CHAPTER 64. DELAWARE SOLID WASTE AUTHORITY
Subchapter I. General Provisions
§ 6401 Findings; policy; purpose.
(a) Findings. — The General Assembly finds and declares:
(1) That the people of the State have the right to a clean and wholesome environment;
(2) That prevailing solid waste disposal practices generally, throughout the State, result in unnecessary environmental damage, substantially degrade surface and groundwater, waste valuable land and other resources and constitute a continuing hazard to the health and welfare of the people of the State;
(3) That local governments responsible for waste disposal services are becoming hard pressed to provide adequate services at reasonable costs, without damage or hazard to the environment and the loss of useful resources;
(4) That as a result of inadequate solid waste collection and disposal systems rural areas of the State are particularly subjected to esthetic degradation because of litter;
(5) That locally organized voluntary recycling programs have shown that solid wastes produced in the State contain recoverable resources;
(6) That technology and methods now exist to dispose of solid wastes and recover resources with commensurate environmental benefits;
(7) That coordinated large-scale processing of solid wastes may be necessary in order to achieve maximum environmental and economic benefits for the people of the State;
(8) That the amounts of solid waste being produced within the State are adequate to sustain such large-scale processing;
(9) That the geography and population density of the State are such as to enable and facilitate the effective and economic regional accumulation of solid wastes;
(10) That the development of systems and facilities and the use of the technology necessary to initiate large-scale processing of solid wastes have become logical and necessary functions to be assumed by state government;
(11) That the provision of solid waste disposal services to local governments at reasonable cost, through the use of state governmental powers and capabilities, would supply valuable assistance to such local governments; and
(12) That, because of the foregoing, the provision of statutory authorization for the necessary state structure, which can take initiative and appropriate action to provide the necessary systems, facilities, technology and services for solid waste management and resources recovery is a matter of important public interest and that it is the purpose and intent of the General Assembly to be and remain cognizant not only of its responsibility to authorize and establish accomplishment of solid waste management and resources recovery, but also of its responsibility to monitor and supervise the activities and operations of the state Authority created by this chapter, and the exercise of the powers conferred upon such Authority by virtue of this chapter.
(b) Policy. — The General Assembly declares the following to be the policies of the State:
(1) That maximum resources recovery from solid waste and maximum recycling and reuse of such resources in order to protect, preserve and enhance the environment of the State shall be considered environmental goals of the State;
(2) That solid waste disposal and resources recovery facilities and projects are to be implemented either by the State or under state auspices, in furtherance of these goals;
(3) That appropriate governmental structure, processes and support are to be provided so that effective state systems and facilities for solid waste management and large-scale resources recovery may be developed, financed, planned, designed, constructed and operated for the benefit of the people, municipalities and counties of the State;
(4) That private industry is to be utilized to the maximum extent feasible to perform planning, design, management, collection, construction, operation, manufacturing and marketing functions related to solid waste disposal and resources recovery, and to assist in the development of industrial enterprises based upon resources recovery, recycling and reuse;
(5) That long-term negotiated contracts between the State and persons and business entities may be utilized as an incentive for the development of industrial and commercial enterprise based on resources recovery within the State;
(6) That solid waste collection and disposal services shall be provided for municipal and regional authorities and persons in the State, at reasonable cost, by state systems and facilities where such services are considered necessary and desirable in accordance with the statewide solid waste management plan and that any revenues received from the payment of the costs of such services otherwise from the operation of state systems and facilities shall be redistributed to the users of such services provided that the Authority has determined that all contractual obligations related to such systems and facilities have been met and that such revenues are surplus and not needed to provide necessary support for such systems and facilities;
(7) That provision shall be made for planning, research and development, and appropriate innovation in the design, management and operation of the State's systems and facilities for solid waste management, in order to permit continuing improvement and provide adequate incentives and processes for lowering operation and other costs;
(8) That the Authority established pursuant to this chapter shall have responsibility for implementing solid waste disposal and resources recovery systems and facilities and solid waste management services where necessary and desirable throughout the State in accordance with a state solid waste management plan and applicable statutes and regulations;
(9) That infectious waste be disposed of by the Authority on a statewide basis in accordance with applicable statutes, regulations and inspection procedures approved by the Department of Health and Social Services and issued by the Department of Natural Resources and Environmental Control to assure adequate and proper disposal in a manner to protect the public health and welfare;
(10) That actions and activities performed or carried out by the Authority or its contractors in accordance with this chapter shall be in conformity with the state solid waste management plan;
(11) That these policies and purposes are hereby declared to be in the public interest and this chapter to be necessary and for the public benefit, as a matter of legislative determination.
(c) Purpose. — The General Assembly declares the following to be the purpose of this chapter:
(1) That a statewide comprehensive program for management, storage, collection, transportation, utilization, processing and disposal of solid waste be established.
(2) That a program for the maximum recovery and reuse of materials and energy resources derived from solid wastes be established.
(3) That a program for protecting the land, air, surface and groundwater resources of the State from depletion and degradation caused by improper disposal of solid waste be established.
(4) That a program in cooperation with the United States Environmental Protection Agency, or other federal and state agencies, for the demonstration of systems and techniques of materials recovery, market development and reuse be established.
(5) That a statewide program for disposal of infectious waste, giving special attention to the management and operation of an infectious waste facility, be established.
(6) That a statewide solid waste management plan be developed and implemented by the Authority.
60 Del. Laws, c. 288, § 1; 67 Del. Laws, c. 136, §§ 1, 2.;
§ 6402 Definitions.
The following terms shall have the meanings ascribed to them in this chapter:
(1) "Authority" means the Delaware Solid Waste Authority.
(2) "Costs" means the cost or fair market value or value, as determined by the Authority, of construction, real property, property rights, utility extensions, disposal facilities, access roads, easements, franchises, financing charges, interest, labor, materials, machinery and equipment, engineering and legal services, plans, specifications, surveys, cost estimates, studies, transportation and other expenses necessary or incidental to the design, development, construction, financing, management and operation and maintenance of a waste management project, and such other costs or expenses of the Authority as may be necessary or incidental to the purposes of the Authority, including administrative and operating costs, research and development and operating capital, including fees, charges, loans, insurance and the expense of purchasing real and personal property, including waste management projects.
(3) "Department" means the Department of Natural Resources and Environmental Control.
(4) "Facility" means any solid waste disposal site, system or process and the operation thereof, including but not limited to personnel, equipment and buildings.
(5) "Groundwater" means any water naturally found under the surface of the earth.
(6) "Industrial solid waste" means solid waste produced by or resulting from industrial applications, processes or operations.
(7) "Infectious waste" means those wastes which may cause human disease and may reasonably be suspected of harboring human pathogenic organisms, or may pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed. Types of wastes designated as infectious include, but are not necessarily limited to, the following:
a. Biological wastes which shall include, but not be limited to:
1. Animal tissue, bedding and other waste from animals known or suspected to be infected with a pathogen which also causes human disease, provided that prevailing evidence indicates that such tissue, bedding or other waste may act as a vehicle of transmission to humans.
2. "Biological liquid wastes" which shall mean blood and blood products, excretions, exudates, secretions, suctionings and other body fluids including liquid wastes from renal dialysis.
3. "Cultures and stocks of etiologic agents and associated biological wastes" which shall mean, but is not limited to, specimen cultures, cultures and stocks of etiologic agents and wastes from production of biologicals and serums.
4. Human dialysis waste materials including blood lines and dialysate membranes.
5. "Laboratory wastes" which shall mean those wastes which have come in contact with pathogenic organisms and blood or body fluids. Such wastes include, but are not limited to, disposable materials, culture dishes, devices used to transfer, inoculate and mix cultures, paper and cloth which have come in contact with specimens or cultures which have not been sterilized or rendered noninfectious; or laboratory wastes, including cultures of etiologic agents, which pose a substantial threat to health due to their volume and virulence.
6. "Pathological wastes" which shall mean all human tissues and anatomical remains, including human fetal remains, which emanate from surgery, obstetrical procedures, autopsy and laboratory procedures.
b. "Discarded biologicals" which shall mean serums and vaccines produced by pharmaceutical companies for human or veterinary use. These products may be discarded because of a bad manufacturing lot (i.e., off-specification material that does not pass quality control or that is recalled), out-dating or removal of the product from the market or other reasons. Because of the possible presence of etiologic agents in these products, the discarded material constitutes infectious waste.
c. "Other infectious wastes" which shall mean any residue or contaminated soil, water or other debris resulting from the cleanup of a spill of any infectious waste.
d. "Sharps" which shall mean any discarded article that may cause puncture or cuts. Such wastes include but are not limited to, needles, intravenous infravenous tubing with needles attached, scalpel blades, glassware and syringes that have been removed from their original sterile containers.
(8) "Infectious waste generator" means hospitals, inpatient or outpatient clinics, laboratories, medical offices, dental offices, nursing homes and inpatient residential facilities serving persons with diseases which may be transmitted through contact with infectious wastes as well as veterinarian facilities and research laboratories operating within the State.
(9) "Municipality" or "municipalities" means a county, city, town or other public body of the State.
(10) "Person" means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision or other duly established legal entity.
(11) "Resources recovery" means the recovery of energy and materials from solid wastes in a saleable form which will allow their reuse in specific market applications.
(12) "Resources recovery systems" means systems specifically designed for recycling solid wastes into energy and materials.
(13) "Revenues" means all revenues to the Authority including but not limited to those generated through user charges and the sale of recycling products through resources recovery systems and facilities.
(14) "Solid waste" means any garbage, refuse, 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 materials in irrigation return flows or industrial discharges which are point sources subject to permits under § 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880) [33 U.S.C. § 1342], or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C. § 2014].
(15) "Solid waste management services" means services including but not limited to the collection, transportation, storage, transfer, processing, recycling or disposal of solid wastes.
(16) "Surface water" means water occurring generally on the surface of the earth.
(17) "Users" means any person who delivers and/or deposits solid waste at a facility for subsequent processing, disposal or recycling.
(18) "Volume reduction" means a system or process for physically or chemically reducing the volume of solid wastes.
60 Del. Laws, c. 288, § 1; 60 Del. Laws, c. 558, § 6; 61 Del. Laws, c. 132, §§ 1, 2; 63 Del. Laws, c. 372, § 2; 67 Del. Laws, c. 136, §§ 3, 4.;
§ 6403 Establishment, composition, etc., of Authority.
(a) There is hereby established and created a statewide solid waste authority, a body politic and corporate constituting a public instrumentality of the State established and created for the performance of an essential public and governmental function, to be known as the Delaware Solid Waste Authority. The Authority shall consist of 7 directors, all of whom shall be residents of and qualified to vote in the State. The Governor shall appoint the directors with the advice and consent of the Senate. The Governor shall designate a director as chairperson, and such director shall serve at the pleasure of the Governor. There shall be at least 1 director from each of 3 counties and the City of Wilmington. Authority directors registered in either major political party shall not exceed the other major political party by more than 1. The terms of the original directors, excluding the chairperson, shall be as follows: Two directors shall serve for 1 year; 2 directors shall serve for 2 years; and 2 directors shall serve for 3 years. Upon the expiration of the terms of the original directors, excluding the chairperson, the term of each director appointed thereafter shall be 3 years.
(b) In the event of the death of a director, permanent disability of a director, resignation of a director or failure of a director to perform his or her duties, the Governor shall appoint an interim director to serve for a period not to exceed 6 months, unless such interim director shall be confirmed by the Senate, in which case the interim director shall complete the term of the replaced director. If an interim director is not confirmed by the Senate within 6 months of the date of appointment, the position of director shall remain vacant until such time that an interim director is confirmed by the Senate, or a director is selected to serve a new term. Except as otherwise set forth herein the appointment of interim directors shall be subject to all other requirements regarding appointments of directors.
(c) For purposes of conducting business of the Authority, 5 directors shall constitute a quorum. A majority vote of members constituting the quorum shall be required for action on any matter before the Authority. All votes on matters before the Authority shall be conducted at meetings open to the public, and such meetings shall be timely noticed through statewide newspaper advertisement. Nothing herein shall prevent the directors of the Authority from meeting at executive sessions which are closed to the public for purposes of discussing Authority matters.
(d) Each director shall be entitled to reimbursement for actual and necessary expenses incurred during the performance of official duties.
(e) The Authority may delegate to 1 or more of its directors, the manager, or its agents, such powers and duties as it may deem necessary and proper in conformity with this chapter.
(f) The chairperson shall, with the approval of the directors, select a manager of the Authority who shall be an employee of the Authority.
(g) Subject to § 6409 of this title, the Authority shall continue until its existence shall be terminated by law, in which case all of its rights and properties shall pass to and be vested in the State.
(h) The Authority may adopt procedural rules to implement this section.
(i) The Authority may, after notice and public hearing, adopt rules and regulations governing the use and/or operation of facilities under its jurisdiction and control.
(j) The Authority shall, after notice and public hearing, adopt a statewide solid waste management plan, and amend such plan as necessary.
(k) The Authority may, after notice and public hearing, adopt fee schedules, user charges and/or other charges for the use and/or operation of facilities under its jurisdiction and control.
(l) The Authority may, after notice and public hearing, adopt rules and regulations to effectuate the powers, policies, purposes and functions set forth in this chapter.
(m) The Authority may, after notice and public hearing, adopt rules and regulations governing the composition, quality, quantity and delivery of source separated recyclable materials to recycling centers.
60 Del. Laws, c. 288, § 1; 60 Del. Laws, c. 558, §§ 1-3; 61 Del. Laws, c. 132, §§ 3, 4; 64 Del. Laws, c. 343, § 5(a); 67 Del. Laws, c. 432, § 2; 70 Del. Laws, c. 186, § 1.;
§ 6404 Functions of Authority.
The functions of the Authority shall include, but not be limited to the following:
(1) The planning, design, construction, financing, management, ownership, operation and maintenance of solid waste disposal, volume reduction and resources recovery facilities and all related solid waste reception, transfer, storage, transportation and wastehandling and general support facilities considered by the Authority to be necessary, desirable, convenient or appropriate in carrying out the statewide solid waste management plan and in establishing, managing and operating solid waste disposal and resources recovery systems and their component waste-processing facilities and equipment;
(2) The provision of solid waste management services to municipalities, regions and persons within the State by receiving solid wastes at Authority facilities, pursuant to contracts between the Authority and such agencies, municipalities, persons, regions and business entities; the recovery of material and energy resources and resource values from such solid wastes; and the production from such services and resources recovery operations of revenues sufficient to provide for the support of the Authority and its operations on a self-sustaining basis, with due allowance for the redistribution of any surplus revenues to reduce the costs of Authority services to the users thereof;
(3) The utilization, through contractual arrangements, of private industry for implementation of some or all of the requirements of the state solid waste management plan and for such other activities as may be considered necessary, desirable or convenient by the Authority;
(4) Assistance with the coordination of efforts directed toward source separation for recycling purposes;
(5) Assistance in the development of industries and commercial enterprises within the State based upon resources recovery, recycling and reuse. These objectives shall be considered to be operating responsibilities of the Authority, in accordance with the state solid waste management plan, and are to be considered in all respects public purposes. It is the intention of this chapter that the Authority shall be granted all powers necessary to fulfill these purposes and to carry out its assigned responsibilities and that this chapter, itself, is to be construed liberally in furtherance of this intention; and
(6) The development, implementation and supervision of a program requiring all persons who haul, convey or transport any solid waste in any container to obtain a license from the Authority. The Authority may enter into an administrative agreement with any county, municipality or other political subdivision under which agreement the licensing program referenced herein may be conducted by the county, municipality or other political subdivision pursuant to such rules and regulations adopted by the Authority which are applicable to the licensing program.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 5.;
§ 6405 Manager and staff.
(a) The manager of the Authority shall be a resident of the State, a registered professional engineer in the State and have obtained at least a masters degree in either civil, mechanical or chemical engineering from an accredited college or university. The manager shall have at least 10 years' engineering experience including at least 3 years' experience in the field of solid waste management.
(b) The manager shall be a member and chief executive of the staff Authority.
(c) All members of the staff shall be employees of the Authority and, except for the manager, the manager's chief administrative aide and engineers who have graduated from an engineering curriculum of 4 years or more, be covered by the state merit system as classified employees.
(d) The manager shall be responsible for developing and recommending an organizational structure for implementing the functions undertaken by the Authority. The manager shall be responsible for recommending to the Authority persons to be hired as staff members. The Authority shall approve all hirings and organizational structures.
(e) All members of the staff shall be included under and subject to Chapter 55 of Title 29.
60 Del. Laws, c. 288, § 1; 60 Del. Laws, c. 558, § 4; 63 Del. Laws, c. 372, §§ 3, 4; 70 Del. Laws, c. 186, § 1.;
§ 6406 Powers of Authority.
(a) The Authority shall have the power to:
(1) Approve and adopt an organizational structure to implement this chapter.
(2) Employ a staff to carry out the functions of the Authority.
(3) Establish offices where necessary in the State.
(4) Retain by contract legal counsel, auditors, engineers, private consultants, advisors or other contractual services required by the Authority.
(5) Sue and be sued.
(6) Have a seal and alter it at pleasure.
(7) Conduct such hearings, examinations and investigations as may be necessary and appropriate to the conduct of its operations and the fulfillment of its responsibilities.
(8) To procure and keep in force adequate insurance or otherwise provide for the adequate protection of its property, as well as to indemnify and save harmless it and its officers, agents or employees against loss or liability with respect to any risk to which it or they may be exposed in carrying out any function of the Authority.
(9) To design, construct, own and operate facilities.
(10) Obtain access to public records and apply for the process of subpoena if necessary to produce books, papers, records and other data.
(11) Charge reasonable fees for services it performs and waive, suspend, reduce or otherwise modify such fees when it is deemed appropriate to do so.
(12) Purchase, manage, lease or rent such real and personal property as it may deem necessary, convenient or desirable.
(13) Otherwise, do all things necessary for the performance of its duties, the fulfillment of its obligations, the conduct of its operations and the conduct of a comprehensive program for solid waste disposal and resources recovery, and for solid waste management services, in accordance with the state solid waste management plan, applicable statutes and regulations and the requirements of this chapter.
(14) Assume through contract or otherwise, any existing contract, grant or property right, or interest held by any person, partnership, corporation, municipality, county, state agency, federal agency or other legal entity, pertaining to solid waste storage, collection, transportation, treatment, processing, disposal, recycling, reuse or any other use.
(15) Determine the location and character of any project to be developed under this chapter, subject to the requirements of the statewide solid waste management plan, including the location of recycling centers, without the need to obtain land use approval.
(16) Purchase, receive by gift or otherwise, lease, exchange or otherwise acquire and construct, reconstruct, improve, maintain, equip and furnish such waste management projects as are called for by the state solid waste management plan.
(17) Sell or lease to any person, all or any portion of a waste management project, for such consideration and upon such terms as the Authority may determine to be reasonable.
(18) Mortgage or otherwise encumber all or any portion of a project whenever, in the opinion of the Authority, such action is deemed to be in furtherance of the purposes of this chapter.
(19) Grant options to purchase, or to renew a lease for, any Authority waste management project on such terms as the Authority may determine to be reasonable.
(20) Acquire, by purchase, gift, transfer or by condemnation for public purposes, and manage and operate, hold and dispose of real property and, subject to agreements with lessors or lessees, develop or alter such property by making improvements and betterments with the purpose of enhancing the value and the usefulness of such property.
(21) Make plans, surveys, studies and investigations necessary or desirable, in conformity with the state plan and with due consideration for local or regional plans, to carry out authority functions with respect to the acquisition, use and development of real property and the design and construction of systems and facilities.
(22) Make short and long range plans, consistent with the state solid waste management plan, for the storage, collection, transportation or processing and disposal of solid wastes and recovered resources by the authority-owned facilities.
(23) Design or provide for the design of solid waste management facilities including design for the alteration, reconstruction, improvement, enlargement or extension of existing facilities.
(24) Construct, erect, build, acquire, alter, reconstruct, improve, enlarge or extend waste management projects including provision for the inspection and supervision thereof and the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures and any other actions incidental thereto.
(25) Own, operate and maintain solid waste management projects and make provision for their management and for the manufacturing, processing and transportation operations necessary to derive recovered resources from solid waste, and contracting for the sale of such.
(26) Enter upon lands and waters, as may be necessary, to make surveys, soundings, borings and examinations in order to accomplish the purposes of this chapter.
(27) Contract with municipal, county and regional authorities, state agencies and persons to provide waste management services in accordance with this chapter and to plan, design, construct, manage, operate and maintain solid waste disposal and processing facilities on their behalf.
(28) Design and construct improvements or alterations on properties which it owns or which it operates by contract on behalf of municipal or regional authorities.
(29) Contract for services in the performance of architectural and engineering design, the supervision of design and construction, system management and facility management, for such professional or technical services as are required, and for such other professional or technical services as may require either prequalification of a contractor or the submission by any person, firm or consortium or association of persons or firms of a proposal in response to an official request for proposal or similar written communication of the Authority, whenever such services are, in the discretion of the Authority, deemed necessary, desirable or convenient in carrying out the purposes of the Authority.
(30) Contract for the construction of solid waste facilities with individuals or firms, or consortiums of such individuals or firms, pursuant to applicable provisions of this chapter, the requirements of applicable regulations and the state plan and in accordance with such specifications, terms and conditions as the Authority may deem necessary or advisable.
(31) Control, through regulation or otherwise, the collection, transportation, storage and disposal of solid waste, including the diversion of solid waste within specified geographic areas to facilities owned, operated or controlled by the Authority; provided, however, that such power shall not extend to the collection, transportation, transfer and storage of hazardous wastes as defined in § 6302(8) of this title, except to the extent that the Authority engages in activities authorized under § 6452(8) of this title.
(32) Issue bonds or notes in anticipation of the issuance of bonds, or otherwise, to finance any of the purposes of this chapter, lend the proceeds of such obligations to any person to effectuate any of the purposes of this chapter, contract with any person in any manner deemed advisable by the Authority to secure the payment of such obligations and to pledge such contracts as security for the payment of such obligations.
(b) Any contract for construction valued at over $25,000 shall be let by the Authority pursuant to the process of open or competitive bidding, provided, the Authority shall have power to determine the format, contents and scope of any contract for a solid waste management project, the conditions under which bidding shall take place and the schedule and stipulations for a contract award. The Authority shall also have power to select the contractor deemed to have submitted the most responsive bid, price and other factors considered, when, in the judgment of the Authority, such award is in the best interests of the State. The Authority may in its discretion negotiate and enter into a contract or contracts with a single source when it is desirable to do so.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, §§ 6, 7; 63 Del. Laws, c. 372, § 5; 67 Del. Laws, c. 432, §§ 3, 4.;
§ 6407 Funds and transfers of interests.
(a) The Authority shall have the power to:
(1) Accept gifts, grants or loans of funds, property or service from any source, public or private, and comply, subject to this chapter, with the terms and conditions thereof;
(2) Receive funds from the sale of general bonds, revenue bonds or other obligations of municipal, county or regional authorities and from the sale of general bonds, revenue bonds or other obligations of the Authority;
(3) Receive funds or revenues from the sale of products, materials, fuels and energy in any form derived from the processing of solid waste by systems, facilities and equipment under its jurisdiction, and receive revenues in the form of rents, user fees, user charges, licensing fees and other charges paid by units or agencies of state and local government, and by persons and organizations, to compensate the Authority for the use of its facilities or the performance of its services;
(4) Apply for and accept from a federal agency loans or grants for use in carrying out its purposes and enter into agreements with such agency respecting any such loans or grants;
(5) Make loans to any municipal or regional authority or to any person for the planning, design, acquisition, construction, reconstruction, improvement, equipping and furnishing of a solid waste management project, which loans shall be secured by loan agreements, contracts or any other instruments or agreements with respect to the use of fees and charges, upon such terms and conditions as the Authority shall determine reasonable in connection with such loans, including provisions for the establishment and maintenance of reserve funds, and in the exercise of powers granted in this section in connection with the project for any such municipal or regional authority or person, to require the inclusion in any contract, loan agreement or other instrument, of such provisions for the construction, use, operation and maintenance and payment of operating and other costs of a project as the Authority may deem necessary or desirable and, in connection with the making of such loans, the Authority may purchase, acquire and take assignments and the notes and bonds of municipal or regional authorities and persons and receive other forms of security and evidences of indebtedness, and in furtherance of the purposes of this chapter and to assure the payment of the principal and interest of such loans, and in order to assure the payment of the principal and interest on bonds or notes of the Authority issued to provide funding for such loans, may attach, seize, purchase, acquire, accept or take title to any project by conveyance, and may sell, lease or rent any such project for a use specified in this chapter. Any municipality is hereby authorized to issue general obligation bonds, to which the full faith and credit of such municipality are pledged, to the Authority in an amount determined by such municipality without regard to any debt or other limit provided in any charter, special act or general act pertaining to such municipality. Such bonds may be issued and delivered upon negotiation with the Authority and the consideration therefor may be the provision by the Authority of solid waste and disposal resources recovery facilities for the use and benefit of such municipality. Such bonds may be pledged by the Authority as security for bonds issued by the Authority to provide such facilities for the benefit of such municipalities. Any municipality shall also have the power to unconditionally guarantee the punctual payment of the principal of and interest on any bonds of the Authority, including the satisfaction of mandatory sinking fund requirements as provided in any resolution, trust indenture or other documents securing such bonds. Any guarantee of bonds of the Authority made pursuant to this section shall be evidenced by endorsement thereof on such bonds executed in the name of the municipality and on its behalf by such officer thereof as may be designated in the resolution authorizing such guarantee, and such municipality shall thereupon and thereafter be obligated to pay the principal of and interest on said bonds in the same manner and to the same extent as in the case of bonds issued by it. The obligations imposed by such guarantee shall not be subject to any limitation respecting the incurrence of debt or the issuance of obligations of such municipality contained in any charter, special act or general act;
(6) Establish payment schedules and make payments for the delivery of source separated recyclable materials to recycling centers, and create, through funding, incentives for the delivery of source separated recyclable materials to recycling centers by community groups under programs authorized by the Authority.
(b) The directors of the Authority may by resolution, in accordance with the provisions and stipulations of this chapter and the Authority's general and other bond resolutions, authorize both segregation of such authority revenues as may at any time be adjudged by said directors to be surplus to the needs of the Authority to meet its contractual and other obligations and to provide for its operations or other business purposes, and the equitable redistribution of such segregated surplus revenues to some or all of the users of the system in accordance with applicable provisions of the state solid waste management plan.
(c) All state funds previously appropriated to and for the use of the Department regarding the Delaware Reclamation Project are transferred to the Authority for the same purposes.
(d) All federal grant money previously received by and for the use of the Department regarding the Delaware Reclamation Project are transferred to the Authority for the same purposes.
(e) All contractual rights and obligations heretofore vested in or applying to the Department relating directly to the Delaware Reclamation Project are transferred to and assumed by the Authority.
60 Del. Laws, c. 288, § 1; 60 Del. Laws, c. 558, § 5; 61 Del. Laws, c. 132, § 8; 63 Del. Laws, c. 80, § 45; 67 Del. Laws, c. 432, § 5.;
§ 6408 Private contractors.
The Authority may utilize private industry, by contract, to carry out the business, design, operating, management, marketing, planning and research and development functions of the Authority, or the Authority may determine that it is in the public interest to adopt another course of action. The Authority is hereby empowered to enter into long-term contracts with persons for the performance of any such functions of the Authority which, in the opinion of the authority, can desirably and conveniently be carried out by a person under contract provided any such contract shall contain such terms and conditions as will enable the Authority to retain overall supervision and control of the business, design, operating, management, transportation, marketing, planning and research and development functions to be carried out or to be performed by such persons pursuant to such contract. Such contracts may be entered into either on a negotiated or an open-bid basis, and the Authority in its discretion may select the type of contract it deems most prudent to utilize, considering the scope of work, the management complexities associated therewith, the extent of current and future technological development requirements and the best interests of the State. In exercising the contracting authorities set forth in this section, the Authority shall not give any preference to public versus private parties. Notwithstanding any provision of § 5103 of Title 25 (Landlord-Tenant Code) to the contrary, with respect to any long-term contract pursuant to which a private entity owns or operates a solid waste disposal, transfer station and electric and steam generating facility for the purpose of providing solid waste disposal services to the Authority, Chapters 51 through 70 of Title 25 (Landlord-Tenant Code) shall not determine the legal rights, remedies or obligations of the parties and beneficiaries to any rental or leasing agreement with respect to such facility.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 9; 64 Del. Laws, c. 343, § 5(b).;
§ 6409 Covenant with bondholders.
The State covenants and agrees with the holders of any bonds, other securities or obligations or contractual obligations of the Authority, assumed, issued or incurred by it and as security for which there may or may not be pledged the fees and revenues of any part thereof of any facility or other project that the State will not, so long as any of such bonds, other obligations or contractual obligations remain outstanding and unpaid, diminish or impair the power of the Authority to establish, levy and collect fees and other charges in connection therewith and that the State will not, so long as any of such bonds, other obligations or contractual obligations remain outstanding and unpaid, terminate the Authority or authorize any other authority or facility to undertake or assume the functions of the Authority, unless adequate provision shall be made by law for the protection of those advancing money or providing services with respect to such obligations.
60 Del. Laws, c. 288, § 1; 63 Del. Laws, c. 372, § 6; 64 Del. Laws, c. 343, § 5(b).;
§ 6410 Securities investments.
Notwithstanding the fact that the bonds may be payable from a special fund, if they are otherwise of such form and character as to be negotiable instruments under the terms of the Uniform Commercial Code, the bonds shall be and are hereby made negotiable instruments and securities within the meaning of and for all the purposes of the Uniform Commercial Code. All banks, bankers, trust companies, savings banks, building and loan associations, saving and loan associations, investment companies and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business and all administrators, executors, guardians, trustees and other fiduciaries and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations may properly and legally invest any funds, including capital, belonging to them or within their control; and said obligations are hereby made securities which may properly and legally be deposited with and shall be received by the Authority for any purpose for which the deposit of bonds or other obligations is now or may hereafter be authorized.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 10.;
§ 6411 Tax status.
The powers and functions exercised by the Authority under this chapter and any amendments hereof or supplements hereto are and will be in all respects for the benefit of the people of the State, and for the protection of their health and welfare. To this end, the Authority shall be regarded as performing essential governmental functions in exercising such powers and functions and in carrying out this chapter and of any law relating thereto, and shall not be required to pay any taxes or assessments of any character, levied either by the State or a political subdivision thereof, upon any of the property used by it for such purposes, or any income or revenue therefrom, including any profit from a sale or exchange. The bonds or other securities or obligations issued by the Authority, their transfer and the interest paid thereon or income therefrom, including any profit from a sale or exchange, shall at all times be free from taxation by State or any subdivision thereof. The Authority may enter into agreements with any person, other than a municipality, leasing a project from the Authority or operating or managing the project providing for the making of payments in lieu of taxes to any municipality within which the project is located of an amount which may be equal to the taxes on real and personal property which such person would have been required to pay had it been the owner of such property during the period for which such payment is made or such lesser amount as shall be agreed upon by such person and the Authority.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 11.;
§ 6412 Judicial review.
Judicial proceedings to review any rule, regulation or other action of the Authority or to determine the meaning or effect thereof, may be brought in the Superior Court of this State, provided such review is requested within 30 days from the date of the promulgation of the rule or regulation or other action of the Authority.
60 Del. Laws, c. 288, § 1.;
§ 6413 No pledge of credit; exception.
The Authority shall have no power to pledge the credit or to create any debt or liability of the State, or of any other agency or of any political subdivision, except that bonds, loan agreements or service agreements, all of which may be supported by the full faith and credit of a municipality, may be pledged as security for bonds or other obligations of the Authority.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 12.;
§ 6414 Local cooperation.
All municipalities, political subdivisions and every department, agency or public body of the State is hereby authorized and empowered to cooperate with, aid and assist the Authority in effectuating this chapter and of any amendment hereof or supplement hereto, without regard to any law, public or private, or charter, regulating the issuance of debt or other obligations or governing the issuance of bonds.
60 Del. Laws, c. 288, § 1; 61 Del. Laws, c. 132, § 13.;
§ 6415 Depositaries.
All banks, bankers, trust companies, savings banks and other persons carrying on a banking business under the laws of the State are authorized to give security for the safekeeping and prompt payment of moneys of the Authority deposited by it with them, in such manner and form as may be required by and as may be approved by the Authority, which security may consist of a good and sufficient undertaking with such sureties as may be approved by the Authority, or may consist of the deposit with the Authority or other depositary approved by the Authority as collateral of such securities as the Authority may approve.
60 Del. Laws, c. 288, § 1.;
§ 6416 Reports and audits.
(a) The Authority shall make annual reports to the Governor, and the General Assembly of the State, setting forth in detail its operations and transactions, and may make such additional reports from time to time to the Governor and General Assembly as it may deem desirable.
(b) The Authority shall, at least annually, cause an independent audit of its fiscal affairs to be made and shall furnish a copy of such audit report together with such additional information or data with respect to its affairs as it may deem desirable to the Governor and General Assembly of the State.
60 Del. Laws, c. 288, § 1.;
§ 6417 Sanctions.
(a) Any person who violates a regulation or a license condition, or who violates § 6428 of this title, shall be subject to the following sanctions:
(1) If the violation is of a regulation or license condition promulgated or imposed under §§ 6401-6429 of this title and the violation has been completed, a civil penalty of not less than $100 and not more than $5,000 shall be assessed. If a violation continues for a number of days, each day of such violation shall be considered a separate violation. Jurisdiction of lawsuits under this subsection shall be in any Court of Common Pleas.
(2) If the violation is of a regulation or license condition promulgated or imposed under § 6430 or § 6431 of this title and the violation has been completed, a civil penalty of not less than $1,000 and not more than $10,000 shall be assessed. If a violation continues for a number of days, each day of such violation shall be considered a separate violation. Jurisdiction of lawsuits under this subsection shall be in any Superior Court.
(3) If the violation is continuous, or there is a substantial likelihood that it will reoccur, the Authority may seek a temporary restraining order, preliminary injunction or permanent injunction in the Court of Chancery.
(b) Any person who violates a regulation or license condition, or who violates § 6428 of this title, shall be subject to revocation of such license and/or suspension of such license for such period as determined by the Authority and the assessment of an administrative penalty of not less than $500 and not more than $2,500 for each violation. If a violation continues for a number of days, each day of such violation shall be considered a separate violation. The procedure to be followed regarding any revocation or suspension of license and assessment of an administrative penalty shall be as follows:
(1) The Authority shall notify the alleged violator of the alleged violation by registered mail at least 20 days in advance of the time set for hearing on the violation;
(2) A hearing shall be held on the violation at which time the manager of the Authority shall present evidence in support of the alleged violation;
(3) The alleged violator may appear personally or by counsel at the hearing and produce any competent evidence in his or her behalf;
(4) Upon request of the manager or an alleged violator the Chairperson of the Authority shall issue subpoenae requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing. In case of contumacy or refusal to obey a subpoena issued under this paragraph, the Superior Court in the county in which the hearing is held shall have jurisdiction upon application of the Chairperson to issue an order requiring such person to appear and testify or produce books, records or other documents requested;
(5) All testimony at the hearing shall be taken under oath. The Chairperson shall administer oaths and all directors shall be entitled to examine witnesses. A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits introduced into evidence, constitute the record;
(6) Decisions regarding revocation or suspension of a license or assessment of an administrative penalty shall be made by majority vote of directors constituting the quorum. In the event the directors render a decision revoking or suspending a license or assessing an administrative penalty the Chairperson shall make findings of fact based on the record supporting the decision, and state the reasons for rendering the decision. Any director who takes exception to the decision may submit a dissenting opinion which shall set forth the reasons for such exception. Dissenting opinions shall be attached to and constitute a part of the decision of the Authority. Deliberations on decisions regarding revocations or suspensions of licenses or assessments of administrative penalties shall be held in executive sessions which shall be closed to the public. In the event a decision is rendered revoking or suspending a license, the Authority may impose conditions for reapplication for a license or for continued operation of the violator under the license;
(7) The Authority shall notify the alleged violator by registered mail of any decision reached under this subsection;
(8) In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Authority through its legal counsel in Superior Court for collection of the administrative penalty, including interest, attorney's fees and costs, and the validity, amount and appropriateness of such administrative penalty shall not be subject to review.
(c) Any person whose license is revoked or suspended or who is assessed an administrative penalty may appeal the decision of the Authority to the Superior Court in and for the county in which the hearing was held. Such appeals shall be made within 30 days of the date of receipt of notification of the Authority's decision. Appeals shall be on the record. If the Court finds that additional evidence should be taken, the Court may remand the matter to the Authority for completion of the record. No appeal shall operate to stay automatically any decision of the Authority, but upon application and for good cause, the Authority or the Superior Court may stay the decision pending disposition of the appeal.
(d) The Authority, through its legal counsel, shall be entitled to take direct legal action pursuant to subsection (a) of this section without resort to conciliation or administrative remedies. The Authority may delegate to its manager the authority to file suit on behalf of the Authority.
60 Del. Laws, c. 558, § 7; 65 Del. Laws, c. 344, § 3; 67 Del. Laws, c. 136, §§ 5-7; 70 Del. Laws, c. 186, § 1.;
§ 6418 Bonds of Authority.
(a) The Authority shall have the power and is hereby authorized from time to time to issue its negotiable bonds for any of its corporate purposes, including incidental expenses in connection therewith, and to secure the payment of the same by a lien or pledge covering all or part of its property, contracts, earnings or revenues. The Authority shall have power, from time to time whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured, or be subject to redemption, and may issue bonds partly to refund bonds then outstanding and partly for any of its corporate purposes. Refunding bonds may be issued in amounts sufficient to provide:
(1) The principal amount of the obligations being refunded;
(2) Any applicable redemption premiums thereon;
(3) Unpaid interest on such obligations to the date of delivery of the refunding bonds, and interest to accrue on such obligations being refunded from the date of delivery of the refunding bonds to the first or any subsequently available redemption date or dates selected by the Authority; and
(4) Any expenses, including bond discount, deemed by the Authority to be necessary for the issuance of the refunding bonds.
The proceeds of the sale of any refunding bonds shall be applied as follows, either: (1) To the immediate payment and retirement of the obligations being refunded; or (2) if not required for the immediate payment of the obligations being refunded, such proceeds shall be deposited in trust to provide for the payment and retirement of the obligations being refunded, but provisions may be made for the pledging and disposition of any amount in excess of the amounts required for such purposes, including, without limitation, provision for the pledging of any such excess amounts to the payment of the principal of and interest on any portion of such refunding bonds or series of such refunding bonds issued for the purpose of providing amounts in addition to the principal amount and premium payable with respect to the outstanding obligations to be refunded.
(b) The bonds shall be authorized by resolution of the Authority and shall bear such date or dates, mature at such time or times not exceeding 40 years from their respective dates, bear interest at a rate or rates per annum as may be determined by the Authority, be in such denominations, be in such form either coupon or registered, carry such registration privileges, be executed in such manner, be payable in lawful money of the United States of America, at such place or places and be subject to such terms of redemption, as such resolution or resolutions may provide. Bonds of the Authority shall be sold either at public or private sale at such place and interest rates as may be determined by the Authority.
(c) Any resolution or resolutions authorizing any bonds or any trust indenture securing any issue of bonds may contain provisions, which shall be a part of the contract with the holders of the bonds thereby authorized, as to:
(1) Pledging all or any part of the moneys, earnings, income and revenues derived from all or any part of the properties of the Authority to secure the payment of the bonds or of any issue of the bonds subject to such agreements with bondholders as may then exist;
(2) The rates, rentals, fees and other charges to be fixed and collected and the amounts to be raised in each year thereby, and the use and disposition of the earnings and other revenues;
(3) The setting aside of reserves and the creation of sinking funds and the regulation and disposition thereof;
(4) Limitations on the right of the Authority to restrict and regulate the use of the properties in connection with which such bonds are issued;
(5) Limitations on the purposes to which and the manner in which the proceeds of sale of any issue of bonds may be applied;
(6) Limitations on the issuance of additional bonds, the terms upon which additional bonds may be issued and secured, the refunding of outstanding or other bonds;
(7) The procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given;
(8) The creation of special funds into which any earnings or revenues of the Authority may be deposited;
(9) The terms and provisions of any mortgage or trust deed or indenture securing the bonds or under which bonds may be issued;
(10) Vesting in a trustee or trustees such properties, rights, powers and duties in trust as the Authority may determine which may include any or all of the rights, powers and duties of the trustee appointed by the bondholders pursuant to § 6419 of this title, and limiting or abrogating the right of the bondholders to appoint a trustee under such section or limiting the rights, duties and powers of such trustee;
(11) Defining the acts or omissions to act which shall constitute a default in the obligations and duties of the Authority to the bondholders and providing the rights and remedies of the bondholders in the event of such default, including as a matter of right the appointment of a receiver; provided, however, that such rights and remedies shall not be inconsistent with the general laws of this State and other provisions of this chapter;
(12) Limitations on the power of the Authority to sell or otherwise dispose of its properties;
(13) Any other matters, of like or different character, which in any way affect the security or protection of the bonds;
(14) Limitations on the amount of moneys derived from the properties to be expended for operating, administrative or other expenses of the Authority;
(15) The protection and enforcement of the rights and remedies of the bondholders;
(16) The obligations of the Authority in relation to the construction, maintenance, operation, repairs and insurance of the properties, the safeguarding and application of all moneys and as to the requirements for the supervision and approval of consulting engineers in connection with construction, reconstruction and operation;
(17) The payment of the proceeds of bonds and revenues of the properties to a trustee or other depository, and for the method of disbursement thereof with such safeguards and restrictions as the Authority may determine;
(18) Any other matter or course of conduct which by recital in the resolution or resolutions is declared to further secure the payment of the principal of or interest on the bonds.
(d) It is the intention of the General Assembly that any pledge of earnings, revenues or other moneys made by the Authority shall be valid and binding from the time when the pledge is made; that the earnings, revenues or other moneys so pledged and thereafter received by the Authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and that the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the Authority irrespective of whether such parties have notice thereof. Neither the resolution nor any other instrument by which a pledge is created need be recorded.
(e) Neither the directors of the Authority nor any person executing the bonds or other obligations shall be liable personally on the bonds or other obligations or be subject to any personal liability or accountability by reason of the issuance thereof.
(f) The Authority shall have power out of any funds available therefor to purchase (as distinguished from the power of redemption hereinabove provided) any bonds issued by it or which may be assumed by such Authority at a price of not more than the principal amount thereof and accrued interest, and all such bonds shall be cancelled.
(g) In the discretion of the Authority, the bonds may be secured by a trust indenture by and between the Authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the State. Such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the Authority in relation to the construction, maintenance, operation, repair and insurance of the properties, and the custody, safeguarding and application of all moneys, and may provide that the properties shall be constructed and paid for under the supervision and approval of consulting engineers. The Authority may provide by such trust indenture for the payment of the proceeds of the bonds and the revenues of the properties to the trustee under such trust indenture or other depository, and for the method of disbursement thereof, with such safeguards and restrictions as it may determine. All expenses incurred in carrying out such trust indenture may be treated as a part of the cost of maintenance, operation and repair of the properties. If the bonds shall be secured by a trust indenture, the bondholders shall have no authority to appoint a separate trustee to represent them. Notwithstanding any other provisions of this chapter, any resolution or resolutions authorizing bonds or notes of the Authority shall contain a covenant by the Authority that it will at all times maintain rates, fees, rentals and/or other charges sufficient to pay, and that any contracts entered into by the Authority for the receipt and treatment and/or disposal of solid wastes shall contain rates, fees, rentals or other charges sufficient to pay, the cost of operation and maintenance of the properties, the principal of and interest on any obligations issued pursuant to such resolution or resolutions as the same severally become due and payable and to maintain any reserves or other funds required by the terms of such resolution or resolutions.
61 Del. Laws, c. 132, § 14.;
§ 6419 Remedies of bondholders.
(a) In the event that the Authority shall default in the payment of principal of or interest on any issue of bonds after the same shall become due, whether at maturity or upon call for redemption, and such default shall continue for a period of 30 days, or in the event that the Authority shall fail or refuse to comply with this chapter, or shall default in any agreement made with the holders of any issue of bonds, the trustee appointed by the Authority or if none has been appointed, the trustee who may be appointed by the holders of 25 percent in aggregate principal amount of the bonds of such issue then outstanding by instrument or instruments filed in the office of the Recorder of Deeds of the county in which the project is located and proved or acknowledged in the same manner as a deed to be recorded, shall represent the holders of such bonds for the purposes herein provided.
(b) Such trustee may, and upon written request of the holders of 25 percent in principal amount of such bonds then outstanding shall, in the trustee's name:
(1) By mandamus or other suit, action or proceeding at law or in equity enforce all rights of the bondholders, including the right to require the Authority to collect revenues, rates, rentals, fees and other charges adequate to carry out any agreement as to, or pledge of such revenues, rates, rentals, fees and other charges and to require the Authority to carry out any other agreements with the holders of such bonds and to perform its duties under this title;
(2) Bring suit upon such bonds;
(3) By action or suit in equity, require the Authority to account as if it were the trustee of an express trust for the holders of such bonds;
(4) By action or suit in equity, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such bonds;
(5) Declare all such bonds due and payable, and if all defaults shall be made good, then with the consent of the holders of 25 percent of the principal amount of such bonds then outstanding, to annul such declaration and its consequences.
(c) Any suit, action or proceeding by the trustee on behalf of bondholders shall be heard or maintained in a court of competent jurisdiction.
(d) Before declaring the principal of all such bonds due and payable the trustee shall first give 30 days' notice in writing to the Authority.
(e) Any such trustee, whether or not the issue of bonds represented by such trustee has been declared due and payable, shall be entitled as of right to the appointment of a receiver of any part or parts of the properties the revenues of which are pledged for the security of the bonds of such issue and such receiver may enter and take possession of such part or parts of the properties and subject to any pledge or agreement with bondholders shall take possession of all moneys and other property derived from such part or parts of the properties and proceed with any construction thereon or the acquisition of any property, real or personal, in connection therewith which the Authority is under obligation to do, and to operate, maintain and reconstruct such part or parts of the properties and collect and receive all revenues thereafter arising therefrom subject to any pledge thereof or agreement with bondholders relating thereto and perform the public duties and carry out the agreements and obligations of the Authority under the direction of the court. In any suit, action or proceeding by the trustee the fees, counsel fees and expenses of the trustee and of the receiver, if any, shall constitute taxable disbursements and all costs and disbursements allowed by the court shall be a first charge on any revenues derived from the properties.
(f) Such trustees shall in addition to the foregoing have and possess all of the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders in the enforcement and protection of their rights.
61 Del. Laws, c. 132, § 15; 70 Del. Laws, c. 186, § 1.;
§ 6420 Contracts.
(a) The Authority and any municipality may enter into a contract or contracts providing for or relating to the collection or treatment and disposal of garbage, solid wastes and refuse originating in the municipality and the cost and expense of such collection or treatment and disposal.
(b) Any such contract may provide for the payment to the Authority by such municipality annually or otherwise of such sum or sums of money, computed as said contract or contracts may provide, and the sum or sums so payable may include provisions for all or any part or a share of the amounts necessary:
(1) To pay or provide for the expenses of operation and maintenance of the garbage and solid wastes disposal system, including, without limitation, any processing fees or other payments required to be paid to a private entity under a service agreement for a solid waste disposal, transfer station and electric and steam generating facility, insurance, extensions, betterments and replacements and the principal and interest on any bonds;
(2) To provide for any deficits resulting from failure to receive sums payable to the Authority by such municipality, and any other municipality, or any person, or from any other cause; and
(3) To maintain such reserves or sinking funds for any of the foregoing as may be required by the terms of any contract of the Authority or as may be deemed necessary or desirable by the Authority.
(c) Any such contract may provide that the sum or sums so payable to the Authority shall be in lieu of all or any part of the service charges which would otherwise be charged and collected by the Authority with regard to persons or real property within such municipality.
(d) Any such contract may also provide for the financing and payment of expenses to be incurred by the Authority and determined by it to be necessary for its purposes prior to the placing in operation of the garbage and solid wastes disposal system and may also provide for the payment by such municipality to the Authority for application to such expenses or indebtedness therefor such sum or sums of money, not in the aggregate exceeding an amount stated or otherwise limited in any such contract plus interest thereon, as such contract may provide and as the governing body of said municipality shall, by virtue of its authorization of and entry into any such contract, determine to be necessary for the purposes of the Authority.
(e) Any such contract may be made with or without consideration and for a specified or an unlimited time and on any terms and conditions which may be approved by such municipality and which may be agreed to by the Authority in conformity with its contracts with the holders of any bonds, and shall be valid whether or not an appropriation with respect thereto is made by such municipality prior to authorization or execution thereof. Subject to any such contracts with the holders of bonds, such municipality is hereby authorized and directed to do and perform any and all acts or things necessary, convenient or desirable to carry out and perform every such contract and to provide for the payment or discharge of any obligation thereunder in the same manner as other obligations of such municipality and, in accordance with any such contract, to waive, modify, suspend or reduce the service charges which would otherwise be charged and collected by the Authority with regard to persons or real property within such municipality.
(f) Nothing in this section shall prevent the Authority from collecting additional fees and charges from the owners or occupants of all parcels of real estate served by it within such municipality if for any reason such additional fees or charges shall be necessary in order for the Authority to pay all operating expenses, debt service and other payments required pursuant to contracts with bondholders; or to pay all processing fees or other payments required pursuant to service agreements with private entities owning or operating solid waste disposal, transfer station and electric and steam generating facilities; and notwithstanding such contracts with such municipalities, the Authority shall at all times have power and be obligated to collect sufficient additional fees and charges whenever necessary to pay all operating costs, debt service and all other payments required by contracts with bondholders and whenever necessary to pay all processing fees or other payments required pursuant to service agreements with private entities owning or operating solid waste disposal, transfer station and electric and steam generating facilities.
(g) Nothing in this section shall be deemed to imply or direct that any contracts referred to aforesaid must provide for both the collection and disposal of garbage and solid wastes and such Authority may, by the agreement and parallel ordinances, and such municipality may, by ordinance, engage in either collection of solid wastes or disposal of solid wastes or both. All such contracts shall be full faith and credit obligations of the municipality and shall not be subject to any law regulating the issuance of debt or the making of contracts or other related matter.
61 Del. Laws, c. 132, § 16; 63 Del. Laws, c. 372, § 7; 64 Del. Laws, c. 343, § 5(d), (e).;
§ 6421 Public bodies to pay service charges.
Each county, city, town or other public body shall promptly pay to the Authority all service charges and other moneys which the Authority may charge to it, as owner or occupant of any facility, and shall provide for the payment thereof in the same manner as other obligations of such county, city, town or other public body.
61 Del. Laws, c. 132, § 17.;
§ 6422 Powers respecting garbage and solid wastes disposal limited after creation of Authority; use of services.
(a) The Authority by regulation may provide that no municipality shall have power to engage in, grant any license or permit for or enter into any contract for the collection or treatment and disposal of garbage, refuse and solid wastes; and no such municipality or any person, firm, corporation or association shall engage in any activities within such municipality which would be competitive with the purposes of the Authority as provided in this chapter; provided, however, that the prohibitions aforesaid shall not be applicable to that activity in which the Authority shall determine not to engage.
(b) It is hereby determined and declared that it is necessary for the health and welfare of the inhabitants of the State that the facilities and services of the Authority shall be used by the owners or occupants of all lands, buildings and premises within the State, and the Authority may by regulation require the owners or occupants of all lands, buildings and premises therein to use the services and facilities of the Authority under such rules and regulations as the Authority shall fix and establish. This section shall not be construed, however, to affect or impair any contract entered into prior to July 12, 1977.
61 Del. Laws, c. 132, § 18; 63 Del. Laws, c. 372, § 8.;
§ 6423 Construction of chapter.
This chapter and the regulations promulgated thereunder shall be construed liberally to effectuate the legislative intent and as complete authority for the performance of each and every act and thing herein authorized.
61 Del. Laws, c. 132, § 19.;
§ 6424 Cooperation with United States.
The Authority shall adopt all necessary regulations, rules, procedures and plans to comply with the objectives of the Resource Conservation and Recovery Act of 1976 [42 U.S.C. § 6901 et seq.] and the Solid Waste Disposal Act of the United States P.L. 89-272 and may make application to the United States for financial assistance to develop and implement the purposes of this chapter.
61 Del. Laws, c. 132, § 20.;
§ 6425 Conflict of interest.
No director shall be entitled to vote on any matter before the Authority if such director knowingly has a financial interest in the outcome of such matter. In the event a director knowingly has a financial interest such director shall indicate to the chairperson the nature of the interest and the chairperson shall note for the record that the director did not vote by reason of conflict of interest. In situations in which a director or directors do not vote by reason of conflict of interest, the matter pending before the Authority shall be decided on the basis of a majority vote of the remaining directors present who do not have a conflict of interest. A director or directors having a conflict of interest as set forth herein shall be counted for purposes of establishing a quorum provided such director or directors are present at the meeting. The fact that a director or directors have not voted by reason of conflict of interest shall in no way affect the validity of an act or actions taken regarding the matter before the Authority.
61 Del. Laws, c. 132, § 21; 70 Del. Laws, c. 186, § 1.;
§ 6426 Indemnification of directors.
(a) The State shall indemnify a director who is a party or is threatened to be made a party to any suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director of the Authority, against expenses, including attorney's fees, judgments, fines and amounts paid in connection with such action, suit or proceeding, if such director acted in good faith and in a manner such director believed to be in the best interests of the Authority, and, with respect to a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.
(b) Any indemnification under this section shall be made only as authorized in the specific case upon a determination that indemnification of the director is proper in the circumstances because the director has met the applicable standard of conduct set forth in subsection (a) of this section. Such a determination shall be made by the Attorney General or the Attorney General's designee within 15 days of the date of receipt of a request for such a determination. In the event the Attorney General fails to make the determination within the time frame specified, the requested indemnification hereunder shall be deemed as granted.
(c) Expenses incurred in defending any suit or proceeding referred to herein may be paid in advance of the final disposition of such suit or proceeding upon submission of documentation to the directors regarding the validity of such expenses.
(d) No payment under this section shall be made unless the director seeking such payment shall agree that the State be subrogated, to the extent of such payment, to all rights of recovery of such director, and shall agree to execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the State effectively to bring suit in the name of the State.
(e) Any eligible director seeking indemnification under this section shall file a written request for determination with the Attorney General setting forth in full the circumstances supporting the claim for indemnification.
(f) The indemnification provided in this section shall apply only to acts and/or omissions occurring subsequent to January 1, 1977. In the event expenses covered by the indemnity set forth in this section are payable under a valid and enforceable commercial insurance policy maintained by and/or for the benefit of the directors, this indemnity shall not apply to expenses subject to recovery pursuant to such insurance coverage.
61 Del. Laws, c. 115, § 1; 67 Del. Laws, c. 136, § 8; 70 Del. Laws, c. 186, § 1.;
§ 6427 Industrial solid waste.
(a) The Authority may determine to accept or to cease accepting industrial solid waste at any 1 or more of its facilities.
(b) The Authority shall develop criteria, to be approved by the Department, for determining whether industrial solid wastes or special solid wastes are acceptable for disposal at the Authority's facilities. The Authority may require, from any person seeking to dispose of industrial solid waste or special solid waste at any of its facilities, any evidence the Authority deems necessary to determine whether the industrial solid waste or special solid waste meets the criteria developed pursuant to this subsection.
(c) The manager, or the manager's designee, may elect not to accept any particular industrial solid waste or type of industrial solid waste if the manager, or the manager's designee, determines that such waste or the quantity thereof will have an adverse effect on the facility or the operation of the facility, if an effective means of risk and cost allocation cannot be achieved, or for such other reasons as the Authority may identify in the statewide solid waste management plan.
(d) In addition to other fees and charges that it imposes, the Authority may impose an industrial solid waste disposal surcharge to compensate the Authority for the risks associated with accepting industrial solid waste, specifically or by classes, and for the additional costs, including administrative expenses and overhead, associated with such disposal. The industrial solid waste disposal surcharge shall be set by the manager, or the manager's designee, without notice and public hearing thereon, and may be done on a case-by-case basis. In setting such surcharge the manager shall take into consideration the volume of waste to be disposed of, the degree of risk associated with such disposal, the additional administrative expenses and overhead incurred by the Authority and any other relevant factors.
(e) Any person causing or allowing industrial solid waste to be delivered to a facility operated by or on behalf of the Authority shall be deemed to have agreed to indemnify and hold harmless the Authority from any liability arising from the disposal of such industrial solid waste and to have agreed to reimburse the Authority for any costs reasonably incurred to protect against or reduce any risk resulting therefrom; provided, however, such person, if such person has not caused or allowed the delivery of hazardous waste, hazardous materials or toxic substances, shall not be liable under this subsection to the Authority for harm or damage caused by the negligence of the Authority.
(f)(1) Any person seeking to have industrial solid waste disposed of at a facility operated by or on behalf of the Authority, who is aggrieved by a determination of the manager, or the manager's designee, under this section, with regard to such effort, may seek review thereof by the directors of the Authority by filing a request for review with the manager within 15 days of learning of such determination.
(2) At least 15 days' notice of the time set forth for hearing by the directors of the request for review shall be sent by registered mail to the person filing the request for review who bears the burden of proof in such proceeding.
(3) The person filing for the request for review may appear personally or by counsel at the hearing and produce any competent evidence in his or her behalf.
(4) Upon request of the manager or the person filing the request for review, the chairperson of the Authority shall issue subpoenae requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing. In case of contumacy or refusal to obey a subpoena issued under this paragraph, the Superior Court in the county in which the hearing is held shall have jurisdiction upon application of the chair to issue an order requiring such person to appear and testify or produce books, records or other documents requested.
(5) All testimony at the hearing shall be taken under oath. The Chairperson shall administer oaths and all directors shall be entitled to examine witnesses.
(6) The hearing may be held as part of a regular meeting or at a special meeting of the Authority. Deliberations on requests for review under this section shall be held in executive sessions which shall be closed to the public.
(7) The decision of the directors of the Authority shall be in writing and shall be sent to the person filing the request for review by registered mail.
63 Del. Laws, c. 372, § 9; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 243, § 1.;
§ 6428 Deposit of solid waste generated outside State prohibited.
Any provision of this chapter to the contrary notwithstanding, solid waste including infectious waste, generated outside the State shall not be delivered to a facility operated by, or on behalf of, or under contract with the Authority. However, recyclable materials generated outside the State may be delivered for recycling to a recycling center or facility operated by, on behalf of, or under contract with the Authority. This section does not limit the Authority's power under this chapter to promulgate regulations further limiting the delivery of solid waste to its facilities based upon the hazardous, explosive, toxic, pathological, infectious or radioactive properties of the waste, or by reason of its other physical properties, chemical composition or quantity which may have an adverse effect on the Authority's facilities.
65 Del. Laws, c. 344, § 2; 67 Del. Laws, c. 136, § 11; 73 Del. Laws, c. 184, § 1.;
§ 6429 Material and energy recovery facility for Kent County and Sussex County.
(a) The Authority is directed to study, finance, design, develop, implement and operate a material and energy recovery facility at either or both of the sites where it now owns and operates landfills in Kent County and Sussex County or at such other site as it may select in accordance with this chapter to serve Kent County and Sussex County.
(b) The Authority shall file a report with the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives on or before May 1 in each year commencing with 1989 on the status of its efforts to develop a material and energy recovery facility to serve Kent County and Sussex County.
66 Del. Laws, c. 272, § 2.;
§ 6430 Collection and transportation of infectious waste.
(a) Any person who collects or transports infectious waste from an infectious waste generator shall obtain from the Authority a license specifically for collection or transportation of infectious waste in the State.
(b) The Authority may, after public notice and hearing, adopt rules and regulations governing the licensing of infectious waste collectors and transporters.
(c) The Authority may, after public notice and hearing, adopt rules and regulations for the tracking of infectious waste generated by infectious waste generators, by requiring infectious waste generators and transporters to file with the Authority a copy of any infectious waste tracking form or manifest that may be required under laws or regulations of the State.
67 Del. Laws, c. 136, § 9.;
§ 6431 Infectious waste disposal.
(a) It is hereby determined and declared that it is necessary for the health and welfare of the inhabitants of the State that the facilities and services of the Authority shall be used by all infectious waste generators within the State for the disposal of all infectious waste generated within the State, and the Authority may by regulation require all infectious waste generators, collectors and transporters therein to use the services and facilities of the Authority under such rules and regulations as the Authority shall fix and establish for the disposal of infectious waste; provided, however, that the infectious waste generators with on-site incineration for the disposal of infectious waste as of July 1, 1989, may continue to use such on-site incineration for the disposal of infectious waste generated on-site. The Authority, after public notice and hearing, may adopt rules and regulations requiring such infectious waste generators to report not less often than annually on the quantity and types of infectious waste incinerated on-site. This section shall not be construed, however, to affect or impair any contract entered into prior to July 1, 1989.
(b) The Authority is directed to study, finance, design, develop, implement and operate, or cause the same to occur, an infectious waste incineration facility at the sites where it now owns and operates landfills in New Castle County, Kent County or Sussex County, or where it now owns and operates the Delaware Reclamation Project in New Castle County, or at such other site as it may select in accordance with this chapter. The Authority is hereby authorized to dispose of ash from any such infectious waste incineration facility in the Authority's landfills, subject to regulations promulgated by the Department of Natural Resources and Environmental Control.
67 Del. Laws, c. 136, § 10.;
§ 6432 Environmental study to be conducted before site selection and construction of any proposed resource recovery facility or any proposed waste incinerator; copies to be filed with the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives.
Notwithstanding any provision of this title to the contrary, the Authority shall conduct an environmental study, focusing upon the dangers and costs of any proposed resource recovery facility or any proposed waste incinerator, including the potential of same upon air, water, and soil quality, and the Authority shall file copies of any such environmental study with the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives, before proceeding with site selection and construction of any proposed resource recovery facility or any proposed waste incinerator.
69 Del. Laws, c. 269, § 1.;
§§ 6433 -6449. [Reserved.]