Appeals concerning penalties imposed under subparagraphs (c)(1) and (c)(2) of this section shall be conducted as outlined in §§ 6008 and 6009 of Title 7.

(5) Simultaneous violations of the requirements of this chapter or any rule or regulation promulgated under this chapter relating thereto shall be treated as a single violation for each day.

(6) Criminal penalties may be pursued as outlined in § 6013 of Title 7.

(d) In addition to penalties established under paragraph (c) of this section, interest of 1.5% per month may be assessed by the Secretary to firms that fail to remit the correct fee or the fee itself in accordance with the provisions of this chapter or any rule or regulation promulgated under this chapter relating thereto.

(e) Any person found to have violated the requirements of this chapter or any rule or regulation promulgated under this chapter relating thereto, or the reporting fee requirements of this chapter or any rule or regulation promulgated under this chapter relating thereto, shall be liable for all expenses incurred by the Department of Natural Resources and Environmental Control in abating the violation as detailed in § 6005(c) of Title 7. Moneys collected under this subsection shall be appropriated to the Department of Natural Resources and Environmental Control to cover the costs associated with such activities.

(f) Moneys collected under subsections (c) and (d) of this section shall be placed in a liquid, interest-bearing account to be selected by the Commission.

(g) Moneys collected under subsections (c) and (d) of this section shall be appropriated to the State Emergency Response Commission for the purpose of funding related emergency planning and community right-to-know activities and shall not be subject to reversion.

(h) Nothing in this chapter shall prevent the Department from making efforts to obtain voluntary compliance by way of warning, notice or other educational means; this does not, however, require that such voluntary methods be used before proceeding by way of compulsory enforcement.

(i) Compliance with this chapter shall not constitute a defense for a violation of any other law or regulation of the State.

(j) The Department shall establish a policy for the calculation and assessment of penalties authorized to be imposed under subsection (c) of this section. This policy shall be subject to review and approval by the Commission prior to implementation.

§ 6315. Implementation and reevaluation of reporting fees.

(a) Effective July I, 1991, the fees herein established shall be assessed at a rate of 66 percent on reports submitted and/or required to have been submitted in 1991 covering the 1990 calendar year.

(b) For the following years beginning with reports submitted under § 6306 of this title in 1992 covering activities during the 1991 calendar year, the fees herein established shall be assessed at a rate of 100 percent on reports submitted or required to have been submitted under § 6306 of this title by March 1 of each year covering the previous calendar year.

(c) At the conclusion of each 2-year period, the fees imposed under this Chapter shall be reevaluated by the State Emergency Response Commission which shall propose to the General Assembly adjustments as necessary to meet current and future needs."

Section 2. If any provision of this Act or the application of any section or part thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

Approved June 16, 1997