CHAPTER 123

FORMERLY

HOUSE BILL NO. 514

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 82, TITLE 29, DELAWARE CODE, RELATING TO REGULATION AND TRANSPORTATION OF HAZARDOUS MATERIALS WITHIN THIS STATE; PROVIDING FOR THE IMPOSITION OF DUTIES UPON THE DEPARTMENT OF PUBLIC SAFETY, THE STATE POLICE AND OTHER DEPARTMENTS AND DIVISIONS OF STATE GOVERNMENT; PRESCRIBING PENALTIES AND FURTHER PROVIDING FOR ENFORCEMENT OF THIS ACT.

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 Chapter 82, Title 29, Delaware Code by adding thereto the following new sections to read as follows:

"§8225. Short Title

This Act shall be known and may be cited as the 'Hazardous Materials Transportation Act of 1979'.

§8226. Declaration of Policy; Finding of Fact

(a) The purpose of this Act, and the primary standard by which it shall be administered, is to so regulate the transportation of hazardous materials, and assure compliance with the Code of Federal Regulations herein adopted, that there is established and maintained a reasonable balance between the interests of the people in the safety of themselves and their property, on the one hand, and the interest of the people in their employment and economic prosperity, on the other.

(b) It is hereby found as a fact that hazardous materials are essential for various industrial, commercial and other purposes, that their transportation is a necessary incident of their use, and therefore that such transportation is required for the employment and economic prosperity of the people. It is also found as a fact that the transportation of hazardous materials may involve risk of injury to persons and damage to property, and that the degree of such risk can and should be kept at a minimum consistent with technical feasibility and economic reasonableness.

§8227. Definitions

The following words and phrases shall have the following meaning ascribed to them, unless their context implies otherwise:

(1) 'Person' means any natural person or individual, firm, association, partnership, co-partnership, joint venture, company, corporation, joint stock company, estate, or any other legal entity, or their legal representative, agent, or assigns.

(2) 'Commission' means the Commission on the Transportation of Hazardous Materials as established by this Act.

(3) 'Hazardous material' means any substance or material designated a hazardous material pursuant to the Federal 'Hazardous Materials Transportation Act' (P.L. 93-633; 49 U.S.C. 51801 et .).

(4) 'Transportation' means any movement of property by any mode, and any loading, unloading, or storage incidental thereto.

(5) 'Operator of Vehicle' means any person having control of any means of transportation herein regulated.

§8228. Transportation of Hazardous Materials; Adoption of Federal Requirements

The State of Delaware hereby adopts the following Parts of the Code of Federal Regulations, being Title 49, Subchapter C of Chapter I, Parts 171 through 179 and Part 393 and 397 of Subchapter B, Chapter III, being lawfully promulgated pursuant to the Federal 'Hazardous Materials Transportation Act' (P.L. 93-633; 49 U.S.C. 51801 et sm.). The following sections of the Federal Regulations shall be excluded:

(1) Section 171.15 Immediate notice of certain hazardous
materials incidents.

(2) Section 171.15 Detailed hazardous materials incident
reports.

(3) Section 175.45 Reporting hazardous materials incidents.

(4) Section 177.824(f) Reporting requirements for MC 330 and MC
331 cargo tanks.

Any person engaged in the transportation or shipment of hazardous materials, either in interstate or intrastate commerce, in the State of Delaware is required to comply with these adopted Federal regulations and any Federal regulations subsequently adopted by the Commission.

§8229. Administration; Commission on the Transportation of Hazardous Materials

(a) A Commission on the Transportation of Hazardous Materials is hereby established. The Commission shall be composed of the Secretary of the Department of Public Safety who shall be Chairman, the Superintendent of State Police, the Secretary of the Department of Transportation, the Director of the Division of Environmental Control, the State Fire Marshal, the Director of the Division of Emergency Planning and Operations, the Director of the Division of Public Health, a representative of the State Fire Prevention Commission, and one person from industry for each of the modes of transportation herein regulated (rail, air, highway, and water), and one person each representing shippers, users and consignees of hazardous materials to be appointed by the Governor for a term of two (2) years. The Chairman of the Commission shall have no vote except in case of a tie. The Commission shall meet once each year and at such other times and places as may be designated by the Chairman or a majority of the Commission. The Chairman shall cause reasonable notice to be given to each Commission member as to the time and place of each meeting. Eight (8) members shall constitute a quorum for the transaction of business at any meeting. Members of the Commission shall receive no compensation for the meetings.

(b) After the enactment of the Act, the Commission may adopt any subsequent Federal regulations lawfully promulgated under the Parts of the Code of Federal Regulations herein adopted.

(c) The Commission shall conduct a study of the administration and enforcement of this Act and of the necessity of additional legislation as to the handling of accidents involving the transportation of hazardous materials and as to hazardous materials waste. The Commission shall report to the Governor and the General Assembly as to its preliminary findings and recommendations by April I, 1980. The Commission shall submit an annual report to the Governor and members of the General Assembly.

(d) The Commission shall assign among the several Departments and Divisions represented on the Commission the duty of coordinating and assisting in the enforcement of this Act and the several parts thereof. Such delegation shall be accomplished by resolution duly adopted by a majority of the Commission present at the meeting. The Commission may also enlist the support of any other person which it deems necessary to assist in carrying out its functions and duties.

§8230. Injunction and Other Remedies

(a) The Attorney General, upon request of the Commission or upon his own motion, may proceed in the name of the State of Delaware, by injunction, mandamus, quo warrants, or other appropriate remedy at law or in equity, to restrain violations of the Commission's regulations or orders or to enforce obedience thereto.

(b) The State Police shall have the power to seize, retain, confiscate, impound all evidence to include motor vehicles used in violation of this Chapter.

§8231. Penalties

Any person who, as operator of a vehicle, shall knowingly or wilfully violate any regulations of the Board pertaining to routing, parking or other act in the actual operation of a vehicle, shall be guilty of a misdemeanor, and, upon conviction thereof in the Court of Justice of the Peace of the County in which the offense occurred, shall be sentenced to pay a fine of not less than $25 nor more than $100, or imprisonment for more than thirty (30) days, or both. Any such person committing a second or subsequent offense and the conviction thereof, shall be sentenced to pay a fine of not less than $100 nor more than $500, or imprisonment for not less than sixty (60) days nor more than one (1) year, or both.

Any person, who, as shipper, carrier, consignee or user of a hazardous material, shall knowingly or wilfully violate the provisions of this Act, shall be guilty of a misdemeanor, and, upon conviction thereof in the Court of Common Pleas of the County wherein the offense occurred, shall be sentenced to pay a fine of not less than $100 nor more than $500, or imprisonment for not more than sixty (60) days, or both. Any such person committing a second or subsequent offense and the conviction thereof, shall be sentenced to pay a fine of not less than $500 nor more than $5,000 or imprisonment for not less than sixty (60) days nor more than one (1) year, or both. If such person be a firm, partnership, joint venture or association, or if such person be a corporation, the officer, agent or employee thereof responsible for the violation, shall have the sentence, herein prescribed, Imposed upon him.

§8232. Exclusive State Regulation; General Repealer

It is the intent of this Act that this be the exclusive state method of regulating and controlling the transportation of hazardous materials. To that end all acts and parts of acts, ordinances and regulations promulgated thereunder are hereby repealed and declared unenforceable insofar as they are inconsistent herewith. No city, town, municipality, or other subdivision of the State shall adopt or enforce any other regulation of the transportation of hazardous materials. This shall not preclude the State from regulating hazardous wastes and hazardous substances, including the transportation thereof, an may be otherwise provided by law."

Section 2. The following words and phrases shall be substituted for the language of the Federal Regulations as indicated below:

(1) Any reference to "Director" shall mean "Chairman of the Commission".

(2) Any reference to the "Federal Highway Administration" shall mean the "Commission".

(3) Any reference to "Department of Transportation" shall mean the "Commission".

(4) Any reference to any authorized representative or special agency of the Federal Government shall mean "any authorized representative of the Commission".

(5) Any reference to the "Department" shall mean the "Commission".

(6) Any reference to the "Secretary of the Hazardous Materials Regulation Board" shall mean "the Chairman of the Commission".

(7) Any reference to "Office of Hazardous Materials Regulations" shall mean the "Commission".

(8) Any reference to "Director of the Bureau of Motor Carrier Safety" shall mean the "Chairman of the Commission".

Section 3. This Act shall take effect ninety (90) days after the signature of the Governor.

Approved July 5, 1979.