2006 Delaware Code - 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. The Secretary shall be paid an annual salary not in excess of $30,000. 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.

(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 removal of the Secretary and prior to the appointment of a successor, the Governor may appoint the director of any division of the Department to serve as Acting Secretary. The Secretary may, during an absence from the State, appoint the director of any division of 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 is duly qualified and 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.)

§ 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. An Secretary of the Division of Civil Defense who shall be known as the Director of Civil Defense 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.

(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;

(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 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.)

§ 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.

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. (29 Del. C. 1953, § 8208; 57 Del. Laws, c. 382, § 1; 58 Del. Laws, c. 558, § 1; 69 Del. Laws, c. 78, § 5.)

§ 8209. Council on Emergency Planning and Operations.

(a) The Council is hereby established.

(b) The Council on Emergency Planning and Operations shall serve in an advisory capacity to the Director of the Delaware Emergency Management Agency and shall consider matters relating to preparation for and carrying out all emergency functions, other than functions for which military forces or other federal agencies are primarily responsible, to prevent, minimize and repair injury and damage resulting from disasters caused by enemy attack, sabotage or other hostile action, or by fire, flood or other causes upon the Governor's declaration that an emergency exists and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of the Delaware Emergency Management Agency. The Council may also study, research, plan and advise the Director, the Secretary and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

(c) The Council on Emergency Planning and Operations shall be composed of 7 members who shall be appointed for terms of 3 years by the Governor; provided, however, that the present members of the Council on Civil Defense shall continue to serve as members of the Council on Emergency Planning and Operations until the expiration of their original terms.

(d) At least 3, but no more than 4, of the newly appointed members of the Council shall be affiliated with 1 of the major political parties, and at least 2, but no more than 3, of the newly appointed members shall be affiliated with the other major political party; provided, however, that there shall be no more than a bare majority representation of 1 major political party over the other major political party. Any person who declines to announce a political affiliation shall also be eligible for appointment as a member of the Council.

(e) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(f) A Chairperson of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of 1 year and shall be eligible for reelection. (29 Del. C. 1953, § 8209; 57 Del. Laws, c. 382, § 1; 57 Del. Laws, c. 670, § 28A; 58 Del. Laws, c. 558, § 2; 69 Del. Laws, c. 78, § 5; 70 Del. Laws, c. 186, § 1.)

§§ 8210, 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.

(a) There is established the Governor's Council on Public Safety.

(b) The Governor's Council on Public Safety shall be composed of 7 members, the following 5 of which shall be ex officio: The Chairperson of the State Fire Prevention Commission, the Chairperson of the Council on Police Training, the Chairperson of the Council on Boiler Safety, the Chairperson of the Council on Civil Defense and a retired member of the State Police who attained the rank of Captain or higher. In addition to the foregoing ex officio members, the Governor shall appoint 2 other members. Any new appointment, pursuant to this section, to replace a member whose position becomes vacant prior to the expiration of the member's term shall be filled only for the remainder of that term. One member of the Council shall be designated by the Governor as Chairperson of the Governor's Council on Public Safety and the member shall serve as such at the pleasure of the Governor.

(c) The Governor's Council on Public Safety shall advise, recommend and refer to the Secretary of the Department matters which, in its opinion, are of departmental concern and shall consider such other matters as may be referred to it by the Governor or the Secretary of the Department. The Council may study, research, plan and advise the Secretary and the Governor on matters it deems appropriate to enable the Department to function in the best possible manner.

(d) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council. (29 Del. C. 1953, § 8212; 57 Del. Laws, c. 382, § 1; 70 Del. Laws, c. 186, § 1.)

§ 8213. Books, records; access; annual report.

(a) The Governor's Council on Public Safety 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 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.

(4) Section 177.824(f) Reporting requirements for MC 330 and MC 331

cargo tanks.

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 Air and 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.)

§ 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.)