CHAPTER 369

FORMERLY

SENATE BILL NO. 600

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND AND REVISE CHAPTER 71, TITLE 7 OF THE DELAWARE CODE RELATING TO NOISE CONTROL AND ABATEMENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OP DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 71, Title 7 of the Delaware Code by striking all of said chapter and inserting in lieu thereof the following:

"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 embodied 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. Definitions

(a) "Committee" shall mean the Noise Advisory Committee created under the provisions of this Act.

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

(c) "Perm vehicle" shall mean a wheeled device used for transportation in farming operations.

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

(e) "Motor vehicle" shall mean any vehicle defined as a motor vehicle in accordance with the provisions of 5101, Chapter 1, Title 21 of the Delaware Code.

(f) "Noise" shall mean any sound which annoys or disturbs humans or which causes or tends to cause an adverse psychological or physiological effect on humans, excluding all aspects of noise regulated by the Federal Occupational Safety and Health Act (OSHA).

(g) "Noise disturbance" means any sound which (1) endangers or injures the safety or health of humans or animals or (2) annoys or disturbs a reasonable person of normal sensitivities, or (3) Jeopardizes the value of property and erodes the Integrity of the environment.

(h) "Person" shall mean any corporation, company, 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.

(i) "Secretary shall mean the Secretary of the Department of Natural Resources and Environmental Control

§7104. Noise and Noise Disturbance Prohibited

(a) No person shall, without first having obtained a variance or a temporary emergency variance from the Department of Natural Resources and Environmental Control, undertake any activity which in any way may cause or contribute to the creation of noise or a noise disturbance.

(b) No person shall, without having first obtained a variance or a temporary emergency variance from the Department of Natural Resources and Environmental Control, construct, install, replace, modify or use any equipment, machinery, motor vehicle, device or other article which in any way may cause or contribute to the creation of noise or a noise distrubance.

§7105. 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 of this Chapter and, in conjunction with the various law enfurcement agencies of this State, the 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 equipment 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.

§7106. Powers 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(2), Chapter 80, 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;

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

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

(d) 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;

(a) in conjunction with the various law enforcement agencies of this State, receive or Initiate complaints of noise and institute legal proceedings for the prevention of noise and for the recovery of penalties, in accordance with the provisions of this Chapter;

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

§7107. Authority of the Department of Natural Resources and Environmental Control

The Department of Natural Resources and Environmental Control shall have the authority

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

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

(c) 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;

(d) with the approval of the Governor, cooperate with 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

(e) 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.

§7108. Enforcement and Penalties; Non-Vehicle Violations

(a) The Department of Natural Resources and Environmental Control shall enforce the provisions of this Chapter and any duly promulgated rules and regulations. All law enforcement agencies of this State, including but not limited to police forces of the Counties and incorporated cities and towns, may also enforce the provisions of this Chapter and any duly promulgated rules and regulations.

(b) Whenever the Department of Natural Resources and Environmental Control or any law enforcement agency within this State has cause to believe based upon observation or a complaint that any person is violating this Chapter, or any rules or regulations promulgated in accordance with this Chapter, the Department or law enforcement agency is authorized to conduct an investigation in connection therewith.

(c) If upon investigation the Department of Natural Resources and Environmental Control or any law enforcement officer of this State discovers a condition which is in violation of any provision of this Chapter or any rule or regulation promulgated pursuant thereto, the Department or law enforcement officer shall be authorized to order such violation to cease and may take such reasonable steps as are necessary to enforce such an order. The order shall state why a violation exists and shall provide a reasonably specified time within which the violation must cease.

(d) The person responsible for the violation shall make the corrections necessary to comply with the requirements of this Chapter or any rule or regulation promulgated pursuant thereto within the time specified in the order.

(e) Nothing herein shall be deemed to prevent the Department of Natural Resources and Environmental Control or any other law enforcement agency of this State from prosecuting any violation of this Chapter or any rule or regulation promulgated pursuant thereto, notwithstanding that such violation is corrected in accordance with the above order.

(f) In his discretion, the Secretary of the Department of Natural Resources and Environmental Control may endeavor by conciliation to obtain compliance with all requirements of this Chapter or any rule or regulation promulgated pursuant thereto. Conciliation shall be attempted by giving written notice to the responsible party which: (i) specifies the violation (ii) proposes a reasonable time for its correction, and (iii) advises that a cease and desist order may be issued or other action taken unless the violation is corrected.

(g) If a violation is threatening to begin, or is continuing, or if there is a substantial likelihood that it will reoccur, or if the Department of Natural Resources and Environmental Control receives information that a noise disturbance presents an imminent or substantial hazard to public health or to the environment, the Secretary of the Department of Natural Resources may, in addition to or in lieu of any other remedy provided for In this Chapter, seek a temporary restraining order or a preliminary or permanent injunction in the Court of Chancery.

(h) Whoever violates this Chapter or any rule or regulation duly promulgated thereunder, or any variance or temporary emergency variance issued pursuant to §7108 or §7109 of this title or any cease and desist order of the Secretary, shall be punished by a fine of not less than $25 nor more than $500 for each violation. Each day of violation shall be considered as n sepnrate violation. Any court of competent Jurisdiction shall have jurisdiction of offenses under this subsection.

(i) Any person who wilfully or negligently violates this Chapter or any rule or regulation duly promulgated thereunder, or any variance or temporary emergency variance or any cease and desist order of the Secretary shall be punished by a penalty of not less than $500 nor more than $3000 for each day of such violation. The Superior Court shall have jurisdiction of offenses under this subsection.

(j) It shall be a misdemeanor for any person to obstruct, hinder, delay, or interfere with, by force or otherwise, the performance by personnel of the Department of Natural Resources and Environmental Control or any other enforcement 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.

§7109. Variance

(a) Any person who owns or operates any stationary noise source may apply to the Secretary of the Department of Natural Resources and Environmental Control for a variance or a partial variance from one or more of the rules or regulations promulgated pursuant to this Chapter. Applicants for a variance shall supply information including, but not limited to:

(i) Information on the nature and location of the facility or process for which such application is made.

(i) The reason for which the variance is required, including the economic and technical justifications.

(i) The nature and intensity of noise that will occur during the period of the variance.

(i) A description of interim noise control measures to be taken by the applicant to minimize noise and the impacts occurring therefrom.

(i) A specific schedule of the best practical noise control measures, if any, which might be taken to bring the source into compliance with those regulations from which a variance is sought, and a statement of the length of time during which it is estimated that it will be necessary for the variance to continue.

(i) Any other relevant information the Department may require in order to make a determination regarding the application.

(b) Failure to supply the information required shall be cause for rejection of the application unless the applicant supplies the needed information within thirty (30) days of the written request by the Department for such information.

(c) No variance shall he approved unless the Secretary finds that:

(i) Noise levels occurring during the period of the variance will not constitute a danger to the public health; and

(ii) Compliance with this Chapter and any duly promulgated rules or regulations would impose an arbitrary or unreasonable hardship upon the applicant without a commensurate benefit to the public.

(d) In determining whether to grant a variance, the Secretary shall consider:

(i) The character and degree of injury to, or interference with, the health and welfare of people or the reasonable use of property which is caused or threatened to be caused by the noise during the variance period.

(i) The social and economic value of the activity for which the variance is sought.

(i) The ability of the applicant to appiy best practical noise control measures, as defined in duly promulgated regulations.

(e) Following receipt and review of an application for a variance, and after publishing notice once a week for two weeks in a newspaper of general circulation in the County wherein the variance is proposed, the Department shall, if necessary, fix a date, time and location for a hearing on such application in accordance with 7 Del, C., Chapter 60, §6004. Costs of newspaper advertising are to be paid by the applicant.

(f) Within ten (10) days of the receipt of the record of a hearing on a variance application, or within ten (10) days of receipt of an application on which no hearing Is held, the Department shall issue Its determination regarding such application and provide. a copy to affected parties. All such decisions shall briefly set forth the reasons for the decision.

(g) The Department may, in its discretion, limit the duration of any variance granted. Any person holding a variance and needing an extension of time may apply for a new variance under the provisions of this Chapter and any duly promulgated rules and regulations for a period not to exceed one year. Any such application shall include a certification of compliance with any condition imposed under the previous variance.

(a) The Department may attach to any variance any reasonable conditions it deems necessary and desirable, including, but not limited to:

(i) Requirements for the best practical noise control measures to be taken by the owner or operator of the source to minimize noise during the period of the variance.

(ii) Requirements for periodic reports submitted by the applicant relating to noise, to compliance with any other conditions under which the variance was granted or to any other information the Department deems necessary.

(b) A variance may include a compliance schedule and requirements for periodic reporting of increments of achievement of compliance.

§7110. Temporary Emergency Variance

(a) A temporary emergency variance may be granted by the Department:

variance.

(i) If a severe hardship would be caused by the time period involved in obtaining a full

(ii) If the emergency is of an unforeseen nature so as to preclude a full variance because of time limitations.

(iii) If all conditions comply with those required for a full variance.

(iv) For a period not to exceed 60 days, not to be extended more than once.

(b) The granting of any temporary emergency variance shall be published within 5 days of the granting in a newspaper of general circulation once a week for two weeks in the county where the applicant resides.

§7111. 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. Applicants shall pay for any and all stenographer's fees and, if requested, copies of the transcript.

§7112. 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.

§7113. Appeals of Final Orders; Environmental Appeals Hoard; Superior Court

(a) Any person or persons who jointly or severally are substantially affected and aggrieved by any final order or variance 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 and to the Superior Court as provided in 7 Del. C. 56008 and 56009 except that the word "variance" shall be substituted fix the word "permit" in §6008(b) and (e).

(b) 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.

Subchapter II. MOTOR VEHICLES

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

(a) The Department of Public Safety, after consideration with the Secretary of the Department of 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:

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

(ii) adopt regulations, after public hearing, necessary for the inspection of motor vehicles, including noise control and abatement equipment to assure compliance with the noise standards promulgated by the Department.

(b) For any public hearings required by the provisions 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 Davison 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. 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.

§7124. 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 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 or community noise equivalent to or more stringent than those provided by this Chapter or any rule or regulation promulgated pursuant thereto shall be superseded. Nothing in this Chapter or in any rule or regulation promulgated pursuant thereto shall preclude the right of any governing body of a municipality or county board of health to adopt ordinances, resolutions or regulations which establish specific standards for the level or duration of community noise equivalent to or more stringent than this Chapter or any rule or regulation promulgated pursuant thereto.

§7125. Exemptions

(a) All farm vehicles are exempted from the provisions of this chapter while engaged in farming operations.

(b) Sirens operated to summon volunteer firemen to alarms and sirens used to summon ambulance crews to service calls are exempted from the provisions of this chapter.

§7126. Validity of Act

If any provision of this Act or the application thereto to any person or circumstances Is held invalid, the remainder of the Act and the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby."

Approved July 8, 1982.