CHAPTER 372

FORMERLY

SENATE BILL NO. 619

AS AMENDED BY SENATE AMENDMENT NO. 1

AND HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 63 OF TITLE 7 OF THE DELAWARE CODE PERTAINING TO HAZARDOUS WASTE MANAGEMENT AND CHAPTER 64 OF TITLE 7 OF THE DELAWARE CODE PERTAINING TO THE DELAWARE SOLID WASTE AUTHORITY.

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 §6304, Chapter 63, Title 7 of the Delaware Code by adding a new subsection (g) thereto to read as follows:

"(g) No person shall transport or deliver hazardous waste to any facility operated by or on behalf of the Delaware Solid Waste Authority."

Section 2. Amend §"402, Chapter 64, Title 7 of the Delaware Code by adding a new subsection (16) thereto to read as follows:

"(16) 'Industrial solid waste' means solid waste produced by or resulting from industrial applications, processes or operations."

Section 3. Amend §6405, Chapter 64, Title 7 of the Delaware Code by striking subsection 6405 (d) in its entirety and substituting in lieu thereof the following:

"(d) All members of the staff shall be employees of the Authority and, except for the Manager, his chief administrative aide, and engineers who have graduated from an engineering curriculum of four years or more, be covered by the State Merit System as classified employees."

Section 4. Amend §6405, Chapter 64, Title 7 of the Delaware Code by striking subsection 6405 (c) in its entirety and by redesignating subsections (d), (e), and (f) of §6405 as subsections (c), (d), and (e). respectively.

Section 5. Amend §6406 (a) (31), Chapter 64, Title 7 of the Delaware Code by striking the clause beginning with the words "provided, however" and ending with the words "industrial establishments" and Inserting In lieu thereof:

"provided, however, that such power shall not extend to the collection, transportation, transfer and storage of hazardous wastes as defined In §6302 (7) of this Title."

Section 6. Amend §6409, Chapter 64, Title 7 of the Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§6409. Covenant with Bondholders

The State covenants and agrees with the holders of any bonds or other securities or obligations of the Authority, assumed, issued or Incurred by it and as security for which there may be pledged, the fees and revenues of any part thereof of any facility or other project that the State will not, so long as any of such bonds or other obligations remain outstanding and unpaid, diminish or Impair the power of the Authority to establish, levy and collect fees and other charges in connection therewith and that the State will not so long as any of such bonds or other obligations remain outstanding and unpaid, authorize any other authority or facility to undertake or assume the functions of the Authority, unless adequate provisions shall be made by law for the protection of those advancing money upon such obligations."

Section 7. Amend §6420 (a), Chapter 64, Title 7 of the Delaware Code by redesignating the semicolon (;) as a period (.) and by striking In its entirety the clause beginning with the words "provided, however" and ending with the words "industrial establishments."

Section 8. Amend §6422 (a), Chapter 64, Title 7 of the Delaware Code by striking the last sentence in the said subsection commencing with the words "This section" and ending with the words "industrial establishments."

Section 9. Amend Chapter 84, Title 7 of the Delaware Code by adding a new §6427 to read as follows:

"§6427. Industrial Solid Waste

(a) The Authority may determine to accept or to cease accepting industrial solid waste at any one or more of its facilities.

(b) The Authority shall require any person seeking to dispose of industrial solid waste at any of Its facilities to obtain the approval of the Department of Natural Resources and Environmental Control prior to commencing or continuing such disposal.

(c) The Manager, or his designee, may elect not to accept any particular industrial solid waste or type of industrial solid waste if the Manager, or his designee, determines that such waste or the quantity thereof will have an adverse effect on the facility or the operation of the facility, if an effective means of risk and cost allocation cannot be achieved, or for such other reasons as the Authority may identify in the Statewide Solid Waste Managment Plan.

(d) In addition to other fees and charges that it imposes, the Authority may impose an industrial solid waste disposal surcharge to compensate the Authority for the risks associated with accepting industrial solid waste, specifically or by classes, and for the additional costs, including administrative expenses and overhead, associated with such disposal. The industrial solid waste disposal surcharge shall be set by the Manager, or his designee, without notice and public hearing thereon, and may be done on a case-by-case basis. In setting such surcharge the Manager shall take into consideration the volume of waste to be disposed of, the degree of risk associated with such disposal, the additional administrative expenses and overhead incurred by the Authority and any other relevant factors.

(e) Any person causing or allowing industrial solid waste to be delivered to a facility operated by or on behalf of the Authority shall be deemed to have agreed to indemnify and hold harmless the Authority from any liability arising from the disposal of such industrial solid waste and to have agreed to reimburse the Authority for any costs reasonably incurred to protect against or reduce any risk resulting therefrom, provided, however, such person, if such person has not caused or allowed the delivery of hazardous waste, hazardous materials, or toxic substances, shall not be liable under this subsection to the Authority for harm or damage caused by the negligence of the Authority.

(f)(i) Any person seeking to have industrial solid waste disposed of at a facility operated by or on behalf of the Authority, who is aggrieved by a determination of the Manager, or his designee, under this section, with regard to such effort, may seek review thereof by the Directors of the Authority by filing a request for review with the Manager within fifteen (15) days of learning of such determination.

(ii) At least fifteen (15) days notice of the time set forth for hearing by the Directors of the request for review shall be sent by registered mail to the person filing the request for review who bear the burden of proof in such proceeding.

(iii) The person filing for the request for review may appear personally or by counsel at the hearing and produce any competent evidence in his behalf.

(iv) Upon request of the Manager or the person filing the request for review, the Chairman of the Authority shall Issue subpoenae requiring the testimony of witnesses and production of books, records, or other documents relevant to any matter involved in such hearing. In case of contumacy or refusal to obey a subpoena issued under this paragraph, the Superior Court in the County in which the hearing is held shall have jurisdiction upon application of the Chairman to issue an order requiring such person to appear and testify or produce books, records, or other documents requested.

(v) All testimony at the hearing shall be taken under oath. The chairman shall administer oaths and all Directors shall be entitled to examine witnesses.

(vi) The hearing may be held as part of a regular meeting or at a special meeting of the Authority. Deliberations on requests for review under this section shall be held in executive sessions which shell be closed to the public.

(vii) The decision of the Directors of the Authority shall be in writing and shall be sent to the person filing the request for review by registered mail."

Approved July 8, 1982.