November 13, 2001
Honorable James L. Ford, Jr.
Secretary, Department of Public Safety
300 Transportation Circle
Dover, DE 19903
Re: Use of State Emergency ResponseCommission Funds to Buy Capital Items
Dear Secretary Ford:
You have asked whether reporting fees appropriated to the State Emergency Response Commission (SERC) for funding the local Emergency Planning Committees (LEPC) may be used for the purchase of capital items. Specifically, you ask whether SERC "can use funds to purchase a tow vehicle to tow Kent County's hazardous material decontamination trailer." For the reasons stated below, we conclude that the funds resulting from reporting fees may be used for the purchase of capital items, but such funds are not available to purchase a vehicle to tow the decontamination trailer.
In July, 1991, the Delaware General Assembly adopted 16 Del. C. ch. 63, Emergency Planning and Community Right-to-Know, and the Preamble to the House Bill stated that the legislation was:
[P]roviding for the establishment of a mechanism to collect fees for the purpose of funding the local emergency planning committees and data collection and management activities related thereto.
68 Del. Law c. 184. Chapter 63 was amended in 1997 by 71 Del. Laws c. 208 and provided for the continuation of the Department's collection of reporting fees in 16 Del. C. § 6310 and the appropriation of these fees to SERC in § 6311.(1) This latter section states:
§ 6311. Fee collection and management.
(a) The fees herein authorized shall be assessed and collected annually based on information required to be submitted under § 6306 of this title covering the previous calendar year.
(b) The fees herein authorized shall be appropriated to the State Emergency Response Commission through the Department for the purpose of funding the local emergency planning committees and data collection and management activities related thereto.
(c) The Department shall oversee the assessment and collection of the fees herein authorized. These fees shall be placed in a liquid, interest-bearing account to be selected by the Commission.
(d) Fee monies obtained under this chapter shall remain available for the purposes of this chapter and shall not be subject to reversion.
(e) All local emergency planning committees and state agencies to be funded under this chapter shall submit to the State Emergency Response Commission for review and approval each year a budget worksheet for the next fiscal year.
Two subsections of § 6311, (b) and (d), indicate the proper use of funds appropriated to SERC. First, subsection (b) states that the funds are appropriated to SERC "for the purpose of funding the local emergency planning committees and data collection and management activities related thereto." Second, subsection (d) prohibits reversion of the funds noting that these funds shall remain available "for the purposes of this chapter." According to the language of § 6311(b) and (d), the LEPC may purchase an item with these funds if they are expended for "data collection and management activities" related to the LEPC or "for the purposes of this chapter."
The phrase "data collection and management activities" in subsection (b) is ambiguous because the word data could modify both the words collection and management, or modify only the word collection. If data modifies both collection and management activities, the funded activities are limited to data collection and data management activities. If management activities could be read as not necessarily related to data, this would expand the permissible uses of the funds.
The resolution of the ambiguity in § 6311(b) is aided by the principles of statutory construction, especially the principle designated as the "whole statute interpretation." This principle is described as follows:
A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.
• • •
A statutory subsection may not be considered in a vacuum, but may be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter.
2A N. Singer, Statutes and Statutory Construction § 46.05 (6th ed. 2000).
When subsection (b) is construed in view of Chapter 63 as a whole, one section, § 6308, appears to clarify any ambiguity that may be created by the use of the phase "data collection and management activities." Section 6308 is titled Data Collection and Management and states as follows:
§ 6308 Data collection and management.
(a) The Department is hereby designated as the state agency responsible for the collection and management of all information reported under the requirements established within this chapter.
(b) . . .
(c) The State Emergency Response Commission shall oversee the collection and management of information by the Department under the subsection (a) of this section.
Clearly in this section both the collection and management is related to information. To be consistent with this section, the phrase "data collection and management activities" in subsection 6311(b) should be read as referring to the collection and management of data.
The conclusion that management activities are related to data is supported by the limited language in Chapter 63 referring to the "purpose of this Chapter." Although Chapter 63, Emergency Planning and Community Right-to-Know, does not have a specific section titled "purpose" or "objectives", section 6308(e) provides a detailed description of the requirements of Chapter 63. It states:
(e) The requirements of this chapter are intended to provide information to state and local government organizations to support emergency planning and response activities; to assist governmental agencies, researchers and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines and standards; and for other similar purposes. In addition, the reports and information collected under this chapter are to be made available to the public, including citizens of communities surrounding covered facilities, consistent with subsections (f), (g) and (h) of this section to promote public participation in identifying, preparing for and managing chemical risks in the community.
Essentially, Chapter 63 is concerned with gathering information and providing this information to state and local governments and the public. The purpose is confined to gathering and sharing information and the development of response plans at the local level. As stated in § 6311(b), the funding supports the "data collection and management activities related thereto."
A review of statutes dealing with the same general subject matter also supports the conclusion that Chapter 63 is limited in its purposes to the collection and management of information. The federal courts view the federal Emergency Planning and Community Right-to-Know Act, 49 U.S.C. § 11001 et seq., as having two main purposes, The Right-to-Know component concerned with gathering information and the Emergency Planning component that uses the information to formulate emergency plans. Citizens for a Better Environment v. Steel Co., 90 F.3d 1237, (7th Cir) 1996, vacated for other reasons, 523 U.S. 83 (1997). The Federal statute as well as Chapter 63 is viewed as a means to gather information and develop response plans.
The question of whether the retained funds are to be expended "for the purposes of this chapter" is answered by determining whether the expenditure is for the data collection and management activities of the LEPC. This expenditure could involve either a capital item such as telecommunication technology and computers or a non-capital expenditure such as pamphlets. The SERC would have only to relate the expenditure to the purposes of the existing statute.
The purchase of a vehicle to tow the Kent County's hazardous material decontamination trailer appears beyond the scope of data collection and management activities. Rather, the vehicle seems to be part of the execution of a response plan, and thus, beyond the purposes of Chapter 63. We conclude that § 6311(b) and (d) limit the expenditure of funds to the purposes of Chapter 63, and the proposal to purchase a vehicle for the reasons stated is not authorized.
Although the federal case law cited above assists in the interpretation of the Delaware statute, the citation of a federal case decision does not widen the scope of this opinion. Note that this opinion concerns interpretation only of the Delaware statute and does not attempt to comment on any federal or state regulations enacted pursuant to either federal or state law.
Please contact us if we may be of further assistance or if you have questions regarding this opinion.
Very truly yours,
James J. Hanley
Deputy Attorney General
Lawrence W. Lewis
Deputy Attorney General
Malcolm S. Cobin
cc: Honorable M. Jane Brady
Philip Johnson, Opinion Coordinator
1. A review of the House Journals for House Bill
250 of the 136th General Assembly (68
c. 184) and House Bill 242 of the 139th General Assembly (71
Del. Laws. c. 208) indicates that no debate occurred for
either House Bill clarifying the language of the Preamble.
BACK TO INDEX