Chapter 82. Department Of Safety and Homeland Security
TITLE 29
State Government
Departments of Government
CHAPTER 82. DEPARTMENT OF SAFETY AND HOMELAND SECURITY
§ 8201. Establishment of Department of Safety and Homeland Security.
A Department of Safety and Homeland Security is established.
29 Del. C. 1953, § 8201; 57 Del. Laws, c. 382, § 1; 74 Del. Laws, c. 110, § 138.;
§ 8202. Secretary; division directors; Acting Secretary; appointment.
(a) The administrator and head of the Department shall be the Secretary of the Department of Safety and Homeland Security, who shall be a person qualified by training and experience to perform the duties of the office and preference shall be given to a resident of this State provided that such person is acceptable and equally qualified. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor and shall receive a salary to be determined by the Governor and specified in the Annual Operating Budget. The Secretary of the Department of Safety and Homeland Security shall become a bona fide resident of the State within 6 months after his or her appointment; provided, however, that upon good cause shown, the Governor may grant an additional extension of 6 months. After becoming a resident of the State, the Secretary shall continuously be a resident of the State as long as he or she retains the office. Failure to obtain or retain such residency shall be an automatic resignation from said office. The Secretary of the Department of Safety and Homeland Security shall have the power to appoint directors of divisions within the Department upon the written approval of the Governor. The division directors shall have the powers, duties and functions in the administration of their respective divisions as authorized by the Secretary.
(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of division director as are vacant. Directors so appointed shall serve at the pleasure of the Governor and, upon the position of Secretary being filled, such directors may be removed by the Secretary with the written approval of the Governor.
(c) In the event of death, resignation, temporary incapacity or permanent removal of the Secretary and prior to the appointment of a successor, the Governor may appoint any qualified individual to serve as Acting Secretary, including but not limited to, the Deputy Secretary of the Department or a director of any division within the Department. The Secretary may, during any temporary absence from the State, appoint the Deputy Secretary or the director of any division within the Department to serve as Acting Secretary during such absence. In either case, the Acting Secretary shall have all the powers and shall perform all the duties and functions of the Secretary during the Secretary's absence or incapacity, or until a successor duly qualified is appointed.
29 Del. C. 1953, § 8202; 57 Del. Laws, c. 382, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 140, § 4; 74 Del. Laws, c. 110, § 138; 76 Del. Laws, c. 391, §§ 3-6.;
§ 8203. Powers, duties and functions of the Director.
The Secretary may:
(1) Supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, functions and employees;
(2) Appoint, and fix the salary of, with the written approval of the Governor, the following division directors who may be removed from office by the Secretary with the written approval of the Governor and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary:
a. A Secretary of the Division of State Police who shall be known as the Superintendent of State Police and shall hold the rank of Colonel. The Superintendent of State Police shall be qualified by training and experience to perform the duties of the office. The Superintendent of State Police shall be chosen from among the ranks of the State Police and shall have been promoted through the normal promotional policies of the State Police;
b. A director of the Delaware Emergency Management Agency who shall be known as the "Director of the Delaware Emergency Management Agency", and who shall be qualified by training and experience to perform the duties of the office;
c. A Director of the Division of Alcohol and Tobacco Enforcement who shall be known as the Director of Alcohol and Tobacco Enforcement, and who shall be qualified by training and experience to perform the duties of the office;
d. A director of the Division of Capitol Police who shall be known as the Chief of Capitol Police, which position shall remain a merit position. The Chief of Capitol Police shall be qualified by training and experience to perform the duties of the office. The Chief of Capitol Police shall be chosen from among the ranks of the Capitol Police and through the normal promotional policies of the Capitol Police.
e. A director of the Division of Communications who shall be known as the "Director of the Division of Communications", and who shall be qualified by training and experience to perform the duties of the office;
f. A director of the Office of Highway Safety who shall be known as the "Director of the Office of Highway Safety", which position shall remain a merit position. The Director of the Office of Highway Safety shall be qualified by training and experience to perform the duties of the office;
g. A director of the State Council for Persons with Disabilities, who shall be known as the "Director of the State Council for Persons with Disabilities", which position shall remain a merit position, and who shall be qualified by training and experience to perform the duties of the office;
h. A director of the Division of Gaming Enforcement who shall be known as the "Director of the Division of Gaming Enforcement" and who shall be qualified by training and experience to perform the duties of the office.
(3) Appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law, including, but not limited to members of the Secretary's executive staff:
a. A Deputy Secretary;
b. A Chief of Administration;
c. A Chief Information Officer;
d. A Homeland Security Advisor;
e. A Policy Advisor;
f. A Public Relations Officer.
(4) Establish, consolidate or abolish such divisions, subdivisions and offices within the Department or transfer or combine the powers, duties and functions of the divisions, subdivisions and offices within the Department as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained;
(5) Make and enter into any and all contracts, agreements or stipulations, and to retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department, and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Chapter 25 of this title;
(6) Delegate any of the Secretary's powers, duties or functions to a person appointed as that Secretary's Deputy Secretary or a director of a division except the power to remove employees of the Department or to fix their compensation;
(7) Establish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State;
(8) Maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;
(9) Adopt an official seal or seals for the Department;
(10) [Repealed.]
29 Del. C. 1953, § 8203; 57 Del. Laws, c. 382, § 1; 58 Del. Laws, c. 461, § 5; 66 Del. Laws, c. 108, § 1; 69 Del. Laws, c. 46, § 1; 69 Del. Laws, c. 314, § 4; 69 Del. Laws, c. 437, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 26; 74 Del. Laws, c. 110, §§ 125, 126; 74 Del. Laws, c. 250, § 1; 75 Del. Laws, c. 88, § 16(5); 75 Del. Laws, c. 322, §§ 1, 2; 76 Del. Laws, c. 391, §§ 7-10; 77 Del. Laws, c. 219, § 24.;
§ 8204. Division of Alcohol and Tobacco Enforcement.
The Division of Alcohol and Tobacco Enforcement is established having powers, duties and functions as set forth in Chapter 4 of Title 4 and the youth access to tobacco laws in §§ 1115 through 1127 of Title 11.
63 Del. Laws, c. 195, § 2C; 69 Del. Laws, c. 314, § 5; 72 Del. Laws, c. 486, § 22; 74 Del. Laws, c. 250, § 1.;
§ 8205. Council on Police Training.
(a) There is established the Council on Police Training.
(b) The Council on Police Training shall consider matters relating to police training and such other matters as may be referred to it by the Governor or the Secretary of the Department.
(c) The Council on Police Training shall be appointed as is provided in Chapter 84 of Title 11.
29 Del. C. 1953, § 8205; 57 Del. Laws, c. 382, § 1; 66 Del. Laws, c. 108, § 4.;
§ 8206. Division of State Police.
The Division of State Police is established and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:
(1) The State Highway Department, the State Highway Commission, the State Police and the Superintendent of the State Police, pursuant to subchapter I of Chapter 83 of Title 11;
(2) The State Highway Department, the State Highway Commission, the State Police, the Superintendent of the State Police and the State Bureau of Identification, pursuant to Chapter 85 of Title 11.
29 Del. C. 1953, § 8206; 57 Del. Laws, c. 382, § 1.;
§ 8207. Division of Motor Vehicles.
Repealed by 74 Del. Laws, c. 110, § 127, effective July 1, 2003.
§ 8208. Delaware Emergency Management Agency.
(a) The Delaware Emergency Management Agency is hereby established and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Division of Civil Defense, and its predecessor, the Department of Civil Defense pursuant to Chapters 31 and 33 of Title 20.
(b) Notwithstanding any other provisions of Chapter 69 of this title to the contrary, the Delaware Emergency Management Agency is authorized to utilize the United States Department of Defense, Defense Logistics Agency, Defense Supply Center Philadelphia, First/Emergency Responder Equipment Purchase Program or such other similar program for the procurement of material from the Authorized Equipment List of the U.S. Department of Homeland Security's State Homeland Security Grant Program or such other similar program with funds that may be provided by the U.S Department of Homeland Security, Office for Domestic Preparedness, to the extent that such purchase is authorized by federal laws and/or regulations.
29 Del. C. 1953, § 8208; 57 Del. Laws, c. 382, § 1; 58 Del. Laws, c. 558, § 1; 69 Del. Laws, c. 78, § 5; 76 Del. Laws, c. 280, § 284.;
§ 8209. Council on Emergency Planning and Operations.
Repealed by 77 Del. Laws, c. 106, § 10, effective July 6, 2009.
§ 8210. State Council for Persons with Disabilities.
(a) There is hereby established a State Council for Persons with Disabilities.
(b) This Council shall have the following duties and responsibilities:
(1) Promote coordination among all state programs, services and plans established for or related to persons with disabilities.
(2) Review, on a continuing basis, all state policies, plans, programs and activities concerning persons with disabilities which are conducted or assisted, in whole or part, by state departments, agencies or funds in order to determine whether such policies, programs, plans and activities effectively meet the needs of persons with disabilities.
(3) Make recommendations to the Governor, the General Assembly and all state departments and agencies respecting ways to improve the administration of services for persons with disabilities and for facilitating the implementation of new or expanded programs.
(4) Provide the Governor, the General Assembly, all interested agencies and the general public with review and comment on all state legislative proposals affecting people with disabilities.
(5) Provide policymakers and the general public with analyses and recommendations on federal and local governmental legislation, regulations and policies affecting state programs and persons with disabilities.
(6) Propose and promote legislation, regulations and policies to improve the well-being of persons with disabilities.
(7) Serve as a central state clearinghouse for information and data regarding:
a. The current numbers of persons with disabilities and their needs;
b. The location, provision and availability of services and programs for persons with disabilities;
c. Any other relevant information and data about persons with disabilities which the council deems appropriate.
(8) Prepare and submit to the Governor and the General Assembly an annual report of the activities of the Council and the status of services and programs for persons with disabilities.
(9) Serve as advisory council for the Community-Based Attendant Services program established by Chapter 94 of Title 16.
(c) For administrative purposes, this Council is placed within the Department of Safety and Homeland Security.
(d) This Council shall consist of the following members:
(1) The Secretary of Health and Social Services, or a designee of the Secretary;
(2) The Secretary of Labor, or a designee of the Secretary;
(3) The Secretary of Education, or a designee of the Secretary;
(4) The Secretary of Services to Children, Youth and Their Families, or a designee of the Secretary;
(5) The following councils, committees, agencies and organizations shall elect 1 of their members to serve as a member of the Council:
a. The Governor's Advisory Council for Exceptional Citizens;
b. Developmental Disabilities Council;
c. Governor's Committee on Employment of Persons with Disabilities;
d. Advisory Council to the Division of Developmental Disabilities Services;
e. Advisory Council to the Division of Substance Abuse and Mental Health;
f. Architectural Accessibility Board;
g. Delaware Transit Corporation;
h. Council on Services for Aging and Adults with Physical Disabilities;
i. Advisory Council on Public Health [repealed];
j. Council on Deaf and Hard of Hearing Equality;
k. Criminal Justice Council;
l. State Rehabilitation Advisory Council; and
m. Other councils, committees, agencies and organizations as approved by both the State Council for Persons with Disabilities and the affected council, committee, agency or organization;
(6) Individuals appointed by Council to ensure that at least 50% of the total membership are individuals with disabilities or family members with disabilities. At least 33% of the total membership shall be composed of individuals with disabilities.
(e) Any vacancy of a representative position under paragraphs (d)(1)-(5) of this section shall be filled by the respective council, committee, agency or organization within 1 month.
(f) Any member who misses either 3 consecutive meetings or 4 out of any 12 consecutive meetings shall be presumed to have resigned from the Council.
(g) Members of the Council shall serve without compensation, except that they may be reimbursed by the Department of Safety and Homeland Security for reasonable and necessary expenses incident to their duties as members of the Council to the extent funds are available therefore and in accordance with state law.
(h) The Council shall elect its own Chairperson.
(i) The Council shall determine its meeting schedule, but there shall not be less than 4 meetings each calendar year, open to the public, held in an accessible place and with reasonable accommodations as requested.
(j) A simple majority of the total membership shall constitute a quorum which shall be necessary to vote on any issue.
(k) As used in this section, "persons with disabilities" means any person who has a physical or mental impairment which substantially limits 1 or more major life activities, has a record of such impairment.
(l) For purposes of this section, the operations and activities of the Division for the Visually Impaired and the Governor's Advisory Council on the Blind shall be exempt from the purview of the State Council for Persons with Disabilities.
76 Del. Laws, c. 391, § 11.;
§ 8211. Division of Boiler Safety; Council on Boiler Safety.
Repealed by 74 Del. Laws, c. 110, §§ 128, 129, effective July 1, 2003.
§ 8212. Governor's Council on Public Safety.
Repealed by 77 Del. Laws, c. 106, § 11, effective July 6, 2009.
§ 8213. Books, records; access; annual report.
(a) The Governor's Council on Public Safety [repealed] shall have access to all books, records, reports and other documents relating to the Department of Safety and Homeland Security unless otherwise prohibited by law.
(b) The various councils of the divisions of the Department of Safety and Homeland Security shall have access to all books, records, reports and other documents relating to their respective divisions unless otherwise prohibited by law.
(c) The Chairperson of the Governor's Council on Public Safety [repealed] and chairpersons of the councils of the divisions of the Department shall make an annual report of the activities of each of the councils to the Secretary of the Department, the Governor and the General Assembly, and render such reports as the Secretary, the Governor or the General Assembly may from time to time request or as may be required by law.
29 Del. C. 1953, § 8213; 57 Del. Laws, c. 382, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 138.;
§ 8214. Exemptions.
The following positions set forth in this chapter shall be exempt from Chapter 59 of this title:
(1) Secretary of Public Safety;
(2) Superintendent of State Police;
(3) Director of Civil Defense;
(4) Director of Alcohol and Tobacco Enforcement.
29 Del. C. 1953, § 8214; 57 Del. Laws, c. 382, § 1; 57 Del. Laws, c. 670, § 28C; 66 Del. Laws, c. 108, § 3; 69 Del. Laws, c. 314, § 6; 72 Del. Laws, c. 486, § 27; 74 Del. Laws, c. 110, §§ 130, 131; 74 Del. Laws, c. 250, § 1.;
§ 8215. Assumption of powers.
The Department, through appropriate divisions, subdivisions and offices, shall have the power to perform and shall be responsible for the performance of all of the powers, duties and functions vested by law in the State Police Division of the State Highway Department, the Superintendent of the State Police, the State Communications Division, the State Bureau of Identification, the Motor Vehicle Division of the State Highway Department, the Motor Vehicle Commissioner, the Delaware Police Training Commission, the Department of Civil Defense and the Board of Boiler Rules immediately prior to the effective date of this chapter and which are not otherwise hereinabove specifically transferred to the Department by the chapter.
29 Del. C. 1953, § 8215; 57 Del. Laws, c. 382, § 1.;
§ 8216. Appeals.
Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any functions hereby transferred to the Department or to any division or subdivision thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the division, subdivision or office to which such function is hereby transferred, and each such appeal shall be perfected in the manner heretofore provided by law.
29 Del. C. 1953, § 8216; 57 Del. Laws, c. 382, § 1.;
§ 8217. Definitions and references in other laws.
(a) The Department shall succeed to the custody and control of all moneys and personal property held by the State Police Division of the State Highway Department, the Superintendent of the State Police, the Motor Vehicle Division of the State Highway Department and the Motor Vehicle Commissioner belonging to persons under their jurisdiction.
(b) All definitions and references to any commission, board, department, authority or agency which appear in any other act or law shall, to the extent that the same are consistent with this chapter and in connection with a function hereby transferred to the Department, be construed as referring and relating to the Department of Safety and Homeland Security as created and established herein.
(c) All definitions and references to any director, commissioner, executive secretary, commission, board or council member or other similar person which appear in any other act or law shall, to the extent that same are consistent with this chapter and in connection with a function hereby transferred to the Department, be construed as referring or relating to such person or persons and their powers, duties and functions as established and created herein.
29 Del. C. 1953, § 8217; 57 Del. Laws, c. 382, § 1; 74 Del. Laws, c. 110, § 138.;
§ 8218. Annual report.
The Secretary of the Department shall make an annual report to the Governor and the General Assembly of the Department's operations and render such other reports as the Governor or General Assembly may from time to time request or as may be required by law.
29 Del. C. 1953, § 8218; 57 Del. Laws, c. 382, § 1.;
§ 8219. Misnomer of Department in donation.
Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing that the party making the same intended to pass and convey thereby to the Department or to any commission, board, department, authority, council or agency, to which, by this chapter, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.
29 Del. C. 1953, § 8219; 57 Del. Laws, c. 382, § 1.;
§ 8220. Budgeting and financing.
(a) The Secretary, in cooperation with the division directors, shall prepare a proposed budget for the operation of the Department to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the annual appropriation and any other funds appropriated by the General Assembly.
(b) Special funds may be used in accordance with approved programs, grants and appropriations.
29 Del. C. 1953, § 8220; 57 Del. Laws, c. 382, § 1.;
§ 8221. Supremacy.
All other laws or parts of laws now in effect inconsistent with this chapter are hereby repealed, superseded, modified or amended so far as necessary to conform to, and give full force and effect to, this chapter.
29 Del. C. 1953, § 8222; 57 Del. Laws, c. 670, § 27.;
§ 8222. Short title.
Sections 8223-8230 of this title shall be known and may be cited as the "Hazardous Materials Transportation Act of 1979."
62 Del. Laws, c. 123, § 1; 68 Del. Laws, c. 290, § 188.;
§ 8223. Declaration of policy; findings of fact.
(a) The purpose of this Act and the primary standard by which it shall be administered, is to so regulate the transportation of hazardous materials, and assure compliance with the Code of Federal Regulations herein adopted, that there is established and maintained a reasonable balance between the interests of the people in the safety of themselves and their property, on the one hand, and the interest of the people in their employment and economic prosperity, on the other.
(b) It is hereby found as a fact that hazardous materials are essential for various industrial, commercial and other purposes, that their transportation is a necessary incident of their use and therefore that such transportation is required for the employment and economic prosperity of the people. It is also found as a fact that the transportation of hazardous materials may involve risk of injury to persons and damage to property, and that the degree of such risk can and should be kept at a minimum consistent with technical feasibility and economic reasonableness.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, § 1; 68 Del. Laws, c. 290, § 188.;
§ 8224. Definitions.
(a) The following words and phrases shall have the following meaning ascribed to them, unless their context implies otherwise:
(1) "Act" means the Hazardous Materials Transportation Act of 1979.
(2) "Commission" means the State Emergency Response Commission as established by § 8226 of this title.
(3) "Hazardous material" means any substance or material designated a hazardous material pursuant to the federal "Hazardous Materials Transportation Act" (P.L. 93-633; 49 U.S.C. § 1801 et seq. [repealed]).
(4) "Operator of vehicle" means any person having control of any means of transportation herein regulated.
(5) "Person" means any natural person or individual, firm, association, partnership, copartnership, joint venture, company, corporation, joint stock company, estate or any other legal entity, or their legal representative, agent or assigns.
(6) "Transportation" means any movement of property by any mode, and any loading, unloading or storage incidental thereto.
(b) This act shall not apply to the transportation of those hazardous materials cited below from retailer to final end user, or between final end users from farm to farm in approved containers and in the amounts and manner specified.
(1) Agricultural pesticides classifed as Class B Poison or Flammable by these regulations, when moved in quantities of 5,000 pounds or less (aggregate gross weight) or 500 gallons or less volume in solution;
(2) Gasoline, diesel fuels, oils, lubricants and liquefied petroleum gas, when moved in quantities of 1,100 gallons or less;
(3) Ammonium nitrate fertilizer, when moved in quantities of 16,000 pounds (aggregate gross weight) or less;
(4) Anhydrous ammonia when transported in a cargo tank (commonly known as a nurse tank and considered an implement of husbandry) operated by private carriers exclusively for agricultural purposes, provided the cargo tank:
a. Has a minimum design pressure of 250 pounds per square inch (p.s.i.) and meets the requirements of the ASME code in effect at the time of manufacture and is marked accordingly;
b. Is equipped with safety relief valves meeting the requirements of CGA Pamphlet S12;
c. Is painted white or aluminum;
d. Has a capacity of 2,000 gallons or less;
e. Is loaded to a filing density of 56 percent of water density (85 percent of volume capacity);
f. Is securely mounted on a farm wagon.
(5) Formulated agricultural chemicals not listed in subsection a or subsection c of this section which are offered for transportation in less-than-case-lot quantities, or when repackaged, if all of the following conditions are met:
a. Inside packagings are enclosed in strong outside packagings. Inside liquid packagings are cushioned, if necessary, to prevent breakage and leakage.
b. Each inside packaging does not exceed 21/2 gallons capacity for liquids or 25 pounds for dry materials.
c. Gross weight of less-than-case or repackaged lots is not over 100 pounds in each vehicle.
d. Transportation is authorized only by private motor vehicle between a final distribution point and the ultimate point of application, if that distance does not exceed 100 miles.
(6) Formulated liquid agricultural chemicals in specification packagings of 55 gallons capacity, or less, with closures manifolded to a closed mixing system and equipped with positive dry disconnect devices may be transported by a private motor carrier between a final distribution point and an ultimate point of application or loading aboard an aircraft for aerial application.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, § 2; 68 Del. Laws, c. 290, § 188; 71 Del. Laws, c. 208, § 2; 71 Del. Laws, c. 461, § 1.;
§ 8225. Adoption of federal requirements.
The State hereby adopts the following parts of the Code of Federal Regulations (hereinafter sometimes referred to as C.F.R.), being Title 49, Subchapter C of Chapter I, Parts 171 through 180 and Parts 393 and 397 of Subchapter B, Chapter III, being lawfully promulgated pursuant to the federal "Hazardous Materials Transportation Act" (P. L. 93-633; 49 U.S.C. § 1801 et seq. [repealed]). The following sections of the federal regulations shall be excluded:
(1) Section 171.15 Immediate notice of certain hazardous materials incidents.
(2) Section 171.15 Detailed hazardous materials incident reports.
(3) Section 175.45 Reporting hazardous materials incidents. [repealed]
(4) Section 177.824(f) Reporting requirements for MC 330 and MC 331 argo tanks. [repealed]
Any person engaged in the transportation or shipment of hazardous materials, either in interstate or intrastate commerce, in the State shall comply with these adopted federal regulations and any federal regulations subsequently adopted by the Commission.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, §§ 3, 4; 68 Del. Laws, c. 45, § 1; 68 Del. Laws, c. 290, § 188.;
§ 8226. State Emergency Response Commission.
(a) A State Emergency Response Commission is hereby established in compliance with Title III of the Federal Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. Chapter 116, Emergency Planning and Community Right-to-Know) [42 U.S.C. § 11001]. The Commission shall be composed of the Secretary of the Department of Safety and Homeland Security who shall be Chairperson, the Superintendent of State Police, the Secretary of the Department of Transportation, the Director of the Division of Waste Management, the State Fire Marshal, the Director of the Delaware Emergency Management Agency, the Director of the Division of Public Health, the chairperson of each of the Local Emergency Planning Committees as designated by the State Emergency Response Commission, a representative of the State Fire Prevention Commission, and 1 person from industry for each of the modes of transportation herein regulated (rail, air, highway and water), 1 person each representing shippers, users and consignees of hazardous materials to be appointed by the Governor for a term of 2 years, the Director of the Delaware State Fire School and 1 appointment to be made by the Delaware State Firefighter's Association, who shall serve a term of 2 years. The Chairperson of the Commission shall have no vote except in case of a tie. The Commission shall meet once each year and at such other times and places as may be designated by the Chairperson or a majority of the Commission. The Chairperson shall cause reasonable notice to be given to each Commission member as to the time and place of each meeting. Eleven members shall constitute a quorum for the transaction of business at any meeting. Members of the Commission shall receive no compensation for the meetings.
(b) After the enactment of this Act, the Commission may adopt any subsequent federal regulations lawfully promulgated under the parts of the Code of Federal Regulations herein adopted.
(c) The Commission shall submit an annual report to the Governor and members of the General Assembly.
(d) The Commission shall assign among the several Departments and Divisions represented on the Commission the duty of coordinating and assisting in the enforcement of this Act and the several parts thereof. Such delegation shall be accomplished by resolution duly adopted by a majority of the Commission present at the meeting. The Commission may also enlist the support of any other person which it deems necessary to assist in carrying out its functions and duties.
(e) The Commission has authority to promulgate rules and regulations to carry out the purposes of this Act.
62 Del. Laws, c. 123, § 1; 62 Del. Laws, c. 304, § 1; 64 Del. Laws, c. 28, §§ 5-8; 64 Del. Laws, c. 126, §§ 1, 2; 65 Del. Laws, c. 431, § 8; 67 Del. Laws, c. 207, § 1; 68 Del. Laws, c. 290, § 188; 69 Del. Laws, c. 78, § 5; 69 Del. Laws, c. 204, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 208, §§ 3, 4; 74 Del. Laws, c. 110, § 138; 77 Del. Laws, c. 430, § 71.;
§ 8227. Remedies.
(a) The Attorney General, upon request of the Commission or upon the Attorney General's own motion, may proceed in the name of the State, by injunction, mandamus, quo warrants or other appropriate remedy at law or in equity, to restrain violations of the Commission's regulations or orders or to enforce obedience thereto.
(b) The State Police, the State Fire Marshal and such other persons or agencies as the Commission by duly adopted resolution shall designate shall have the power to seize, retain, confiscate and impound all evidence, including motor vehicles, used in violation of this Act, and to otherwise enforce this Act.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, § 9; 68 Del. Laws, c. 290, § 188; 70 Del. Laws, c. 186, § 1.;
§ 8228. Jurisdiction; penalties.
(a)(1) Any person who, as operator of a vehicle, shall knowingly or willfully violate any provision of this Act, the Code of Federal Regulations adopted under this Act and/or any regulations of the Commission pertaining to routing, parking or other act in the actual operation of a vehicle, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not less than $25 nor more than $100, or imprisonment for not more than 30 days, or both. Any such person committing a second or subsequent offense and the conviction thereof shall be sentenced to pay a fine of not less than $100 nor more than $500, or imprisonment for not less than 60 days nor more than 1 year, or both.
(2) A person arrested without a warrant for a violation of this Act or any regulation thereunder shall have the person's case heard and determined by the nearest available justice of the peace, notwithstanding the fact that the court of said justice of the peace is situated in a county other than that in which the violation is alleged to have occurred. It shall be a sufficient defense for such person to show by 1 competent witness that there was at the time of the person's arrest an available justice of the peace whose regular office was nearer to the place where such person was arrested than the justice of the peace before whom the case is being tried.
(b) For the purpose of this section, a justice of the peace is available when the justice of the peace is at the office or court.
(c) Any person who, as shipper, carrier, consignee or user of a hazardous material, shall knowingly or willfully violate any provision of this Act, the Code of Federal Regulations adopted thereunder or any regulation of the Commission, shall be guilty of a misdemeanor, and, upon conviction thereof in the Court of Common Pleas of the county wherein the offense occurred, shall be sentenced to pay a fine of not less than $100 nor more than $500, or imprisonment for not more than 60 days, or both. Any such person committing a second or subsequent offense and the conviction thereof shall be sentenced to pay a fine of not less than $500 nor more than $5,000 or imprisonment for not less than 60 days nor more than 1 year, or both. If such person be a firm, partnership, joint venture or association, or if such person be a corporation, the officer, agent or employee thereof responsible for the violation shall have the sentence, herein prescribed, imposed upon the officer, agent or employee.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, § 10; 68 Del. Laws, c. 290, § 188; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 176, § 36.;
§ 8229. Exclusive state regulation; general repealer.
It is the intent of this Act that this be the exclusive state method of regulating and controlling the transportation of hazardous materials. To that end all acts and parts of acts, ordinances and regulations elsewhere promulgated or enacted are hereby repealed and declared unenforceable to the extent that they are inconsistent herewith. No city, town, municipality or other subdivision of the State shall adopt or enforce any other regulation of the transportation of hazardous materials. This shall not preclude the State from regulating hazardous wastes and hazardous substances, including the transportation thereof, as may be otherwise provided by law.
62 Del. Laws, c. 123, § 1; 64 Del. Laws, c. 28, §§ 11, 12; 68 Del. Laws, c. 290, § 188.;
§ 8230. Exemption from liability.
(a) Notwithstanding any provision of law to the contrary, no individual, partnership, emergency response team, corporation, industrial response team, association or other entity shall be liable in civil damages as a result of acts taken or omitted in anticipation of, in preparation for, or in the course of rendering care, assistance or advice at the request of any emergency service agency with respect to an incident creating a danger to person, property or the environment as a result of spillage, seepage, fire, explosion or other discharge or release of oil, gasoline, diesel fuel or hazardous materials, or the possibility thereof.
(b) This section shall not preclude liability for civil damages as the result of gross negligence or intentional misconduct. Reckless, willful or wanton misconduct shall constitute gross negligence.
(c) For purposes of this section, hazardous materials shall include:
(1) Materials designated as hazardous by any governmental agency; and
(2) Materials where the discharge or release of same, or the possibility of such discharge or release, creates a hazard to person, property, or the environment.
64 Del. Laws, c. 28, § 13; 68 Del. Laws, c. 290, § 188; 70 Del. Laws, c. 379, § 1.;
§ 8231. Hazardous substance spill cleanup.
(a) The Secretary of the Department of Safety and Homeland Security or the Secretary's designee is permitted to expend any funds appropriated to the Department to contain or clean up a hazardous substance spill as defined by § 101(14) or § 102 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9601(14)) [or 42 U.S.C. § 9602] and § 104 of the Hazardous Materials Transportation Act (49 U.S.C. App. § 1803 [repealed]) and duly adopted by the Commission on the Transportation of Hazardous Material. This shall apply to any or all hazardous material spills within the State to protect the citizens and environment. Costs incurred for such removal shall not be subject to Chapter 60 of this title.
(b) A Hazardous Substance Spill Cleanup Revolving Fund is hereby established for the purpose of providing the funds to undertake the emergency cleanup and necessary remedial measures. The Department of Natural Resources and Environmental Control shall be responsible under Chapter 63 of Title 7 for the assessment of any long-term environmental impact and conducting the necessary remedial action.
(c) All revenues recovered from the responsible party shall be retained by the Department of Safety and Homeland Security and placed in the Hazardous Substance Spill Cleanup Revolving Fund. Expenditures from the Fund shall be controlled by the Appropriated Special Funds portion of the annual Budget Act.
(d) The Governor, the Secretary of the Department of Finance, the Director of the Office of Management and Budget, the Joint Finance Committee of the General Assembly and the Controller General shall be kept informed of all costs incurred and reimbursements received under this section.
64 Del. Laws, c. 124, § 1; 65 Del. Laws, c. 53, §§ 1, 2; 68 Del. Laws, c. 290, § 188; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 138; 75 Del. Laws, c. 88, § 21(13).;
§ 8232. State Emergency Response Commission; other personnel.
Notwithstanding any inconsistent provisions of any public, private or special law, any person who is a bona fide member of, or who is appointed by the State Emergency Response Commission under the authority of § 301(c) [42 U.S.C. § 11001] of Title III, Superfund Amendment and Reauthorization Act of 1986 (SARA), to serve on a local emergency planning committee who, in good faith, assists in the development or review of local plans to respond to hazardous materials incidents in this State is not liable for civil damages as a result of any act or omission in the development, review or implementation of such plans unless the act or omission constitutes gross negligence or wilful misconduct.
71 Del. Laws, c. 208, § 5.;
§ 8233. Division of Capitol Police.
The Division of Capitol Police is established and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Division of Capitol Police, pursuant to Chapter 82 of Title 11.
75 Del. Laws, c. 322, § 3.;
§ 8234. Division of the Office of Highway Safety.
The Division of the Office of Highway Safety is established and shall be responsible for the performance of all the powers, duties and functions vested in the Division of the Office of Highway Safety pursuant to Chapter 49 of this title.
76 Del. Laws, c. 391, § 12.;
§ 8235. Division of Communications.
There is hereby established, within the Department of Safety and Homeland Security, a Division of Communications with duties, powers and responsibilities as defined.
(1) The Division of Communications shall:
a. Possess the technical expertise to maintain the state radio communications equipment for the State;
b. Plan, coordinate and monitor the procurement of radio systems and associated equipment for the State;
c. Perform such other duties in connection with the radio communications activities of the state government as may be directed by the Governor, the General Assembly, or the Chief Justice or as may be required by existing or future state or federal statute; and
d. Cooperate with the Office of Management and Budget, Department of Technology and Information in the preparation of the statewide communications budget.
(2) Charges; Communications Revolving Fund. --
a. Out-of-pocket expenses for parts, materials and other goods, used for installation, repair and maintenance of communications facilities, equipment and services, shall be charged to and paid by the using agency through the use of Department of Finance Form RS-1 and applicable directives. Moneys received by the Division of Communications under this chapter shall be deposited in a special fund, to be known as the "Communications Revolving Fund", which shall not revert at the end of any fiscal year. The Communications Revolving Fund shall be for the purpose of buying parts, materials and other goods required for installation, repair and maintenance of communications facilities, equipment and services.
b. The size of the Communications Revolving Fund shall be reviewed annually by the Director of the Office of Management and Budget, and if deemed excessive to the needs of the Division of Communications, the excess shall be reverted to the General Fund of the State.
(3) Extension of service to others. -- Pursuant to written agreements of terms and conditions and subject to payment of charges as determined in accordance with Chapter 65 of this title, the Division of Communications may, but is not required to, extend the services defined in paragraph (1) of this section, as applicable and reasonable to local municipalities, towns and the counties and any and all agencies thereof, and volunteer fire, rescue and ambulance companies operating and chartered in the State. Any such extension of services shall be subject to availability of resources and secondary to the needs of state government. So long as authorized general funded personnel do not depreciate below the Fiscal Year 2006 level, the Division of Communications may provide volunteer fire, rescue and ambulance companies operating and chartered in the State with the same level of 800 MHz service provided to state agencies. Moneys received as payment for these services shall be deposited in the Communications Revolving Fund.
(4) Restriction of use. --
a. State communications activities shall not be used for any purposes other than the business of the State, nor in any manner not in accordance with this chapter, except in an emergency.
b. Communications transmitted or received by state communications activities shall be the privileged information of the sender and receiver and interception and use of such communications by an unauthorized third part is in violation of federal law, and shall be in violation of the purpose and intent of this chapter; provided, that this shall not prohibit the sender or receiver from releasing such communications to others or to the public if necessary or desirable; and provided, further that the Governor shall have the power to direct the release of such communications if the Governor deems such action to be in the best interest of the State.
76 Del. Laws, c. 391, § 12.;
§ 8236. Division of Gaming Enforcement.
(a) There is hereby established, within the Department of Safety and Homeland Security, a Division of Gaming Enforcement with duties, powers and responsibilities as defined. It shall be the responsibility of all police jurisdictions and video lottery agents to report any and all suspicious or criminal activity involving gaming to the Division of Gaming Enforcement.
(b) The Division of Gaming Enforcement shall be under the immediate supervision of a civilian Director who shall staff and administer the work of the Division under the direction and supervision of the Secretary of the Department of Safety and Homeland Security. The Division of Gaming Enforcement shall contain an Assistant Director, whom at all times must be an officer of the Delaware State Police, and other sworn State Police personnel, as well as other resources to necessary to fulfill the obligations under this chapter.
(c) The Division of Gaming Enforcement shall:
(1) Exercise exclusive jurisdiction for the investigation of criminal offenses related to gaming that may occur at any video lottery facility licensed by the State Lottery Office or which occur elsewhere that relate to the operation of the Lottery;
(2) Investigate the background, qualifications and suitability of each applicant before any license is issued by the Director of the State Lottery Office pursuant to Chapter 48 of this title;
(3) Provide assistance upon request by the State Lottery Office in the consideration, promulgation and application of its rules and regulations;
(4) Exchange fingerprint data with, and receive criminal history information from, the Federal Bureau of Investigation for use in considering applicants for any license or registration issued by the State Lottery Office;
(5) Request and receive information, materials and any other data from any licensee or registrant, or applicant for a license or registration;
(6) Notify the State Lottery Office of any information which may affect the continued qualifications or suitability of any licensee or registrant;
(7) Seek to exclude from all licensed video lottery facilities persons whose presence would be inimical to the interest of the State or of lottery operations therein; and
(8) Perform other duties necessary and consistent with Chapter 48 of this title to maintain public confidence and trust in the credibility and integrity of lottery operations, agents and employees.
77 Del. Laws, c. 219, § 25.;