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There are two major sources of law in Delaware governing recycling: Title 7 Chapter 60, §6051-6059 and the 1305 Universal Recycling Regulations. This article provides an overview of these provisions.

Title 7, Chapter 60

            The main statutory provisions governing recycling are found in Title 7, Chapter 60 of the Delaware Code. The recycling-specific provisions are found at 7 Del. C. §§ 6051-6059.  Other provisions in Chapter 60 provide more general powers to the Delaware Department of Natural Resources and Environmental Control (DNREC), as described below.

The General Provisions of Chapter 60

            7 Del. C. § 6010 gives the DNREC Secretary the power to “adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the policy and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable implications thereof.”[1]  Therefore, the Secretary has the power to issue regulations or modify the current laws to reflect the changes in Delaware recycling and  environmental policy and to encourage a more active participation in the recycling process, like with the Universal Recycling Regulations discussed in depth later on.

            While there is a specific enforcement section provided in recycling materials, 7 Del. C. § 6005 articulates more general enforcement provisions. That section gives the Secretary enforcement powers and notes that whoever violates any rule or regulation stemming from Chapter 60 is subject to punishment.[2] The violator will be charged “not less than $1,000 nor more than $10,000” for each violation.[3] The statute further says that each day of a continued violation is to be considered a new violation, while also listing other non-monetary remedies like permanent or preliminary injunctions when it seems likely that a violation will continue, or if there is a likelihood of future violations.[4] The party liable for the violation is also responsible for the administrative costs, legal fees, cost of cleanup in environmental cases, and so on. [5]

The Recycling-Specific Provisions of Chapter 60

            7 Del. C. §§ 6051-59 is subtitled Solid Waste Recycling. Here is a summary of its provisions:

Section 6051 – This section provides some general statements of legislative intent and policy.  It states an intent that the following sections will result in the “reduction of solid waste disposal” and that the “recovery of usable materials from solid waste are matters of extreme importance in minimizing the environmental impact of solid waste disposal through landfilling.” Further, §6051 goes on to state that it is “in the public interest to develop a comprehensive statewide system of recycling and resource recovery which maximizes the quantity of solid waste materials which can be recovered, reused or converted to beneficial use.’”[6] It notes that in order to accomplish these goals of reducing the usage of landfills and helping the public good through a statewide recycling program, “every residence and business must have access to recycling programs that are both convenient and cost effective.”[7] § 6051, concludes by saying that a liberal interpretation of these statutes and regulations is to be applied to ensure accomplishment of these goals.[8]

            Sections 6052 - §6055 – these sections spell out recycling requirements. Section 6053 provides that “Owners of multi-family complexes must, at least once per calendar year, provide residents with instructions on participating in the complex’s recycling program.”[9] § 6053 goes on to further note that “[i]t is the express requirement of this legislation that universal recycling be adopted by the commercial sector and that all commercial businesses actively participate in a comprehensive recycling program no later than January 1, 2014.” However, nothing in § 6053 discusses what an active participation means, or the consequences of not engaging in a comprehensive recycling program.  Section 6054 deals with the Delaware Recycling Fund, and mandates that  “[t]he Fund shall be used by the Secretary for the exclusive purpose of funding specific activities designed to enhance the State’s recycling rate and the diversion of recyclables that would otherwise be land disposed.”

            Section 6056 -  titled “Adopting diversion goals and reporting requirements,” this section reiterates the “intent of the General Assembly” to reduce the amount of nonhazardous waste in landfills by “maximizing the recovery of recyclable materials” and avoiding burying garbage or resorting to incinerating it.[10] The section states “it will be necessary for the State to embrace the Zero Waste Principles of designing and managing products and processes to systematically avoid and eliminate the volume and toxicity of waste and materials, conserve and recover all resources . . . ”[11] The introductory paragraph also notes that as time progresses and more information regarding the implementation of these recycling goals becomes more available, the Interim Waste Diversion Goals may be modified “as circumstances dictate” to ensure that the goals are being met.[12]  Section 6056 imposes on those who work in the business of recycling (like the collectors, processors, etc.) the obligation that they “must report to the Department on a calendar year basis, no later than February 15 of the following year, the type and quantity of recyclables managed, the method of recycling collection used (single or multiple streams), and the location of the recycling facilities used pursuant to reporting guidance developed by the Department and the Recycling Public Advisory Council.”[13] This requires the collection of data on recent levels of recycling activity within Delaware.  Further, the statute states “the Department, in cooperation with the Recycling Public Advisory Council [RPAC], shall assess progress and recommend to the Governor and General Assembly any additional mechanisms necessary . . .” if goals are not being met.[14]

            Section 6057 - focuses primarily on beverage containers and how important they are to a successful recycling program.

Section 6058 - creates the Recycling Public Advisory Council and describes the responsibilities its members have. It mandates where certain members must come from—for example, one of its members will be from the Delaware Chamber of Commerce, while another member will represent the Delaware restaurant industry, and so on.[15] The section articulates the Council’s responsibilities like providing advice and giving recommendations to the Authority or The Department about trash and recycling related issues. Further, the members “shall report to the Governor and the General Assembly annually by November 1 of each year” regarding topics like the status of §6056 goal attainment, recommendations on program funding, and/or any other recommendations deemed appropriate.[16]

            Section 6059 - deals with enforcement. The section states in pertinent part that

“(a) Whoever violates this subchapter, or any rule or regulation promulgated there under, or any order of the Secretary, shall:

1. For the first conviction, be fined not less than $100 nor more than $500 for each day of violation;

2. For each subsequent conviction for the same offense within a 10-year period, be fined not less than $500 nor more than $1,500 for each day of violation;

3. In the Secretary’s discretion, the Secretary may endeavor by conciliation to obtain compliance with all requirements of this subchapter. Conciliation shall be giving written notice to the responsible party:

a.     Specifying the complaint;

b.     Proposing a reasonable time for its correction;

c.     Advising that a hearing on the complaint may be had if requested by a date stated in the notice; and

d.     Notifying that a proposed correction date will be ordered unless a hearing is requested.

Section 6059 further provides that if no hearing is requested, “the Secretary may order that the correction be fully implemented by the proposed date or may, on the Secretary’s own initiative, convene a hearing, in which the Secretary shall publicly hear and consider any relevant submission from the responsible party as provided in §6006 of this title.” It then gives in (b) a party whose interest is “substantially affected” by the Secretary’s action a chance to file appeal with the Environmental Appeals Board.[17]

7 Del. Admin. Code 1305, Universal Recycling Regulations

            Pursuant to its Chapter 60 authority, DNREC has issued regulations governing recycling, known as the Universal Recycling Regulations.  Section 1.0 opens broadly with a Declaration of Intent and a statement of purpose. Its intent is to “ensure” that “proper collection services for recyclable materials are implemented, maintained, and consistent” with the Chapter 60 statutory provisions[18] and “that every residence has access to commercial recycling, and commercial sector participates in, recycling programs that are both convenient and cost effective.”[19] This is to be accomplished by a “statewide system of resource recovery in which recycling is maximized and the necessary economies of scale are realized.”[20] The operative word of importance in this early, introductory section of the statute seems to be “ensure”, as it governs both the availability of recycling for Delaware residents and participation in the state’s recycling program by the commercial sector.

            Section 2.0 of the Universal Recycling Regulations deals with the scope of the regulations, as well as their applicability and source of their authority (which is listed as the statutory language in 7 Del. C. §§ 6051 – 6059). It notes that the regulations apply to “commercial sector entities” which, in section 3.0, is defined as “any for-profit or not-for-profit retail or wholesale stores, offices, food service establishments, hospitality, utility, warehouses, and other manufacturing, industrial or processing activities, and institutions such as social, charitable, educational, health care, professional and government services.”[21] According to Universal Recycling Regulations, Commercial sector entities are “required by 7 Del.C. §6053(4) to participate in comprehensive recycling.”[22] Section 2 further states that the statements made in the Universal Recycling Regulations exist in addition to 7 Del. C. §§ 6051 – 6059.[23]

            Section 4.3 of the Universal Recycling Regulations  mandates that the commercial sector shall participate in a comprehensive recycling program, while imposing several obligations on them.[24] The regulations require the commercial sector to “[p]erform an annual review of the solid waste generated and maintain records of the review for three years, [i]dentify recyclables in the solid waste, [s]ubsequently keep recyclables separate from the solid waste stream,  and [e]nsure the recyclables enter the marketplace or are collected for recycling.”[25] If the commercial sector does not participate, or does not separate the recyclable products from their waste stream, they are subject to enforcement and penalties per Title 7 Chapter 60.[26] The Universal Recycling Regulations alone do not say anything further regarding enforcement actions and its policies.

            The Universal Recycling Regulations do not discuss enforcement or how DNREC will carry out or induce the commercial sector to perform the obligations set forth in the statute or the regulations.