Subchapter II. Powers and Duties of Secretary and Department
§ 6002. Definitions.
The following words and phrases shall have the meaning ascribed to them in this chapter unless the context clearly indicates
otherwise:
(1) "Activity" means construction, or operation, or use of any facility, property, or device.
(2) "Air contaminant" means particulate matter, dust, fumes, gas, mist, smoke or vapor or any combination thereof, exclusive
of uncombined water.
(3) "Air pollution" means the presence in the outdoor atmosphere of 1 or more air contaminants in sufficient quantities and
of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably
interferes with the enjoyment of life and property within the jurisdiction of this State, excluding all aspects of employer-employee
relationships as to health and safety hazards.
(4) "Board" means the Environmental Appeals Board.
(5) "Borrow pit" means any excavation into the subsurface for the purpose of extraction of earth products with the exception
of excavation for utility or road construction, agricultural or highway drainage, or dredging operations under the jurisdiction
of the U.S. Army Corps of Engineers.
(6) "Department" means the Department of Natural Resources and Environmental Control.
(7) "Earth products" means any solid material, aggregate or substance of commercial value, whether consolidated or loose,
found in natural deposits on or in the earth, including, but not limited to clay, silt, diatomaceous earth, sand, gravel,
stone, metallic ores, shale and soil.
(8) "Garbage" shall mean any putrescible solid and semisolid animal and/or vegetable wastes resulting from the production,
handling, preparation, cooking, serving or consumption of food or food materials.
(9) "Ground water" means any water naturally found under the surface of the earth.
(10) "Incinerator," "incinerator structure or facility," and "waste incinerator" include any structure or facility operated
for the combustion (oxidation) of solid waste, even if the by-products of the operation include useful products such as steam
and electricity. "Incinerator" shall not include:
a. Crematoriums;
b. The disposal of the bodies of animals through incineration;
c. The burning of poultry waste or poultry manure at the same site where the waste or manure was generated, which shall include
the burning of poultry waste or poultry manure generated upon an adjacent farm;
d. The disposal of all materials used in the discovery, development, and manufacture of veterinary products, medicines and
vaccines; or
e. The disposition of mortalities from poultry operations in facilities approved by the Delaware Department of Natural Resources
and Environmental Control which comply with United States Department of Agricultural Natural Resources Conservation Service
Interim Conservation Practice Standard Incinerator 769 or any successor standard.
(11) "Industrial waste" means any water-borne liquid, gaseous, solid or other waste substance or a combination thereof resulting
from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.
(12) "Liquid waste" means any industrial waste or sewage or other wastes or any combination thereof which may potentially
alter the chemical, physical or biological integrity of water from its natural state.
(13) "Liquid waste hauler" means any person who engages in the removal of liquid wastes from septic tanks, cesspools, seepage
pits, holding tanks or other such devices and conveys such liquid waste to a location removed from the point of acceptance.
(14) "Liquid waste treatment plant operator" means any person who has direct responsibility for the operation of a liquid
waste treatment plant.
(15) "Oil" means oil of any kind and in any form, including but not limited to, petroleum products, sludge, oil refuse, oil
mixed with other wastes and all other liquid hydrocarbons regardless of specific gravity.
(16) "Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime cinders, ashes, offal, oil, tar,
dye-stuffs, acids, chemicals and all discarded substances other than sewage or industrial wastes.
(17) "Persons" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including
a government corporation), association, state, municipality, commission, political subdivision of a state or any interstate
body.
(18) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, hydrocarbons,
oil, and product chemicals, and industrial, municipal and agricultural waste discharged into water.
(19) "Refuse" means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes,
street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes and
construction wastes resulting from the operation of a contractor.
(20) "Rubbish" means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food
containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery and other waste
materials.
(21) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary's duly
authorized designee.
(22) "Sewage" means water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial
establishments, or other places, together with such ground water infiltration, subsurface water, admixtures of industrial
wastes or other wastes as may be present.
(23) "Solid waste" means any garbage, refuse, refuse-derived fuel, demolition and construction waste wood, sludge from a waste
treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid,
liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations,
and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved
material in irrigation return flows or industrial discharges which are point sources subject to permits under this chapter,
as amended, or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended. By-products
of a uniform and known composition produced as a result of a production process are not solid wastes when incinerated onsite.
All incinerators under state permit as of March 1, 2000, and renewal permit applications for these incinerators shall not
come under the provisions of this section and § 6003 of this title.
(24) "Surface water" means water occurring generally on the surface of the earth.
(25) "Variance" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
(26) "Water facility" means any well, dam, reservoir, surface water intake or waterway obstruction.
(27) "Water utility" shall mean any person or entity operating within this State any water service, system, plant or equipment
for public use.
(28) "Water pollution" means the human-made or human-induced alteration of the chemical, physical, biological or radiological
integrity of water.
(29) "Water well contractor" means any person engaged in the business of contracting for the construction of water wells and/or
installation of pumping equipment in or for wells.
(30) "Categorical pretreatment standard" means a pretreatment standard which applies to industrial users in a specific industrial
subcategory.
(31) "Discharge or indirect discharge" means the discharge or the introduction of pollutants from any nondomestic source into
a POTW.
(32) "Industrial user" means a source of indirect discharge. The term "industrial user" shall include, but not be limited
to, the original source of the indirect discharge as well as the owners or operators of any intervening connections, other
than those owned or operated by the receiving POTW, which convey the indirect discharge to the POTW.
(33) "POTW pretreatment program" means a program administered by a POTW for the purpose of enforcing pretreatment standards
in accordance with the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. and regulations promulgated
thereunder.
(34) "Pretreatment standard" means any pollutant discharge limit promulgated by the Administrator of the United States Environmental
Protection Agency in accordance with § 307(b) and (c) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §
1317(b) and (c), or by the Secretary, which applies to industrial users.
(35) "Publicly owned treatment works" or "POTW" means either:
a. A treatment works which is owned by a city, town, county, district or other public body created by or pursuant to the laws
of the State; or
b. Any such public body which has jurisdiction over the discharges to such treatment works.
(36) "Treatment works" means any device and system used in the storage, treatment, recycling and reclamation of municipal
sewage, or industrial wastes of a liquid nature, or necessary to recycle or reuse water at the most economical cost over the
estimated life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power and
other equipment, and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements
essential to provide a reliable recycled supply such as standby treatment units and clear well facilities and improvements
to exclude or minimize inflow and infiltration.
(37) "Open dump" means any facility or site where solid waste is disposed which is not a sanitary landfill and which is not
a facility for disposal for hazardous waste.
(38) "Sanitary landfill" means a facility for the disposal of solid waste which meets the criteria promulgated under paragraph
(1) of subsection (g) of § 6010 of this title.
(39) "Domestic wastewater" means the liquid and water-borne human and/or household type waste derived from residential, industrial,
institutional or commercial sources.
(40) "At cost" means the expense to the government to conduct tests and analyses. No added service fee, or other fees and
charges, may be included in this cost.
(41) "Hydrocarbon chemical" means any compound composed of carbon and hydrogen.
(42) "Restricted chemical material" means:
a. Any halogenated hydrocarbon chemical (aliphatic or aromatic) including but not limited to trichloroethane, tetrachloroethylene,
methylene chloride, halogenated benzenes and carbon tetrachloride; or
b. Any aromatic hydrocarbon chemical including, but not limited to, benzene, toluene and naphthalene; or
c. Any halogenated phenol derivative in which a hydroxide group and 2 or more halogen atoms are substituted onto aromatic
carbons of a benzene ring including, but not limited to, trichlorophenol and pentachlorophenol; or
d. Similar materials including but not limited to acrolein, acrylonitrile or benzidene.
(43) "Sewage system" means any part of a wastewater disposal system including, but not limited to, all toilets, urinals, piping,
drains, sewers, septic tanks, distribution boxes, absorption fields, seepage pits, cesspools and dry wells.
(44) "Sewage system cleanser" means: (i) Any solid or liquid material intended or used primarily for the purpose of cleaning,
treating or unclogging any part of a sewage system, or (ii) any solid or liquid material intended or used primarily for the
purpose of continuously or automatically deodorizing or disinfecting any part of a sewage system including, but not limited
to, solid cakes or devices placed in plumbing fixtures. Excluded from this definition are products intended or used primarily
in the manual surface cleaning, scouring, treating, deodorizing or disinfecting, of common plumbing fixtures.
(45) "Well" means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when
the intended use of such excavation is for the location, testing, acquisition or artificial recharge of underground water,
and where the depth is greater than the diameter or width.
(46) "Boat docking facility" shall mean a place where vessels may be secured to a fixed or floating structure or to the shoreline
or shoreline structure.
(47) "Direct vessel sewage pumpout connection" shall mean a semipermanent connection made to a vessel for the purpose of removing
vessel sewage from the vessel holding tank or head on a continuous or automatic intermittent basis to an approved sewage disposal
facility.
(48) "Vessel discharge" includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping.
(49) "Graywater" means galley, bath and shower water.
(50) "Live-aboard vessel" shall mean:
a. A vessel used principally as a residence;
b. A vessel used as a place of business, professional or other commercial enterprise and, if used as a means of transportation,
said transportation use is a secondary or subsidiary use; this definition shall not include commercial fishing boats which
do not fall under paragraph a. of this subdivision; or
c. Any other floating structure used for the purposes stated under paragraph a. or b. of this subdivision.
(51) "Marine Sanitation Device (MSD)" includes any equipment on board a vessel which is designed to receive, retain, treat
or discharge sewage, and any process to treat such sewage. Marine sanitation devices are classified as:
a. "Type I marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count not greater
than 1,000 per 100 milliliters and no visible floating solids.
b. "Type II marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count of not
greater than 200 per 100 milliliters and suspended solids not greater than 150 milligrams per liter.
c. "Type III marine sanitation device" means a device that is certified to a no-discharge standard. Type III devices include
recirculating and incinerating MSDs and holding tanks.
(52) "Vessel sewage pumpout station" shall mean a mechanical device which is temporarily connected to a vessel for the purpose
of removing vessel sewage from its holding tank or head to an approved sewage disposal facility.
(53) "Vessel" shall mean and include every description of watercraft, boat, houseboat or other form of artificial contrivance
used, or capable of being used, whether or not capable of self-propulsion, for navigation on the waters of the State.
(54) "Vessel sewage" shall mean human body wastes and wastes from toilets and other receptacles intended to receive or retain
human body wastes.
(55) "Marinas" are those facilities adjacent to the water which provide for mooring, berthing, or storage of boats, and which
include any or all of the related ancillary structures and functions of marinas, such as docks, piers, boat storage areas,
boat ramps, anchorages, breakwaters, channels, moorings, basins, boat repair services, boat sales, sales of supplies which
are normally associated with boating such as fuel, bait and tackle, boat rentals and parking areas for users of the marina.
(56) "Slip" means a place where a boat may be secured to a fixed or floating structure, including, but not limited to a dock,
pier, mooring or anchorage. Slips may be wet (in the water) or dry (in a rack or other device on land).
(57) "Dump station" means a type of pumpout facility that receives vessel sewage from portable marine sanitation devices and
delivers that sewage to an approved sewage disposal facility.
(58) "Dedicated pumpout facility" means a semi-permanent connection made to a vessel for the purpose of removing sewage from
the vessel on a continuous basis or automatic intermittent basis to an approved disposal facility.
(59) "Pumpout facility" means a mechanical device which is temporarily connected to a vessel for the purpose of removing sewage
from a vessel to an approved sewage disposal facility.
(60) "Water supply system" means all plants, systems, facilities or properties used or useful, or having the present capacity
for future use, in connection with the supply or distribution of water, and any integral part thereof, including water distribution
systems, mains, laterals, pumping stations, stand pipes, filtration plants, purification plants, hydrants, meters, valves
and equipment, appurtenances and all properties, rights, easements and franchises relating thereto and deemed necessary or
convenient by the authority for the operation thereof. Except as otherwise provided in this chapter, the term "water supply
system" shall not mean a dam, reservoir, surface water intake, water obstruction or well.
(61) "Debris disposal area" means an excavation, pit or depression into which land clearing debris, along with small amounts
of construction or demolition waste incidental to construction, has been placed and which is not a permitted or approved waste
management facility.
(62) "Commercial landfill" means a waste disposal facility available for use by the general public and which accepts waste
for disposal for profit.
(63) "Delineation" shall mean the process of defining and/or mapping a boundary that approximates the areas that contribute
water to a particular water source used as a public water supply.
(64) "Public drinking water system" shall mean a community, noncommunity or non-transient non-community water system which
provides piped water to the public for human consumption. The system must have at least 15 service connections or regularly
serve at least 25 individuals daily for at least 60 days.
(65) "Source water" shall mean any aquifer or surface water body from which water is taken either periodically or continuously
by a public drinking water system for drinking or food-processing purposes.
(66) "Source water assessment area" shall mean the delineated area which contributes water to a public water supply system.
This is called a wellhead protection area for a well and a watershed or basin for a surface water intake. A source water assessment
area shall constitute a critical area as defined under Chapter 92 of Title 29.
(67) "Source water assessment plan" shall mean the October 1999 U.S. EPA-approved plan for evaluating the sources of public
drinking water in Delaware for their vulnerability and susceptibility to contamination.
(68) "Source water assessment" shall mean the identification and evaluation of the sources of water within the State that
are used by public drinking water systems in an effort to determine the susceptibility of those sources to contamination.
(69) "Wellhead protection area" shall mean the surface and subsurface area surrounding a water well or wellfield supplying
a public water system through which contaminants are likely to reach such a well or wellfield. A Wellhead Protection Area
shall constitute a critical area as defined under Chapter 92 of Title 29.
(70) "Wellhead protection plan" shall mean the March 1990 U.S. EPA-approved plan for protecting the quality of drinking water
derived from public water supply wells in Delaware.
(71) "Excellent ground-water recharge potential area" shall mean any area where soils and sedimentary deposits of the most
coarse grained nature have the best ability to transmit water vertically through the unsaturated zone to the water table as
mapped by the methods described in the Delaware Geological Survey Open File Report No. 34, "Methodology For Mapping Ground-Water
Recharge Areas in Delaware's Coastal Plain" (August 1991), and as depicted on a series of maps prepared by the Delaware Geological
Survey. An excellent ground-water recharge potential area shall constitute a critical area as defined under Chapter 92 of
Title 29.
(72) "Source Water Protection Citizens Technical Advisory Committee" shall mean a group to advise the Secretary of the Department
of Natural Resources and Environmental Control, including, but not limited to, representatives of the following organizations
or municipalities: DNREC, Department of Health and Social Services, Department of Agriculture, the Delaware Nature Society,
the Delaware Public Health Association, the American Association of Retired Persons, the United States Geological Survey,
the Christina River Conservancy, the Water Resources Agency of the University of Delaware, the Council of Farm Organizations,
the Delaware Rural Water Association, the League of Women Voters, the Friends of Herring Creek, the Civic League of New Castle
County, the Delaware Geological Survey, the Committee of 100, the City of Dover, the City of Lewes, the New Castle County
Department of Land Use, Kent County Levy Court, Sussex County Council, the League of Local Governments, the Sussex County
Association of Towns, the Homebuilders Association of Delaware, the Commercial Industrial Realty Council, and the Delaware
Association of Professional Engineers; and public water suppliers.
(73) "Environmental release" means any spillage, leakage, emission, discharge or delivery into the air or waters or on or
into the lands of this State of any sewage of 10,000 gallons or more oil, industrial waste, liquid waste, hydrocarbon chemical,
hazardous substance, hazardous waste, restricted chemical material, vessel discharge, air contaminant, pollutant, regulated
biological substance or other wastes reportable pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or regulations enacted pursuant to § 6028 of this title.
7 Del. C. 1953, § 6002; 59 Del. Laws, c. 212, § 1; 61 Del. Laws, c. 315, § 1; 62 Del. Laws, c. 412, §§ 1, 2; 62 Del. Laws, c. 414, § 3; 63 Del. Laws, c. 248, § 1; 64 Del. Laws, c. 146, § 4; 64 Del. Laws, c. 370, § 1; 64 Del. Laws, c. 479, §§ 4, 5; 65 Del. Laws, c. 144, § 1; 66 Del. Laws, c. 275, § 1; 67 Del. Laws, c. 353, § 2; 68 Del. Laws, c. 124, § 3; 68 Del. Laws, c. 137, §§ 1, 2; 68 Del. Laws, c. 403, §§ 1, 2; 69 Del. Laws, c. 302, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 418, § 1; 72 Del. Laws, c. 289, §§ 1, 6, 7; 73 Del. Laws, c. 67, § 1; 73 Del. Laws, c. 117, § 1.;
§ 6003. Permit -- Required.
(a) No person shall, without first having obtained a permit from the Secretary, undertake any activity:
(1) In a way which may cause or contribute to the discharge of an air contaminant; or
(2) In a way which may cause or contribute to discharge of a pollutant into any surface or ground water; or
(3) In a way which may cause or contribute to withdrawal of ground water or surface water or both; or
(4) In a way which may cause or contribute to the collection, transportation, storage, processing or disposal of solid wastes,
regardless of the geographic origin or source of such solid wastes; or
(5) To construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station;
or
(6) To construct any water facility; or
(7) To plan or construct any highway corridor which may cause or contribute to the discharge of an air contaminant or discharge
of pollutants into any surface or ground water.
(b) No person shall, without first having obtained a permit from the Secretary, construct, install, replace, modify or use
any equipment or device or other article:
(1) Which may cause or contribute to the discharge of an air contaminant; or
(2) Which may cause or contribute to the discharge of a pollutant into any surface or ground water; or
(3) Which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface
or ground waters; or
(4) Which is intended to withdraw ground water or surface water for treatment and supply; or
(5) For disposal of solid waste.
(c) The Secretary shall grant or deny a permit required by subsection (a) or (b) of this section in accordance with duly promulgated
regulations and:
(1) No permit may be granted unless the county or municipality having jurisdiction has first approved the activity by zoning
procedures provided by law; and
(2) No permit may be granted to any incinerator unless:
a. The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
b. Every point on the property boundary line of the property on which the incinerator is or would be located is:
1. At least 3 miles from every point on the property boundary line of any residence;
2. At least 3 miles from every point on the property boundary line of any residential community; and
3. At least 3 miles from every point on the property boundary line of any church, school, park, or hospital.
(d) A county which requests authority to administer a system for granting or denying a septic tank permit, and which satisfies
the Secretary that it has the capability, including but not limited to regulations and enforcement authority, may be authorized
by the Secretary, for a term stated, to administer such a system for him or her within that county. In the event of such authorization,
an applicant for a septic tank permit in that county shall not be bound by subsections (a) and (b) of this section.
(e) The Secretary may, after public hearings, publish a list of activities which do not require a permit.
(f) The Secretary may establish fees for permits issued pursuant to this section with the concurrence and approval of the
General Assembly. The Secretary shall annually prepare a schedule of fees for permits issued pursuant to this section and
submit the same as part of the Department's annual operating budget proposal.
(g) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license until the property owner has obtained from the Department any necessary permits for underground discharge of wastewater
and withdrawal of groundwater.
(h) The Secretary may reduce the amount of any fee charged for any permit or license issued pursuant to the provisions of
this title for particular types of permits or classes or categories of permittees.
(i) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license to any person intending to operate an incinerator unless:
(1) The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
(2) Every point on the property boundary line of the property on which the incinerator is or would be located is:
a. At least 3 miles from every point on the property boundary line of any residence;
b. At least 3 miles from every point on the property boundary line of any residential community; and
c. At least 3 miles from every point on the property boundary line of any church, school, park or hospital.
7 Del. C. 1953, § 6003; 59 Del. Laws, c. 212, § 1; 65 Del. Laws, c. 344, § 1; 68 Del. Laws, c. 86, § 3; 68 Del. Laws, c. 89; 68 Del. Laws, c. 348, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 289, §§ 2-5.;
§ 6004. Same -- Application; hearing.
(a) Any person desiring to obtain a permit required by § 6003 of this title or a variance or an application to establish a
redemption center or a certificate of public convenience and necessity required by subchapter V of this chapter shall submit
an application therefor in such form and accompanied by such plans, specifications and other information as required by applicable
statute or regulation.
(b) Except as otherwise provided in subsection (c) of this section, upon receipt of an application in proper form, the Secretary
shall advertise in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper
of general circulation throughout the State (1) the fact that the application has been received, (2) a brief description of
the nature of the application, and (3) the place at which a copy of the application may be inspected. The Secretary shall
hold a public hearing on an application, if he or she receives a meritorious request for a hearing within a reasonable time
as stated in the advertisement. A public hearing may be held on any application if the Secretary deems it to be in the best
interest of the State to do so. Such notice shall also be sent by mail to any person who has requested such notification from
the Department by providing the name and mailing address. The reasonable time stated shall be 15 days, unless federal law
requires a longer time, in which case the longer time shall be stated. A public hearing request shall be deemed meritorious
if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact. The applicant
shall be responsible for the cost of any such advertisements and notices made by the Department as required by this section,
not to exceed $500.
(c) The advertisement and notice requirements set forth in subsection (b) of this section may not apply to a permit application
received by the Department whenever the subject matter of said application relates to the following: (1) Air quality control
permit applications for open burning, or for the construction or operation of emission control equipment on an existing gasoline
dispensing facility, a delivery vessel or a dry cleaning facility; (2) water quality control permit applications for a sewage
system for 3 or fewer families, a municipal or publicly owned or operated sewage collection system that does not have a pump
or lift station, or, a commercial septic system that is used to treat and dispose of 500 gallons or less per day of domestic
wastewater only; (3) water well construction permit applications for any well from which the Department determines that the
withdrawal under normal operations will not exceed 50,000 gallons per day. The Secretary may act without public notice on
any permit application that is specified in this subsection.
(d) Advertisements required under subsection (b) of this section may be placed by persons desiring to obtain a permit under
§ 6003 of this title, provided the advertisement meets the requirements contained in subsection (b) of this section and any
additional requirements as may be specified by the Department.
7 Del. C. 1953, § 6004; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 1; 61 Del. Laws, c. 503, § 3; 64 Del. Laws, c. 146, §§ 1-3; 64 Del. Laws, c. 472, § 1; 68 Del. Laws, c. 124, § 4; 70 Del. Laws, c. 53, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 117, § 2.;
§ 6005. Enforcement; civil and administrative penalties; expenses.
(a) The Secretary shall enforce this chapter.
(b) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued
pursuant to § 6003 of this title, or any order of the Secretary, shall be punishable as follows:
(1) If the violation has been completed, by a civil penalty imposed by Superior Court of not less than $1,000 nor more than
$10,000 for each completed violation. Each day of continued violation shall be considered as a separate violation. The Superior
Court shall have jurisdiction of a violation in which a civil penalty is sought. If the violation has been completed and there
is a substantial likelihood that it will reoccur, the Secretary may also seek a permanent or preliminary injunction or temporary
restraining order in the Court of Chancery.
(2) If the violation is continuing, the Secretary may seek a monetary penalty as provided in paragraph (1) of this subsection.
If the violation is continuing or is threatening to begin, the Secretary may also seek a temporary restraining order or permanent
injunction in the Court of Chancery. In his or her discretion, the Secretary may endeavor by conciliation to obtain compliance
with all requirements of this chapter. Conciliation shall be giving written notice to the responsible party (i) specifying
the complaint, (ii) proposing a reasonable time for its correction, (iii) advising that a hearing on the complaint may be
had if requested by a date stated in the notice, and (iv) notifying that a proposed correction date will be ordered unless
a hearing is requested. If no hearing is requested on or before the date stated in the notice, the Secretary may order that
the correction be fully implemented by the proposed date or may, on his or her own initiative, convene a hearing, in which
the Secretary shall publicly hear and consider any relevant submission from the responsible party as provided in § 6006 of
this title.
(3) In his or her discretion, the Secretary may impose an administrative penalty of not more than $10,000 for each day of
violation. Prior to assessment of an administrative penalty, written notice of the Secretary's proposal to impose such penalty
shall be given to the violator, and the violator shall have 30 days from receipt of said notice to request a public hearing.
Any public hearing, if requested, right of appeal and judicial appeal shall be conducted pursuant to §§ 6006-6009 of this
title. Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the
violation, or violations, ability of violator to pay, any prior history of such violations, the degree of culpability, economic
benefit or savings (if any) resulting from the violation and such other matters as justice may require. Simultaneous violations
of more than 1 pollutant or air contaminant parameter or of any other limitation or standard imposed under this chapter shall
be treated as a single violation for each day. In the event of nonpayment of the administrative penalty after all legal appeals
have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative
penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative
penalty shall not be subject to review.
(c)(1) Whenever the Secretary determines that any person has violated this chapter, or a rule, or regulation, or condition
of a permit issued pursuant to § 6003 of this title, or an order of the Secretary, said person shall be liable for all expenses
incurred by the Department:
a. In abating the violation; or
b. Controlling a pollution incident related to the violation; or
c. Cleanup and restoration of the environment; or
d. The costs incurred by the Department in recovering such expenses.
Such expenses shall include, but not be limited to, the costs of investigation, legal fees and assistance, public hearings,
materials, equipment, human resources, contractual assistance and appropriate salary and overtime pay for all state employees
involved in the effort notwithstanding merit system laws, regulations or rules to the contrary. The Secretary shall submit
a detailed billing of expenses to the liable person.
(2) In the event the liable person desires to challenge the detailed billing submitted by the Secretary, such person shall,
within 20 days of receipt of the detailed billing request an administrative hearing before the Secretary. Testimony at the
administrative hearing shall be under oath and shall be restricted to issues relating to:
a. The finding of violation; and
b. The billing of expenses submitted by the Secretary.
A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents
introduced by the Secretary or other party, constitute the record. The Secretary shall make findings of fact based on the
record, and enter an order which shall contain reasons supporting the decision. An appeal of the decision of the Secretary
may be perfected to Superior Court within 30 days of the decision of the Secretary. In lieu of holding an administrative hearing
on the detailed billing, or in the event a liable person fails or refuses to pay any of the expenses listed in the detailed
billing, the Secretary may seek to compel payment through the initiation of a civil action in any court of competent jurisdiction
within the State of Delaware. This subsection shall not be affected by the appeal provisions of § 6008 of this title.
(d) Any expenses or 75 percent of civil or administrative penalties collected by the Department under this section are hereby
appropriated to the Department to carry out the purposes of this chapter; however any expenditure or transfer must be approved
by the Director of the Office of Management and Budget and the Controller General. The Department shall submit quarterly reports
on the progress of the expenditures and/or projects. All expenditures must be recommended by the Department and approved by
the Secretary. All penalty funds will be deposited in the Penalty Fund Account. All of the penalty fund expenditures made
by the Department of Natural Resources and Environmental Control shall be reported annually to the Joint Finance Committee
in the Department's annual budget presentation. Included in this presentation shall be an explanation of the process used
to select the recipients of penalty fund money.
(e) Fines created by this section may be tripled with respect to any person or entity that was designated a chronic violator
pursuant to § 7904 of this title at the time that the act leading to the fine occurred.
7 Del. C. 1953, § 6005; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 2, 3; 66 Del. Laws, c. 163, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 318, § 2; 74 Del. Laws, c. 37, § 1; 74 Del. Laws, c. 203, § 1; 75 Del. Laws, c. 88, § 21(4); 75 Del. Laws, c. 357, § 1.;
§ 6006. Public hearings.
Any public hearing held by the Secretary concerning any regulation or plan, permit application, alleged violation or variance
request shall be conducted as follows:
(1) For any hearing on an application for a permit or an alleged violation or variance request, notification shall be served
upon the applicant or alleged violator as summonses are served or by registered or certified mail not less than 20 days before
the time of said hearing. Not less than 20 days' notice shall also be published in a newspaper of general circulation in
the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper of general circulation
throughout the State.
(2) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general
circulation in each county and in a newspaper of general circulation in the State. Such notification shall include: (i) A
brief description of the regulation or plan; (ii) time and place of hearing; and (iii) time and place where copies of the
proposed regulation may be obtained and a copy of the plan is available for public scrutiny. Such notice shall also be sent
to any persons who have requested such notification from the Department by providing the name and mailing address.
(3) The permit applicant or the alleged violator or party requesting a variance may appear personally or by counsel at the
hearing and produce any competent evidence in his/her behalf. The Secretary or his/her duly authorized designee may administer
oaths, examine witnesses and issue, in the name of the department, notices of hearings or subpoenas requiring the testimony
of witnesses and production of books, records or other documents relevant to any matter involved in such hearing; and subpoenas
shall also be issued at the request of the applicant or alleged violator or party requesting a variance. In case of contumacy
or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing
is held shall have jurisdiction upon application of the Secretary, to issue an order requiring such person to appear and testify
or produce evidence as the case may require.
(4) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, also with the exhibits
and other documents introduced by the Secretary or other party, constitute the record. The expense of preparing any transcript
shall be borne by the person requesting it. The Secretary shall make findings of fact based on the record. The Secretary shall
then enter an order that will best further the purpose of this chapter, and the order shall include reasons. The Secretary
shall promptly give written notice to the persons affected by such order.
(5) The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a
violator finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee
for processing an application, or both. Any fees collected under this chapter are hereby appropriated to the Department to
carry out the purposes of this chapter. The Secretary shall report through the annual budget process the receipt, proposed
use and disbursement of these funds.
7 Del. C. 1953, § 6006; 59 Del. Laws, c. 212, § 1; 63 Del. Laws, c. 322, § 105(a); 64 Del. Laws, c. 62, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6007. Establishment of Environmental Appeals Board.
(a) There is hereby created an Environmental Appeals Board which shall consist of 7 Delaware residents, appointed by the Governor
with the advice and consent of the Senate. The Chairperson shall be appointed by the Governor and serve at the Governor's
pleasure. Each county shall be represented by 2 members. Registered members of either major political party shall not exceed
the other major political party by more than 1. The term of each member appointed shall be 3 years. Vacancies in Board membership
shall be filled by the Governor for the remainder of the unexpired term.
(b) The Board is a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary.
The Board or its designee may issue subpoenas by certified mail for witnesses or evidence, administer oaths to witnesses and
conduct pre-hearing conferences for the simplification of issues by consent, for the disposal of procedural requests or disputes
and to regulate and expedite the course of the hearing.
(c) A simple majority of the Board shall constitute a quorum. A simple majority of those members of the Board present shall
be required to override the decision of the Secretary. The Board shall schedule, but not necessarily conduct, a hearing within
30 days following the receipt of the appeal. In any event, the Board shall conduct, but not necessarily complete, the hearing
within 180 days following the receipt of the appeal unless the parties agree otherwise. The Board may verbally announce the
decision at the conclusion of the hearing. A written decision shall be mailed to the parties by certified mail within 90
days after the completion of the hearing. If the Board fails to conduct the hearing or to issue the written opinion as required,
the decision of the Secretary shall be a final decision for the purposes of appeal.
(d) Any member of the Board with a personal or private financial interest in the outcome of an appeal before the Board shall
disqualify himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest
on the record of the hearing.
(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.
(f) The Environmental Appeals Board shall adopt such rules and regulations as are necessary to provide procedures to implement
the terms of §§ 6007-6009 of this title, which shall apply to appeals to the Environmental Appeals Board. Prior to adopting
any such rules and regulations, the Board shall designate a day, time and place for a public hearing on such proposed rules
or for any amendments to existing or proposed rules and regulations. The Board shall give 20 days' notice of such hearing
by publication in a newspaper of general circulation in the State and shall make copies of such proposed regulations available
to the public upon request. The public hearing on such regulations shall be consistent with the provisions of Chapter 101
of Title 29.
(g) In any appeal to the Board there shall be required a reasonable fee, as established by the General Assembly, to cover
such costs as are incurred during the appeal. The fees charged by the Environmental Appeals Board shall be deposited in a
special account in the name of the Environmental Appeals Board and shall be used solely for the costs and expenses of that
Board in holding its hearings and proceedings.
7 Del. C. 1953, § 6007; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 201, § 1; 68 Del. Laws, c. 86, § 4; 68 Del. Laws, c. 148, § 1; 70 Del. Laws, c. 186, § 1.;
§ 6008. Appeals to Board.
(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals
Board within 20 days after receipt of the Secretary's decision or publication of the decision. The Board shall conduct a
public hearing for all appeals in accordance with Chapter 101 of Title 29. Deliberations of the Board may be conducted in
executive session. Each member who votes shall indicate the nature of his or her vote in the written decision.
(b) Whenever a final decision of the Secretary concerning any case decision, including but not limited to any permit or enforcement
action is appealed, the Board shall hold a public hearing in accordance with Chapter 101 of Title 29. The record before the
Board shall include the entire record before the Secretary. All parties to the appeal may appear personally or by counsel
at the hearing and may produce any competent evidence in their behalf. The Board may exclude any evidence which is plainly
irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and
cross-examination. The burden of proof is upon the appellant to show that the Secretary's decision is not supported by the
evidence on the record before the Board. The Board may affirm, reverse or remand with instructions any appeal of a case decision
of the Secretary.
(c) Appeals of regulations shall be on the record before the Secretary. The Board may hear new evidence if it is relevant
to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant,
immaterial, insubstantial, cumulative or unduly repetitive. Regulations will be presumed valid, and the burden will be upon
the appellant to show that the regulations are arbitrary and capricious, or adopted without a reasonable basis in the record.
The Board shall take due account of the Secretary's experience and specialized competence and of the purposes of this chapter
in making its determination. The board may affirm, reverse or remand any appeal of regulations promulgated by the Secretary.
(d) The decision of the Board shall be signed by all members who were present at the hearing.
(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned land including
subaqueous lands, except an appeal shall lie on the sole ground that the decision was discriminatory in that the applicant,
whose circumstances are like and similar to those of other applicants, was not afforded like and similar treatment.
(f) 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.
(g) At any time after the appeal to the Board, the parties may, by stipulation, proceed directly to Superior Court, in which
case the Court may affirm, reverse or remand the Secretary's decision based on the record before the Secretary and the Board
and whatever other evidence the parties may submit by stipulation. The standard of review for such an appeal shall be governed
by subsections (b) and (c) of this section.
(h) In those circumstances in which the Board concludes that an immediate and expedited review of a decision of the Secretary
is appropriate or necessary, the Board may hold a public hearing on the appeal at the earliest possible time and issue a decision
on such appeal. In such a case, the notice requirements of this section and Chapter 101 of Title 29 do not apply, and the
Board shall give advance notice of the hearing only to the extent reasonably possible.
7 Del. C. 1953, § 6008; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 4; 67 Del. Laws, c. 377, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6009. Appeal from the Board's decision.
(a) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State,
aggrieved by any decision of the Board, may appeal to the Superior Court in and for the county in which the activity in question
is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole
or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within 30 days of the receipt of
the written opinion of the Board.
(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless
the Court determines that the records contain no substantial evidence that would reasonably support the findings. If the
Court finds that additional evidence should be taken, the Court may remand the case to the Board for completion of the record.
(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the
Board or the Court of Chancery may stay the action pending disposition of the appeal.
7 Del. C. 1953, § 6009; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 5, 6; 68 Del. Laws, c. 148, § 1.;
§ 6010. Rules and regulations; plans.
(a) The Secretary may adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the
policy and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State
or the reasonable implications thereof.
(b) The Secretary shall formulate, amend, adopt and implement, after a public hearing, a statewide comprehensive water plan
for the immediate and long-range development and use of the water resources of the State.
(c) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide air resources management plan
to achieve the purpose of this chapter and comply with applicable federal laws and regulations. Any implementation plan in
effect at the time of enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(d) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide water pollution management
plan to achieve the purposes of this chapter and comply with applicable federal laws and regulations. Any implementation plan
in effect at the time of the enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(e) The Secretary shall formulate, amend, develop and implement, after public hearing, a State solid waste plan in accordance
with the requirements of subtitle D of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580) as amended [42 U.S.C.
§ 6941 et seq.], and any regulations thereunder, hereafter referred to as RCRA: Provided, however, that such plan shall be
formulated in coordination with the Delaware Solid Waste Authority and shall include provisions of the statewide solid waste
management plan adopted by the Delaware Solid Waste Authority pursuant to subsection (j) of § 6403 of this title which reflect
the applicable functions and activities of the Delaware Solid Waste Authority under Chapter 64 of this title.
(f) The Secretary:
(1) Shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(2) Shall approve all new plans and designs of all impounding water facilities by any state, county, municipal, public or
private water user within the State pursuant to subchapter V of this chapter; and
(3) May require reports from all Delaware water users as to a description of their water facilities, and past and present
records of water use.
(g)(1) The Secretary, after notice and public hearing, shall promulgate regulations containing criteria for determining which
facilities shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this
chapter. At a minimum such criteria shall provide that a facility may be classified as a sanitary landfill and not an open
dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste
at such facility. Such regulations may provide for the classification of the types of sanitary landfills.
(2) On the date as determined under paragraph (3) below, the open dumping of solid waste or hazardous waste and the establishment
of new open dumps is prohibited and all solid waste, including solid waste originating in other states but not including hazardous
waste, shall be utilized for resource recovery or disposed of in sanitary landfills, within the meaning of this chapter, or
otherwise disposed of in an environmentally sound manner, except in the case of any practice or disposal of solid waste under
a timetable or schedule for compliance established under paragraph (5) below.
(3) Except as provided in paragraphs (4) and (5) below, the prohibition contained in paragraph (2) above shall take effect
on the date of promulgation of regulations containing criteria under paragraph (1) or on the date of approval of the state
solid waste plan under § 4007 of RCRA [42 U.S.C. § 6947], whichever is later.
(4) To assist in the formulation of the state solid waste plan, the Secretary, utilizing the criteria adopted pursuant to
paragraph (1) above, shall develop and publish an inventory of all disposal facilities or sites in Delaware which are open
dumps within the meaning of this chapter. With respect to any active disposal facilities or sites the Secretary shall coordinate
the development of the inventory with the Delaware Solid Waste Authority. Prior to publication of the inventory the Secretary
shall provide written notice of the proposed open dump designation to the owner and operator of the disposal facility or site
which notice shall contain a detailed statement of deficiencies under the criteria adopted pursuant to paragraph (1) above.
Upon receipt of notification the owner or operator shall, within 30 days, be entitled to request a public hearing before the
Secretary pursuant to § 6006 of this title to challenge the designation; otherwise, the designation shall become a final decision
of the Secretary. With 60 days of publication of the open dump inventory, the owner or operator of a disposal facility or
site may apply to the Secretary for a timetable or schedule for compliance or closure under paragraph (5) below. During the
pendency of any such application and prior to final action and disposition thereon the prohibition set forth in paragraph
(3) above shall not apply with respect to that site. Upon application by the owner or operator, a site or facility may be
removed from the open dump inventory after a determination by the Secretary that the basis upon which the site was designated
as an open dump no longer exists. Any such application to remove a site or facility from the inventory shall be advertised
in accordance with subsection (b) of § 6004 of this title.
(5) All existing disposal facilities or sites for solid waste which are open dumps listed in the inventory under paragraph
(4) of this subsection shall comply with such measures as may be required by the Secretary, consistent with the requirements
of RCRA [42 U.S.C. § 6901 et seq.], for closure or upgrading. The Secretary shall establish a timetable or schedule for compliance
for such practice or disposal of solid waste which specifies a schedule of remedial measures, including an enforceable sequence
of actions or operations, leading to compliance with the prohibition on open dumping of solid waste within a reasonable time
(not to exceed 5 years) from the date of publication of criteria under paragraph (1) of this subsection.
(h)(1) Subject to subsection (f) of this section, the Secretary shall establish procedures for the issuance of water allocation
permits which shall be granted concurrently with any license or permit to construct, extend or operate an irrigation well
or surface water intake on any farm or farmland in the State. A water allocation permit issued pursuant to this subsection
shall reserve the right of the person to whom the permit is issued to utilize up to 20 acre-inches per year, but not more
than 10 acre-inches per month.
(2) For the purposes of this subsection:
a. An "acre-inch" of water is the amount of water required to cover 1 acre of land to a depth of 1 inch and is equal in volume
to 27,154 gallons of water.
b. An "irrigation well" is an agricultural well which is used exclusively for the watering of lands or crops other than household
lawns and gardens.
7 Del. C. 1953, § 6010; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 288, § 2; 63 Del. Laws, c. 248, §§ 2-4; 67 Del. Laws, c. 344, § 4; 68 Del. Laws, c. 124, § 5; 73 Del. Laws, c. 191, § 1.;
§ 6011. Variance.
(a) The Secretary may, upon application of a person (except an application concerning (1) a source of water or a sewerage
facility for 3 or fewer families or (2) open burning, on which the Secretary may act without public notification), grant a
variance to that person from any rule or regulation promulgated pursuant to this chapter after following the notice and hearing
procedure set forth in § 6004 of this title.
(b) The variance may be granted if the Secretary finds that:
(1) Good faith efforts have been made to comply with this chapter;
(2) The person applying is unable to comply with this chapter because the necessary technology or other alternative methods
of control are not available or have not been available for a sufficient period of time or the financial cost of compliance
by using available technology is disproportionately high with respect to the benefits which continued operation would bestow
on the lives, health, safety and welfare of the occupants of this State and the effects of the variance would not substantially
and adversely affect the policy and purposes of this chapter;
(3) Any available alternative operating procedure or interim control measures are being or will be used to reduce the impact
of such source on the lives, health, safety and/or welfare of the occupants of this State; and
(4) The continued operation of such source is necessary to national security or to the lives, health, saf
Subchapter II. Powers and Duties of Secretary and Department
§ 6002. Definitions.
The following words and phrases shall have the meaning ascribed to them in this chapter unless the context clearly indicates
otherwise:
(1) "Activity" means construction, or operation, or use of any facility, property, or device.
(2) "Air contaminant" means particulate matter, dust, fumes, gas, mist, smoke or vapor or any combination thereof, exclusive
of uncombined water.
(3) "Air pollution" means the presence in the outdoor atmosphere of 1 or more air contaminants in sufficient quantities and
of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably
interferes with the enjoyment of life and property within the jurisdiction of this State, excluding all aspects of employer-employee
relationships as to health and safety hazards.
(4) "Board" means the Environmental Appeals Board.
(5) "Borrow pit" means any excavation into the subsurface for the purpose of extraction of earth products with the exception
of excavation for utility or road construction, agricultural or highway drainage, or dredging operations under the jurisdiction
of the U.S. Army Corps of Engineers.
(6) "Department" means the Department of Natural Resources and Environmental Control.
(7) "Earth products" means any solid material, aggregate or substance of commercial value, whether consolidated or loose,
found in natural deposits on or in the earth, including, but not limited to clay, silt, diatomaceous earth, sand, gravel,
stone, metallic ores, shale and soil.
(8) "Garbage" shall mean any putrescible solid and semisolid animal and/or vegetable wastes resulting from the production,
handling, preparation, cooking, serving or consumption of food or food materials.
(9) "Ground water" means any water naturally found under the surface of the earth.
(10) "Incinerator," "incinerator structure or facility," and "waste incinerator" include any structure or facility operated
for the combustion (oxidation) of solid waste, even if the by-products of the operation include useful products such as steam
and electricity. "Incinerator" shall not include:
a. Crematoriums;
b. The disposal of the bodies of animals through incineration;
c. The burning of poultry waste or poultry manure at the same site where the waste or manure was generated, which shall include
the burning of poultry waste or poultry manure generated upon an adjacent farm;
d. The disposal of all materials used in the discovery, development, and manufacture of veterinary products, medicines and
vaccines; or
e. The disposition of mortalities from poultry operations in facilities approved by the Delaware Department of Natural Resources
and Environmental Control which comply with United States Department of Agricultural Natural Resources Conservation Service
Interim Conservation Practice Standard Incinerator 769 or any successor standard.
(11) "Industrial waste" means any water-borne liquid, gaseous, solid or other waste substance or a combination thereof resulting
from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.
(12) "Liquid waste" means any industrial waste or sewage or other wastes or any combination thereof which may potentially
alter the chemical, physical or biological integrity of water from its natural state.
(13) "Liquid waste hauler" means any person who engages in the removal of liquid wastes from septic tanks, cesspools, seepage
pits, holding tanks or other such devices and conveys such liquid waste to a location removed from the point of acceptance.
(14) "Liquid waste treatment plant operator" means any person who has direct responsibility for the operation of a liquid
waste treatment plant.
(15) "Oil" means oil of any kind and in any form, including but not limited to, petroleum products, sludge, oil refuse, oil
mixed with other wastes and all other liquid hydrocarbons regardless of specific gravity.
(16) "Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime cinders, ashes, offal, oil, tar,
dye-stuffs, acids, chemicals and all discarded substances other than sewage or industrial wastes.
(17) "Persons" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including
a government corporation), association, state, municipality, commission, political subdivision of a state or any interstate
body.
(18) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, hydrocarbons,
oil, and product chemicals, and industrial, municipal and agricultural waste discharged into water.
(19) "Refuse" means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes,
street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes and
construction wastes resulting from the operation of a contractor.
(20) "Rubbish" means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food
containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery and other waste
materials.
(21) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary's duly
authorized designee.
(22) "Sewage" means water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial
establishments, or other places, together with such ground water infiltration, subsurface water, admixtures of industrial
wastes or other wastes as may be present.
(23) "Solid waste" means any garbage, refuse, refuse-derived fuel, demolition and construction waste wood, sludge from a waste
treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid,
liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations,
and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved
material in irrigation return flows or industrial discharges which are point sources subject to permits under this chapter,
as amended, or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended. By-products
of a uniform and known composition produced as a result of a production process are not solid wastes when incinerated onsite.
All incinerators under state permit as of March 1, 2000, and renewal permit applications for these incinerators shall not
come under the provisions of this section and § 6003 of this title.
(24) "Surface water" means water occurring generally on the surface of the earth.
(25) "Variance" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
(26) "Water facility" means any well, dam, reservoir, surface water intake or waterway obstruction.
(27) "Water utility" shall mean any person or entity operating within this State any water service, system, plant or equipment
for public use.
(28) "Water pollution" means the human-made or human-induced alteration of the chemical, physical, biological or radiological
integrity of water.
(29) "Water well contractor" means any person engaged in the business of contracting for the construction of water wells and/or
installation of pumping equipment in or for wells.
(30) "Categorical pretreatment standard" means a pretreatment standard which applies to industrial users in a specific industrial
subcategory.
(31) "Discharge or indirect discharge" means the discharge or the introduction of pollutants from any nondomestic source into
a POTW.
(32) "Industrial user" means a source of indirect discharge. The term "industrial user" shall include, but not be limited
to, the original source of the indirect discharge as well as the owners or operators of any intervening connections, other
than those owned or operated by the receiving POTW, which convey the indirect discharge to the POTW.
(33) "POTW pretreatment program" means a program administered by a POTW for the purpose of enforcing pretreatment standards
in accordance with the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. and regulations promulgated
thereunder.
(34) "Pretreatment standard" means any pollutant discharge limit promulgated by the Administrator of the United States Environmental
Protection Agency in accordance with § 307(b) and (c) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §
1317(b) and (c), or by the Secretary, which applies to industrial users.
(35) "Publicly owned treatment works" or "POTW" means either:
a. A treatment works which is owned by a city, town, county, district or other public body created by or pursuant to the laws
of the State; or
b. Any such public body which has jurisdiction over the discharges to such treatment works.
(36) "Treatment works" means any device and system used in the storage, treatment, recycling and reclamation of municipal
sewage, or industrial wastes of a liquid nature, or necessary to recycle or reuse water at the most economical cost over the
estimated life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power and
other equipment, and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements
essential to provide a reliable recycled supply such as standby treatment units and clear well facilities and improvements
to exclude or minimize inflow and infiltration.
(37) "Open dump" means any facility or site where solid waste is disposed which is not a sanitary landfill and which is not
a facility for disposal for hazardous waste.
(38) "Sanitary landfill" means a facility for the disposal of solid waste which meets the criteria promulgated under paragraph
(1) of subsection (g) of § 6010 of this title.
(39) "Domestic wastewater" means the liquid and water-borne human and/or household type waste derived from residential, industrial,
institutional or commercial sources.
(40) "At cost" means the expense to the government to conduct tests and analyses. No added service fee, or other fees and
charges, may be included in this cost.
(41) "Hydrocarbon chemical" means any compound composed of carbon and hydrogen.
(42) "Restricted chemical material" means:
a. Any halogenated hydrocarbon chemical (aliphatic or aromatic) including but not limited to trichloroethane, tetrachloroethylene,
methylene chloride, halogenated benzenes and carbon tetrachloride; or
b. Any aromatic hydrocarbon chemical including, but not limited to, benzene, toluene and naphthalene; or
c. Any halogenated phenol derivative in which a hydroxide group and 2 or more halogen atoms are substituted onto aromatic
carbons of a benzene ring including, but not limited to, trichlorophenol and pentachlorophenol; or
d. Similar materials including but not limited to acrolein, acrylonitrile or benzidene.
(43) "Sewage system" means any part of a wastewater disposal system including, but not limited to, all toilets, urinals, piping,
drains, sewers, septic tanks, distribution boxes, absorption fields, seepage pits, cesspools and dry wells.
(44) "Sewage system cleanser" means: (i) Any solid or liquid material intended or used primarily for the purpose of cleaning,
treating or unclogging any part of a sewage system, or (ii) any solid or liquid material intended or used primarily for the
purpose of continuously or automatically deodorizing or disinfecting any part of a sewage system including, but not limited
to, solid cakes or devices placed in plumbing fixtures. Excluded from this definition are products intended or used primarily
in the manual surface cleaning, scouring, treating, deodorizing or disinfecting, of common plumbing fixtures.
(45) "Well" means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when
the intended use of such excavation is for the location, testing, acquisition or artificial recharge of underground water,
and where the depth is greater than the diameter or width.
(46) "Boat docking facility" shall mean a place where vessels may be secured to a fixed or floating structure or to the shoreline
or shoreline structure.
(47) "Direct vessel sewage pumpout connection" shall mean a semipermanent connection made to a vessel for the purpose of removing
vessel sewage from the vessel holding tank or head on a continuous or automatic intermittent basis to an approved sewage disposal
facility.
(48) "Vessel discharge" includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping.
(49) "Graywater" means galley, bath and shower water.
(50) "Live-aboard vessel" shall mean:
a. A vessel used principally as a residence;
b. A vessel used as a place of business, professional or other commercial enterprise and, if used as a means of transportation,
said transportation use is a secondary or subsidiary use; this definition shall not include commercial fishing boats which
do not fall under paragraph a. of this subdivision; or
c. Any other floating structure used for the purposes stated under paragraph a. or b. of this subdivision.
(51) "Marine Sanitation Device (MSD)" includes any equipment on board a vessel which is designed to receive, retain, treat
or discharge sewage, and any process to treat such sewage. Marine sanitation devices are classified as:
a. "Type I marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count not greater
than 1,000 per 100 milliliters and no visible floating solids.
b. "Type II marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count of not
greater than 200 per 100 milliliters and suspended solids not greater than 150 milligrams per liter.
c. "Type III marine sanitation device" means a device that is certified to a no-discharge standard. Type III devices include
recirculating and incinerating MSDs and holding tanks.
(52) "Vessel sewage pumpout station" shall mean a mechanical device which is temporarily connected to a vessel for the purpose
of removing vessel sewage from its holding tank or head to an approved sewage disposal facility.
(53) "Vessel" shall mean and include every description of watercraft, boat, houseboat or other form of artificial contrivance
used, or capable of being used, whether or not capable of self-propulsion, for navigation on the waters of the State.
(54) "Vessel sewage" shall mean human body wastes and wastes from toilets and other receptacles intended to receive or retain
human body wastes.
(55) "Marinas" are those facilities adjacent to the water which provide for mooring, berthing, or storage of boats, and which
include any or all of the related ancillary structures and functions of marinas, such as docks, piers, boat storage areas,
boat ramps, anchorages, breakwaters, channels, moorings, basins, boat repair services, boat sales, sales of supplies which
are normally associated with boating such as fuel, bait and tackle, boat rentals and parking areas for users of the marina.
(56) "Slip" means a place where a boat may be secured to a fixed or floating structure, including, but not limited to a dock,
pier, mooring or anchorage. Slips may be wet (in the water) or dry (in a rack or other device on land).
(57) "Dump station" means a type of pumpout facility that receives vessel sewage from portable marine sanitation devices and
delivers that sewage to an approved sewage disposal facility.
(58) "Dedicated pumpout facility" means a semi-permanent connection made to a vessel for the purpose of removing sewage from
the vessel on a continuous basis or automatic intermittent basis to an approved disposal facility.
(59) "Pumpout facility" means a mechanical device which is temporarily connected to a vessel for the purpose of removing sewage
from a vessel to an approved sewage disposal facility.
(60) "Water supply system" means all plants, systems, facilities or properties used or useful, or having the present capacity
for future use, in connection with the supply or distribution of water, and any integral part thereof, including water distribution
systems, mains, laterals, pumping stations, stand pipes, filtration plants, purification plants, hydrants, meters, valves
and equipment, appurtenances and all properties, rights, easements and franchises relating thereto and deemed necessary or
convenient by the authority for the operation thereof. Except as otherwise provided in this chapter, the term "water supply
system" shall not mean a dam, reservoir, surface water intake, water obstruction or well.
(61) "Debris disposal area" means an excavation, pit or depression into which land clearing debris, along with small amounts
of construction or demolition waste incidental to construction, has been placed and which is not a permitted or approved waste
management facility.
(62) "Commercial landfill" means a waste disposal facility available for use by the general public and which accepts waste
for disposal for profit.
(63) "Delineation" shall mean the process of defining and/or mapping a boundary that approximates the areas that contribute
water to a particular water source used as a public water supply.
(64) "Public drinking water system" shall mean a community, noncommunity or non-transient non-community water system which
provides piped water to the public for human consumption. The system must have at least 15 service connections or regularly
serve at least 25 individuals daily for at least 60 days.
(65) "Source water" shall mean any aquifer or surface water body from which water is taken either periodically or continuously
by a public drinking water system for drinking or food-processing purposes.
(66) "Source water assessment area" shall mean the delineated area which contributes water to a public water supply system.
This is called a wellhead protection area for a well and a watershed or basin for a surface water intake. A source water assessment
area shall constitute a critical area as defined under Chapter 92 of Title 29.
(67) "Source water assessment plan" shall mean the October 1999 U.S. EPA-approved plan for evaluating the sources of public
drinking water in Delaware for their vulnerability and susceptibility to contamination.
(68) "Source water assessment" shall mean the identification and evaluation of the sources of water within the State that
are used by public drinking water systems in an effort to determine the susceptibility of those sources to contamination.
(69) "Wellhead protection area" shall mean the surface and subsurface area surrounding a water well or wellfield supplying
a public water system through which contaminants are likely to reach such a well or wellfield. A Wellhead Protection Area
shall constitute a critical area as defined under Chapter 92 of Title 29.
(70) "Wellhead protection plan" shall mean the March 1990 U.S. EPA-approved plan for protecting the quality of drinking water
derived from public water supply wells in Delaware.
(71) "Excellent ground-water recharge potential area" shall mean any area where soils and sedimentary deposits of the most
coarse grained nature have the best ability to transmit water vertically through the unsaturated zone to the water table as
mapped by the methods described in the Delaware Geological Survey Open File Report No. 34, "Methodology For Mapping Ground-Water
Recharge Areas in Delaware's Coastal Plain" (August 1991), and as depicted on a series of maps prepared by the Delaware Geological
Survey. An excellent ground-water recharge potential area shall constitute a critical area as defined under Chapter 92 of
Title 29.
(72) "Source Water Protection Citizens Technical Advisory Committee" shall mean a group to advise the Secretary of the Department
of Natural Resources and Environmental Control, including, but not limited to, representatives of the following organizations
or municipalities: DNREC, Department of Health and Social Services, Department of Agriculture, the Delaware Nature Society,
the Delaware Public Health Association, the American Association of Retired Persons, the United States Geological Survey,
the Christina River Conservancy, the Water Resources Agency of the University of Delaware, the Council of Farm Organizations,
the Delaware Rural Water Association, the League of Women Voters, the Friends of Herring Creek, the Civic League of New Castle
County, the Delaware Geological Survey, the Committee of 100, the City of Dover, the City of Lewes, the New Castle County
Department of Land Use, Kent County Levy Court, Sussex County Council, the League of Local Governments, the Sussex County
Association of Towns, the Homebuilders Association of Delaware, the Commercial Industrial Realty Council, and the Delaware
Association of Professional Engineers; and public water suppliers.
(73) "Environmental release" means any spillage, leakage, emission, discharge or delivery into the air or waters or on or
into the lands of this State of any sewage of 10,000 gallons or more oil, industrial waste, liquid waste, hydrocarbon chemical,
hazardous substance, hazardous waste, restricted chemical material, vessel discharge, air contaminant, pollutant, regulated
biological substance or other wastes reportable pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or regulations enacted pursuant to § 6028 of this title.
7 Del. C. 1953, § 6002; 59 Del. Laws, c. 212, § 1; 61 Del. Laws, c. 315, § 1; 62 Del. Laws, c. 412, §§ 1, 2; 62 Del. Laws, c. 414, § 3; 63 Del. Laws, c. 248, § 1; 64 Del. Laws, c. 146, § 4; 64 Del. Laws, c. 370, § 1; 64 Del. Laws, c. 479, §§ 4, 5; 65 Del. Laws, c. 144, § 1; 66 Del. Laws, c. 275, § 1; 67 Del. Laws, c. 353, § 2; 68 Del. Laws, c. 124, § 3; 68 Del. Laws, c. 137, §§ 1, 2; 68 Del. Laws, c. 403, §§ 1, 2; 69 Del. Laws, c. 302, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 418, § 1; 72 Del. Laws, c. 289, §§ 1, 6, 7; 73 Del. Laws, c. 67, § 1; 73 Del. Laws, c. 117, § 1.;
§ 6003. Permit -- Required.
(a) No person shall, without first having obtained a permit from the Secretary, undertake any activity:
(1) In a way which may cause or contribute to the discharge of an air contaminant; or
(2) In a way which may cause or contribute to discharge of a pollutant into any surface or ground water; or
(3) In a way which may cause or contribute to withdrawal of ground water or surface water or both; or
(4) In a way which may cause or contribute to the collection, transportation, storage, processing or disposal of solid wastes,
regardless of the geographic origin or source of such solid wastes; or
(5) To construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station;
or
(6) To construct any water facility; or
(7) To plan or construct any highway corridor which may cause or contribute to the discharge of an air contaminant or discharge
of pollutants into any surface or ground water.
(b) No person shall, without first having obtained a permit from the Secretary, construct, install, replace, modify or use
any equipment or device or other article:
(1) Which may cause or contribute to the discharge of an air contaminant; or
(2) Which may cause or contribute to the discharge of a pollutant into any surface or ground water; or
(3) Which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface
or ground waters; or
(4) Which is intended to withdraw ground water or surface water for treatment and supply; or
(5) For disposal of solid waste.
(c) The Secretary shall grant or deny a permit required by subsection (a) or (b) of this section in accordance with duly promulgated
regulations and:
(1) No permit may be granted unless the county or municipality having jurisdiction has first approved the activity by zoning
procedures provided by law; and
(2) No permit may be granted to any incinerator unless:
a. The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
b. Every point on the property boundary line of the property on which the incinerator is or would be located is:
1. At least 3 miles from every point on the property boundary line of any residence;
2. At least 3 miles from every point on the property boundary line of any residential community; and
3. At least 3 miles from every point on the property boundary line of any church, school, park, or hospital.
(d) A county which requests authority to administer a system for granting or denying a septic tank permit, and which satisfies
the Secretary that it has the capability, including but not limited to regulations and enforcement authority, may be authorized
by the Secretary, for a term stated, to administer such a system for him or her within that county. In the event of such authorization,
an applicant for a septic tank permit in that county shall not be bound by subsections (a) and (b) of this section.
(e) The Secretary may, after public hearings, publish a list of activities which do not require a permit.
(f) The Secretary may establish fees for permits issued pursuant to this section with the concurrence and approval of the
General Assembly. The Secretary shall annually prepare a schedule of fees for permits issued pursuant to this section and
submit the same as part of the Department's annual operating budget proposal.
(g) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license until the property owner has obtained from the Department any necessary permits for underground discharge of wastewater
and withdrawal of groundwater.
(h) The Secretary may reduce the amount of any fee charged for any permit or license issued pursuant to the provisions of
this title for particular types of permits or classes or categories of permittees.
(i) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license to any person intending to operate an incinerator unless:
(1) The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
(2) Every point on the property boundary line of the property on which the incinerator is or would be located is:
a. At least 3 miles from every point on the property boundary line of any residence;
b. At least 3 miles from every point on the property boundary line of any residential community; and
c. At least 3 miles from every point on the property boundary line of any church, school, park or hospital.
7 Del. C. 1953, § 6003; 59 Del. Laws, c. 212, § 1; 65 Del. Laws, c. 344, § 1; 68 Del. Laws, c. 86, § 3; 68 Del. Laws, c. 89; 68 Del. Laws, c. 348, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 289, §§ 2-5.;
§ 6004. Same -- Application; hearing.
(a) Any person desiring to obtain a permit required by § 6003 of this title or a variance or an application to establish a
redemption center or a certificate of public convenience and necessity required by subchapter V of this chapter shall submit
an application therefor in such form and accompanied by such plans, specifications and other information as required by applicable
statute or regulation.
(b) Except as otherwise provided in subsection (c) of this section, upon receipt of an application in proper form, the Secretary
shall advertise in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper
of general circulation throughout the State (1) the fact that the application has been received, (2) a brief description of
the nature of the application, and (3) the place at which a copy of the application may be inspected. The Secretary shall
hold a public hearing on an application, if he or she receives a meritorious request for a hearing within a reasonable time
as stated in the advertisement. A public hearing may be held on any application if the Secretary deems it to be in the best
interest of the State to do so. Such notice shall also be sent by mail to any person who has requested such notification from
the Department by providing the name and mailing address. The reasonable time stated shall be 15 days, unless federal law
requires a longer time, in which case the longer time shall be stated. A public hearing request shall be deemed meritorious
if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact. The applicant
shall be responsible for the cost of any such advertisements and notices made by the Department as required by this section,
not to exceed $500.
(c) The advertisement and notice requirements set forth in subsection (b) of this section may not apply to a permit application
received by the Department whenever the subject matter of said application relates to the following: (1) Air quality control
permit applications for open burning, or for the construction or operation of emission control equipment on an existing gasoline
dispensing facility, a delivery vessel or a dry cleaning facility; (2) water quality control permit applications for a sewage
system for 3 or fewer families, a municipal or publicly owned or operated sewage collection system that does not have a pump
or lift station, or, a commercial septic system that is used to treat and dispose of 500 gallons or less per day of domestic
wastewater only; (3) water well construction permit applications for any well from which the Department determines that the
withdrawal under normal operations will not exceed 50,000 gallons per day. The Secretary may act without public notice on
any permit application that is specified in this subsection.
(d) Advertisements required under subsection (b) of this section may be placed by persons desiring to obtain a permit under
§ 6003 of this title, provided the advertisement meets the requirements contained in subsection (b) of this section and any
additional requirements as may be specified by the Department.
7 Del. C. 1953, § 6004; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 1; 61 Del. Laws, c. 503, § 3; 64 Del. Laws, c. 146, §§ 1-3; 64 Del. Laws, c. 472, § 1; 68 Del. Laws, c. 124, § 4; 70 Del. Laws, c. 53, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 117, § 2.;
§ 6005. Enforcement; civil and administrative penalties; expenses.
(a) The Secretary shall enforce this chapter.
(b) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued
pursuant to § 6003 of this title, or any order of the Secretary, shall be punishable as follows:
(1) If the violation has been completed, by a civil penalty imposed by Superior Court of not less than $1,000 nor more than
$10,000 for each completed violation. Each day of continued violation shall be considered as a separate violation. The Superior
Court shall have jurisdiction of a violation in which a civil penalty is sought. If the violation has been completed and there
is a substantial likelihood that it will reoccur, the Secretary may also seek a permanent or preliminary injunction or temporary
restraining order in the Court of Chancery.
(2) If the violation is continuing, the Secretary may seek a monetary penalty as provided in paragraph (1) of this subsection.
If the violation is continuing or is threatening to begin, the Secretary may also seek a temporary restraining order or permanent
injunction in the Court of Chancery. In his or her discretion, the Secretary may endeavor by conciliation to obtain compliance
with all requirements of this chapter. Conciliation shall be giving written notice to the responsible party (i) specifying
the complaint, (ii) proposing a reasonable time for its correction, (iii) advising that a hearing on the complaint may be
had if requested by a date stated in the notice, and (iv) notifying that a proposed correction date will be ordered unless
a hearing is requested. If no hearing is requested on or before the date stated in the notice, the Secretary may order that
the correction be fully implemented by the proposed date or may, on his or her own initiative, convene a hearing, in which
the Secretary shall publicly hear and consider any relevant submission from the responsible party as provided in § 6006 of
this title.
(3) In his or her discretion, the Secretary may impose an administrative penalty of not more than $10,000 for each day of
violation. Prior to assessment of an administrative penalty, written notice of the Secretary's proposal to impose such penalty
shall be given to the violator, and the violator shall have 30 days from receipt of said notice to request a public hearing.
Any public hearing, if requested, right of appeal and judicial appeal shall be conducted pursuant to §§ 6006-6009 of this
title. Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the
violation, or violations, ability of violator to pay, any prior history of such violations, the degree of culpability, economic
benefit or savings (if any) resulting from the violation and such other matters as justice may require. Simultaneous violations
of more than 1 pollutant or air contaminant parameter or of any other limitation or standard imposed under this chapter shall
be treated as a single violation for each day. In the event of nonpayment of the administrative penalty after all legal appeals
have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative
penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative
penalty shall not be subject to review.
(c)(1) Whenever the Secretary determines that any person has violated this chapter, or a rule, or regulation, or condition
of a permit issued pursuant to § 6003 of this title, or an order of the Secretary, said person shall be liable for all expenses
incurred by the Department:
a. In abating the violation; or
b. Controlling a pollution incident related to the violation; or
c. Cleanup and restoration of the environment; or
d. The costs incurred by the Department in recovering such expenses.
Such expenses shall include, but not be limited to, the costs of investigation, legal fees and assistance, public hearings,
materials, equipment, human resources, contractual assistance and appropriate salary and overtime pay for all state employees
involved in the effort notwithstanding merit system laws, regulations or rules to the contrary. The Secretary shall submit
a detailed billing of expenses to the liable person.
(2) In the event the liable person desires to challenge the detailed billing submitted by the Secretary, such person shall,
within 20 days of receipt of the detailed billing request an administrative hearing before the Secretary. Testimony at the
administrative hearing shall be under oath and shall be restricted to issues relating to:
a. The finding of violation; and
b. The billing of expenses submitted by the Secretary.
A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents
introduced by the Secretary or other party, constitute the record. The Secretary shall make findings of fact based on the
record, and enter an order which shall contain reasons supporting the decision. An appeal of the decision of the Secretary
may be perfected to Superior Court within 30 days of the decision of the Secretary. In lieu of holding an administrative hearing
on the detailed billing, or in the event a liable person fails or refuses to pay any of the expenses listed in the detailed
billing, the Secretary may seek to compel payment through the initiation of a civil action in any court of competent jurisdiction
within the State of Delaware. This subsection shall not be affected by the appeal provisions of § 6008 of this title.
(d) Any expenses or 75 percent of civil or administrative penalties collected by the Department under this section are hereby
appropriated to the Department to carry out the purposes of this chapter; however any expenditure or transfer must be approved
by the Director of the Office of Management and Budget and the Controller General. The Department shall submit quarterly reports
on the progress of the expenditures and/or projects. All expenditures must be recommended by the Department and approved by
the Secretary. All penalty funds will be deposited in the Penalty Fund Account. All of the penalty fund expenditures made
by the Department of Natural Resources and Environmental Control shall be reported annually to the Joint Finance Committee
in the Department's annual budget presentation. Included in this presentation shall be an explanation of the process used
to select the recipients of penalty fund money.
(e) Fines created by this section may be tripled with respect to any person or entity that was designated a chronic violator
pursuant to § 7904 of this title at the time that the act leading to the fine occurred.
7 Del. C. 1953, § 6005; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 2, 3; 66 Del. Laws, c. 163, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 318, § 2; 74 Del. Laws, c. 37, § 1; 74 Del. Laws, c. 203, § 1; 75 Del. Laws, c. 88, § 21(4); 75 Del. Laws, c. 357, § 1.;
§ 6006. Public hearings.
Any public hearing held by the Secretary concerning any regulation or plan, permit application, alleged violation or variance
request shall be conducted as follows:
(1) For any hearing on an application for a permit or an alleged violation or variance request, notification shall be served
upon the applicant or alleged violator as summonses are served or by registered or certified mail not less than 20 days before
the time of said hearing. Not less than 20 days' notice shall also be published in a newspaper of general circulation in
the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper of general circulation
throughout the State.
(2) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general
circulation in each county and in a newspaper of general circulation in the State. Such notification shall include: (i) A
brief description of the regulation or plan; (ii) time and place of hearing; and (iii) time and place where copies of the
proposed regulation may be obtained and a copy of the plan is available for public scrutiny. Such notice shall also be sent
to any persons who have requested such notification from the Department by providing the name and mailing address.
(3) The permit applicant or the alleged violator or party requesting a variance may appear personally or by counsel at the
hearing and produce any competent evidence in his/her behalf. The Secretary or his/her duly authorized designee may administer
oaths, examine witnesses and issue, in the name of the department, notices of hearings or subpoenas requiring the testimony
of witnesses and production of books, records or other documents relevant to any matter involved in such hearing; and subpoenas
shall also be issued at the request of the applicant or alleged violator or party requesting a variance. In case of contumacy
or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing
is held shall have jurisdiction upon application of the Secretary, to issue an order requiring such person to appear and testify
or produce evidence as the case may require.
(4) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, also with the exhibits
and other documents introduced by the Secretary or other party, constitute the record. The expense of preparing any transcript
shall be borne by the person requesting it. The Secretary shall make findings of fact based on the record. The Secretary shall
then enter an order that will best further the purpose of this chapter, and the order shall include reasons. The Secretary
shall promptly give written notice to the persons affected by such order.
(5) The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a
violator finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee
for processing an application, or both. Any fees collected under this chapter are hereby appropriated to the Department to
carry out the purposes of this chapter. The Secretary shall report through the annual budget process the receipt, proposed
use and disbursement of these funds.
7 Del. C. 1953, § 6006; 59 Del. Laws, c. 212, § 1; 63 Del. Laws, c. 322, § 105(a); 64 Del. Laws, c. 62, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6007. Establishment of Environmental Appeals Board.
(a) There is hereby created an Environmental Appeals Board which shall consist of 7 Delaware residents, appointed by the Governor
with the advice and consent of the Senate. The Chairperson shall be appointed by the Governor and serve at the Governor's
pleasure. Each county shall be represented by 2 members. Registered members of either major political party shall not exceed
the other major political party by more than 1. The term of each member appointed shall be 3 years. Vacancies in Board membership
shall be filled by the Governor for the remainder of the unexpired term.
(b) The Board is a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary.
The Board or its designee may issue subpoenas by certified mail for witnesses or evidence, administer oaths to witnesses and
conduct pre-hearing conferences for the simplification of issues by consent, for the disposal of procedural requests or disputes
and to regulate and expedite the course of the hearing.
(c) A simple majority of the Board shall constitute a quorum. A simple majority of those members of the Board present shall
be required to override the decision of the Secretary. The Board shall schedule, but not necessarily conduct, a hearing within
30 days following the receipt of the appeal. In any event, the Board shall conduct, but not necessarily complete, the hearing
within 180 days following the receipt of the appeal unless the parties agree otherwise. The Board may verbally announce the
decision at the conclusion of the hearing. A written decision shall be mailed to the parties by certified mail within 90
days after the completion of the hearing. If the Board fails to conduct the hearing or to issue the written opinion as required,
the decision of the Secretary shall be a final decision for the purposes of appeal.
(d) Any member of the Board with a personal or private financial interest in the outcome of an appeal before the Board shall
disqualify himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest
on the record of the hearing.
(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.
(f) The Environmental Appeals Board shall adopt such rules and regulations as are necessary to provide procedures to implement
the terms of §§ 6007-6009 of this title, which shall apply to appeals to the Environmental Appeals Board. Prior to adopting
any such rules and regulations, the Board shall designate a day, time and place for a public hearing on such proposed rules
or for any amendments to existing or proposed rules and regulations. The Board shall give 20 days' notice of such hearing
by publication in a newspaper of general circulation in the State and shall make copies of such proposed regulations available
to the public upon request. The public hearing on such regulations shall be consistent with the provisions of Chapter 101
of Title 29.
(g) In any appeal to the Board there shall be required a reasonable fee, as established by the General Assembly, to cover
such costs as are incurred during the appeal. The fees charged by the Environmental Appeals Board shall be deposited in a
special account in the name of the Environmental Appeals Board and shall be used solely for the costs and expenses of that
Board in holding its hearings and proceedings.
7 Del. C. 1953, § 6007; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 201, § 1; 68 Del. Laws, c. 86, § 4; 68 Del. Laws, c. 148, § 1; 70 Del. Laws, c. 186, § 1.;
§ 6008. Appeals to Board.
(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals
Board within 20 days after receipt of the Secretary's decision or publication of the decision. The Board shall conduct a
public hearing for all appeals in accordance with Chapter 101 of Title 29. Deliberations of the Board may be conducted in
executive session. Each member who votes shall indicate the nature of his or her vote in the written decision.
(b) Whenever a final decision of the Secretary concerning any case decision, including but not limited to any permit or enforcement
action is appealed, the Board shall hold a public hearing in accordance with Chapter 101 of Title 29. The record before the
Board shall include the entire record before the Secretary. All parties to the appeal may appear personally or by counsel
at the hearing and may produce any competent evidence in their behalf. The Board may exclude any evidence which is plainly
irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and
cross-examination. The burden of proof is upon the appellant to show that the Secretary's decision is not supported by the
evidence on the record before the Board. The Board may affirm, reverse or remand with instructions any appeal of a case decision
of the Secretary.
(c) Appeals of regulations shall be on the record before the Secretary. The Board may hear new evidence if it is relevant
to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant,
immaterial, insubstantial, cumulative or unduly repetitive. Regulations will be presumed valid, and the burden will be upon
the appellant to show that the regulations are arbitrary and capricious, or adopted without a reasonable basis in the record.
The Board shall take due account of the Secretary's experience and specialized competence and of the purposes of this chapter
in making its determination. The board may affirm, reverse or remand any appeal of regulations promulgated by the Secretary.
(d) The decision of the Board shall be signed by all members who were present at the hearing.
(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned land including
subaqueous lands, except an appeal shall lie on the sole ground that the decision was discriminatory in that the applicant,
whose circumstances are like and similar to those of other applicants, was not afforded like and similar treatment.
(f) 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.
(g) At any time after the appeal to the Board, the parties may, by stipulation, proceed directly to Superior Court, in which
case the Court may affirm, reverse or remand the Secretary's decision based on the record before the Secretary and the Board
and whatever other evidence the parties may submit by stipulation. The standard of review for such an appeal shall be governed
by subsections (b) and (c) of this section.
(h) In those circumstances in which the Board concludes that an immediate and expedited review of a decision of the Secretary
is appropriate or necessary, the Board may hold a public hearing on the appeal at the earliest possible time and issue a decision
on such appeal. In such a case, the notice requirements of this section and Chapter 101 of Title 29 do not apply, and the
Board shall give advance notice of the hearing only to the extent reasonably possible.
7 Del. C. 1953, § 6008; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 4; 67 Del. Laws, c. 377, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6009. Appeal from the Board's decision.
(a) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State,
aggrieved by any decision of the Board, may appeal to the Superior Court in and for the county in which the activity in question
is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole
or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within 30 days of the receipt of
the written opinion of the Board.
(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless
the Court determines that the records contain no substantial evidence that would reasonably support the findings. If the
Court finds that additional evidence should be taken, the Court may remand the case to the Board for completion of the record.
(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the
Board or the Court of Chancery may stay the action pending disposition of the appeal.
7 Del. C. 1953, § 6009; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 5, 6; 68 Del. Laws, c. 148, § 1.;
§ 6010. Rules and regulations; plans.
(a) The Secretary may adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the
policy and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State
or the reasonable implications thereof.
(b) The Secretary shall formulate, amend, adopt and implement, after a public hearing, a statewide comprehensive water plan
for the immediate and long-range development and use of the water resources of the State.
(c) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide air resources management plan
to achieve the purpose of this chapter and comply with applicable federal laws and regulations. Any implementation plan in
effect at the time of enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(d) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide water pollution management
plan to achieve the purposes of this chapter and comply with applicable federal laws and regulations. Any implementation plan
in effect at the time of the enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(e) The Secretary shall formulate, amend, develop and implement, after public hearing, a State solid waste plan in accordance
with the requirements of subtitle D of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580) as amended [42 U.S.C.
§ 6941 et seq.], and any regulations thereunder, hereafter referred to as RCRA: Provided, however, that such plan shall be
formulated in coordination with the Delaware Solid Waste Authority and shall include provisions of the statewide solid waste
management plan adopted by the Delaware Solid Waste Authority pursuant to subsection (j) of § 6403 of this title which reflect
the applicable functions and activities of the Delaware Solid Waste Authority under Chapter 64 of this title.
(f) The Secretary:
(1) Shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(2) Shall approve all new plans and designs of all impounding water facilities by any state, county, municipal, public or
private water user within the State pursuant to subchapter V of this chapter; and
(3) May require reports from all Delaware water users as to a description of their water facilities, and past and present
records of water use.
(g)(1) The Secretary, after notice and public hearing, shall promulgate regulations containing criteria for determining which
facilities shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this
chapter. At a minimum such criteria shall provide that a facility may be classified as a sanitary landfill and not an open
dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste
at such facility. Such regulations may provide for the classification of the types of sanitary landfills.
(2) On the date as determined under paragraph (3) below, the open dumping of solid waste or hazardous waste and the establishment
of new open dumps is prohibited and all solid waste, including solid waste originating in other states but not including hazardous
waste, shall be utilized for resource recovery or disposed of in sanitary landfills, within the meaning of this chapter, or
otherwise disposed of in an environmentally sound manner, except in the case of any practice or disposal of solid waste under
a timetable or schedule for compliance established under paragraph (5) below.
(3) Except as provided in paragraphs (4) and (5) below, the prohibition contained in paragraph (2) above shall take effect
on the date of promulgation of regulations containing criteria under paragraph (1) or on the date of approval of the state
solid waste plan under § 4007 of RCRA [42 U.S.C. § 6947], whichever is later.
(4) To assist in the formulation of the state solid waste plan, the Secretary, utilizing the criteria adopted pursuant to
paragraph (1) above, shall develop and publish an inventory of all disposal facilities or sites in Delaware which are open
dumps within the meaning of this chapter. With respect to any active disposal facilities or sites the Secretary shall coordinate
the development of the inventory with the Delaware Solid Waste Authority. Prior to publication of the inventory the Secretary
shall provide written notice of the proposed open dump designation to the owner and operator of the disposal facility or site
which notice shall contain a detailed statement of deficiencies under the criteria adopted pursuant to paragraph (1) above.
Upon receipt of notification the owner or operator shall, within 30 days, be entitled to request a public hearing before the
Secretary pursuant to § 6006 of this title to challenge the designation; otherwise, the designation shall become a final decision
of the Secretary. With 60 days of publication of the open dump inventory, the owner or operator of a disposal facility or
site may apply to the Secretary for a timetable or schedule for compliance or closure under paragraph (5) below. During the
pendency of any such application and prior to final action and disposition thereon the prohibition set forth in paragraph
(3) above shall not apply with respect to that site. Upon application by the owner or operator, a site or facility may be
removed from the open dump inventory after a determination by the Secretary that the basis upon which the site was designated
as an open dump no longer exists. Any such application to remove a site or facility from the inventory shall be advertised
in accordance with subsection (b) of § 6004 of this title.
(5) All existing disposal facilities or sites for solid waste which are open dumps listed in the inventory under paragraph
(4) of this subsection shall comply with such measures as may be required by the Secretary, consistent with the requirements
of RCRA [42 U.S.C. § 6901 et seq.], for closure or upgrading. The Secretary shall establish a timetable or schedule for compliance
for such practice or disposal of solid waste which specifies a schedule of remedial measures, including an enforceable sequence
of actions or operations, leading to compliance with the prohibition on open dumping of solid waste within a reasonable time
(not to exceed 5 years) from the date of publication of criteria under paragraph (1) of this subsection.
(h)(1) Subject to subsection (f) of this section, the Secretary shall establish procedures for the issuance of water allocation
permits which shall be granted concurrently with any license or permit to construct, extend or operate an irrigation well
or surface water intake on any farm or farmland in the State. A water allocation permit issued pursuant to this subsection
shall reserve the right of the person to whom the permit is issued to utilize up to 20 acre-inches per year, but not more
than 10 acre-inches per month.
(2) For the purposes of this subsection:
a. An "acre-inch" of water is the amount of water required to cover 1 acre of land to a depth of 1 inch and is equal in volume
to 27,154 gallons of water.
b. An "irrigation well" is an agricultural well which is used exclusively for the watering of lands or crops other than household
lawns and gardens.
7 Del. C. 1953, § 6010; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 288, § 2; 63 Del. Laws, c. 248, §§ 2-4; 67 Del. Laws, c. 344, § 4; 68 Del. Laws, c. 124, § 5; 73 Del. Laws, c. 191, § 1.;
§ 6011. Variance.
(a) The Secretary may, upon application of a person (except an application concerning (1) a source of water or a sewerage
facility for 3 or fewer families or (2) open burning, on which the Secretary may act without public notification), grant a
variance to that person from any rule or regulation promulgated pursuant to this chapter after following the notice and hearing
procedure set forth in § 6004 of this title.
(b) The variance may be granted if the Secretary finds that:
(1) Good faith efforts have been made to comply with this chapter;
(2) The person applying is unable to comply with this chapter because the necessary technology or other alternative methods
of control are not available or have not been available for a sufficient period of time or the financial cost of compliance
by using available technology is disproportionately high with respect to the benefits which continued operation would bestow
on the lives, health, safety and welfare of the occupants of this State and the effects of the variance would not substantially
and adversely affect the policy and purposes of this chapter;
(3) Any available alternative operating procedure or interim control measures are being or will be used to reduce the impact
of such source on the lives, health, safety and/or welfare of the occupants of this State; and
(4) The continued operation of such source is necessary to national security or to the lives, health, saf
Subchapter II. Powers and Duties of Secretary and Department
§ 6002. Definitions.
The following words and phrases shall have the meaning ascribed to them in this chapter unless the context clearly indicates
otherwise:
(1) "Activity" means construction, or operation, or use of any facility, property, or device.
(2) "Air contaminant" means particulate matter, dust, fumes, gas, mist, smoke or vapor or any combination thereof, exclusive
of uncombined water.
(3) "Air pollution" means the presence in the outdoor atmosphere of 1 or more air contaminants in sufficient quantities and
of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably
interferes with the enjoyment of life and property within the jurisdiction of this State, excluding all aspects of employer-employee
relationships as to health and safety hazards.
(4) "Board" means the Environmental Appeals Board.
(5) "Borrow pit" means any excavation into the subsurface for the purpose of extraction of earth products with the exception
of excavation for utility or road construction, agricultural or highway drainage, or dredging operations under the jurisdiction
of the U.S. Army Corps of Engineers.
(6) "Department" means the Department of Natural Resources and Environmental Control.
(7) "Earth products" means any solid material, aggregate or substance of commercial value, whether consolidated or loose,
found in natural deposits on or in the earth, including, but not limited to clay, silt, diatomaceous earth, sand, gravel,
stone, metallic ores, shale and soil.
(8) "Garbage" shall mean any putrescible solid and semisolid animal and/or vegetable wastes resulting from the production,
handling, preparation, cooking, serving or consumption of food or food materials.
(9) "Ground water" means any water naturally found under the surface of the earth.
(10) "Incinerator," "incinerator structure or facility," and "waste incinerator" include any structure or facility operated
for the combustion (oxidation) of solid waste, even if the by-products of the operation include useful products such as steam
and electricity. "Incinerator" shall not include:
a. Crematoriums;
b. The disposal of the bodies of animals through incineration;
c. The burning of poultry waste or poultry manure at the same site where the waste or manure was generated, which shall include
the burning of poultry waste or poultry manure generated upon an adjacent farm;
d. The disposal of all materials used in the discovery, development, and manufacture of veterinary products, medicines and
vaccines; or
e. The disposition of mortalities from poultry operations in facilities approved by the Delaware Department of Natural Resources
and Environmental Control which comply with United States Department of Agricultural Natural Resources Conservation Service
Interim Conservation Practice Standard Incinerator 769 or any successor standard.
(11) "Industrial waste" means any water-borne liquid, gaseous, solid or other waste substance or a combination thereof resulting
from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.
(12) "Liquid waste" means any industrial waste or sewage or other wastes or any combination thereof which may potentially
alter the chemical, physical or biological integrity of water from its natural state.
(13) "Liquid waste hauler" means any person who engages in the removal of liquid wastes from septic tanks, cesspools, seepage
pits, holding tanks or other such devices and conveys such liquid waste to a location removed from the point of acceptance.
(14) "Liquid waste treatment plant operator" means any person who has direct responsibility for the operation of a liquid
waste treatment plant.
(15) "Oil" means oil of any kind and in any form, including but not limited to, petroleum products, sludge, oil refuse, oil
mixed with other wastes and all other liquid hydrocarbons regardless of specific gravity.
(16) "Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime cinders, ashes, offal, oil, tar,
dye-stuffs, acids, chemicals and all discarded substances other than sewage or industrial wastes.
(17) "Persons" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including
a government corporation), association, state, municipality, commission, political subdivision of a state or any interstate
body.
(18) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, hydrocarbons,
oil, and product chemicals, and industrial, municipal and agricultural waste discharged into water.
(19) "Refuse" means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes,
street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes and
construction wastes resulting from the operation of a contractor.
(20) "Rubbish" means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food
containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery and other waste
materials.
(21) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or the Secretary's duly
authorized designee.
(22) "Sewage" means water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial
establishments, or other places, together with such ground water infiltration, subsurface water, admixtures of industrial
wastes or other wastes as may be present.
(23) "Solid waste" means any garbage, refuse, refuse-derived fuel, demolition and construction waste wood, sludge from a waste
treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid,
liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations,
and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved
material in irrigation return flows or industrial discharges which are point sources subject to permits under this chapter,
as amended, or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended. By-products
of a uniform and known composition produced as a result of a production process are not solid wastes when incinerated onsite.
All incinerators under state permit as of March 1, 2000, and renewal permit applications for these incinerators shall not
come under the provisions of this section and § 6003 of this title.
(24) "Surface water" means water occurring generally on the surface of the earth.
(25) "Variance" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
(26) "Water facility" means any well, dam, reservoir, surface water intake or waterway obstruction.
(27) "Water utility" shall mean any person or entity operating within this State any water service, system, plant or equipment
for public use.
(28) "Water pollution" means the human-made or human-induced alteration of the chemical, physical, biological or radiological
integrity of water.
(29) "Water well contractor" means any person engaged in the business of contracting for the construction of water wells and/or
installation of pumping equipment in or for wells.
(30) "Categorical pretreatment standard" means a pretreatment standard which applies to industrial users in a specific industrial
subcategory.
(31) "Discharge or indirect discharge" means the discharge or the introduction of pollutants from any nondomestic source into
a POTW.
(32) "Industrial user" means a source of indirect discharge. The term "industrial user" shall include, but not be limited
to, the original source of the indirect discharge as well as the owners or operators of any intervening connections, other
than those owned or operated by the receiving POTW, which convey the indirect discharge to the POTW.
(33) "POTW pretreatment program" means a program administered by a POTW for the purpose of enforcing pretreatment standards
in accordance with the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. and regulations promulgated
thereunder.
(34) "Pretreatment standard" means any pollutant discharge limit promulgated by the Administrator of the United States Environmental
Protection Agency in accordance with § 307(b) and (c) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §
1317(b) and (c), or by the Secretary, which applies to industrial users.
(35) "Publicly owned treatment works" or "POTW" means either:
a. A treatment works which is owned by a city, town, county, district or other public body created by or pursuant to the laws
of the State; or
b. Any such public body which has jurisdiction over the discharges to such treatment works.
(36) "Treatment works" means any device and system used in the storage, treatment, recycling and reclamation of municipal
sewage, or industrial wastes of a liquid nature, or necessary to recycle or reuse water at the most economical cost over the
estimated life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power and
other equipment, and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements
essential to provide a reliable recycled supply such as standby treatment units and clear well facilities and improvements
to exclude or minimize inflow and infiltration.
(37) "Open dump" means any facility or site where solid waste is disposed which is not a sanitary landfill and which is not
a facility for disposal for hazardous waste.
(38) "Sanitary landfill" means a facility for the disposal of solid waste which meets the criteria promulgated under paragraph
(1) of subsection (g) of § 6010 of this title.
(39) "Domestic wastewater" means the liquid and water-borne human and/or household type waste derived from residential, industrial,
institutional or commercial sources.
(40) "At cost" means the expense to the government to conduct tests and analyses. No added service fee, or other fees and
charges, may be included in this cost.
(41) "Hydrocarbon chemical" means any compound composed of carbon and hydrogen.
(42) "Restricted chemical material" means:
a. Any halogenated hydrocarbon chemical (aliphatic or aromatic) including but not limited to trichloroethane, tetrachloroethylene,
methylene chloride, halogenated benzenes and carbon tetrachloride; or
b. Any aromatic hydrocarbon chemical including, but not limited to, benzene, toluene and naphthalene; or
c. Any halogenated phenol derivative in which a hydroxide group and 2 or more halogen atoms are substituted onto aromatic
carbons of a benzene ring including, but not limited to, trichlorophenol and pentachlorophenol; or
d. Similar materials including but not limited to acrolein, acrylonitrile or benzidene.
(43) "Sewage system" means any part of a wastewater disposal system including, but not limited to, all toilets, urinals, piping,
drains, sewers, septic tanks, distribution boxes, absorption fields, seepage pits, cesspools and dry wells.
(44) "Sewage system cleanser" means: (i) Any solid or liquid material intended or used primarily for the purpose of cleaning,
treating or unclogging any part of a sewage system, or (ii) any solid or liquid material intended or used primarily for the
purpose of continuously or automatically deodorizing or disinfecting any part of a sewage system including, but not limited
to, solid cakes or devices placed in plumbing fixtures. Excluded from this definition are products intended or used primarily
in the manual surface cleaning, scouring, treating, deodorizing or disinfecting, of common plumbing fixtures.
(45) "Well" means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when
the intended use of such excavation is for the location, testing, acquisition or artificial recharge of underground water,
and where the depth is greater than the diameter or width.
(46) "Boat docking facility" shall mean a place where vessels may be secured to a fixed or floating structure or to the shoreline
or shoreline structure.
(47) "Direct vessel sewage pumpout connection" shall mean a semipermanent connection made to a vessel for the purpose of removing
vessel sewage from the vessel holding tank or head on a continuous or automatic intermittent basis to an approved sewage disposal
facility.
(48) "Vessel discharge" includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping.
(49) "Graywater" means galley, bath and shower water.
(50) "Live-aboard vessel" shall mean:
a. A vessel used principally as a residence;
b. A vessel used as a place of business, professional or other commercial enterprise and, if used as a means of transportation,
said transportation use is a secondary or subsidiary use; this definition shall not include commercial fishing boats which
do not fall under paragraph a. of this subdivision; or
c. Any other floating structure used for the purposes stated under paragraph a. or b. of this subdivision.
(51) "Marine Sanitation Device (MSD)" includes any equipment on board a vessel which is designed to receive, retain, treat
or discharge sewage, and any process to treat such sewage. Marine sanitation devices are classified as:
a. "Type I marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count not greater
than 1,000 per 100 milliliters and no visible floating solids.
b. "Type II marine sanitation device" means a device that produces an effluent having a fecal coliform bacteria count of not
greater than 200 per 100 milliliters and suspended solids not greater than 150 milligrams per liter.
c. "Type III marine sanitation device" means a device that is certified to a no-discharge standard. Type III devices include
recirculating and incinerating MSDs and holding tanks.
(52) "Vessel sewage pumpout station" shall mean a mechanical device which is temporarily connected to a vessel for the purpose
of removing vessel sewage from its holding tank or head to an approved sewage disposal facility.
(53) "Vessel" shall mean and include every description of watercraft, boat, houseboat or other form of artificial contrivance
used, or capable of being used, whether or not capable of self-propulsion, for navigation on the waters of the State.
(54) "Vessel sewage" shall mean human body wastes and wastes from toilets and other receptacles intended to receive or retain
human body wastes.
(55) "Marinas" are those facilities adjacent to the water which provide for mooring, berthing, or storage of boats, and which
include any or all of the related ancillary structures and functions of marinas, such as docks, piers, boat storage areas,
boat ramps, anchorages, breakwaters, channels, moorings, basins, boat repair services, boat sales, sales of supplies which
are normally associated with boating such as fuel, bait and tackle, boat rentals and parking areas for users of the marina.
(56) "Slip" means a place where a boat may be secured to a fixed or floating structure, including, but not limited to a dock,
pier, mooring or anchorage. Slips may be wet (in the water) or dry (in a rack or other device on land).
(57) "Dump station" means a type of pumpout facility that receives vessel sewage from portable marine sanitation devices and
delivers that sewage to an approved sewage disposal facility.
(58) "Dedicated pumpout facility" means a semi-permanent connection made to a vessel for the purpose of removing sewage from
the vessel on a continuous basis or automatic intermittent basis to an approved disposal facility.
(59) "Pumpout facility" means a mechanical device which is temporarily connected to a vessel for the purpose of removing sewage
from a vessel to an approved sewage disposal facility.
(60) "Water supply system" means all plants, systems, facilities or properties used or useful, or having the present capacity
for future use, in connection with the supply or distribution of water, and any integral part thereof, including water distribution
systems, mains, laterals, pumping stations, stand pipes, filtration plants, purification plants, hydrants, meters, valves
and equipment, appurtenances and all properties, rights, easements and franchises relating thereto and deemed necessary or
convenient by the authority for the operation thereof. Except as otherwise provided in this chapter, the term "water supply
system" shall not mean a dam, reservoir, surface water intake, water obstruction or well.
(61) "Debris disposal area" means an excavation, pit or depression into which land clearing debris, along with small amounts
of construction or demolition waste incidental to construction, has been placed and which is not a permitted or approved waste
management facility.
(62) "Commercial landfill" means a waste disposal facility available for use by the general public and which accepts waste
for disposal for profit.
(63) "Delineation" shall mean the process of defining and/or mapping a boundary that approximates the areas that contribute
water to a particular water source used as a public water supply.
(64) "Public drinking water system" shall mean a community, noncommunity or non-transient non-community water system which
provides piped water to the public for human consumption. The system must have at least 15 service connections or regularly
serve at least 25 individuals daily for at least 60 days.
(65) "Source water" shall mean any aquifer or surface water body from which water is taken either periodically or continuously
by a public drinking water system for drinking or food-processing purposes.
(66) "Source water assessment area" shall mean the delineated area which contributes water to a public water supply system.
This is called a wellhead protection area for a well and a watershed or basin for a surface water intake. A source water assessment
area shall constitute a critical area as defined under Chapter 92 of Title 29.
(67) "Source water assessment plan" shall mean the October 1999 U.S. EPA-approved plan for evaluating the sources of public
drinking water in Delaware for their vulnerability and susceptibility to contamination.
(68) "Source water assessment" shall mean the identification and evaluation of the sources of water within the State that
are used by public drinking water systems in an effort to determine the susceptibility of those sources to contamination.
(69) "Wellhead protection area" shall mean the surface and subsurface area surrounding a water well or wellfield supplying
a public water system through which contaminants are likely to reach such a well or wellfield. A Wellhead Protection Area
shall constitute a critical area as defined under Chapter 92 of Title 29.
(70) "Wellhead protection plan" shall mean the March 1990 U.S. EPA-approved plan for protecting the quality of drinking water
derived from public water supply wells in Delaware.
(71) "Excellent ground-water recharge potential area" shall mean any area where soils and sedimentary deposits of the most
coarse grained nature have the best ability to transmit water vertically through the unsaturated zone to the water table as
mapped by the methods described in the Delaware Geological Survey Open File Report No. 34, "Methodology For Mapping Ground-Water
Recharge Areas in Delaware's Coastal Plain" (August 1991), and as depicted on a series of maps prepared by the Delaware Geological
Survey. An excellent ground-water recharge potential area shall constitute a critical area as defined under Chapter 92 of
Title 29.
(72) "Source Water Protection Citizens Technical Advisory Committee" shall mean a group to advise the Secretary of the Department
of Natural Resources and Environmental Control, including, but not limited to, representatives of the following organizations
or municipalities: DNREC, Department of Health and Social Services, Department of Agriculture, the Delaware Nature Society,
the Delaware Public Health Association, the American Association of Retired Persons, the United States Geological Survey,
the Christina River Conservancy, the Water Resources Agency of the University of Delaware, the Council of Farm Organizations,
the Delaware Rural Water Association, the League of Women Voters, the Friends of Herring Creek, the Civic League of New Castle
County, the Delaware Geological Survey, the Committee of 100, the City of Dover, the City of Lewes, the New Castle County
Department of Land Use, Kent County Levy Court, Sussex County Council, the League of Local Governments, the Sussex County
Association of Towns, the Homebuilders Association of Delaware, the Commercial Industrial Realty Council, and the Delaware
Association of Professional Engineers; and public water suppliers.
(73) "Environmental release" means any spillage, leakage, emission, discharge or delivery into the air or waters or on or
into the lands of this State of any sewage of 10,000 gallons or more oil, industrial waste, liquid waste, hydrocarbon chemical,
hazardous substance, hazardous waste, restricted chemical material, vessel discharge, air contaminant, pollutant, regulated
biological substance or other wastes reportable pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or regulations enacted pursuant to § 6028 of this title.
7 Del. C. 1953, § 6002; 59 Del. Laws, c. 212, § 1; 61 Del. Laws, c. 315, § 1; 62 Del. Laws, c. 412, §§ 1, 2; 62 Del. Laws, c. 414, § 3; 63 Del. Laws, c. 248, § 1; 64 Del. Laws, c. 146, § 4; 64 Del. Laws, c. 370, § 1; 64 Del. Laws, c. 479, §§ 4, 5; 65 Del. Laws, c. 144, § 1; 66 Del. Laws, c. 275, § 1; 67 Del. Laws, c. 353, § 2; 68 Del. Laws, c. 124, § 3; 68 Del. Laws, c. 137, §§ 1, 2; 68 Del. Laws, c. 403, §§ 1, 2; 69 Del. Laws, c. 302, § 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 418, § 1; 72 Del. Laws, c. 289, §§ 1, 6, 7; 73 Del. Laws, c. 67, § 1; 73 Del. Laws, c. 117, § 1.;
§ 6003. Permit -- Required.
(a) No person shall, without first having obtained a permit from the Secretary, undertake any activity:
(1) In a way which may cause or contribute to the discharge of an air contaminant; or
(2) In a way which may cause or contribute to discharge of a pollutant into any surface or ground water; or
(3) In a way which may cause or contribute to withdrawal of ground water or surface water or both; or
(4) In a way which may cause or contribute to the collection, transportation, storage, processing or disposal of solid wastes,
regardless of the geographic origin or source of such solid wastes; or
(5) To construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station;
or
(6) To construct any water facility; or
(7) To plan or construct any highway corridor which may cause or contribute to the discharge of an air contaminant or discharge
of pollutants into any surface or ground water.
(b) No person shall, without first having obtained a permit from the Secretary, construct, install, replace, modify or use
any equipment or device or other article:
(1) Which may cause or contribute to the discharge of an air contaminant; or
(2) Which may cause or contribute to the discharge of a pollutant into any surface or ground water; or
(3) Which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface
or ground waters; or
(4) Which is intended to withdraw ground water or surface water for treatment and supply; or
(5) For disposal of solid waste.
(c) The Secretary shall grant or deny a permit required by subsection (a) or (b) of this section in accordance with duly promulgated
regulations and:
(1) No permit may be granted unless the county or municipality having jurisdiction has first approved the activity by zoning
procedures provided by law; and
(2) No permit may be granted to any incinerator unless:
a. The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
b. Every point on the property boundary line of the property on which the incinerator is or would be located is:
1. At least 3 miles from every point on the property boundary line of any residence;
2. At least 3 miles from every point on the property boundary line of any residential community; and
3. At least 3 miles from every point on the property boundary line of any church, school, park, or hospital.
(d) A county which requests authority to administer a system for granting or denying a septic tank permit, and which satisfies
the Secretary that it has the capability, including but not limited to regulations and enforcement authority, may be authorized
by the Secretary, for a term stated, to administer such a system for him or her within that county. In the event of such authorization,
an applicant for a septic tank permit in that county shall not be bound by subsections (a) and (b) of this section.
(e) The Secretary may, after public hearings, publish a list of activities which do not require a permit.
(f) The Secretary may establish fees for permits issued pursuant to this section with the concurrence and approval of the
General Assembly. The Secretary shall annually prepare a schedule of fees for permits issued pursuant to this section and
submit the same as part of the Department's annual operating budget proposal.
(g) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license until the property owner has obtained from the Department any necessary permits for underground discharge of wastewater
and withdrawal of groundwater.
(h) The Secretary may reduce the amount of any fee charged for any permit or license issued pursuant to the provisions of
this title for particular types of permits or classes or categories of permittees.
(i) No county, municipality or other governmental entity shall issue any building, placement, storage or occupancy permit
or license to any person intending to operate an incinerator unless:
(1) The property on which the incinerator is or would be located is within an area which is zoned for heavy industrial activity
and shall be subject to such process rules, regulations or ordinances as the county, municipality or other government entity
shall require by law, such as a conditional use, so that conditions may be applied regarding the health, safety and welfare
of the citizens within the jurisdiction; and
(2) Every point on the property boundary line of the property on which the incinerator is or would be located is:
a. At least 3 miles from every point on the property boundary line of any residence;
b. At least 3 miles from every point on the property boundary line of any residential community; and
c. At least 3 miles from every point on the property boundary line of any church, school, park or hospital.
7 Del. C. 1953, § 6003; 59 Del. Laws, c. 212, § 1; 65 Del. Laws, c. 344, § 1; 68 Del. Laws, c. 86, § 3; 68 Del. Laws, c. 89; 68 Del. Laws, c. 348, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 289, §§ 2-5.;
§ 6004. Same -- Application; hearing.
(a) Any person desiring to obtain a permit required by § 6003 of this title or a variance or an application to establish a
redemption center or a certificate of public convenience and necessity required by subchapter V of this chapter shall submit
an application therefor in such form and accompanied by such plans, specifications and other information as required by applicable
statute or regulation.
(b) Except as otherwise provided in subsection (c) of this section, upon receipt of an application in proper form, the Secretary
shall advertise in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper
of general circulation throughout the State (1) the fact that the application has been received, (2) a brief description of
the nature of the application, and (3) the place at which a copy of the application may be inspected. The Secretary shall
hold a public hearing on an application, if he or she receives a meritorious request for a hearing within a reasonable time
as stated in the advertisement. A public hearing may be held on any application if the Secretary deems it to be in the best
interest of the State to do so. Such notice shall also be sent by mail to any person who has requested such notification from
the Department by providing the name and mailing address. The reasonable time stated shall be 15 days, unless federal law
requires a longer time, in which case the longer time shall be stated. A public hearing request shall be deemed meritorious
if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact. The applicant
shall be responsible for the cost of any such advertisements and notices made by the Department as required by this section,
not to exceed $500.
(c) The advertisement and notice requirements set forth in subsection (b) of this section may not apply to a permit application
received by the Department whenever the subject matter of said application relates to the following: (1) Air quality control
permit applications for open burning, or for the construction or operation of emission control equipment on an existing gasoline
dispensing facility, a delivery vessel or a dry cleaning facility; (2) water quality control permit applications for a sewage
system for 3 or fewer families, a municipal or publicly owned or operated sewage collection system that does not have a pump
or lift station, or, a commercial septic system that is used to treat and dispose of 500 gallons or less per day of domestic
wastewater only; (3) water well construction permit applications for any well from which the Department determines that the
withdrawal under normal operations will not exceed 50,000 gallons per day. The Secretary may act without public notice on
any permit application that is specified in this subsection.
(d) Advertisements required under subsection (b) of this section may be placed by persons desiring to obtain a permit under
§ 6003 of this title, provided the advertisement meets the requirements contained in subsection (b) of this section and any
additional requirements as may be specified by the Department.
7 Del. C. 1953, § 6004; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 1; 61 Del. Laws, c. 503, § 3; 64 Del. Laws, c. 146, §§ 1-3; 64 Del. Laws, c. 472, § 1; 68 Del. Laws, c. 124, § 4; 70 Del. Laws, c. 53, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 117, § 2.;
§ 6005. Enforcement; civil and administrative penalties; expenses.
(a) The Secretary shall enforce this chapter.
(b) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued
pursuant to § 6003 of this title, or any order of the Secretary, shall be punishable as follows:
(1) If the violation has been completed, by a civil penalty imposed by Superior Court of not less than $1,000 nor more than
$10,000 for each completed violation. Each day of continued violation shall be considered as a separate violation. The Superior
Court shall have jurisdiction of a violation in which a civil penalty is sought. If the violation has been completed and there
is a substantial likelihood that it will reoccur, the Secretary may also seek a permanent or preliminary injunction or temporary
restraining order in the Court of Chancery.
(2) If the violation is continuing, the Secretary may seek a monetary penalty as provided in paragraph (1) of this subsection.
If the violation is continuing or is threatening to begin, the Secretary may also seek a temporary restraining order or permanent
injunction in the Court of Chancery. In his or her discretion, the Secretary may endeavor by conciliation to obtain compliance
with all requirements of this chapter. Conciliation shall be giving written notice to the responsible party (i) specifying
the complaint, (ii) proposing a reasonable time for its correction, (iii) advising that a hearing on the complaint may be
had if requested by a date stated in the notice, and (iv) notifying that a proposed correction date will be ordered unless
a hearing is requested. If no hearing is requested on or before the date stated in the notice, the Secretary may order that
the correction be fully implemented by the proposed date or may, on his or her own initiative, convene a hearing, in which
the Secretary shall publicly hear and consider any relevant submission from the responsible party as provided in § 6006 of
this title.
(3) In his or her discretion, the Secretary may impose an administrative penalty of not more than $10,000 for each day of
violation. Prior to assessment of an administrative penalty, written notice of the Secretary's proposal to impose such penalty
shall be given to the violator, and the violator shall have 30 days from receipt of said notice to request a public hearing.
Any public hearing, if requested, right of appeal and judicial appeal shall be conducted pursuant to §§ 6006-6009 of this
title. Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the
violation, or violations, ability of violator to pay, any prior history of such violations, the degree of culpability, economic
benefit or savings (if any) resulting from the violation and such other matters as justice may require. Simultaneous violations
of more than 1 pollutant or air contaminant parameter or of any other limitation or standard imposed under this chapter shall
be treated as a single violation for each day. In the event of nonpayment of the administrative penalty after all legal appeals
have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative
penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative
penalty shall not be subject to review.
(c)(1) Whenever the Secretary determines that any person has violated this chapter, or a rule, or regulation, or condition
of a permit issued pursuant to § 6003 of this title, or an order of the Secretary, said person shall be liable for all expenses
incurred by the Department:
a. In abating the violation; or
b. Controlling a pollution incident related to the violation; or
c. Cleanup and restoration of the environment; or
d. The costs incurred by the Department in recovering such expenses.
Such expenses shall include, but not be limited to, the costs of investigation, legal fees and assistance, public hearings,
materials, equipment, human resources, contractual assistance and appropriate salary and overtime pay for all state employees
involved in the effort notwithstanding merit system laws, regulations or rules to the contrary. The Secretary shall submit
a detailed billing of expenses to the liable person.
(2) In the event the liable person desires to challenge the detailed billing submitted by the Secretary, such person shall,
within 20 days of receipt of the detailed billing request an administrative hearing before the Secretary. Testimony at the
administrative hearing shall be under oath and shall be restricted to issues relating to:
a. The finding of violation; and
b. The billing of expenses submitted by the Secretary.
A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents
introduced by the Secretary or other party, constitute the record. The Secretary shall make findings of fact based on the
record, and enter an order which shall contain reasons supporting the decision. An appeal of the decision of the Secretary
may be perfected to Superior Court within 30 days of the decision of the Secretary. In lieu of holding an administrative hearing
on the detailed billing, or in the event a liable person fails or refuses to pay any of the expenses listed in the detailed
billing, the Secretary may seek to compel payment through the initiation of a civil action in any court of competent jurisdiction
within the State of Delaware. This subsection shall not be affected by the appeal provisions of § 6008 of this title.
(d) Any expenses or 75 percent of civil or administrative penalties collected by the Department under this section are hereby
appropriated to the Department to carry out the purposes of this chapter; however any expenditure or transfer must be approved
by the Director of the Office of Management and Budget and the Controller General. The Department shall submit quarterly reports
on the progress of the expenditures and/or projects. All expenditures must be recommended by the Department and approved by
the Secretary. All penalty funds will be deposited in the Penalty Fund Account. All of the penalty fund expenditures made
by the Department of Natural Resources and Environmental Control shall be reported annually to the Joint Finance Committee
in the Department's annual budget presentation. Included in this presentation shall be an explanation of the process used
to select the recipients of penalty fund money.
(e) Fines created by this section may be tripled with respect to any person or entity that was designated a chronic violator
pursuant to § 7904 of this title at the time that the act leading to the fine occurred.
7 Del. C. 1953, § 6005; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 2, 3; 66 Del. Laws, c. 163, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 318, § 2; 74 Del. Laws, c. 37, § 1; 74 Del. Laws, c. 203, § 1; 75 Del. Laws, c. 88, § 21(4); 75 Del. Laws, c. 357, § 1.;
§ 6006. Public hearings.
Any public hearing held by the Secretary concerning any regulation or plan, permit application, alleged violation or variance
request shall be conducted as follows:
(1) For any hearing on an application for a permit or an alleged violation or variance request, notification shall be served
upon the applicant or alleged violator as summonses are served or by registered or certified mail not less than 20 days before
the time of said hearing. Not less than 20 days' notice shall also be published in a newspaper of general circulation in
the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper of general circulation
throughout the State.
(2) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general
circulation in each county and in a newspaper of general circulation in the State. Such notification shall include: (i) A
brief description of the regulation or plan; (ii) time and place of hearing; and (iii) time and place where copies of the
proposed regulation may be obtained and a copy of the plan is available for public scrutiny. Such notice shall also be sent
to any persons who have requested such notification from the Department by providing the name and mailing address.
(3) The permit applicant or the alleged violator or party requesting a variance may appear personally or by counsel at the
hearing and produce any competent evidence in his/her behalf. The Secretary or his/her duly authorized designee may administer
oaths, examine witnesses and issue, in the name of the department, notices of hearings or subpoenas requiring the testimony
of witnesses and production of books, records or other documents relevant to any matter involved in such hearing; and subpoenas
shall also be issued at the request of the applicant or alleged violator or party requesting a variance. In case of contumacy
or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing
is held shall have jurisdiction upon application of the Secretary, to issue an order requiring such person to appear and testify
or produce evidence as the case may require.
(4) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, also with the exhibits
and other documents introduced by the Secretary or other party, constitute the record. The expense of preparing any transcript
shall be borne by the person requesting it. The Secretary shall make findings of fact based on the record. The Secretary shall
then enter an order that will best further the purpose of this chapter, and the order shall include reasons. The Secretary
shall promptly give written notice to the persons affected by such order.
(5) The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a
violator finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee
for processing an application, or both. Any fees collected under this chapter are hereby appropriated to the Department to
carry out the purposes of this chapter. The Secretary shall report through the annual budget process the receipt, proposed
use and disbursement of these funds.
7 Del. C. 1953, § 6006; 59 Del. Laws, c. 212, § 1; 63 Del. Laws, c. 322, § 105(a); 64 Del. Laws, c. 62, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6007. Establishment of Environmental Appeals Board.
(a) There is hereby created an Environmental Appeals Board which shall consist of 7 Delaware residents, appointed by the Governor
with the advice and consent of the Senate. The Chairperson shall be appointed by the Governor and serve at the Governor's
pleasure. Each county shall be represented by 2 members. Registered members of either major political party shall not exceed
the other major political party by more than 1. The term of each member appointed shall be 3 years. Vacancies in Board membership
shall be filled by the Governor for the remainder of the unexpired term.
(b) The Board is a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary.
The Board or its designee may issue subpoenas by certified mail for witnesses or evidence, administer oaths to witnesses and
conduct pre-hearing conferences for the simplification of issues by consent, for the disposal of procedural requests or disputes
and to regulate and expedite the course of the hearing.
(c) A simple majority of the Board shall constitute a quorum. A simple majority of those members of the Board present shall
be required to override the decision of the Secretary. The Board shall schedule, but not necessarily conduct, a hearing within
30 days following the receipt of the appeal. In any event, the Board shall conduct, but not necessarily complete, the hearing
within 180 days following the receipt of the appeal unless the parties agree otherwise. The Board may verbally announce the
decision at the conclusion of the hearing. A written decision shall be mailed to the parties by certified mail within 90
days after the completion of the hearing. If the Board fails to conduct the hearing or to issue the written opinion as required,
the decision of the Secretary shall be a final decision for the purposes of appeal.
(d) Any member of the Board with a personal or private financial interest in the outcome of an appeal before the Board shall
disqualify himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest
on the record of the hearing.
(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.
(f) The Environmental Appeals Board shall adopt such rules and regulations as are necessary to provide procedures to implement
the terms of §§ 6007-6009 of this title, which shall apply to appeals to the Environmental Appeals Board. Prior to adopting
any such rules and regulations, the Board shall designate a day, time and place for a public hearing on such proposed rules
or for any amendments to existing or proposed rules and regulations. The Board shall give 20 days' notice of such hearing
by publication in a newspaper of general circulation in the State and shall make copies of such proposed regulations available
to the public upon request. The public hearing on such regulations shall be consistent with the provisions of Chapter 101
of Title 29.
(g) In any appeal to the Board there shall be required a reasonable fee, as established by the General Assembly, to cover
such costs as are incurred during the appeal. The fees charged by the Environmental Appeals Board shall be deposited in a
special account in the name of the Environmental Appeals Board and shall be used solely for the costs and expenses of that
Board in holding its hearings and proceedings.
7 Del. C. 1953, § 6007; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 201, § 1; 68 Del. Laws, c. 86, § 4; 68 Del. Laws, c. 148, § 1; 70 Del. Laws, c. 186, § 1.;
§ 6008. Appeals to Board.
(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals
Board within 20 days after receipt of the Secretary's decision or publication of the decision. The Board shall conduct a
public hearing for all appeals in accordance with Chapter 101 of Title 29. Deliberations of the Board may be conducted in
executive session. Each member who votes shall indicate the nature of his or her vote in the written decision.
(b) Whenever a final decision of the Secretary concerning any case decision, including but not limited to any permit or enforcement
action is appealed, the Board shall hold a public hearing in accordance with Chapter 101 of Title 29. The record before the
Board shall include the entire record before the Secretary. All parties to the appeal may appear personally or by counsel
at the hearing and may produce any competent evidence in their behalf. The Board may exclude any evidence which is plainly
irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and
cross-examination. The burden of proof is upon the appellant to show that the Secretary's decision is not supported by the
evidence on the record before the Board. The Board may affirm, reverse or remand with instructions any appeal of a case decision
of the Secretary.
(c) Appeals of regulations shall be on the record before the Secretary. The Board may hear new evidence if it is relevant
to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant,
immaterial, insubstantial, cumulative or unduly repetitive. Regulations will be presumed valid, and the burden will be upon
the appellant to show that the regulations are arbitrary and capricious, or adopted without a reasonable basis in the record.
The Board shall take due account of the Secretary's experience and specialized competence and of the purposes of this chapter
in making its determination. The board may affirm, reverse or remand any appeal of regulations promulgated by the Secretary.
(d) The decision of the Board shall be signed by all members who were present at the hearing.
(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned land including
subaqueous lands, except an appeal shall lie on the sole ground that the decision was discriminatory in that the applicant,
whose circumstances are like and similar to those of other applicants, was not afforded like and similar treatment.
(f) 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.
(g) At any time after the appeal to the Board, the parties may, by stipulation, proceed directly to Superior Court, in which
case the Court may affirm, reverse or remand the Secretary's decision based on the record before the Secretary and the Board
and whatever other evidence the parties may submit by stipulation. The standard of review for such an appeal shall be governed
by subsections (b) and (c) of this section.
(h) In those circumstances in which the Board concludes that an immediate and expedited review of a decision of the Secretary
is appropriate or necessary, the Board may hold a public hearing on the appeal at the earliest possible time and issue a decision
on such appeal. In such a case, the notice requirements of this section and Chapter 101 of Title 29 do not apply, and the
Board shall give advance notice of the hearing only to the extent reasonably possible.
7 Del. C. 1953, § 6008; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, § 4; 67 Del. Laws, c. 377, § 1; 68 Del. Laws, c. 148, § 1.;
§ 6009. Appeal from the Board's decision.
(a) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State,
aggrieved by any decision of the Board, may appeal to the Superior Court in and for the county in which the activity in question
is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole
or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within 30 days of the receipt of
the written opinion of the Board.
(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless
the Court determines that the records contain no substantial evidence that would reasonably support the findings. If the
Court finds that additional evidence should be taken, the Court may remand the case to the Board for completion of the record.
(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the
Board or the Court of Chancery may stay the action pending disposition of the appeal.
7 Del. C. 1953, § 6009; 59 Del. Laws, c. 212, § 1; 59 Del. Laws, c. 537, §§ 5, 6; 68 Del. Laws, c. 148, § 1.;
§ 6010. Rules and regulations; plans.
(a) The Secretary may adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the
policy and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State
or the reasonable implications thereof.
(b) The Secretary shall formulate, amend, adopt and implement, after a public hearing, a statewide comprehensive water plan
for the immediate and long-range development and use of the water resources of the State.
(c) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide air resources management plan
to achieve the purpose of this chapter and comply with applicable federal laws and regulations. Any implementation plan in
effect at the time of enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(d) The Secretary may formulate, amend, adopt and implement, after public hearing, a statewide water pollution management
plan to achieve the purposes of this chapter and comply with applicable federal laws and regulations. Any implementation plan
in effect at the time of the enactment of this chapter shall continue to be in effect unless amended or repealed by the Secretary.
(e) The Secretary shall formulate, amend, develop and implement, after public hearing, a State solid waste plan in accordance
with the requirements of subtitle D of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580) as amended [42 U.S.C.
§ 6941 et seq.], and any regulations thereunder, hereafter referred to as RCRA: Provided, however, that such plan shall be
formulated in coordination with the Delaware Solid Waste Authority and shall include provisions of the statewide solid waste
management plan adopted by the Delaware Solid Waste Authority pursuant to subsection (j) of § 6403 of this title which reflect
the applicable functions and activities of the Delaware Solid Waste Authority under Chapter 64 of this title.
(f) The Secretary:
(1) Shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(2) Shall approve all new plans and designs of all impounding water facilities by any state, county, municipal, public or
private water user within the State pursuant to subchapter V of this chapter; and
(3) May require reports from all Delaware water users as to a description of their water facilities, and past and present
records of water use.
(g)(1) The Secretary, after notice and public hearing, shall promulgate regulations containing criteria for determining which
facilities shall be classified as sanitary landfills and which shall be classified as open dumps within the meaning of this
chapter. At a minimum such criteria shall provide that a facility may be classified as a sanitary landfill and not an open
dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste
at such facility. Such regulations may provide for the classification of the types of sanitary landfills.
(2) On the date as determined under paragraph (3) below, the open dumping of solid waste or hazardous waste and the establishment
of new open dumps is prohibited and all solid waste, including solid waste originating in other states but not including hazardous
waste, shall be utilized for resource recovery or disposed of in sanitary landfills, within the meaning of this chapter, or
otherwise disposed of in an environmentally sound manner, except in the case of any practice or disposal of solid waste under
a timetable or schedule for compliance established under paragraph (5) below.
(3) Except as provided in paragraphs (4) and (5) below, the prohibition contained in paragraph (2) above shall take effect
on the date of promulgation of regulations containing criteria under paragraph (1) or on the date of approval of the state
solid waste plan under § 4007 of RCRA [42 U.S.C. § 6947], whichever is later.
(4) To assist in the formulation of the state solid waste plan, the Secretary, utilizing the criteria adopted pursuant to
paragraph (1) above, shall develop and publish an inventory of all disposal facilities or sites in Delaware which are open
dumps within the meaning of this chapter. With respect to any active disposal facilities or sites the Secretary shall coordinate
the development of the inventory with the Delaware Solid Waste Authority. Prior to publication of the inventory the Secretary
shall provide written notice of the proposed open dump designation to the owner and operator of the disposal facility or site
which notice shall contain a detailed statement of deficiencies under the criteria adopted pursuant to paragraph (1) above.
Upon receipt of notification the owner or operator shall, within 30 days, be entitled to request a public hearing before the
Secretary pursuant to § 6006 of this title to challenge the designation; otherwise, the designation shall become a final decision
of the Secretary. With 60 days of publication of the open dump inventory, the owner or operator of a disposal facility or
site may apply to the Secretary for a timetable or schedule for compliance or closure under paragraph (5) below. During the
pendency of any such application and prior to final action and disposition thereon the prohibition set forth in paragraph
(3) above shall not apply with respect to that site. Upon application by the owner or operator, a site or facility may be
removed from the open dump inventory after a determination by the Secretary that the basis upon which the site was designated
as an open dump no longer exists. Any such application to remove a site or facility from the inventory shall be advertised
in accordance with subsection (b) of § 6004 of this title.
(5) All existing disposal facilities or sites for solid waste which are open dumps listed in the inventory under paragraph
(4) of this subsection shall comply with such measures as may be required by the Secretary, consistent with the requirements
of RCRA [42 U.S.C. § 6901 et seq.], for closure or upgrading. The Secretary shall establish a timetable or schedule for compliance
for such practice or disposal of solid waste which specifies a schedule of remedial measures, including an enforceable sequence
of actions or operations, leading to compliance with the prohibition on open dumping of solid waste within a reasonable time
(not to exceed 5 years) from the date of publication of criteria under paragraph (1) of this subsection.
(h)(1) Subject to subsection (f) of this section, the Secretary shall establish procedures for the issuance of water allocation
permits which shall be granted concurrently with any license or permit to construct, extend or operate an irrigation well
or surface water intake on any farm or farmland in the State. A water allocation permit issued pursuant to this subsection
shall reserve the right of the person to whom the permit is issued to utilize up to 20 acre-inches per year, but not more
than 10 acre-inches per month.
(2) For the purposes of this subsection:
a. An "acre-inch" of water is the amount of water required to cover 1 acre of land to a depth of 1 inch and is equal in volume
to 27,154 gallons of water.
b. An "irrigation well" is an agricultural well which is used exclusively for the watering of lands or crops other than household
lawns and gardens.
7 Del. C. 1953, § 6010; 59 Del. Laws, c. 212, § 1; 60 Del. Laws, c. 288, § 2; 63 Del. Laws, c. 248, §§ 2-4; 67 Del. Laws, c. 344, § 4; 68 Del. Laws, c. 124, § 5; 73 Del. Laws, c. 191, § 1.;
§ 6011. Variance.
(a) The Secretary may, upon application of a person (except an application concerning (1) a source of water or a sewerage
facility for 3 or fewer families or (2) open burning, on which the Secretary may act without public notification), grant a
variance to that person from any rule or regulation promulgated pursuant to this chapter after following the notice and hearing
procedure set forth in § 6004 of this title.
(b) The variance may be granted if the Secretary finds that:
(1) Good faith efforts have been made to comply with this chapter;
(2) The person applying is unable to comply with this chapter because the necessary technology or other alternative methods
of control are not available or have not been available for a sufficient period of time or the financial cost of compliance
by using available technology is disproportionately high with respect to the benefits which continued operation would bestow
on the lives, health, safety and welfare of the occupants of this State and the effects of the variance would not substantially
and adversely affect the policy and purposes of this chapter;
(3) Any available alternative operating procedure or interim control measures are being or will be used to reduce the impact
of such source on the lives, health, safety and/or welfare of the occupants of this State; and
(4) The continued operation of such source is necessary to national security or to the lives, health, saf
