CHAPTER 648

SENATE BILL NO. 236

AS AMENDED BY HOUSE AMENDMENT NOS.

3, 4 AND 5

AN ACT TO AMEND PART VII, TITLE 7 OF THE DELAWARE CODE RELATING TO THE CONTROL AND ABATEMENT OF NOISE.

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

Section 1. Amend Part VII, Title 7 of the Delaware Code by adding thereto a new Chapter, to be designated as Chapter 71, which new Chapter shall read as follows:

"CHAPTER 71. NOISE CONTROL AND ABATEMENT SUBCHAPTER 1. NON-VEHICLE PROVISIONS

§7101. Declaration of Purpose.

The Delaware General Assembly finds and determines that the people of this State are entitled to and should be ensured an environment free from noise which unnecessarily degrades the quality of their life; that the levels of noise often reach such a degree as to endanger the health, safety and welfare, jeopardize the value of property and erode the integrity of the environment of the people of this State.

The General Assembly also finds that a substantial body of science and technology exists by which noise may be substantially abated: and that the dangers of excessive noise can be abated by the adoption and enforcement of noise standards enbodied in regulations based upon these scientific and technological findings.

The General Assembly also finds that the problem of combating noise involves a high degree of cooperation on the part of various State agencies and departments; this Act makes specific provisions for such inter-agency cooperation.

§7102. Short Title.

This Act shall be known and may be cited as the Delaware Noise Control Act.

§7103. Definition.

(a) 'Council' shall mean the Noise Control Council created under the provisions of this Act.

() 'Farming operations' shall mean any activity which is involved in the production of agricultural, livestock, dairy or poultry products for sale.

(a) 'Manufacturer' shall mean any person employing five or more employees and who is licensed as a manufacturer by the Department of Finance in accordance with the provisions of Chapter 27, Title 30 of the Delaware Code.

(b) 'Motor vehicle' shall mean any vehicle defined as a motor vehicle in accordance with the provisions of §101, Chapter 1, Title 21 of the Delaware Code.

(c) 'Noise' shall mean any sounds of such level and duration as to be or tend to be injurious to human health and welfare, or which would unreasonably interfere with the enjoyment of life or property throughout the State of Delaware or any portions thereof, excluding all aspects of noise regulated by the Federal Occupational Safety and Health Act (OSHA).

association, society, firm, partnership, and any joint stock company, as well as individuals; and shall also include the State and all of its political subdivisions; agencies and instrumentalities as well as any department, board or agency of the government of the United States. 'Person' for purposes of the enforcement of the non-vehicle provisions of this Chapter, shall not include persons engaged in farming operations.

(g) 'Secretary' shall mean the Secretary of the Department of Natural Resources and Environmental Control.

§7104. Administration of this Act.

The Secretary of the Department of Natural Resources and Environmental Control or his duly authorized designee shall exercise general supervision over the administration and enforcement of the provisions of this Chapter, and shall have jurisdiction over noise emanating from motor vehicles to the extent of approving standards, codes and regulations proposed by the Secretary of the Department of Public Safety.

The Secretary of the Department of Public Safety shall exercise general supervision over the administration and enforcement of the provisions of this Chapter with regard to noise emanating from motor vehicles.

The provisions of this _Subchapter shall not apply to noise caused or created by the work of any public service company incident to the repair or maintenance of its equipmerit or facilities which may have been damaged or destroyed as the result of any emergency situation including but not limited to acts of God, accidents and explosions.

§7105. Power and Duties of the Department of Natural Resources and Environmental Control.

The Department of Natural Resources and Environmental Control shall have the power and its duty shall be to:

(a) adopt standards, rules and regulations, after public hearing, for the prevention, control, reduction and abatement of noise pollution, applicable throughout the State or to such parts or regions thereof specifically designated in such regulations. The procedure for public hearings shall conform to the procedure described in §6006, Chapter 60, Title 7 of the Delaware Code; such rules and regulations, however, shall not purport to exercise jurisdiction over any person or activity not included or affected by the provisions of this Subchapter;

() cooperate with all other State departments, divisions and agencies in the formulation and preparation of rules and regulations for the control of noise;

(a) enter into agreements with any other State department in order to effectuate the provisions of this Chapter;

(b) enforce the provisions of this Chapter, and all regulations, codes and rules, promulgated pursuant thereto, except those provisions of this Chapter pertaining to motor vehicles.

(c) receive or initiate complaints of noise, hold hearings in connection therewith and institute legal proceedings for the prevention of noise and for the recovery of penalties, in accordance with the provisions of this Chapter;

(d) keep records of violations cited, enforcement procedures initiated and completed in accordance with the provisions of this section;

(e) conduct and supervise research programs for the purpose of determing the causes, effects and hazards of noise;

(f) conduct and supervise Statewide programs of noise control education, including the preparation and distribution of information relating to noise control;

(g) require the registration of persons involved in operations which result in excessive noise, except operations involving the emission of noise from motor vehicles; and require the filing of reports by such persons, which reports would contain information relating to the sources of said noise and such other information as the Department shall prescribe. Such registration may be revoked or suspended or renewal withheld for any violation of this Chapter or of any statutes, rules, regulations or orders promulgated hereunder. The Department may, in accordance with a fee schedule adopted as a rule or regulation, establish and charge non-refundable fees for registration, which may be annual or periodic as the Department shall determine. The registration fee shall not be less than ten dollars ($10.00), nor more than two hundred fifty dollars ($250.00), based on criteria contained in the fee schedule;

(h) enter and inspect any building or place, except private residences, for the purpose of investigating an actual or suspected source of noise and ascertaining compliance or non-compliance of any statute, rule or regulation of the Department. Any information relating to secret processes or methods of manufacture or production obtained in the course of such inspection, investigation or determination shall be kept confidential and shall not be admissible in evidence in any court or in any other proceedings except to the extent herein provided. If tests of any type are made for the purpose of determining whether or not a violation has occurred, or for any other purpose in connection with such entry and inspection, a duplicate of the results of the tests shall be furnished promptly to the person suspected of violating the statute, code or regulation;

and receive money from the Federal government, the State government or any county or municipal government or from private sources for the study and control of noise; and

(1) review and approve any plan to construct any highway corridor; the construction or operation of which may in the opinion of the Department cause or contribute to an amount of noise deemed excessive by the Department.

§7106. Prohibited Acts.

No person shall obstruct, hinder or delay, or interfere with by force or otherwise, the performance of any State personnel of any duty under the provisions of this Chapter, or refuse to permit such personnel to perform their duties by refusing them, upon proper identification or presentation of a written Order of the Department, entrance to any premises.

§7107. Enforcement; Non-Vehicle Violations.

(a) Whenever the Department of Natural Resources and Environmental Control has cause to believe that any person is violating any statute, rule or regulation promulgated in accordance with this Chapter, the Department shall cause a prompt investigation to be made in connection therewith.

If upon inspection the Department discovers a condition which is in violation of any provision of this Chapter or any other statute, rule or regulation promulgated pursuant thereto, it shall be authorized to order such violation to cease and is authorized to take such steps necessary to enforce such an Order. The said preliminary Order shall state the items which are in violation, and shall provide a reasonable specified time within which the violation must cease.

The person responsible shall make the corrections necessary to comply with the requirements of this Chapter or other statute, rule or regulation promulgated pursuant thereto within the time specified in the Order.

(b) Whenever a hearing provided by §7108 of this Chapter is not requested by a violator cited in the preliminary Order of the Department, said preliminary Order, in original or modified form, shall become a final order twenty days after notice has been given to the violator.

(c) Nothing herein shall be deemed to prevent the Department from prosecuting any violation of this Chapter or any other code, rule or regulation promulgated pursuant thereto, notwithstanding that such violation is corrected in accordance with its Order. The Department shall not be prevented from directly prosecuting any violations of this Chapter or any other statute, rule or regulation promulgated pursuant thereto without the necessity of first issuing an Order.

§7108. Violations Hearing.

(a) Any person cited for a violation of a statute, rule or regulation promulgated in accordance with this Chapter may, upon application made within fifteen days notice thereof, be entitled to a public hearing before the Department. Within thirty days after the receipt of an application for such a public hearing, the Department shall conduct such a hearing; provided, however, that the applicant be notified, in writing, fifteen days before the schedule date of the hearing; and provided, also, that not less than fifteen days' notice shall be published in a newspaper of general circulation in the county in which the violation has occurred and in a daily newspaper of general circulation throughout the State.

than the alleged violator or the Department, shall have the right to appear at, and to enter a written or oral statement at the violations hearing before the Department. Such citizen, however, shall not have the right to subpoena or to cross-examine witnesses at such hearings.

(c) Within thirty days after a hearing held in accordance with subsection (a) of this section the Department shall issue an appropriate final Order modifying, approving or disapproving its preliminary Order. A copy of said final Order shall be served upon all interested parties and shall also be made available to any person who requests a copy of the Order from the Department.

(d) In the event that no hearing is requested by the Violator cited in the preliminary Departmental Order, the Department shall, twenty days after but within thirty days of the issuance of the preliminary Order, publish notice of that Order, now final, in a newspaper of general circulation in the county in which the violation occurred and in a daily newspaper of general circulation throughout the State.

§7109. Testimony at Hearings.

Testimony taken at any hearing shall be under oath and recorded stenographically, but the parties shall not be bound by the strict rules of evidence prevailing in the courts of Law and Equity. True copies of any transcript and of any other record made of or at such hearings shall be furnished to any party thereto upon request, and at his expense.

§7110. Conduct of Hearings.

Any administrative or non-judicial hearings required by this Chapter shall be held before the Secretary of the Department of Natural Resources and Environmental Control or before members of the Department designated by the Secretary. The Secretary, or persons designated by him to hear the case, shall have the power to subpoena witnesses and compel their attendance, administer oaths and require the production for examination of any books or papers relating to any matter under investigation in any such hearing. The respondent to a complaint made by it, or to it, pursuant to this Chapter, shall subpoena and compel the attendance of such witnesses as the respondent may designate and require the production for examination of any books or papers relating to any matter under investigation in any such hearing.

§7111. Appeals of Final Orders; Environmental Appeals Board.

(a) Any person or persons jointly or severally aggrieved by any final Order of the Department, or any taxpayer, or any officer, department, board or bureau of the State may appeal that Order to the State Environmental Appeals Board within twenty days after a final Order has been announced by the Secretary; provided, however, that before any person cited as a violator in said final Order may appeal such an Order to the Board, such person must have requested a departmental hearing before the Secretary in accordance with §7108 of this Chapter.

(b) The Board may affirm, modify or reverse the final Order of the Department.

(c) Whenever a final Order of the Department is appealed the Board shall hold a public hearing in accordance with §6006, Chapter 60, Title 7 of the Delaware Code.

(d) If the Board overrules the Secretary, it shall state its reasons for doing so.

(e) No decision of the Board shall be valid unless signed by a minimum of five members.

§7112. Injunctive Relief.

If any person violates any of the provisions of this Chapter or any statute, regulation or order promulgated pursuant to the provisions thereof, the Department may institute an action in a court of competent jurisdiction for injunctive relief to prohibit and prevent such violation or violations and the said court may proceed in the action in a summary manner.

Any person who violates the provisions of this Chapter or any rule, regulation or order promulgated pursuant thereto shall be subject to a fine of not more than three thousand dollars ($3,000.00) for each offense occurring after the Order of Injunction. The Superior Court or the Court of Chancery shall have jurisdiction to grant injunctions ad interim,injunctions pendente lite, mandatory injunctions, cease-and desist orders and any other type of injunctive relief. If the violation of an injunction is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. The Department is hereby authorized and empowered to compromise and settle any non-vehicular claim within its jurisdiction for a penalty under this Chapter in such amount in the discretion of the Department as may appear appropriate and equitable under all circumstances, including a rebate of any such penalty paid to the extent of seventy-five percent (75%) thereof, where such person satisfies the Department within one year or such other period of time as the Department may deem reasonable that such violation has been eliminated or removed or such order or injunction has been met or satisfied as the case may be.

§7113. Judicial Review; Appeal of Board's Decision.

(a) Any person or persons, jointly or severally affected by any decision or non-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 noise source in question is wholly or principally located by filing a petition, duly vertified, 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 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.

SUBCHAPTER II. MOTOR VEHICLES.

§7120. Powers and Duties of the Department of Public Safety.

The Department of Public Safety, after consideration with the Secretary of the Department of Highways and Transportation and upon approval of the Secretary of the Department of Natural Resources and Environmental Control, shall have the power and its duty shall be to:

(a) adopt regulations, after public hearing, establishing the standards, test procedures and instrumentation to be utilized in the control of noise from motor vehicles;

(b) adopt regulations, after public hearing, necessary for the inspection of noise control and abatement equip-merit of vehicles to assume compliance with the noise standards promulgated by the Department;

of this Subchapter, the procedure shall conform to the procedure established in §6006, Chapter 60, Title 7 of the Delaware Code.

§7121. Motor Vehicle Noise Inspection.

Any motor vehicle which is subject to inspection by the Division of Motor Vehicles or any other duly authorized body shall, as a condition of compliance with said inspection, pass such tests as may be required to demonstrate that the motor vehicle is in compliance with all State and Federal standards and requirements for the control of noise which are applicable to such motor vehicles.

§7122. Motor Vehicle Violations; Enforcement.

Any person who operates a motor vehicle or owns a motor vehicle which he permits to be operated upon public highways of this State which generates noise in excess of standards adopted by the Department of Public Safety shall be fined not less than twenty-five dollars ($25.00) nor more than one thousand dollars ($1,000.00), which shall be enforced in accordance with the provisions of Chapter 7, Title 21 of the Delaware Code.

§7123. Time Limitation.

Any rule or regulation establishing standards and requirements for the control of noise from motor vehicles shall be applicable to such classification of motor vehicles, as the Department of Public Safety shall determine to be necessary to carry out the purposes of this Chapter and shall apply to such motor vehicles not earlier than one hundred eighty days following the signing of this Act by the Governor.

§7124. Noise Control Council.

There is hereby created in the Department of Natural Resources and Environmental control a Noise Control Council, which shall consist of thirteen members: the Director of the Division of Consumer Affairs, the Secretary of the Department of Health and Social Services, the Secretary of the Department of Labor, the Secretary of the Department of Public Safety, the Director of the Division of Motor Vehicles, the Secretary of the Department of Natural Resources and Environmental Control, and seven public members, all of whom shall be appointed by the Governor. The public members shall include a medical doctor, an industrialist, an ecologist, and a mechanical engineer.

Of the seven members to be appointed by the Governor, at least three, but no more than four, members shall be affiliated with one of the major political parties and at least two, but no more than three, of the said appointed members shall be affiliated with the other major political party; provided, however, that shall be no more than a bare majority representation of major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment by the Governor.

Of the seven members to be appointed by the Governor, three shall be appointed for a term of one year, two for a term of two years, and two for a term of three years beginning on January 1, 1977 Thereafter, all appointments shall be made for terms of four years beginning each January 1. All appointed members shall serve after the expiration of their terms until their respective successors are appointed and shall qualify, and any vacancy occurring in the appointed membership of the Council, by expiration of term or otherwise, shall be filled in the same manner as the original appointment for the unexpired term only, notwithstanding that the previous incumbent may have held over and continued in office as aforesaid. The Governor may remove any appointed member of the Council for cause after a public hearing.

Members of the Council shall serve without compensation, but shall be reimbursed for expenses actually incurred in attending meetings of the Council and in the performance of their duties as members thereof.

The Council shall have available to it the services of members of the staff of the Department of Natural Resources and Environmental Control and the Department of Public Safety for the production of the Report to the Governor required by §7125 of the Chapter. The budgeting requests of these departments shall be reviewed by the General Assembly with such personnel needs noted and specified.

The Council shall elect bi-annually a Chairman and a Vice-Chairman from its own membership, and seven members of the Council shall constitute a quorum to transact its business.

§7125. Noise Control Council; Powers and Duties.

The Noise Control Council shall have the power and its duty shall be to:

(a) request from any Secretary of any State department information which might be utilized in a noise control program;

(b) consider any matter relating to the preservation and improvement of the noise control program and advise the Administrator thereof;

(c) from time to time submit to the Administrator of the noise control program any recommendations which it deems necessary for the proper conduct and improvement of the program;

(d) study the noise control program and make recommendations thereon to the Secretary of the Department of Natural Resources and Environmental Control;

(e) study the Delaware Constitution, the Delaware Code, the Laws of Delaware and departmental regulations regarding noise control and make its recommendations for the improvement of same;

() study and investigate the state of the art of noise control, and the technical capabilities and limitations of noise control, and report its findings and recommendations thereon to the Administrator of the noise control program;

(a) study and investigate the need for programs for the long-range technical support of the noise control program, and report its findings and recommendations thereon to the Administrator;

(b) hold public hearings at least once a year with regard to existing noise control statutes, rules and regulations; upon the state of the art of noise control; technical capabilities and limitations in noise control; and reports its recommendations thereon to the Administrator of the noise control program; and

() submit to the Governor an annual Report which indicates the progress which has been made in the state of the art of noise control within the year; included in the Report should be a record of the steps taken by the Department of Natural Resources and Environmental Control and the Department of Public Safety to implement that technological progress throughout the State, either in the form of rules and regulations or in the initiation of specific noise control programs. Also included within the report shall be a record of the noise violations of the previous year; the record should indicate the sources, location and severity of those violations as well as the disposition of the enforcement of the pertinent statutes, rules or regulations violated.

§7126. Liberal Interpretation.

The powers, duties and functions vested in any State department under the provisions of this Chapter shall not be construed to limit in any manner the powers, duties and functions vested therein or in any person under any other provision of law, or any civil or criminal remedies now or hereafter available to any person related to community noise control.

§7127. Other Ordinances or Remedies.

No existing civil or criminal remedy now or hereafter available to any person shall be superseded by this Chapter or any statute, rule or regulation promulgated pursuant thereto.

No ordinances or resolutions of any governing body of a municipality or county or board of health which establish specific standards for the level or duration of community noise more stringent than those provided by this Chapter or any statute, rule or regulation promulgated pursuant thereto shall be superseded. Nothing in this Chapter or in any statute, rule or regulation promulgated pursuant thereto shall preclude the right of any governing body of a municipality or county board of health, subject to the approval of the Department of Natural Resources and Environmental Control to adopt ordinances, resolutions or regulations which establish specific standards for the level or duration of community noise more stringent than this Chapter or any statute, rule or regulation promulgated pursuant thereto."

§7128. Farming Operation Exemption.

All persons and vehicles engaged in farming operation are exempted from the provisions of this Chapter while engaged in farming operations.

Section 2. If any provision of this Act or the ap-

plication thereof to any person or circumstances is held invalid, the remainder of the Act and the application of such provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

Approved July 27, 1976