CHAPTER 537

FORMERLY

SENATE BILL NO. 652

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 7, DELAWARE CODE, TO IMPROVE ADMINISTRATIVE AND LEGAL PROCEDURES, CLARIFY THE PROCESS OF GRANTING VARIANCES, TO AUTHORIZE THE SECRETARY TO COLLECT THE COSTS OF ABATING VIOLATIONS AND CONTROLLING POLLUTION INCIDENTS.

Be it enacted by the General Assembly of the State of Delaware (Two-thirds of all the members elected to each House thereof concurring therein):

Section 1. Amend Chapter 60, Title 7, Delaware Code, by striking the second sentence of subsection 6004 (b) and substituting in lieu thereof the following:

"The Secretary shall hold a public hearing on an application, if he receive a meritorious request for a hearing within a reasonable time as stated in the advertisement. A public hearing may be held on any application if the Secretary deems it to be in the best interest of the State to do so."

Section 2. Amend Chapter 60, Title 7, Delaware Code, by striking the second sentence in subsection 6005 (b) (i) and substituting in lieu thereof the following:

"Each day of continued violation shall be considered as a separate violation. The Superior Court shall have jurisdiction of a violation in which a civil penalty is sought."

Section 3. Amend Chapter 60, Title 7, Delaware Code, by adding to §6005 the following subsections:

"(c) Any person who is found to have violated a provision of this Chapter, or rule, or regulation, or condition of a permit issued pursuant to Subsection 6003, or an order of the Secretary, shall be liable for all expenses incurred by the Department (i) in abating the violation or (ii) controlling a pollution incident related to the violation or (iii) cleanup and restoration of the environment. Such expenses shall include, but not be limited to, the costs of investigation, legal assistance, public hearings, materials, equipment, manpower, contractual assistance and appropriate salary and overtime pay for all state employees involved in the effort notwithstanding merit system laws, regulations, or rules to the contrary. The Secretary shall submit a detailed billing of expenses to the liable person. In the event the liable person desires to challenge the detailed billing submitted by the Secretary, such person shall request an administrative hearing before the Secretary. Testimony at the administrative hearing shall be under oath and shall be restricted to issues relating to the billing of expenses submitted by the Secretary. 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 shall make findings of fact based on the record, and enter an order which shall contain reasons supporting the decision. An appeal of the decision of the Secretary may be perfected to Superior Court within thirty (30) days of the decision of the Secretary. In the event a liable person fails or refuses to pay any of the expenses listed in the detailed billing, the Secretary may seek to compel payment through the initiation of a civil action in the Superior Court. The provisions of this subsection shall not be affected by the appeal provisions of §6008 of this Chapter.

(d) Any expenses or civil penalties collected by the Department under this Section are hereby appropriated to the Department to carry out the purposes of this Chapter."

Section 4. Amend Chapter 60, Title 7, Delaware Code, by adding a subsection (f) to §6008 to read as follows:

"(f) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Secretary or the Court of Chancery may stay the action pending disposition of the appeal."

Section 5. Amend Chapter 60, Title 7, Delaware Code, by striking the first sentence in Subsection 6009 (a) and substituting in lieu thereof a new sentence to read as follows:

"Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by any decision of the board, 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."

Section 6. Amend Chapter 60, Title 7, Delaware Code, by striking Subsection 6009 (c) in its entirety and substituting in lieu thereof a new subsection (c) to read as follows:

"(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Board or the Court of Chancery may stay the action pending disposition of the appeal."

Section 7. Amend Chapter 60, Title 7, Delaware Code, by striking subsection 6009(d) in its entirety.

Section 8. Amend Chapter 60, Title 7, Delaware Code, by striking the last sentence in Subsection 6011 (c) and substituting in lieu thereof a new sentence to read as follows:

"The variance may be made effective immediately upon publication."

Section 9. Amend Chapter 60, Title 7, Delaware Code, by striking Subsection 6011 (f) in its entirety and substituting in lieu thereof a new Subsection 6011 (f) to read as follows:

"The granting of a variance shall not in any limit any right to proceed against the holder for any violation of the provisions of the variance. The provisions of this Chapter, or any rule, or regulation, which are not incorporated in the variance provisions, shall remain in full effect."

Section 10. Amend Chapter 60, Title 7, Delaware Code, by striking the number "thirty (30) " in the first sentence of Subsection 6012 (a) and substituting in lieu thereof the number "sixty (60)".

Section 11. Amend Chapter 60, Title 7, Delaware Code, by adding a new sentence at the end of Subsection 6013 (a) and Subsection 6013(b) to read as follows:

"The Superior Court shall have jurisdiction of offenses under this subsection."

Section 12. Amend Chapter 60, Title 7, Delaware Code, by striking Subsection 6013 (a) (i) in its entirety and substituting in lieu thereof a new Subsection 6013 (a) (i) to read as follows:

"… (i) violates §6003 of this Title, or violates any condition or limitation included in a permit issued pursuant to §6003 of this Title, or any variance condition or limitation, or any rule or regulation, or any order of the Secretary, or . . .".

Section 13. Amend Chapter 60, Title 7, Delaware Code, by striking Subsection 6013 (c) in its entirety and substituting in lieu thereof a new Subsection 6013 (c) to read as follows:

"(c) Whoever violates any provisions of this chapter, or any rule or regulation promulgated thereunder or any rule or regulation in effect at the time of the enactment of this act or any permit condition, or any order of the Secretary, shall be punished by a fine of not less than fifty ($50) dollars nor more than five hundred ($500) dollars for each violation. Each day of violation shall be considered as a separate violation. The Courts of the Justices of the Peace shall have jurisdiction of offenses under this subsection."

Section 14. Amend Chapter 60, Title 7, Delaware Code, by striking the words "any contaminant" as they appear in subsection 6014 (a) (ii) and substituting in lieu thereof the words "any report of an air contaminant."

Section 15. Amend Chapter 60, Title 7, Delaware Code, by striking Subsection 6023 (f) in its entirety and substituting in lieu thereof a new Subsection 6023 (f) to read as follows:

"(f) The Secretary shall have the exclusive power to grant or deny any license required under subsection 6023(a), (b), (c) and (d). The Secretary shall adopt regulations setting forth requirements, including an acceptable performance or an examination for obtaining and retaining any such license."

Section 16. Amend Chapter 60, Title 7, Delaware Code, by striking the words "municipal and" as they appear in Subsection 6025 (b) and substituting in lieu thereof the words "municipal or".

Section 17. Amend Chapter 60, Title 7, Delaware Code, by adding a new sentence at the end of Subsection 6025 (c) to read as follows:

"The Courts of the Justices of the Peace shall have jurisdiction of offenses under this section."

Section 18. Amend Chapter 60, Title 7, Delaware Code, by adding a sentence at the end of §6028 to read as follows:

"The Superior Court shall have jurisdiction of offenses under this section."

Section 19. Amend Chapter 60, Title 7, Delaware Code, by striking the word "Part" wherever it appears in §6033 and substituting in lieu thereof the word "Chapter".

Approved July 26, 1974.