Key Contacts
Practice Areas
DNREC’s Amended Storage Tank Regulations Take Effect, Incorporating by Reference Critical Corrective Action Requirements
In December 2023, the Delaware Department of Natural Resources and Environmental Control (DNREC) issued two Secretary’s Orders amending DNREC’s Underground Storage Tank regulations and Aboveground Storage Tank regulations, respectively. See Secretary’s Order No 2023-WH-032 Approving final regulations to Amend 7 DE Admin. Code 1351: Underground Storage Tank Systems (USTS); Secretary’s Order No: 2023-WH-0033 — Approving Final Regulations to Amend 7 DE Admin. Code 1352 relating to Aboveground Storage Tanks (ASTs). The amended regulations, which are substantially similar to one another, became effective Jan. 11, 2024 and make enforceable certain procedures relating to DNREC’s corrective action protocols.
The principal aim of the amended regulations is to incorporate by reference the Delaware Risk Based Corrective Action Protocol (DERBCAP) (Volume 2, Jan. 2023), for investigating and remediating releases from storage tanks. DNREC had previously used DERBCAP (Volume 1, Jan. 2000, and Volume 2, Jan. 2023) as guidance for soil screening and cleanup measures, but the content of the document was not enforceable through regulatory authority. The amended regulations change that by giving DERBCAP the force of regulation. In addition, DNREC adopted and incorporated by reference the Hydrogeologic Investigation Guidance (Volume 2, January 2023) and the Investigation, Risk Determination and Remediation Guidance for Vapor Intrusion Pathway guidance, dated January 2023. Reports and site evaluations created per these protocols must be kept in the owner/operators’ permanent records.
The amended regulations include additional changes. The underground storage tank regulations include a new Part A, Section 15, Repair, Retrofit and Upgrade Requirements for UST Systems. The regulations also include a new Part A, Section 16, Change in Service Requirement and Requirements for Empty UST Systems and a new Part A, Section 18 Removal or Closure in Place Requirements for UST Systems. They replace parallel provisions that were contained in Part B. The amended aboveground storage tank regulations, among other clarifications, include revision of the definition of aboveground storage tank to define each component in a larger tank as a separate tank.
We recommend that owners or operators of underground or aboveground storage tank systems in Delaware review the new regulations, including the new documents incorporated by reference, to determine if any of the changes affect their operations. It is especially important that the regulated community ensures that it has ready access to Volume 2 of DERBCAP (Jan. 2023) and monitors any future proposed changes or additions to this and the other documents incorporated by reference in the regulations. Older versions of DERBCAP and the Hydrogeologic Investigation Guidance are still readily available on DNREC’s website and should not be confused with the versions explicitly incorporated by reference in the amended regulations.
