Del. Code 7, § 6005 : Conservation — Environmental Control — Powers And Duties Of Secretary And Department — Enforcement; civil and administrative penalties; expenses

  • Date:

Current through 2016 Legislative Session, Act 399

(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 (b)(1) of this section. 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:
a. Specifying the complaint;
b. Proposing a reasonable time for its correction;
c. Advising that a hearing on the complaint may be had if requested by a date stated in the notice; and
d. 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) Penalties or 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 penalty or fine occurred.
Del. C. § 6005
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; 78 Del. Laws, c. 177, § 18.;
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