SENATE SUBSTITUTE NO. 1
TO SENATE BILL NO. 218
AS AMENDED BY SENATE AMENDMENT NO. 2
AN ACT TO AMEND TITLES 7 AND 29, DELAWARE CODE, TO ESTABLISH A SYSTEM OF PERMITS FOR ANY ACTIVITY POTENTIALLY RESULTING IN ENVIRONMENTAL DEGRADATION. TO AUTHORIZE THE SECRETARY OF THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL TO GRANT OR DENY A PERMIT FOR ANY SUCH ACTIVITY, TO CLARIFY AND STRENGTHEN THE ENFORCEMENT POWERS OF THE DIVISION OF ENVIRONMENTAL CONTROL, TO INCREASE THE PENALTIES FOR VIOLATION OF DULY ADOPTED ENVIRONMENTAL LAW, TO AUTHORIZE THE SECRETARY OF THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL TO OBTAIN INJUNCTIVE RELIEF, TO GRANT LICENSING POWER, AND TO ESTABLISH AN ENVIRONMENTAL APPEALS BOARD.
Be it enacted by the General Assembly of the State of Delaware:
Section 1, Title 7, Delaware Code, is amended by renumbering Chapter 64 as Chapter 61, and striking Chapters 60, 61, 62, and 63 thereof, and, inserting in lieu thereof a new Chapter 60 to read as follows:
CHAPTER 60 DIVISION OF ENVIRONMENTAL CONTROL
SUBCHAPTER I GENERAL PROVISIONS
§6001. Findings, policy and purpose
(a) Findings. The General Assembly hereby makes the following findings concerning the development, utilization, and control of the land, water, underwater and air resources of the State:
(1) The development, utilization, and control of the land, water, underwater and air resources of the State are vital to the people in order to assure adequate supplies for domestic, industrial, power, agricultural, recreational and other beneficial uses.
(0) The development and utilization of the land, water, underwater and air resources must be regulated to ensure that the land, water, underwater and air resources of the State are employed for beneficial uses and not wasted.
(1) The regulation of the development and utilization of the land, water, underwater and air resources of the State is essential to protect beneficial uses and to assure adequate resources for the future.
(2) The land, water, underwater and air resources of the State must be protected and conserved to assure continued availability for public recreational purposes and for the conservation of wildlife and aquatic life.
(3) The land, water, underwater and air resources of the State must be protected from pollution in the interest of the health and safety of the public.
(4) The land, water, underwater and air resources of the State can best be utilized, conserved, and protected if utilization thereof is restricted to beneficial uses and controlled by a State agency responsible for proper development and utilization of the land, water, underwater and air resources of the State.
(5) Planning for the development and utilization of the land, water, underwater, and air resources is essential in view of population growth and the expanding economic activity within the State.
(b) Policy. In view of the rapid growth of population, agriculture, industry, and other economic activities, the land, water and air resources of the State must be protected, conserved, and controlled to assure their reasonable and beneficial use in the interest of the people of the State. Therefore, it is the policy of this State that:
(1) The development, utilization, and control of all the land, water, underwater and air resources shall be directed to make the maximum contribution to the public benefit, and
(2) The State, in the exercise of its sovereign power, acting through the Department should control the development and use of the land, water, underwater and air resources of the State so as to effectuate full utilization, conservation, and protection of the water and air resources of the State.
(c) Purpose. It is the purpose of this Chapter to effectuate State policy by providing for:
(1) A program for the management of the land, water, underwater and air resources of the State so directed as to make the maximum contribution to the interests of the people of this State;
(2) A program for the control of pollution of the land, water, underwater and air resources of the State to protect the public health, safety and welfare;
(3) A program for the protection and conservation of the land, water, underwater and air resources of the State, for public recreational purposes, and for the conservation of wildlife and aquatic life;
(4) A program for conducting and fostering research and development in order to encourage maximum utilization of the land, water, underwater and air resources of the State;
(5) A program for cooperating with federal, interstate, state, local governmental agencies and utilities in the development and utilization of land, water, underwater and air resources.
(0) A program for improved solid waste storage, collection, transportation, processing and disposal by providing that such activities may henceforth be conducted only in an environmentally acceptable manner pursuant to a permit obtained from the Department.
The following words and phrases shall have the meaning ascribed to them in this Chapter unless the context clearly indicates otherwise:
"Activity" means construction, or operation, or use of any facility, property, or device.
"Air Contaminant" means particulate matter, dust, fumes, gas, mist, smoke, or vapor or any combination thereof, exclusive of uncombined water.
"Air Pollution" means the presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interferes with the enjoyment of life and property within the jurisdiction of this State, excluding all aspects of employer-employee relationships as to health and safety hazards.
"Board" means the Environmental Appeals Board.
"Department" means the Department of Natural Resources and Environmental Control.
"Garbage" shall mean any putrescible solid and semi-solid animal and/or vegetable wastes resulting from the production, handling, preparation, cooking, serving or consumption of food or food materials.
"Ground Water" means any water naturally found under the surface of the earth.
"Hazardous Waste" means any element or compound which when discharged in any quantity on land or into air or into or upon waters and including ground water, presents an imminent and substantial danger to public health or welfare, aquatic organisms, including but not limited to, fish, shellfish, terrestrial life, shorelines, and beaches.
"Industrial Waste" means any water-borne liquid, gaseous, solid, or other waste substance or a combination thereof resulting from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.
"Liquid Waste" means any industrial waste or sewage or other wastes or any combination thereof which may potentially alter the chemical, physical, biological integrity of water from its natural state.
"Liquid Waste Hauler" means any person who engages in the removal of liquid wastes from septic tanks, cesspools, seepage pits, holding tanks or other such devices and conveys such liquid waste to a location removed from the point of acceptance.
"Liquid Waste Treatment Plant Operator" means any person who has direct responsibility for the operation of a liquid waste treatment plant.
"Oil" means oil of any kind and in any form, including but not limited to, petroleum products, sludge, oil refuse, oil mixed with other wastes and all other liquid hydrocarbons regardless of specific gravity.
"Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime cinders, ashes, offal, oil, tar, dye-stuffs, acids, chemicals, and all discarded substances other than sewage or industrial wastes.
"Person" means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision or duly established legal entity.
"Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal and agricultural waste discharged into water.
"Refuse" means any putrescible or non-putrescible solid waste, except human exreta, but including garbage, rubbish, ashes, street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes and construction wastes resulting from the operation of a contractor.
"Rubbish" means any non-putrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery, and other waste materials.
"Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or his duly authorized designee.
"Sewage" means water-carried human or animal wastes from septic tanks, water closets, residences, building, industrial establishments, or other places, together with such ground water infiltration, subsurface water, admixtures of industrial wastes or other wastes as may be present.
"Solid Waste" means any garbage, refuse or rubbish or any combination thereof with insufficient liquid content to be free flowing.
"Surface Water" means water occurring generally on the surface of the earth.
"Variance" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
"Water Facility" means any reservoir, dam, waterway obstruction or well, or appurtenances needed for withdrawal, treatment, storage and supply of water.
"Water Pollution" means the man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of water.
"Water Well Contractor" means any person engaged in the business of contracting for the construction of water wells and/or installation of pumping equipment in or for wells.
SUBCHAPTER II POWERS AND DUTIES OF THE SECRETARY
AND THE DEPARTMENT OF NATURAL RESOURCES
AND ENVIRONMENTAL CONTROL
§6003. Permit requirements
(a) No person shall, without first having obtained a permit from the Secretary, undertake any activity:
(i) in a way which may cause or contribute to the discharge of an air contaminant; or
(ii) in a way which may cause or contribute to discharge of a pollutant into any surface or ground water; or
(iii) in a way which may cause or contribute to withdrawal of ground water or surface water or both; or
(iv) in a way which may cause or contribute to the collection, transportation, storage, processing or disposal of solid wastes; or
(v) to construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station; or
(vi) to construct any water facility; or
(vii) to plan or construct any highway corridor which may cause or contribute to the discharge of an air contaminant or discharge of pollutants into any surface or ground water.
(b) No person shall, without first having obtained a permit from the Secretary, construct, install, replace, modify or use any equipment or device or other article.
(i) which may cause or contribute to the discharge of an air contaminant; or
(ii) which may cause or contribute to the discharge of a pollutant into any surface or ground water; or
(iii) which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface or ground waters; or
(iv) which is intended to withdraw ground water or surface water for treatment and supply; or
() for disposal of solid waste.
(c) The Secretary shall grant or deny a permit required by subsections (a) or (b) of this section in accordance with duly promulgated regulations and no permit may be granted unless the county or municipality having jurisdiction has first approved the activity by zoning procedures provided by law.
(d) A county which requests authority to administer a system for granting or denying a septic tank permit, and which satisfies the Secretary that it has the capability, including but not limited to regulations and enforcement authority, may be authorized by the Secretary, for a term stated, to administer such a system for him within that county. In the event of such authorization, an applicant for a septic tank permit in that county shall not be bound by subsections (a) and (b) of this section.
(e) The Secretary may, after public hearings, publish a list of activities which do not require a permit.
§6004. Permit applications
(a) Any person desiring to obtain a permit required by §6003 of this Chapter or a variance shall submit an application therefor in such form and accompanied by such plans, specifications, and other information as required by applicable statute or regulation.
(b) Upon receipt of an application in proper form (except an application concerning (i) a source of water or a sewerage system for three or fewer families or (ii) open burning, on which the Secretary may act without public notification), the Secretary shall advertise in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State (i) the fact that the application has been received, (ii) a brief description of the nature of the application, and (iii) the place at which a copy of the application may be inspected. The Secretary may not hold a public hearing on the application unless he receives, within a reasonable time stated in the advertisement, a public hearing request which he deems meritorious. Such notice shall also be sent by mail to any person who has requested such notification from the Department by providing the name and mailing address. The reasonable time stated shall be fifteen (15) days, unless federal law requires a longer time, in which case the longer time shall be stated. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.
§6005. Violations, enforcement, and civil penalties
(b) Whoever violates any provision of this Chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued pursuant to §6003, or any order of the Secretary, shall be punishable as follows:
(i) If the violation has been completed, by a civil penalty of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) for each completed violation. The Superior Court shall have jurisdiction of the violation. If the violation has been completed and there is a substantial likelihood that it will reoccur, the Secretary may also seek a permanent or preliminary injunction or temporary restraining order in the Court of Chancery.
(ii) If the violation is continuing, the Secretary may seek a monetary penalty as provided in subsection (i) hereof. If the violation is continuing or is threatening to begin, the Secretary may also seek a temporary restraining order or permanent injunction in the Court of Chancery. In his discretion, the Secretary may endeavor by conciliation to obtain compliance with all requirements of this Chapter. Conciliation shall be giving written notice to the responsible party (A) specifying the complaint, (B) proposing a reasonable time for its correction, (C) advising that a hearing on the complaint may be had if requested by a date stated in the notice, and (D) notifying that a proposed correction date will be ordered unless a hearing is requested. If no hearing is requested on or before the date stated in the notice, the Secretary may order that the correction be fully implemented by the proposed date or may, on his own initiative, convene a hearing, in which the Secretary shall publicly hear and consider any relevant submission from the responsible party as provided in §6006.
§6006. Public hearings
Any public hearing held by the Secretary or the Board concerning any regulation, permit application, alleged violation, or variance request shall be conducted as follows:
(a) For any hearing on an application or an alleged violation or variance request, notification shall be served upon the applicant or alleged violator as summonses are served or by registered or certified mail not less than twenty (20) days before the time of said hearing. Not less than twenty (20) days notice shall also be published in a newspaper of general circulation in the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper of general circulation throughout the State.
(b) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general circulation in each county and in a newspaper of general circulation in the State. Such notification shall include (i) a brief description of the regulation or plan, (ii) time and place of hearing and (iii) time and place where copies of the proposed regulation may be obtained and a copy of the plan is available for public scrutiny. Such notice shall also be sent to any persons who have requested such notification from the Department by providing the name and mailing address.
(c) The permit applicant or the alleged violator may appear personally or by counsel at the hearing and produce any competent evidence in his behalf. The Secretary or the Board or its duly authorized designee may administer oaths, examine witnesses, and issue, in the name of the Department, or the Board, notices of hearings or subpoenae requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing; and subpoenae shall also be issued at the request of the applicant or alleged violator. In case of contumacy or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing is held shall have jurisdiction upon application of the Secretary, or the Chairman of the Board, to issue an order requiring such person to appear and testify or produce evidence as the case may require.
(d) A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced by the Secretary or other party, constitute the record. The Secretary or the Board or its duly authorized designee shall make findings of fact based on the record. The Secretary or the Board shall then enter an order that will best further the purpose of this Chapter, and the order shall include reasons. The Secretary shall promptly give written notice to the persons affected by such order.
(e) Fees: The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a violator finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee for processing an application, or both.
§6007. Environmental Appeals Board created; composition; quorum
(a) There is hereby created an Environmental Appeals Board which shall consist of seven (7) Delaware residents, appointed by the Governor with the advice and consent of the Senate. The Chairman shall be appointed by the Governor and serve at his pleasure. Each county shall be represented by two (2) members. Registered members of either major political party shall not exceed the other major political party by more than one. The terms of the original members shall be as follows; two (2) members shall serve for one (1) year, two (2) for two (2) years and two (2) for three (3) years. When the term of each original member expires, the term of each member appointed thereafter shall be three (3) year terms.
(b) Vacancies in Board membership shall be filled by the Governor for the remainder of the unexpired term.
(c) A simple majority of the Board shall constitute a quorum. A simple majority of the Board shall be required for overriding the decision of the Secretary. If the Board fails to act on any appeal within ninety (90) days following the receipt of the appeal, the decision of the Secretary shall be considered as affirmed by the Board.
(d) Any member of the Board with a personal or private interest in a matter in question shall disqualify himself from any consideration of that matter.
(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.
(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board within twenty (20) days after the Secretary has announced the decision. The Board may affirm, modify or reverse the decision of the Secretary.
(b) Whenever a decision of the Secretary concerning a permit is appealed, the Board shall hold a public hearing in accordance with §6006.
(c) If the Secretary is overruled by the Board, then the Board shall state its reasons.
(d) No decision of the Board shall be valid unless signed by a minimum of five (5) members.
(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving State-owned land including subaqueous lands.
§6009. Appeal from Board's decision
(a) Any person or persons jointly or severally aggrieved by any decision of the Board, or any taxpayer, or any officer, department, board or bureau of the State, may appeal to the Superior Court in and for the county in which the activity in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within thirty (30) days of the decision of the Board.
(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may remand the case to the Board for completion of the record.
(c) No appeal shall operate to stay automatically any action, but upon application, and for good cause, the Secretary or the Superior Court may stay the action pending disposition of the appeal.
(d) This section shall take effect immediately upon its enactment. Any stay in a then pending appeal under the provisions of Chapter 60, Title 7 of the Delaware Code, as existed prior to the effective date of this Chapter shall terminate thirty (30) days after the effective date of this Chapter unless:
(i) a party to the appeal shall have made an application for continuance of the stay to the Secretary or the Superior Court prior to the expiration of such thirty (30) day period, and
(ii) the Secretary or the Superior Court shall grant a stay in accordance with subsection (c) of this section.
§6010. Duties, rules, regulations and plans
(a) The Secretary may adopt, amend, modify, or repeal rules or regulations, or plans, after public hearing, to effectuate the policy and purposes of this Chapter.
(b) The Secretary shall formulate, amend, adopt and implement, after a public hearing, a statewide comprehensive water plan for the immediate and long-range development and use of the water resources of the State.
(c) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide air resources management plan to achieve the purpose of this Chapter and comply with applicable Federal laws and regulations. Any implementation plan in effect at the time of enactment of this Chapter shall continue to be in effect unless amended or repealed by the Secretary.
(d) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide water pollution management plan to achieve the purposes of this Chapter and comply with applicable Federal laws and regulations. Any implementation plan in effect at the time of the enactment of this Chapter shall continue to be in effect unless amended or repealed by the Secretary.
() The Secretary shall formulate, amend, develop and implement, after public hearing, a comprehensive solid waste management plan for the State.
(a) The Secretary:
(i) shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(ii) shall approve all new plans and designs of all impounding water facilities by any state, county, municipal, public or private water user within the State; and
(iii) may require reports from all Delaware water users as to a description of their water facilities, and past and present records of water use.
(a) The Secretary may, upon application of a person (except an application concerning (i) a source of water or a sewerage facility for three or fewer families or (ii) open burning, on which the Secretary may act without public notification), grant a variance to that person from any rule or regulation promulgated pursuant to this Chapter after following the notice and hearing procedure set forth in §6004.
(b) The variance may be granted if the Secretary finds that:
(i) good faith efforts have been made to comply with the provisions of this Chapter;
(ii) the person applying is unable to comply with the provisions of this Chapter because the necessary technology or other alternative methods of control are not available or have not been available for a sufficient period of time or the financial cost of compliance by using available technology is disproportionately high with respect to the benefits which continued operation would bestow on the lives, health, safety and welfare of the occupants of this State and the effects of the variance would not substantially and adversely affect the policy and purposes of this Chapter;
(iii) any available alternative operating procedure interim control measures are being or will be used to reduce the impact of such source on the lives, health, safety, and/or welfare of the occupants of this State; and
(iv) the continued operation of such source is necessary to national security or to the lives, health, safety or welfare of the occupants of this State.
(c) The Secretary shall publish his decision (except a decision involving (i) a source of water or a sewerage facility for three or fewer families or (ii) open burning) and the nature of the variance, if granted, and the conditions under which it was granted. The effective date of such variance shall be at least thirty (30) days after the publication of the decision, unless the only persons entitled to an appeal pursuant to the §6008 of this Chapter are the Department and the applicant, in which case the variance may be effective immediately upon publication.
(d) Any party may appeal a decision of the Secretary on a variance request to the Environmental Appeals Board under §6008 of this Chapter within fifteen (15) days after the Secretary publishes his decision.
(e) No variance can be in effect longer than one (1) year but may be renewed after another hearing pursuant to this section.
(f) The granting of a variance shall not in any way limit any right to proceed against the holder for any violation of provisions of this Chapter, or any rule or regulation promulgated thereunder, if and when a violation of any part of the granted variance occurs.
§6012. Temporary emergency variances
(a) Notwithstanding the provisions of §6011 of this Chapter, the Secretary may grant a variance to any rules or regulations promulgated pursuant to the provisions of this Chapter, for a period not to exceed thirty (30) days. The request for a temporary emergency variance shall be submitted in writing, setting forth the reasons for the request.
(b) A temporary emergency variance may be granted only after a finding of fact by the Secretary that:
(i) Severe hardship would be caused by the time period involved in obtaining variances pursuant to §6011 of this Chapter.
(ii) The emergency was of such an unforeseeable nature so as to preclude, because of time limitations, an application under §6011 of this Chapter.
(iii) The conditions set forth in subsections (c) (i), (c) (ii), (c) (iii) and (c) (iv) of §6011 of this Chapter are satisfied.
(c) Temporary emergency variances granted pursuant to this section may not be extended more than once.
(d) The granting of any temporary emergency variance shall be published within five (5) days of the granting of said variance.
§6013. Criminal penalties
(a) Any person who willfully or negligently (1) violates §6003 of this Title or violates any condition or limitation included in a permit issued pursuant to §6003 of this Title or (ii) violates any requirements of a statute or regulation respecting monitoring, recording, and reporting of a pollutant or air contaminant discharge; or (iii) violates a pretreatment standard or toxic effluent standard with respect to introductions of pollutants into publicly owned treatment works shall be punished by a fine of not less than two thousand five hundred dollars ($2,500) nor more than twenty-five thousand dollars ($25,000) for each day of such violation.
(b) Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained under this Chapter, or under any permit, rule regulation or order issued under this Chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Chapter, shall upon conviction, be punished by a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) or by imprisonment for not more than six (6) months, or both.
(c) The Superior Court shall have jurisdiction of offenses under this Section.
§6014. Public access to information
(a) Any records, reports, or information obtained pursuant to this Chapter and any permits, permit applications, and related documentation shall be available to the public for inspection and copying; provided that upon a showing satisfactory to the Secretary by any person that such records, reports, permits, permit applications, documentation, or information, or any part thereof (other than effluent data) would, if made public, divulge methods of processes entitled to protection as trade secrets of such person, the Secretary shall consider, treat, and protect such record, report, or information, or part thereof, as confidential; provided further, however;
(i) that any such record, report or information accorded confidential treatment may be disclosed or transmitted to other officers, employees, or authorized representatives of this State or of the United States concerned with carrying out this Chapter or when relevant in any proceeding to effectuate the purpose of this Chapter, and
() that any contaminant of water pollutant emissions may be made available to the public as reported and as correlated with any applicable emission standards or limitations.
§6015. Interference with Department personnel
It shall be a misdemeanor for any person to obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty under the provisions of this Chapter, or any rule or regulation or order or permit or decision promulgated or issued thereunder.
§6016. Departmental investigations, witness oaths, and attendance
In furtherance of the policy and purposes of this Chapter, the Secretary may make or cause to be made any investigation or study which is in his opinion, necessary for the purpose of enforcing the provisions of this Chapter. For such purposes the investigative officer designated by the Secretary may subpoena witnesses and the production of documents and compel their testimony. Testimony received at a Departmental investigation shall be under oath and open to the public. Findings of these investigations or studies shall be made public.
§6017. Sealing noncomplying equipment
(a) The Department may seal, after consultation with the Attorney General, any source required to have a permit which is installed, altered, used or operated without such a permit or which is in violation of a cease and desist order.
(b) If the equipment is sealed, no person shall tamper with or remove the seal from any equipment so sealed. Violation of this provision shall make the violator upon conviction liable to punishment as provided in §6005 of this Chapter.
(c) A seal may be removed from equipment only upon receipt of written authorization from the Department. The Department shall order removal of the seal after the reason (s) which caused the sealing has been corrected.
§6018. Cease and desist order
The Secretary shall have the power to issue an order to any person violating any rule, regulation or order or permit condition or provision of this Chapter to cease and desist from such violation. Provided, that any cease and desist order issued pursuant to this section shall expire (1) after thirty (30) days of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is suspended by an injunction whichever occurs first.
§6019. Voluntary compliance
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 section does not, however, require that such voluntary methods be used before proceeding by way of compulsory enforcement.
§6020. Liberal construction
This Chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to preserve the land, air and water resources of the State.
§6021. Federal aid; other funds
The Department may cooperate with and receive monies from the Federal government, any State or local government or any industry or other source. Such monies received are appropriated and made available for the study and preservation of land, water and air resources.
§6022. Temporary limits and procedures for hazardous operations
Where no rule or regulation has been promulgated which sets specific limits for the use, emission or discharge, or operating procedure for hazardous operations, the Secretary may set temporary limits or operating procedure, provided that the temporary limits or orders shall not be effective for more than six (6) months unless adopted into permanent rules and regulations within that period. The affected parties shall be given a hearing before the Department within thirty (30) days, if requested, on any action taken under this Section.
§6023. Licensing of water well contractors, septic tank installers, liquid waste treatment plant operators and solid or liquid waste haulers
(a) No person shall:
(i) engage in the drilling, boring, coring, driving, digging, construction, installation, removal, or repair of a water well or water test well, or
(ii) install or operate pumping equipment in or for a water well or water test well, except as, or under the supervision of, a licensed Water Well Contractor.
(b) No person shall engage in the construction, repair, installation, or replacement of a septic tank system or any part thereof except as or under the supervision of a licensed Septic Tank Installer.
(c) No person shall operate any liquid waste treatment system without a duly licensed Liquid Waste Treatment Plant Operator.
(d) No person shall haul, convey, or transport any solid or liquid waste in any container without a license issued by the Department.
(e) Any person requiring a license for any activity specified in §6017 (a), (b), (c) and (d) shall file an application with the Secretary in such form and accompanied by such information as the Secretary may require by regulation.
(f) The Secretary shall have exclusive power to grant or deny a Water Well Contractor's license, or Liquid Waste Treatment Plant Operator's license or Solid or Liquid Waste Hauler's license and may adopt, amend, modify or repeal regulations setting forth requirements, including an acceptable performance on an examination, for obtaining and retaining any such license.
§6024. Right of entry
The Secretary, or his duly authorized designee, in regulating water pollution, air pollution, solid waste disposal, or any other matter over which he has jurisdiction pursuant to this Chapter, may enter, at reasonable times, upon any private or public property for the purpose of determining whether a violation exists of a statute or regulation enforceable by him, upon given verbal notice, and after presenting official identification to the owner, occupant, custodian or agent of said property.
§6025. Solid waste
(a) The Secretary shall have exclusive authority to effectuate the purposes of this Chapter concerning solid waste, set forth in §6001 (c) (6) notwithstanding any authority heretofore conferred upon or exercised by any other State agency, but any regulations heretofore duly adopted by any other State agency shall remain in effect and be enforceable by the Secretary unless repealed, amended or modified by the Secretary.
(b) No person shall dispose or discharge solid waste anywhere in the State including any surface or ground water, except (i) through municipal and private solid waste collection systems which have received a permit from the Department or (ii) in solid waste disposal facilities which have received a permit from the Department or (iii) in containers specially provided for solid waste collection by any state or municipal agency or private or public group, organization, agency or company which has received a permit from the Department.
() Any person charged with violation of §6019 (b), upon conviction, shall be fined not less then one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation and there shall be no suspension of the fine. Each day of continued violation or part thereof shall be considered as a separate offense. The Court shall, in addition to levying the fine, order the person convicted to remove or cause to be removed any improperly disposed solid waste.
§6026. License fees
(a) The Secretary may establish fees for granting any license to any water well contractor, septic tank installer, solid or liquid waste hauler, and liquid waste treatment plant operator.
(b) The Secretary may establish fees for conveyance of oil and hazardous substance through pipeline after holding public hearings on such a fee schedule.
(c) Any fee collected under this subsection is hereby appropriated to the Department to carry out the purposes of this Chapter.
§6027. Change of authority
The word "Secretary" shall be substituted whenever the words "Water and Air Resources Commission" or "Commission" appears in Delaware Code and any authority vested in the "Water and Air Resources Commission" or "Commission" is hereby delegated to the Secretary without qualification.
§6028. Report of a discharge of a pollutant or an air contaminant
Any person who causes or contributes to the discharge of an air contaminant into air or a pollutant into surface water, ground water or on land, or disposal of solid wastes, either in excess of any condition specified in any permit duly issued by the Department or in the absence of a permit shall report such an incident to the Department. Any such person who fails to report such discharge shall, upon conviction, be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) or imprisoned for six (6) months, or both.
§6029. Limitations on scope of chapter
The provisions of this Chapter shall not apply to or change the existing law in respect to:
(a) The landowner's right to place a dam across a gully on his property or across a stream that originates on his property where provision is made for continued established average minimum flow occurring for seven (7) consecutive days within the lowest flow year of record; or
(b) The right to build and maintain a dam or construct a pond and divert water from any stream on any stream having a minimum flow of nut more than one-half million gallons of water per day, and utilize up to three hundred sixty (360) acre inches of the impounded water per year so long as such action does not affect the established average minimum flow in the stream below the dam at any time; or
() Ponds not larger than 60,000 square feet constructed for purposes of conservation, recreation, propagation, and protection of fish and wildlife, watering of stock, or fire protection.
§6030. Approval of water use
No increase in the amount of water used shall be made by a user without prior approval of the Department.
§6031. Inconsistent laws superseded; all other laws unimpaired
Any law or regulation inconsistent with any provision of this Chapter is hereby superseded to the extent of the inconsistency.
Any rule, regulation or order in effect at the time of the enactment of this Chapter shall continue to be in effect unless the Secretary repeals or amends the regulation,
If any provision of this part or the application of any provision of this part to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this part shall not be affected thereby.
Section 2. Amend §8014 (c) of Chapter 80, Title 29, Delaware Code, by striking said section in its entirety and inserting in lieu thereof new subsections (c), (d), (e), (f), and (g) to read as follows :
(c) The existing Council on Environmental Control shall continue to serve on the Council for the period of their unexpired term. The Council shall be composed of seven (7) members. The Governor shall appoint new members. The terms of the new members shall be staggered. The first two appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years and the next three (3) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years.
(d) No more than four (4) of the newly appointed members shall be affiliated with the same political party. Any person who declines to announce his political affiliation shall be eligible for appointment as a member of the Council.
(e) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incidental to their duties as members of the Council.
(f) A Chairman of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for reelection.
(g) Any appointment, pursuant to provisions hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.
Approved July 17, 1973.