(a) Notwithstanding § 9105 of this title, a brownfields developer who enters into a Brownfields Development Agreement with the Secretary is not liable with respect to the facility that is the subject of the Brownfields Development Agreement for any release or imminent threat of release of hazardous substances existing at the time the Brownfields Development Agreement is entered into, or for a remedy, or for any costs incurred by the State or any other person related to a remedy, for such a release or imminent threat of release at a facility, provided that:

(1) The brownfields developer submits a plan or plans for approval by the Secretary to address the actual or perceived presence of hazardous substances at the facility; and

(2) Any land disturbing activity at the facility by the brownfields developer in areas affected by the release or imminent threat of release of hazardous substances is performed in accordance with a plan, or modified plan or plans, as approved by the Secretary.

(b) Notwithstanding subsection (a) of this section, above, a brownfields developer who causes any exacerbation of the existing environmental condition is responsible for entering into an agreement approved by the Secretary to mitigate any increased risk to human health or the environment or increased remedial costs at the facility caused by such exacerbation. Furthermore, the Secretary may modify the plan to address any changed circumstances in the environmental condition of the facility. If the brownfields developer fails or refuses to comply with any modified plan or plans addressing any exacerbation of the existing environmental condition, it is liable for the cost of mitigating any increased risk to the public health or the environment or increased remedial costs caused by the exacerbation of the existing environmental condition.

(c) Notwithstanding subsection (a) of this section, above, if a brownfields developer, or the developer’s successors or assigns, materially disturbs or interferes with a remedy at the facility in a manner not approved of by the Secretary, including institutional controls, said person shall be liable for the reasonable costs of restoring or replacing the affected portions of the remedy, including any administrative or injunctive relief allowed by subchapter I of this chapter.

(d) The protection afforded by subsection (a) of this section shall be transferable to the successors or assigns of the brownfields developer. Any person whose interest in or connection to a facility arises solely from a contractual relationship with the brownfields developer, or the developer’s successors or assigns, subsequent to the entering into of a Brownfields Development Agreement, shall not be liable for any release or threat of release, remedy, or costs associated with conditions existing prior to the entry of the Brownfields Development Agreement.

(e) Nothing in this section shall affect the liability of a brownfields developer for new releases, or imminent threat of releases of hazardous substances not part of the existing environmental conditions at a facility.

74 Del. Laws, c. 409, § 4; 70 Del. Laws, c. 186, § 1.