CHAPTER 28

FORMERLY

HOUSE BILL NO. 71

AS AMENDED BY SENATE AMENDMENT NO. I AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 82, TITLE 29 OF THE DELAWARE CODE RELATING TO THE TRANSPORTATION OF HAZARDOUS MATERIALS.

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 subsection (a) of Section 8224, Title 29, Delaware Code, by striking all of line 1 and the first two words of line 2 and substituting in lieu thereof the following language:

"The purpose of this Act and the primary standard by which it".

Section 2. Amend Section 8225, Title 29, Delaware Code, by adding a new subsection (6) to read as follows:

"(6) 'Act' means the Hazardous Materials Transportation Act of 1979."

Section 3. Amend Section 8226, Title 29, Delaware Code, by inserting the following phrase after the word "Regulations" in line 2:

"(hereinafter sometimes referred to as CFR)".

Section 4. Amend Section 8226, Title 29, Delaware Code, by striking the words "is required to" in line 14 and substituting in lieu thereof the word "shall".

Section 5. Amend subsection (b) of Section 8227, Title 29, Delaware Code, by striking the phrase "§8223-8230 of this title" in line 1 and substituting in lieu thereof the following language:

"this Act".

Section 6. Amend subsection (c) of Section 8227, Title 29, Delaware Code, by striking the words "§8223-8230 of this title" in line 2 and substituting in lieu thereof the following language:

"this Act".

Section 7. Amend subsection (d) of Section 8227, Title 29, Delaware Code, by striking the words "§8223-8230 of this title" in line 3 and substituting in lieu thereof the following language:

"this Act".

Section 8. Amend Section 8227, Title 29, Delaware Code, by adding a new subsection (e) to read as follows:

"The Commission has authority to promulgate rules and regulations to carry out the purposes of t his Act."

Section 9. Amend subsection (b) of Section 8228, Title 29, Delaware Code, by striking that subsection in its entirety and substituting a new subsection (b) to read as follows:

"The State Police, the State Fire Marshal, and such other persons or agencies as the Commission by duly adopted resolution shall designate, shall have the power to seize, retain, confiscate and impound all evidence, including motor vehicles used in violation of this Act, and to otherwise enforce the provisions of this Act."

Section 10. Amend Section 8229, Title 29, Delaware Code, by striking that section in its entirety and substituting in lieu thereof a new section 8229 to read as follows:

"§8229. Jurisdiction; Penalties

(01) Any person, who as operator of a vehicle, shall knowingly or willfully violate any provision of this Act, the Code of Federal Regulations adopted under this Act and/or any regulations of the Commission pertaining to routing, parking or other act in the actual operation of a vehicle, shall be guilty of a misdemeanor, and, upon conviction thereof shall be sentenced to pay a fine of not less than $25 nor more than $100, or imprisonment for not more than 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 60 days nor more than 1 year, or both.

(2) A person arrested without a warrant in the City of Wilmington for a violation of this Act or any regulation thereunder shall be taken before a Judge of the Municipal Court for the City of Wilmington, except that persons arrested for a violation occurring on any part of the interstate highway system may be taken before the nearest available justice of the peace from the place of arrest. A person arrested without a warrant outside of the City of Wilmington for a violation of this Act or any regulation thereunder shall have his case heard and determined by the nearest available justice of the peace, notwithstandig the fact that the court of said justice of the peace is situated in a county other than that in which the violation is alleged to have occurred. It shall be a sufficient defense for a person arrested outside the City of Wilmington to show by 1 competent witness that there was at the time of his arrest an available justice of th peace whose regular office was nearer to the place where such person was arrested than the justice of the peace before whom the case is being tried.

(b) For the purpose of this section, a justice of the peace is available when he is at his office or court.

(c) Any person who, as shipper, carrier, consignee or user of a hazardous material, shall knowingly or wilfully violate any provision of this Act, the Code of Federal Regulations adopted thereunder, or any regulation of the Commission, 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 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 60 days nor more than 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."

Section 11. Amend S8230, Title 29, Delaware Code, by striking the words "§8223-8230 of this title" in line 1 and substitution the following in lieu thereof:

"this Act"

Section 12. Amend §8230, Title 29, Delaware Code, by striking the second sentence in its entirety and substituting in lieu thereof a revised sentence to read as follows:

"To that end all acts and parts of acts, ordinances and regulations elsewhere promulgated or enacted are hereby repealed and declared unenforceable to the extent that they are inconsistent herew I th."

Section 13. Amend Chapter 82, Title 29, Delaware Code by adding thereto the following new section to read as follows:

"§8231. Exemption from Liability

Notwithstanding any provision of law to the contrary, no individual, partnership, corporation, association, or other entity shall be liable in civil damages as a result of acts taken or omitted in anticipation of, in preparation for, or in the course of rendering care, assistance, or advice at the request of any emergency service agency with respect to an incident creating a danger to person, property, or the environment as a result of spillage, seepage, fire, explosion, or other discharge or release of hazardous materials, or the possibility thereof.

This section shall not preclude liability for civil damages as the result of gross negligence or intentional misconduct. Reckless, willful, or wanton misconduct shall constitute gross negligence.

For purposes of this section, hazardous materials shall include (I) materials designated as hazardous by any governmental agency, and (ii) materials where the discharge or release of same, or the possibility of such discharge or release, creates a hazard to person, property, or the environment."

Approved May 16, 1983