CHAPTER 324

CREATING THE WATER POLLUTION COMMISSION

AN ACT TO CREATE A WATER POLLUTION' COMMISSION AND TO DEFINE ITS MEMBERSHIP, DUTIES AND POWERS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. DECLARATION OF POLICY:--It is declared to be the public policy of the State of Delaware to maintain within its jurisdiction a reasonable quality of water consistent with public health and public enjoyment thereof, the propagation and protection of fish and wild life, including birds, mammals and other terrestrial and aquatic life, and the industrial development of the State.

Section 2. STATEMENT OF PURPOSES:--It is the purpose of this Act to safeguard the quality of state waters against pollution by (a) preventing new pollution in such waters and (b) controlling any pollution existing there at the time of adoption of this Act.

Section 3. DEFINITIONS:--When used in this Act the following words and phrases shall have the meaning ascribed to them in this Section.

(a) "Waters" shall be construed to mean public waters including lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the ocean within the territorial limits of the State, and all other bodies of surface or underground water, natural or artificial, inland or coastal, fresh or salt, within the jurisdiction of the State of Delaware.

(b) "Sewage" means the water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial establishments, or other places, together with such ground water infiltration, surface water, admixtures of industrial waste or other wastes as may be present.

(c) "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 natural resource.

(d) "Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal, oil, tar, dyestuffs, acids, chemicals, and all discarded substances other than sewage or industrial waste as defined in this Section.

() "Pollution" shall be construed to mean noxious and deleterious substances rendering unclean the waters of the State to the extent of being harmful or inimical to the public health, or to animal or aquatic life, or to the use of such waters for domestic water supply, industrial purposes, recreation or other legitimate and necessary uses.

() "Commission" means the Water Pollution Commission of the State of Delaware created by this Act.

Section 4. CREATION OF WATER POLLUTION COMMISSION:--

(a) There is hereby created the Water Pollution Commission of the State of Delaware, to be the "State Water Pollution Agency" in connection with the administration of Federal Water Pollution Control Acts.

(b) The Commission shall consist of the President of the Game and Fish Commission, the President of the Delaware Commission of Shell Fisheries, the Chief Engineer of the Wilmington Water Department, the New Castle County Engineer, the Chief Engineer of the State Highway Department, the Executive Secretary of the State Board of Health, the Director of Division of Sanitation, and one representative of industry from each of the three counties of the State, to be appointed by the Governor by and with the consent of the Senate.

() The three representatives of industry shall initially be appointed to hold office, for the term of one, two and three years respectively, after which their successors appointed by the

Governor, and confirmed by the Senate, shall be appointed and hold office for terms of three years each. Upon the death, resignation, or removal of any appointed member, the Governor shall, upon the Commission's certification to him of any such contingency, appoint some qualified person to fill the vacancy for the unexpired term, subject to all provisions of this Act. The term of office of every appointive member shall be from the date of his appointment and qualification until the appointment and qualification of his successors.

(d) The Game and Fish Commission may, by official administrative order, designate a deputy, qualified by education and experience, to perform the duties of the President of said Commission under this Act.

(e) The State Board of Health may, by official administrative order, designate two deputies, qualified by education and experience, to perform the duties of the Executive Secretary of the State Board of Health and of the Director of Division of Sanitation, respectively, under this Act.

Section 5. EXECUTIVE OFFICER:--The State Board of Health shall designate one of its representatives to be Secretary and Executive Officer of the Commission. The same State Board of Health shall be the Administrative Agent for the Commission on Water Pollution. It shall make such inspections, conduct such investigations and do such other acts as may be necessary to carry out the provisions of this Act, within the limits of the appropriation made for this purpose. The Administrative Agent shall have all of the powers conferred by law upon the Commission except that of enacting the orders and rules and regulations provided for in subsequent sections, subject, however, to the general direction of the Commission and the rules and regulations which it may adopt.

Section 6. COMMISSION MEETINGS:--The State Water Pollution Commission shall meet regularly in January and July of each year and special meetings may be held at any time or place, as agreed upon by the Commission or upon call of the Chairman of the Commission, the Executive Secretary of the

Commission, or of any three members of the Commission to take up any matter within its jurisdiction. Six members of the Commission shall constitute a quorum. Any general or special order or any rule or regulation shall become effective only upon approval of at least six official members of the Commission. The said Commission members shall elect one of its members as Chairman who shall hold office at the pleasure of the Commission.

The Commission members when attending Commission meetings or when doing work for the Commission, shall be paid necessary traveling and other expenses connected with such meetings or work.

Section 7. DUTIES OF COMMISSION:--It shall be the duty of the Commission on Water Pollution and it shall have power, jurisdiction and authority:

(1) To exercise general supervision over the administration and enforcement of all laws relating to the pollution of the waters of the State.

(2) To study and investigate all problems connected with the pollution of the waters of the State and its control and to make reports and recommendations thereon.

(3) To conduct scientific experiments, investigations and research to discover economical and practicable methods for the elimination, disposal or treatment of sewage, industrial wastes and/or other wastes to control pollution of the waters of the State. To this end the Commission may cooperate with any public or private agency in the conduct of such experiments, investigations and research and may receive on behalf of the State any moneys which any such agency may contribute as its share of the cost under such cooperative arrangements.

(4) To issue general orders, adopt rules and regulations applicable throughout the State for the installation, use and operation of systems, methods and means for controlling the pollution of the waters of the State by sewage, industrial wastes, refuse and/or other wastes. Such general orders, rules and regulations

shall be issued only after an opportunity to be heard thereon shall have been afforded to interested and affected parties. Such orders shall take effect thirty days after publication thereof in at least one newspaper of general circulation in the State and in each County of the State.

(5) To issue special orders after appropriate notice and opportunity for hearing, directing particular owners, municipalities and other political entities, to secure, within a specified time, such operating results toward the control of pollution of the waters as may be reasonable and practicable of attainment.

(6) To make investigations and inspections to insure compliance with any general or special orders, rules and regulations which the Commission may issue. In the exercise of this power the Commission may require the submission and approval of plans for the installation of systems and devices for handling, treating or disposing of sewage, industrial and/or other wastes.

(7) To enter into agreements with the responsible authorities of other States, or of the Federal Government, subject to approval by the Governor, relative to methods, means and measures to be employed to control pollution of any interstate streams and other waters and to carry out such agreement by appropriate general and special orders. This power shall not be deemed to extend to the modification of any agreement with any other State concluded by direct legislative act, but, unless otherwise expressly provided, this Commission shall be the agency for the enforcement for any such legislative agreement.

Section 8. VISITORIAL POWERS OF COMMISSION:--Every municipality, other political entity and owner of an industrial establishment shall, on request of the Commission, furnish such information reasonably necessary and pertinent required by it in the discharge of its duties under this Act. Any member of the Commission or any agent of the Commission duly authorized by it may at reasonable times enter any industrial or municipal establishment for the purpose of inspecting and investigating conditions relating to the pollution of any waters of the State. No owner of any industrial or municipal establishment shall be required at any time to disclose any confidential infor-

mation relating to secret processes or economics of operation. The Commission shall have power for all purposes falling within its jurisdiction to administer oaths, issue subpoenas, compel the attendance of witnesses and the production of necessary or essential data relating to water pollution.

Section 9. REVIEW OF ORDERS:--Any owner or other person in interest may secure a review of the necessity for and reasonableness of any general or special order of the Commission on Water Pollution in the following manner:

(a) They shall first file with the Commission a verified petition setting forth specifically the modification or change desired in such order. Upon receipt of such a petition the Commission shall order a public hearing thereon and make such further investigations as it shall deem advisable. Not more than thirty days after the filing of the petition the Commission shall affirm, repeal or change the order in question.

() If dissatisfied with the determination made by the Commission upon any such petition, any party in interest may file an appeal to the Superior Court of this State in accordance with the practice of said Court. In case of every such appeal the cause shall be determined by the Court from the record, (which shall include a typewritten copy of the evidence and the order of the Board), without the aid of a jury, and the Court may reverse, affirm or modify the order of the Board, or remand the cause to the Board for a rehearing. The Superior Court for the several counties of the State of Delaware is hereby vested with jurisdiction to hear and determine all appeals taken pursuant to this Chapter. The said Court may, by proper rules prescribe the procedure to be followed in case of such appeals; provided, however, that the Court shall fix a time for such hearings at the next term of said Court, after the date of such appeal, but the Court may extend the time for adequate cause shown.

(a) In lieu of the remedy provided in subsection (b) any owner may agree in writing to submit the matter to the arbitration of three reputable sanitary engineers, one chosen by the owner, one by the Commission on Water Pollution and the third by the other two. The decision of such arbitrators shall be

rendered in writing within thirty days after their selection, unless the time be extended by agreement, but no decision shall be binding unless agreed to by all of the arbitrators. The decision of the arbitrators shall be final and conclusive. All expenses of arbitration shall be paid by the owner applying therefor.

Section 10. PENALTIES:--Any person who shall be found guilty of violating any of the provisions of this Act or guilty of neglecting or failing to obey any general or special order of the Commission on Water Pollution lawfully issued pursuant to Section 7, shall forfeit and pay into the State Treasury a sum of not less than Ten Dollars ($10.00) or more than One Hundred Dollars ($100.00) for each violation, failure or refusal. Each day of continued violation shall be deemed a separate offense.

Section 11. There is hereby appropriated to said Commission on Water Pollution the sum of Twenty Thousand Dollars ($20,000.00) for the year ending July 1, 1950, and the sum of Twenty Thousand Dollars ($20,000.00) for the year ending July 1, 1951. Said appropriations shall be used for the employment of necessary technical and clerical personnel, laboratory equipment, rent, and such other needs consistent with the carrying out of the intent of this Act.

This Act shall take effect July 1st, 1949.

Section 12. All Acts or parts of Acts inconsistent herewith are hereby repealed as to such inconsistency only; provided, that nothing in this Act shall be construed to limit or modify, in any manner, the powers and duties of the State Board of Health or the Game and Fish Commission under existing statutes.