CHAPTER 161

FORMERLY

HOUSE BILL NO. 252

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 2 OF THE DELAWARE CODE RELATING TO EMPLOYEE COMMUTE OPTIONS AND A PROVISION OF TITLE 30 OF THE DELAWARE CODE RELATING THERETO.

BE IT ENACTED 8Y THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 2, Delaware Code by adding a new Chapter 19 to read as follows:

"CHAPTER 19. EMPLOYEE COMMUTE OPTIONS

Section 1901. This chapter shall be known as the "Employee Commute Options Act."

Section 1902. Legislative Findings and Determinations.

(a) The General Assembly hereby finds that the 1990 Clean Air Act Amendments (CAAA) identify Kent and New Castle Counties as "severe" for ozone, making them part of one of the ten worst areas in the country for ozone levels and that the CAAA rate Sussex county as "marginal" for ozone level.

(a) The General Assembly hereby finds that the United States Environmental Protection Agency (EPA) rates areas based on the degree to which they fail to meet air quality standards and that the ozone non-attainment classifications are extreme, severe, serious, moderate and marginal. Delaware is within the standard for all air pollutants except ozone.

(a) The General Assembly hereby finds that the CAAA include specific measures for reducing or increasing the efficiency of our use of automobiles, and that the intended result of this Act includes reduction of the emission of ground level ozone into the atmosphere, reduction of congestion, reduction of work related trips and reduction of vehicle-miles-of-travel (VMT).

(a) The General Assembly finds that Section 182 (d)(1)(B) of the 1990 CAAA requires states to require employers in severe and extreme ozone non-attainment areas to implement Employee Commute Options plans, and that at a minimum, these states must target employers with 100 or more employees at a work site in an effort to increase the occupant/vehicle ratio of commuter vehicles traveling to that site by at least 25% over the area average during peak travel periods.

Section 1903. Definitions.

(a) "Authority" means the Delaware Transportation Authority of the State of Delaware.

(b) "Commute Options" means modes of commuting other than single-occupant vehicles including car-pools, van-pools, transit buses, commuter buses, commuter rail, high speed rail, bicycling, walking, telecommuting, compressed work weeks, and subscription buses.

(a) "Employee" means an individual employed by a firm, business, partnership, association, educational institution, non-profit agency, corporation, governmental agency or other employer. All persons who are on the employer's payroll as full-time, part-time, permanent or temporary, contract or directly-employed workers, excluding volunteers, who either report to work or are assigned primarily to a work site on a regular schedule 80 or more hours per 28-day period for at least 12 consecutive weeks are included in this definition. Individuals who are not on the employers' payroll, and whose function is ancillary to the primary business of the employer (e.g., tradesmen, service people, etc.), are excluded from this definition at the discretion of the Authority.

(b) "Employer" means any person, firm, business, partnership, association, educational institution, governmental agency, non-profit agency or corporation, or other entity for which employees are working. Several subsidiaries or units that occupy the same work site and report to one common governing board or governing entity shall be considered one employer.

(e) "Employer Commute Option (ECO) Plan" means the plan devised by the employer using traffic mitigation methods to attain the target Average Passenger Occupancy, including any Authority-approved amendments.

(f) "Secretary" means the Secretary of the Department of Transportation.

(g) "Vehicle" means a highway vehicle powered by either a gasoline or diesel internal combustion engine. Alternatively fueled vehicles (as defined by the EPA) and vehicles certified to have substantially lower emission levels will be counted as a fraction of a vehicle.

(h) "Work site means the place of employment, base of operation or predominant location of an employee. All the separate buildings or other work areas owned, leased, or otherwise used by an employer on a parcel or contiguous parcels of land, or an adjacent parcel of land, shall generally be considered a single work site. Separate buildings which may or may not be located on adjacent parcels of land, each serving as the place of employment for 100 or more employees, may be considered separate work sites or one work site at the discretion of the Authority.

(i) "Regulations(s)" means the rules and regulations enacted by the Secretary pursuant to Sections 1904(1), (2) or (3) of this chapter.

(a) "Initial Registration" means the registration required within 30 days of May 15, 1993, of every employer employing 100 or more employees in New Castle and Kent counties. The initial registration(s) for an employer's work site(s), which become subject to the regulations after May 15, 1993, will have different deadlines set in Department regulations.

(a) "Interim Report" means the report submitted for the reporting year ending April 14, 1996. The interim report contains the same information as required in the status reports. The interim report(s) for an employer's work site(s) which become subject to the regulations after May 15, 1993, will have different deadlines set in Department regulations.

(a) "Status Report" means annual or biennial status reports submitted for each work site. A reporting year shall begin on April 15th and end April 14th of the following year. The annual or biennial report must be submitted within 45 days from the completion of the reporting year. The first status report shall be submitted for the reporting year ending on April 14, 1997. The status report(s) for an employer's work site(s) which become subject to the regulations after the effective date will have different deadlines. Any Authority-approved steps by which an employer proposes to eliminate any deficits or deficiencies in attaining the Target Average Passenger Occupancy (APO) for the work site shall become an amendment to that work site's ECO Plan.

(m) "Department" means the Department of Transportation and its divisions, agencies, authorities and administrations.

(n) "Good Faith Effort" means a course of conduct evidencing an intent to comply with the requirements of this Chapter.

Section 1904. Rules and Regulations.

(a) The Secretary shall prescribe such rules and regulations as may be deemed necessary to carry out the purposes of this chapter including, but not limited to, the following:

(1) Procedures requiring employers to provide to the Authority information of the actions taken and plans made to comply with the revised State Implementation Plan required by 42 U.S C. Section 7511a(d)(1)(B). The procedures may establish a process of plan submission, approval, and/or periodic reporting on target achievement and plan revision to achieve compliance in conformity with 42 U.S.C. Section 7511a(d)(1)(B) and any
applicable guidelines of the Clean Air Act, as amended in 1990.

(2) Procedures, including conciliation, to assist in the enforcement of the regulations if there is a determination that the employer has not submitted the required information or reports when due, or if as a result of the submitted reports or monitoring by the Authority, there is a determination that the employer has not implemented the terms of the ECO Plan or the employer failed to make a good faith effort to reasonably comply with the requirements of the act or the federal CAAA.

(3) Procedures for the review of any determination or penalty imposed by the Authority.

Section 1905. Enforcement, Administrative Penalties.

(a) The Authority shall enforce this chapter.

(b) The Authority may impose an administrative penalty on an employer for the failure of an employer to comply with the regulations promulgated pursuant to Section 1904 of this chapter in the following amounts:

(1) For a failure to file an Initial Registration when due, the penalty will be $1 a day for all employees at the work site requiring the registration;

(2) For a failure to declare when due either that the employer is subject to the regulations or to provide the required employee count calculation information, the penalty will be $1 a day for all employees at the work site requiring the declaration or information;

(3) For a failure to file an ECO Plan within the time frames listed in the regulations, the penalty will be $3 a day for all employees at the work site covered by the Plan;

(4) For a failure by the employer to correct the deficiencies in an ECO Plan when required, and submit an acceptable ECO Plan within 30 days of receiving notification to file a corrected ECO Plan, the penalty will be $3 a day for all employees at the work site covered by the Plan;

(5) For a failure to file the Interim Status Report, the penalty will be $3 a day for all employees at the work site covered by the Report;

(1) For a failure to file a Status Report, the penalty will be $6 a day for all employees at the work site covered by the Report.

(1) For a failure to fulfill the terms and/or time frames of the employer's ECO Plan, the penalty will be $6 a day per vehicle in the employer's deficit vehicle count as defined in the Regulation, at the work site covered by the ECO Plan, provided that in making the determination of whether an employer has failed to fulfill the terms and/or time frames of the employer's ECO Plan, the Authority will not consider the attainment of projected participation rates or APO target.

(c) The administrative penalties specified in this section shall accrue one at a time, and although the employer remains liable for the amount accrued for one violation when the penalty for a second violation begins to accrue, penalties shall not be cumulative.

(d) In the event that the Authority finds that an employer has failed to comply with the regulations and has imposed an administrative penalty, the employer may request a review by the Secretary of the Authority's findings. The request for a review by the Secretary of the Authority's findings will not stay the accrual of the administrative penalty. In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, as set forth in Sections 1906 and 1907 of this Chapter a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney's fee and costs, and the validity, amount and appropriateness of such administrative penalty shall not be subject to review.

(e) The Authority shall have the discretion to conciliate any penalty imposed upon a showing by the employer of good cause including a good faith compliance effort.

(f) Any penalties, cost and attorney's fees collected by the Department under this section are hereby appropriated to the Transportation Trust Fund.

Section 1906. Hearings.

Hearings held by the Secretary or the Secretary's designee concerning any Regulation or at the employer's request pursuant to Section 1905(d) shall generally conform to the requirements of the Administrative Procedures Act, 29 Del. C., Chapter 101.

Section 1907. Appeal from the Secretary's Decision.

(a) Any employer aggrieved by any decision of the Secretary may appeal to the Superior Court in and for the county in which the work site in question is located by filing a petition, duly verified, setting forth the basis for the appeal. Any such appeal shall be perfected within 30 days of the employer's receipt of the written opinion of the Secretary.

(b) The Court will determine the matter on the record and may affirm, reverse, or modify the Secretary's decision. The Secretary's findings of fact shall not be set aside unless the Court determines that the administrative record contains no substantial evidence that reasonably supports the findings, including whether there was a good faith effort to comply. If the Court
finds that additional evidence should be taken, the Court may remand the case to the Secretary for completion of the record.

(c) An appeal shall not operate to stay the accrual of the administrative penalty imposed by the Secretary.

Section 1908. Confidentiality.

Written or recorded information, provided by employers participating in the Employee Commute Options program shall be treated as confidential, and shall not be considered as a public record under the provisions of Chapter 100 of Title 29."

Section 2. Amend Title 30, Chapter 20 of the Delaware Code by repealing subsection 2034(3) effective December 31, 1993.

Approved July 16, 1993.