TITLE 7

Conservation

Natural Resources

CHAPTER 63. HAZARDOUS WASTE MANAGEMENT

Subchapter II. Miscellaneous Provisions


(a) For the purpose of developing or enforcing any regulation, permit or other requirement authorized by this chapter, any duly authorized employee of the Department may, upon presentation of appropriate credentials at any reasonable time:

(1) Enter any place or conveyance where hazardous wastes are generated, stored, transported, treated or disposed of;

(2) Inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes, and prior to leaving the premises, give to the owner, operator or agent in charge a receipt describing the sample obtained, and if requested, a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator or agent in charge;

(3) Inspect and copy any records, reports, information or test results relating to the purposes of this chapter.

(b) Upon any refusal of entry, inspection, sampling or copying pursuant to this section, a duly authorized employee of the Department may apply for and obtain a warrant to allow such entry, inspection, sampling or copying in the manner established by the rules and law of criminal procedure.

(c) No duly authorized employee of the Department who enters upon premises, vehicles or equipment for purposes set forth in subsection (a) of this section shall have a cause of action against the owner, operator or occupier thereof for any injuries or damages sustained by such person while on the premises, vehicles or equipment unless such injuries or damages were intentional on the part of the owner, operator or occupier or were caused by the willful or wanton disregard of the rights of others.

62 Del. Laws, c. 412, § 3.;

(a) Any nonresident person who, either in person or through others, owns or operates a facility or conducts an activity subject to this chapter or any nonresident who, either in person or through others, owns or operates a facility or conducts an activity outside the State, which while located outside the State causes or contributes to the discharge or disposal of hazardous wastes or substances into or upon the lands, air, surface water or groundwaters of the State shall be deemed thereby to have submitted himself or herself to the jurisdiction of the courts of this State and to have appointed and constituted the Secretary of State of this State or the Secretary's designee as the Secretary's agent for the acceptance of legal process in any action under this chapter. The force, validity and effect of service of process under this subsection as well as the procedure for effectuating said service shall be governed in all respects by § 3104 of Title 10.

(b) Any corporation, not incorporated in this State, which itself or through others owns or operates a facility or conducts an activity subject to this chapter or any such corporation which itself or through others owns or operates a facility or conducts an activity outside the State, which while located outside the State causes or contributes to the discharge or disposal of hazardous wastes or substances into or upon the lands, air, surface water or groundwater of the State, shall be deemed thereby to have sufficient contacts with this State to have submitted itself to the jurisdiction of the courts of this State. The force, validity and effect of service of process under this subsection as well as the procedure for effectuating said service shall be governed in all respects by § 3111 of Title 10.

62 Del. Laws, c. 412, § 3; 70 Del. Laws, c. 186, § 1.;

Public hearings shall be held on any application for or draft of, any permit or transfer facility approval, or modification thereof, or any regulation, variance request, permit revocation or appeal to the Environmental Appeals Board in accordance with §§ 6004 and 6006 of this title, except where the Secretary has adopted additional notice and hearing requirements by regulation.

62 Del. Laws, c. 412, § 3; 64 Del. Laws, c. 162, § 11; 66 Del. Laws, c. 364, § 9.;

(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board in accordance with § 6008 of this title.

(b) Any person, a party to an appeal before the Board, substantially affected by a decision of the Board may appeal to the Superior Court in accordance with § 6009 of this title.

62 Del. Laws, c. 412, § 3.;

Variances and temporary emergency variances may be granted by the Secretary from any regulation, transfer facility approval or permit condition adopted pursuant to this chapter in accordance with §§ 6011 and 6012 of this title, except that no temporary emergency variance or variance shall be granted which would be inconsistent with the requirements of § 3006(b) or (c) of the Resource Conservation and Recovery Act of 1976, Pub. L. 94-580 [42 U.S.C. § 6926(b) or (c)] (or regulations promulgated thereunder) requiring equivalence or substantial equivalence of state programs for authorization or interim authorization whichever the case may be.

62 Del. Laws, c. 412, § 3; 63 Del. Laws, c. 164, § 3; 64 Del. Laws, c. 162, § 12; 66 Del. Laws, c. 364, § 10.;

No person shall obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty under this chapter, or any regulation, order, permit or decision promulgated or issued thereunder.

62 Del. Laws, c. 412, § 3.;

(a) The Department may cooperate with and receive moneys from the federal government, and any state or local government, or other appropriate source in carrying out its duties under this chapter.

(b) Any charges encountered by the Department as a direct result of the public notice and hearing requirements of this chapter and the regulations established thereunder are directly billable to the person conducting or applying to conduct a hazardous waste management activity.

62 Del. Laws, c. 412, § 3; 66 Del. Laws, c. 364, § 11.;

The General Assembly encourages cooperative activities by the Department and the Commission with other states, interstate or regional organizations, and the federal government for the improved management of hazardous wastes; for improved, and so far as practicable, uniform state laws relating to the management of hazardous wastes; and compacts between this and other states for the improved management of hazardous wastes.

62 Del. Laws, c. 412, § 3.;

(a) In any case where the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the Federal Bankruptcy Code or where (with reasonable diligence) jurisdiction in any state court or any federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.

(b) The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this chapter. Nothing in this subsection shall be construed to limit any other state or federal statutory, contractual or common-law liability of a guarantor to its owner or operator including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liability of any person under § 107 or 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9607 or 9611) or other applicable law.

(c) For the purpose of this section, the term "guarantor" means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this chapter.

65 Del. Laws, c. 320, § 9.;

(a) The Secretary is hereby authorized to impose and collect waste-end assessments in accordance with this section but in no case shall any person pay an annual assessment amount of less than $50 or more than $40,000 regardless of the number of facilities where hazardous waste is generated, treated, stored or disposed.

(b) The provisions of this section relating to paying an assessment apply to every person who is engaged in the generation, storage, treatment or disposal of a hazardous waste within this State and who is regulated by the Department under this chapter or any regulations promulgated thereunder.

(c) The information reporting requirements imposed under this section, as set forth in the form prescribed by the Department, shall, beginning January 1, 1996, be reported to the Department annually, due March 1, for the preceding calendar year.

(d) The annual assessment payments shall be paid to the Department October 1 of each year, the first of said assessment payments to be due October 1, 1987, in accordance with the Department fee regulations. The assessments paid to the Department under this section are hereby appropriated to the Division of Waste and Hazardous Substances and shall be used to carry out the purposes of this chapter.

(e) If any person fails or refuses to pay the Department any assessment or fails or refuses to file the written information with the Department pursuant to the requirements of this section, the Department may estimate the amount of said person's assessment on the basis of any information known by the Department. The Department may then add to the said person's estimated unpaid annual assessment a penalty in an amount equal to 15 percent of the estimated unpaid annual assessment. This penalty shall be in addition to, and not in lieu of, any other applicable penalties.

(f) For persons engaged in the generation of a hazardous waste, the annual assessment to be paid to the Department for hazardous waste generated after October 1, 1986, shall be calculated as follows:

(1) $21 per ton of hazardous waste generated that was disposed of into or on any land;

(2) $16 per ton of hazardous waste generated that was treated or disposed of, exclusive of land disposal and incineration, at a facility located off the site from where the hazardous waste was generated;

(3) $4.00 per ton of hazardous waste generated that was incinerated;

(4) For purposes of this subsection, the meaning of the phrase "generation of a hazardous waste" does not include the retrieval or creation of hazardous waste, which must be disposed of due to remediation of an inactive hazardous waste disposal site;

(5) Notwithstanding any provision of this subsection to the contrary, no assessment shall be imposed under this section for activities which the Department determines are for the resource recovery of any hazardous waste.

(g) For owners or operators of hazardous waste storage, treatment or disposal facilities regulated under this chapter, the annual assessment that is to be paid to the Department for hazardous waste that is stored, treated or disposed of after October 1, 1986, shall be calculated as follows:

(1) No assessment shall be imposed under this subsection for the disposal of hazardous waste where said hazardous waste was generated by a person subject to an assessment under subsection (f) of this section;

(2) $21 per ton of hazardous waste that was disposed of into or on any land;

(3) $16 per ton of hazardous waste that was stored, treated or disposed of, exclusive of land disposal, at any facility located off-site from where the hazardous waste was generated;

(4) Notwithstanding any provision of this subsection to the contrary, no assessment shall be imposed under this section for activities which the Department determines are for the resource recovery of any hazardous waste.

(h) The owner or operator of a hazardous waste transfer facility shall be assessed an annual fee, as established by the Department and approved by the General Assembly, for all waste stored at the facility not subject to the assessment provisions of this section. The timing of the assessment, payment and penalties shall be consistent with the requirements of this section.

(i) When calculating the amount of hazardous waste that is to be subject to any assessment under this section, if the person responsible for the assessment is involved with more than 1 type of hazardous waste being generated, treated, stored or disposed of, then the total amount of all the hazardous wastes being generated, treated, stored or disposed of by said person at any 1 site, shall be used to calculate the amount of the assessment.

(j) All of the requirements under this section that apply to persons who generate, treat, store or dispose of hazardous waste are in addition to and not in lieu of any other fees or requirements that must be complied with by said persons under any other statute, regulation, ordinance or permit condition.

(k) The Superior Court of the State shall have jurisdiction over actions to collect assessments and penalties under this section.

65 Del. Laws, c. 516, § 2; 68 Del. Laws, c. 86, §§ 5-7; 70 Del. Laws, c. 240, § 4; 70 Del. Laws, c. 324, § 1; 77 Del. Laws, c. 430, § 60; 78 Del. Laws, c. 127, § 12.;