7 Del. Admin. Code § 7201-6.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 7201-6.0 - The National Pollutant Discharge Elimination System (NPDES) Program 1

Part I - General

6.1 Purpose and Scope

6.1.1 The following regulations delineate the authority and general procedures to be followed in connection with the Department's administration of the National Pollutant Discharge Elimination System (NPDES) Program and specifically, the processing of any NPDES permits issued by the Secretary authorizing discharges of pollutants into State waters during the periods that the Secretary may be authorized to issue such permits pursuant to §§ 402, 318, and 405 of the Act. During any periods in which the Secretary may not be authorized to issue such permits pursuant to §§ 402, 318, and 405 of the Act, these regulations shall remain in full force and effect with respect to any certificates or permits authorizing discharges of pollutants into State waters issued by the Secretary pursuant to 7Del.C.Ch. 60.

6.1.2 The NPDES Program requires a permit for the discharge of a "pollutant" or combination of pollutants from any "point source" to "State waters". The terms "pollutant", "point source" and "State waters" or "waters of the State" are defined in § 2.0. The following are point sources and require NPDES permits for any discharge(s) therefrom:

6.1.2.1 Animal feeding operations that meet the criteria for a concentrated animal feeding operation (CAFO) specified in Appendix B to 40 CFR Part 122 ;

6.1.2.2 Aquaculture or aquatic animal production facilities that meet the criteria specified in Appendix C to 40 CFR Part 122 ; (Aquaculture or aquatic animal production facilities that product 2,000 lbs or more harvest weight fish or aquatic animals per year must secure a permit under State law for any discharge to State waters.)

6.1.2.3 Discharges into aquaculture projects as set forth in § 6.63;

6.1.2.4 Storm water discharges associated with industrial activities as set forth in § 9;

6.1.2.5 Storm water discharges from the municipal separate storm sewer system located in New Castle County;

6.1.2.6 Silvicultural point sources as defined in § 2.123.

6.2 Prohibition of Discharges into State Waters

6.2.1 No person shall discharge any pollutant, including sewage, industrial wastes, solid wastes, other wastes or any noxious or deleterious substance, into, or adjacent to waters of the State or otherwise alter the physical, chemical, or biological properties of State waters and make them detrimental to the public health, or to animal or aquatic life, or to the use of such waters for domestic or industrial consumption, or for recreation or for other uses, without a permit or equivalent authorization from the Secretary.

6.2.2 Any discharge of untreated or inadequately treated vessel sewage, by any means, into or upon the waters of any marina, boat docking facility or tidal water of the State is prohibited.

6.3 Exclusions

6.3.1 The following discharges do not require a NPDES permit:

6.3.1.1 Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when a vessel is being used as an energy or mining facility, a storage facility, or a seafood processing facility or when secured to a storage facility or a seafood processing facility, or is secured to the bed of the ocean, contiguous zone, or State waters for the purpose of mineral or oil exploration or development;

6.3.1.2 Discharges of dredged or fill material that are regulated under § 404 of the Act;

6.3.1.3 The introduction of sewage, industrial wastes or other pollutants into a treatment works by indirect dischargers, unless the Secretary determines that such permit is necessary to protect the treatment works' interests and to ensure compliance with the Act, with 7Del.C.Ch. 60, or with these regulations;

6.3.1.4 Any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR Part 153, § 153.10(e) (Pollution by Oil and Hazardous Substances);

6.3.1.5 Return flows from irrigated agriculture; and

6.3.1.6 Any introduction of pollutants from non-point source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures and forest lands, but not discharges from aquaculture or aquatic animal production facilities that produce 2,000 lbs or more harvest weight fish or aquatic animals per year, discharges to aquaculture projects, discharges from concentrated animal feeding operations (CAFOs) or discharges from silvicultural point sources.

6.3.2 Nothing herein shall affect the authority of the Secretary to require a permit, certification or equivalent authorization under any applicable provisions of the Law or Act.

Part II - NPDES Permit Application and Issuance

6.10 Application for NPDES Permits

6.10.1 Any person who discharges or proposes to discharge pollutants from any point source subject to NPDES program requirements and who does not have an effective permit or equivalent authorization from the Secretary shall submit a complete application to the Department in accordance with this section. Application for a NPDES permit shall be made by the person responsible for the overall operation of the facility or activity generating the discharge, in the manner and form prescribed by the Secretary. Applications are not required for NPDES permit coverage under the General Permit Program (§ 9).

6.10.2 Persons currently discharging who have:

6.10.2.1 Existing permits shall submit a new NPDES application as specified under subsectin 6.10.3 when facility expansions, production increases, or process modifications will:

6.10.2.1.1 Result in significantly new or substantially increased discharges of pollutants or a significant change in the nature of the discharge of pollutants, or

6.10.2.1.2 Violate the terms and conditions of the existing permit;

6.10.2.2 Expiring permits shall submit new applications at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the Secretary. The Secretary shall not grant permission for applications to be submitted later than the expiration date of the expiring permit.

6.10.3 Any person proposing:

6.10.3.1 an increased discharge or a change in the nature of the permitted discharge as outlined in paragraph b.1;

6.10.3.2 a new discharge; or

6.10.3.3 a new source

6.10.3.4 Shall submit an application for a NPDES permit at least 180 days prior to commencing the new, changed or increased discharge or the erection, construction, facility expansion, increased production or employment of new processes associated with such application. Within that 180 day period, the Secretary may prohibit such commencement until a NPDES permit is issued or the existing permit modified, or revoked and reissued. In no case, however, shall any discharge from said facilities commence prior to the issuance of a NPDES permit.

6.10.4 Any application for a NPDES permit to discharge any pollutant or combination of pollutants, including sewage, industrial wastes, or other wastes, to State waters shall be accompanied by plans, specifications, maps, quantitative data and such other relevant information as may be required to describe the nature of the activity(ies) generating the proposed discharge(s) and the characteristics thereof. At a minimum, the applicant shall provide the information outlined in 40 CFR 122.21 or 122.26, as appropriate.

6.10.5 The Secretary may require the submission of additional information after a NPDES application has been filed, and may suspend processing of any application until such time as the owner has supplied missing or deficient information and the Secretary considers the application complete. Further, where the applicant or permittee becomes aware that he failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Secretary, he shall submit such facts or information as soon as possible.

6.11 Identity of Signatories to NPDES Forms

6.11.1 All permit applications shall be signed as follows:

6.11.1.1 For a corporation, by a principal executive officer of at least the level of vice president or other person who performs similar policy or decision-making functions for the corporation;

6.11.1.2 For a partnership or sole proprietorship, by a general partner or the proprietor, respectively; or

6.11.1.3 For a municipality, State, Federal or other public facility, by either a principal executive officer or ranking elected official.

6.11.2 In addition to the signatories required in paragraph a above, any NPDES permit application for the operation of and discharge from any wastewater facility or treatment works shall be signed by the operator in direct responsible charge of the wastewater facility or treatment works. In the event of multiple operators in direct responsible charge (DRC) of a given facility (for example, operators in direct responsible charge of an operating shift, or of a major segment of the system or facility), the signatory shall be the person in direct responsible charge ofthe entire wastewaterfacility, or that person's designee.

6.11.3 All other forms or requests for information required by the Secretary shall be signed by a person designated in paragraph a or a duly authorized representative or agent of such person (either an individual or position), if:

6.11.3.1 The representative so authorized is responsible for the overall operation of the facility from which the discharge originates, e.g., a plant manager, superintendent or person of equivalent responsibility; and

6.11.3.2 The authorization is made in writing by the person designated under paragraph a and submitted to the Secretary.

6.11.4 In addition to the signatories required in c above, any NPDES discharge monitoring report (DMR) submitted to the Secretary for any discharge(s) from a wastewater facility or treatment works shall be signed by the operator in direct responsible charge of the wastewater facility or treatment works. In the event of multiple operators in direct responsible charge (DRC) of a given facility (for example, operators in direct responsible charge of an operating shift, or of a major segment of the system or facility), the signatory shall be the person in direct responsible charge of the entire wastewater facility, or that person's designee.

6.11.5 Any changes in the written authorization submitted to the Secretary under paragraph c which occur after the issuance of a permit, shall be reported to the Secretary by submitting a copy of a new written authorization which meets the requirements of § 6.11.3.1 and 6.11.3.2 above prior to or together with any forms or other information required by the Secretary which are to be signed by said authorized representative.

6.11.6 Any person signing any document under § 6.11.1, 6.11.2, 6.11.3 or 6.11.4 shall make the following certification: "I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

6.12 Tentative Determinations and Draft Permit Formulation. After reviewing the complete application (i.e. the NPDES permit application forms and any additional information requested by the Department), the Secretary shall tentatively decide whether to prepare a draft permit in anticipation of issuing a NPDES permit or to deny the application. Such tentative determinations shall be made in advance of the public notice of the Department's receipt of a permit application pursuant to 7Del.C.§ 6004.

6.12.1 If the determination proposed is to issue the NPDES permit, the following additional tentative determinations shall be made and incorporated into a draft permit:

6.12.1.1 All conditions, limitations, or requirements, specified in § 6.14;

6.12.1.2 Proposed discharge or effluent limitations, restrictions, prohibitions, standards for residuals use or disposal and any other conditions identified pursuant to Sections 6.15 and 6.16;

6.12.1.3 Schedules of compliance, if applicable, under § 6.17;

6.12.1.4 Monitoring requirements under § 6.40; and any

6.12.1.5 Special conditions, if deemed appropriate.

6.12.2 A statement of basis (per § 6.19) or a fact sheet (per § 6.18) that briefly describes the reasoning behind the tentative determinations made shall be prepared and shall accompany each draft NPDES permit developed. The NPDES permit application, the draft NPDES permit and the statement of basis or fact sheet shall be publicly noticed and made available for public comment. The Secretary shall advertise the Department's receipt of an application and any tentative determinations made, offer an opportunity for the public to request a hearing, issue a final decision and respond to any comments made.

6.12.3 If the determination proposed is to deny the application, the Secretary shall prepare a notice of intent to deny the application. A notice of intent to deny the application is to be considered a draft permit and the same procedures followed as any other draft permit prepared under this section (i.e. public notice and an opportunity for requesting a public hearing as outlined in paragraph b. and Part III).

In addition, the Secretary shall advise the applicant of his or her intent to deny the application, the basis for that decision and the requirements, if any, necessary to modify that determination. Before the Secretary publishes the notice of his or her intent to deny the application, the applicant may be given an opportunity either to withdraw the application or to revise and resubmit the application.

If the application is not withdrawn and the conditions necessary for modifying the Secretary's tentative decision to deny the application have been satisfied, the Secretary shall provide notice and opportunity for a public hearing prior to taking further action on the application, i.e. making the additional tentative determinations and preparing a draft permit as outlined in paragraph a.

6.12.4 The Secretary may formulate a draft permit without having received an application from a discharger.

6.13 Prohibitions. No NPDES permit shall be issued in the following circumstances:

6.13.1 When the terms or conditions of the permit do not comply with the applicable requirements of the Law or the Act or any regulations promulgated under the Law or the Act;

6.13.2 For the discharge of any radiological, chemical or biological warfare agent or high level radioactive material into State waters;

6.13.3 For any discharge that would substantially impair anchorage and navigation in or on any waters of the State;

6.13.4 When the EPA has objected to the issuance of the permit as provided in 40 CFR 123.44. A NPDES permit may be issued in such cases where EPA fails to follow the provisions of 40 CFR 123.44;

6.13.5 For any discharge that is in conflict with any area-wide or basin-wide water quality control and waste management plan or policy, or plan amendment, approved under §208(b) of the Act. This subsection shall not be construed to prevent private sector treatment and disposal of domestic wastewater;

6.13.6 Any discharge that is in conflict with any Total Maximum Daily Load (TMDL) or Pollution Control Strategy, if applicable, established by the Secretary pursuant to the Law;

6.13.7 For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:

Before the promulgation of guidelines under § 403(c) of the Act, unless the Secretary determines permit issuance to be in the public interest; or

After promulgation of guidelines under §403(c) of the Act, where insufficient information exists to make a reasonable judgement as to whether the discharge complies with any such guidelines;

6.13.8 For a facility which is a new source or a new discharger, if the discharge from the construction or operation of the facility will cause or contribute to the violation of water quality standards and the imposition of conditions (e.g. effluent limitations or other restrictions) on the discharge cannot ensure compliance with the applicable surface water quality standards;

6.13.9 For a facility which is a new source or a new discharger proposing to discharge to waters that do not meet the applicable surface water quality standards and that are not expected to meet those standards even after the application of the technology-based controls required of point sources under §§ 301(b)(1)(A) and 301(b)(1)(B) of the Act, unless:

6.13.9.1 The Secretary has established a Total Maximum Daily Load (TMDL) and a Pollution Control Strategy for the receiving waters and the conditions in the permit are consistent with that TMDL and Pollution Control Strategy; or

6.13.9.2 The permit includes a "zero discharge" limitation or similar prohibition against discharging the pollutant or pollutants responsible for the violations; or

6.13.9.3 In cases where the Secretary has yet to establish a Total Maximum Daily Load (TMDL) and a Pollution Control Strategy for the pollutant or pollutants responsible for the violations in the receiving waters, the new source or new discharger offsets its proposed discharge by reducing existing point source and nonpoint source pollutant loads to the impaired waterbody by an amount greater than the proposed discharge. Any offsets shall be obtained before the discharger begins discharging and shall be maintained until the TMDL and Pollution Control Strategy are established and implemented.

This subsection shall not be construed as to preclude the issuance of a permit for the discharge of any pollutant or pollutants for which the applicable surface water quality standards or criteria are being met or are expected to be met in the receiving waters, even though other applicable surface water quality criteria or standards are not being met or are not expected to be met.

6.13.10 When the imposition of conditions on any discharge cannot ensure compliance with the applicable water quality laws and regulations of all affected states;

6.13.11 For the disposal of pollutants into wells; or

6.13.12 For the discharge or disposal of medical waste.

6.14 Conditions Applicable to All Permits

In addition to the requirements of §§ 6.15, 6.16, and 6.17, the terms and conditions of each NPDES permit issued by the Secretary shall require the following:

6.14.1 That the permittee must comply with all the conditions of the permit and that all discharges authorized by the NPDES permit shall be consistent with the terms and conditions of the permit;

6.14.2 That the discharge of any pollutant more frequently than, or at a level in excess of, that identified and authorized by the permit shall constitute a violation of the terms and conditions of the permit. The violation of any effluent limitation or of any other condition specified in the permit is a violation of 7Del.C.Ch. 60, and the Act and is grounds for enforcement as provided in 7Del.C.§§ 6005a nd6013, for permit termination or loss of authorization to discharge pursuant to the permit, for permit revocation and reissuance, or permit modification, or denial of a permit renewal application. The Department may seek voluntary compliance by way of warning, notice or other educational means, pursuant to 7Del.C.§ 6019, or any other means authorized by law. However, the Law does not require that such voluntary means be used before proceeding by way of compulsory enforcement;

6.14.3 Reapplication for a Permit

6.14.3.1 That the permittee must apply for and obtain a new permit if the permittee wishes to continue the activity regulated by the permit;

6.14.3.2 That at least 180 days before the expiration date of the permit, a new application is to be submitted or the Department notified of the permittee's intent to cease discharging by the expiration date;

6.14.3.3 That in the event that a timely and sufficient reapplication has been submitted and the Department is unable, through no fault of the permittee, to issue a new permit before the expiration date of the permit, the terms and conditions of the permit are continued and remain fully effective and enforceable;

6.14.4 Permit Transfer

6.14.4.1 That the permit is not transferable to any person, except after notice to and with the concurrence of the Secretary;

6.14.4.2 That in the event of a change in ownership or control of the facilities from which the authorized discharge(s) emanate(s), the permit may be transferred if the permittee:

6.14.4.2.1 Notifies the Department, in writing, of the proposed transfer, in advance; and

6.14.4.2.2 Submits to the Department a written agreement signed by all parties to the transfer, containing a specific date for transfer of permit responsibility, coverage and liability to the new permittee; the written agreement shall expressly acknowledge the current permittee is responsible and liable for compliance with the terms and conditions of the permit up to the date of transfer and the new permittee is responsible and liable for compliance from that date on; and

6.14.4.2.3 The Department within thirty (30) days of receipt of the notification of the proposed transfer does not notify the current permittee and the new permittee of its intent to modify, to revoke and reissue or to terminate the permit and require that a new application be submitted;

6.14.4.3 That the permittee is encouraged to provide as much advance notice as possible of any proposed transfer, to allow sufficient time for the Department to modify the permit to identify the new permittee and incorporate such other requirements as may be necessary under the Law or the Act;

6.14.5 That the permit may be modified, terminated or revoked and reissued in whole or in part, during its term, for cause as provided in Part V. The filing of a request for permit modification, or revocation and reissuance, or termination, or a notification of any planned changes or anticipated noncompliance does not stay any permit condition;

6.14.6 That, if the permit is for a discharge from any treatment works, the permittee shall promptly provide notice to the Secretary of the following:

6.14.6.1 Any new discharge of pollutants into such treatment works, from any facility, treatment works, discharge(s), or source which would be subject to §§ 6.15, 6.16, and 6.17 of these regulations, if such facility, treatment works, discharge(s), or source were directly discharging pollutants to State waters; and,

6.14.6.2 Any substantial change, whether permanent or temporary, in the volume or character of pollutants being introduced into such treatment works by any facility, treatment works, discharge(s) or source introducing pollutants into such treatment works at the time of issuance of the permit.

Such notice shall include information on:

6.14.6.2.1 The characteristics and quantity of effluent to be introduced into such treatment works;

6.14.6.2.2 Any anticipated impact of such change in the quantity or characteristics of effluent to be discharged from such treatment works; and,

6.14.6.2.3 Any additional information that may be required by the Secretary;

6.14.7 That the permittee shall notify the Department in writing of any anticipated expansion or alteration of the permitted facility, any production increases, process modifications, or other changes which could result in new, different or increased discharges of pollutants. Notice is required only when such alteration, addition or change:

6.14.7.1 may justify the application of permit conditions that are different from those specified in the permit, or

6.14.7.2 may justify the application of permit conditions that are absent from the permit, or

6.14.7.3 meets any one of the following criteria:

6.14.7.3.1 The alteration or addition to the permitted facility may meet one of the criteria for determining whether a facility is a new source; or

6.14.7.3.2 As a result of the alteration or addition, the nature of the discharge is or could be substantially different from that represented in the application originally submitted for the discharge, upon which the permit is based; or

6.14.7.3.3 The alteration or addition results in a significant change in the permittee's sludge use or disposal practices, including any uses or disposal sites not identified in the permit application or during the permit issuance process; or

6.14.7.3.4 The planned change in permitted facility or activity may result in noncompliance with the requirements of this permit;

That upon notification of a planned change, the Department may require the submission of a new application. The permittee is encouraged to notify the Department and submit any application well in advance of the scheduled date for the anticipated alteration or addition to allow sufficient time to process any modifications of the permit necessitated by the change and to avoid any resultant project delays;

6.14.8 Noncompliance Notification. That the permittee shall report all instances of noncompliance with the permit to the Department as outlined herein:

6.14.8.1 That if, for any reason, the permittee does not comply with or will be unable to comply with any daily maximum effluent limitation or maximum instantaneous concentration specified in the permit, the permittee shall report such incident within 24 hours and provide the Department with the following information, in writing, within five (5) days of becoming aware of such conditions:

6.14.8.1.1 A description of the discharge and cause of noncompliance;

6.14.8.1.2 The period of noncompliance, including exact dates and times and if the noncompliance has not been corrected, the anticipated time when the discharge will return to compliance; and

6.14.8.1.3 Actions taken or to be taken to reduce, eliminate, and prevent recurrence of the noncomplying discharge;

6.14.8.2 That if, for any reason, the permittee does not comply with any daily average or average monthly effluent limitation or standard specified in the permit, the permittee shall provide the information outlined in § 6.14.8.1 with the discharge monitoring report (DMR) in accordance with the requirements of § 6.42;

6.14.8.3 That in the case of any upset or unanticipated bypass that exceeds any permitted effluent or discharge limitation, the Department shall be notified within 24 hours; if this notification is provided orally, a written report is to be submitted within 5 days;

6.14.8.4 That in the case of any discharge subject to any toxic pollutant effluent standard under § 307(a) of the Act, the Department shall be notified within 24 hours from the time the permittee becomes aware of a noncomplying discharge. Notification shall include the information outlined in § 6.14.8.1. If this information is provided orally, a written submission covering these points shall be provided within five days of the time the permittee becomes aware of the circumstances covered by this paragraph;

6.14.8.5 That in the case of other discharges which could constitute a threat to human health, welfare, or the environment, the information required in § 6.14.8.1 shall be provided as quickly as possible upon discovery and after activating the appropriate emergency site plan, unless circumstances exist which make such a notification impossible. A delay in notification shall not be considered a violation of the permit when the act of reporting may delay the mitigation of the discharge and/or the protection of public health and the environment. A written submission covering these points must be provided within five days of the time the permittee becomes aware of the circumstances covered by this paragraph;

6.14.8.6 That the permittee shall report all instances of noncompliance not otherwise reported under the preceding paragraphs at the time the discharge monitoring report (DMR) is submitted. The report shall contain the information outlined in paragraph h.1;

6.14.8.7 That the Department may waive the written report as required herein on a case-by-case basis, if an oral report was provided within 24 hours;

6.14.9 That any person who causes or contributes to the discharge of a pollutant into waters of the State or the United States either in excess of any conditions specified in the permit or in absence of a specific permit condition shall report such an incident to the Department as required under 7Del.C.§ 6028.

6.14.10 That the permittee shall furnish to the Department, within a reasonable time, any information which the Department may request to determine compliance with the permit or to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit. The permittee shall also furnish, upon request, copies of records required to be kept by the permit;

6.14.11 That when the permittee discovers that it failed to submit any relevant facts in a permit application or submitted any incorrect information in any permit application or in any report to the Department, it shall promptly submit such facts or information;

6.14.12 That the permittee shall allow any authorized State or Federal representative, upon the presentation of his or her credentials:

6.14.12.1 To enter upon the permittee's premises where the regulated facility, treatment works, or discharge(s) is located or the regulated activity is conducted or where any records required to be kept under the terms and conditions of the permit are located;

6.14.12.2 To have access to and copy, at reasonable times, any records required to be kept under the terms and conditions of the permit;

6.14.12.3 To inspect at reasonable times any monitoring equipment or monitoring method required in the permit;

6.14.12.4 To inspect at reasonable times any facilities, equipment, management or control practices, or operations regulated or required under the permit; and

6.14.12.5 To sample at reasonable times any discharge or substance at any location for the purpose of assuring compliance with the permit or otherwise determine whether a violation of the Law or these regulations exists, as provided in 7Del. C.§ 6024;

6.14.13 That the permittee shall at all times maintain in good working order and operate as efficiently as possible all collection and treatment facilities and systems (and related appurtenances) installed or used by the permittee for water pollution control and abatement to achieve compliance with the terms and conditions of the permit. Proper operation and maintenance includes but is not limited to, effective performance (based upon the facilities' design), adequate funding, effective management, adequate operator staffing and training, and adequate laboratory and process controls including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems, when necessary, to achieve compliance with the terms and conditions of the permit;

6.14.14 That the permittee shall take all reasonable steps to minimize any adverse impact to State waters resulting from noncompliance with the permit, including such accelerated or additional monitoring as necessary to determine the nature and extent of the noncomplying discharge;

6.14.15 That the permittee, in order to maintain compliance with its permit, shall control production and all discharges as necessary upon reduction, loss, or failure of the treatment facility until the treatment facility is restored or an alternative method of treatment is provided. The need to halt or reduce the permitted activity in order to maintain compliance with the permit shall not be a defense for a permittee in any enforcement action;

6.14.16 That, in order to ensure compliance with the terms and conditions of the permit, the Department may require that the permittee provide an alternative power supply which is sufficient to operate the permittee's wastewater collection, conveyance and treatment facilities;

6.14.17 That any solids, sludges, filter backwash, or other pollutants removed in the collection, conveyance or treatment of wastewater shall be disposed of in such manner as to prevent any pollutant from such materials from entering surface waters or groundwaters;

6.14.18 Bypass

6.14.18.1 Prohibition of bypass. The Secretary may prohibit bypass in consideration of the adverse effect of the proposed bypass or where the proposed bypass does not meet the conditions set forth in § 6.14.18.2.

6.14.18.2 Conditions necessary for bypass. The intentional diversion of waste streams from any portion of a treatment facility is prohibited unless:

6.14.18.2.1 The bypass is necessary to perform essential maintenance and auxiliary equipment, a redundant or back-up system or an alternate mode of operation is utilized to maintain treatment performance; or

6.14.18.2.2 The following four conditions are met:

6.14.18.2.2.1 Bypass is unavoidable to prevent loss of human life, personal injury or severe property damage;

6.14.18.2.2.2 There are no feasible alternatives to bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, plant shutdown or maintenance during normal periods of equipment down-time. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgement to prevent the bypass;

6.14.18.2.2.3 The permittee notifies the Department of the bypass or of the need to bypass as outlined in 6.14.18.3; and

6.14.18.2.2.4 The permittee is utilizing or will utilize all available alternative operating procedures or interim control measures to reduce the impact of the bypass on State waters.

6.14.18.3 Notice

6.14.18.3.1 If the permittee knows in advance of the need for a bypass, the permittee shall notify the Secretary, in writing, at least ten days before the date of the bypass, if possible;

6.14.18.3.2 In the event of an unanticipated or unintentional bypass, the permittee shall notify the Department within twenty-four hours of discovery. Notice may be provided orally, but shall be followed up with submission of a written report that provides the information outlined in § 6.14.8.1 within five (5) days;

6.14.18.3.3 The public shall be notified and given an opportunity to comment on bypass incidents of significant duration, to the extent feasible.

6.14.19 Upset.

6.14.19.1 Effect of an upset. An upset shall constitute an affirmative defense to an action brought for noncompliance with technology-based permit effluent limitations if the requirements of § 6.14.19.2 are met.

6.14.19.2 Conditions necessary for a demonstration of upset. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed and authenticated, contemporaneous operating logs, or by other relevant evidence that:

6.14.19.2.1 An upset occurred and that the permittee can identify the specific cause(s) of the upset;

6.14.19.2.2 The permitted facility was at the time being operated in a prudent and workman-like manner and in compliance with proper operation and maintenance procedures;

6.14.19.2.3 The permittee submitted notice of the upset as required in § 6.14.8.3 (within 24 hours of becoming aware of the upset); and

6.14.19.2.4 The permittee took all reasonable measures necessary to minimize any adverse impact to State waters.

6.14.19.3 Burden of proof. The permittee shall have the burden of proving an upset in any case where an upset is claimed as a defense.

6.14.20 That all applications, reports, or information submitted to the Department shall be signed and certified as outlined in § 6.11 of these regulations;

6.14.21 That the permittee shall comply with effluent standards or prohibitions established under § 307(a) of the Act for toxic pollutants within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement;

6.14.22 That the permit does not convey any property rights of any sort, or any exclusive privilege;

6.14.23 That nothing in the permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under 7Del.C.Ch. 60, or any other State law or regulation; and

6.14.24 That the provisions of the permit are severable. If any provision of the permit is held invalid, the remainder of the permit shall not be affected. If the application of any provision of the permit to any circumstance is held invalid, its application to other circumstances shall not be affected.

6.15 Application of Effluent Standards and Limitations, Water Quality Standards, and Other Requirements

Each NPDES permit shall provide for and ensure compliance with all applicable requirements of the Law and the Act and any regulations promulgated under the Law and the Act. Permits shall require compliance with the following as applicable:

6.15.1 Effluent limitations and standards under §§ 301, 302, 303, 304, 307, 318, and 405 of the Act, or established by the Secretary, including any interim final limitations and standards;

6.15.2 Standards of performance for new sources under § 306 of the Act or established by the Secretary, including any promulgated interim final effluent limitations and standards;

6.15.3 Guidelines promulgated by the EPA pursuant to §403 of the Act or established by the Secretary;

6.15.4 Any more stringent limitation, including those necessary to meet water quality standards, treatment requirements, or schedules of compliance, established by the Secretary pursuant to the Law, or required to implement all applicable water quality standards established pursuant to the Act or required by any other Federal law or regulation;

6.15.5 Any more stringent requirement necessary for compliance with any area-wide or basin-wide water quality control and waste management plan or policy established pursuant to the Law;

6.15.6 Prior to the promulgation by the EPA of applicable effluent standards and limitations pursuant to §§301, 302, 306, 307 of the Act, such conditions as the Secretary determines are necessary to carry out the provisions of the Act and the Law;

6.15.7 Limitations established under §§ 6.15.1, 6.15.2, 6.15.4, 6.15.5, and 6.15.6 to control pollutants meeting the criteria listed in § 6.15.7.1. Limitations will be established in accordance with § 6.15.7.2. An explanation of the development of these limitations shall be included in the fact sheet under § 6.18 or the Statement of Basis under § 6.19.

6.15.7.1 Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional or toxic pollutants) which:

6.15.7.1.1 Are added or which may be added by the discharger, those which result from or are otherwise associated with the regulated activity; or

6.15.7.1.2 The Department determines are an effective measure of treatment performance; or

6.15.7.1.3 The Department determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any water quality standard, including any narrative criteria for water quality.

6.15.7.2 The requirement that the limitations control the pollutants meeting the criteria of § 6.15.7.1 will be satisfied by:

6.15.7.2.1 Limitations on those pollutants; or,

6.15.7.2.2 Limitations on other pollutants or indicator parameters which, in the Department's judgement, will result in the implementation of controls on the pollutants or parameters to be limited under § 6.15.7.1 that:

6.15.7.2.2.1 will provide the required level of treatment or pollution control technology; or

6.15.7.2.2.2 are sufficient to attain and maintain the applicable water quality standards.

Where the Department has adopted a numeric water quality criterion for an individual pollutant or for whole effluent toxicity, limitations must be established for the individual pollutant or for whole effluent toxicity; limitations on indicator parameters may not be established in such cases.

6.15.7.3 Whenever effluent limitations are established in accordance with § 6.15.7.2.2. (limitations on indicator parameters):

6.15.7.3.1 The permit shall identify which pollutant or pollutant parameters are intended to be controlled by establishing limitations on the indicator parameter;

6.15.7.3.2 The statement of basis or fact sheet prepared in accordance with §§ 6.18 or 6.19 shall include a finding that compliance with the effluent limitations on the indicator parameter will result in controls on the pollutant of concern as outlined in § 6.15.7.2.2.;

6.15.7.3.3 The permit shall require sufficient effluent (or discharge) and ambient monitoring to show that limits on the indicator parameter continue to:

6.15.7.3.3.1 provide the required level of treatment or pollution control technology; or

6.15.7.3.3.2 attain and maintain applicable water quality standards; and

6.15.7.3.4 The permit shall contain a reopener clause that allows the Department to modify or revoke and reissue the permit if the limits on the indicator parameter no longer meet the criteria outlined in § 6.15.7.2.2.

6.15.8 If the NPDES permit is for the discharge of pollutant(s) into State waters from a vessel or other floating craft, any applicable regulations promulgated by the Secretary of the Department in which the Coast Guard is operating, establishing specifications for safe transportation, handling, carriage, and storage of pollutants;

6.15.9 Best management practices to control or abate the discharge of pollutants where:

6.15.9.1 Authorized under §304(e) of the Act for the control of toxic and hazardous pollutants from ancillary industrial activities;

6.15.9.2 Numeric effluent limitations are inappropriate, inapplicable, or infeasible; or

6.15.9.3 The practices are reasonably necessary, in the Secretary's opinion, to achieve effluent limitations and standards, including water quality standards, or otherwise to carry out the purposes of the Act and the Law;

6.15.10 Requirements governing the beneficial use or disposal of residuals from treatment facilities in accordance with applicable regulations;

6.15.11 Where a permit is renewed, reissued or modified, interim limitations, final limitations, standards or conditions which are at least as stringent as the final limitations, standards or conditions in the previous permit, with the following exceptions:

6.15.11.1 The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under Part V;

6.15.11.2 Where the effluent limitations in the previous permit were established to ensure compliance with any applicable water quality standards, a permit may be renewed, reissued or modified to contain less stringent effluent limitations, if in compliance with §303(d)(4) of the Act;

6.15.11.3 Where the effluent limitations in the previous permit were established based on §402(a)(1)(B) of the Act, a permit may be renewed, reissued or modified to contain less stringent effluent limitations on the basis of effluent guidelines subsequently promulgated under §304(b) of the Act if:

6.15.11.3.1 Material and substantial alterations or additions to the permitted facility occurred after permit issuance which justify the application of a less stringent effluent limitation;

6.15.11.3.2

6.15.11.3.2.1 Information is available which was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and which would have justified the application of a less stringent effluent limitation at the time of permit issuance; or

6.15.11.3.2.2 The Secretary determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under §402(a)(1)(B) of the Act;

6.15.11.3.3 A less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy;

6.15.11.3.4 A variance was granted and the permit modified pursuant to §301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a) of the Act; or

6.15.11.3.5 The permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities with all reasonable diligence, but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the renewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).

6.15.11.3.6 shall not apply to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the Law or the Act or for reasons otherwise unrelated to water quality.

6.15.11.4 In no event may a permit with respect to which § 6.15.11.3 applies be renewed, reissued, or modified to contain an effluent limitation which is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, reissued, or modified to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a water quality standard applicable to such waters.

6.15.12 Any conditions that are deemed necessary to ensure that navigation and anchorage will not be substantially impaired with due consideration given to comments provided by the Secretary of the Army;

6.15.13 With respect to any point source otherwise subject to the foregoing limitations, standards, prohibitions, schedules, and/or requirements, whenever the person responsible for such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Secretary that any effluent limitations proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is, or is to be made, the Secretary may impose an alternative effluent limitation which controls the thermal component of the discharge from such source (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water. Notwithstanding any other provision of these regulations, any point source discharge having a thermal component, the modification of which point source is commenced after October 18, 1972, and which as modified meets effluent limitations established under these regulations and which effluent limitations will assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made, shall not be subject to any more stringent effluent limitation with respect to the thermal component of its discharge during either a ten-year period, or the IRS period of depreciation, whichever is shorter, beginning on the date of completion of such modification.

6.15.14 In any case where a NPDES permit issued by the Secretary contains the effluent standards and limitations described in paragraphs a and b above, the Secretary will state his or her finding that the discharge authorized by the permit will not violate applicable water quality standards and will prepare a written statement setting forth the basis for such finding. Whenever a NPDES permit issued by the Secretary contains any more stringent effluent limitation based upon applicable water quality standards, a waste load allocation will be prepared for all pollutants or pollutant parameters of concern to ensure that the discharge authorized by the permit is consistent with applicable water quality standards.

6.15.15 In cases where it can be definitively demonstrated that natural conditions prevent the attainment of water quality standards, the Department will make a determination that a discharge will not violate the applicable surface water quality standards if the resultant change in water quality is consistent with the deviations allowed under §§ 3.0, 5.0 and 11.0 of the State of Delaware Surface Water Quality Standards, as amended August 11, 1999.

6.16 Calculation and Specification of Effluent Limitations and Standards

6.16.1

6.16.1.1 All permits shall impose final, and where necessary, interim or interim final effluent limitations, standards and prohibitions under §§ 6.14 and 6.15 for each outfall or discharge point of the permitted facility, except as otherwise provided under § 6.15.9. and § 6.16.8.

6.16.1.2 Except in the case of sewage treatment works, calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility, such as the production during the high month of the previous year, or the monthly average for the highest of the previous 5 years. For new sources or new dischargers, actual production shall be estimated using projected production. The time period for the measure of production used (to calculate the permit limitation) shall correspond to the time period of the calculated permit limit, e.g. monthly production shall be used to calculate average monthly discharge limitations.

6.16.1.2.1 The Secretary may include a condition establishing alternate permit limitations, standards or prohibitions based upon anticipated increases (not to exceed maximum production capability) or decreases in production.

6.16.1.2.2 If the Secretary establishes permit conditions under § 6.16.1.2.1:

6.16.1.2.2.1 The permit shall require the permittee to notify the Department at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice shall specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month, the notice shall specify the reasons for the anticipated production level increase. Notification is required for each period of operation at an alternate level of production. New notice is required if, during two consecutive months otherwise covered by a notice, the production level does not in fact meet the higher level designated in the notice;

6.16.1.2.2.2 The permittee shall comply with the limitations, standards or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee notified the Secretary as outlined in § 6.16.1.2.2.1, in which case the permittee shall comply with those that correspond with whichever is lower: the actual level of production or that specified in the notice; and

6.16.1.2.2.3 The permittee shall submit with the monthly discharge monitoring report or DMR the level of production that actually occurred and the limitations, standards, or prohibitions applicable to that level of production.

6.16.1.3 In the case of sewage treatment works, permit limitations, standards, or prohibitions shall be calculated based on design flow.

6.16.2 All interim and final permit effluent limitations, standards, or prohibitions established under §§ 6.14 and 6.15 for a metal shall be expressed in terms of the "total recoverable metal" as defined in 40 CFR Part 136 (i.e., the sum of the dissolved and suspended fractions of the metal) unless:

6.16.2.1 The promulgated effluent limitation and standard under the Act specifies the limitation for the metal in the dissolved or valent form; or

6.16.2.2 In establishing permit limitations on a case-by-case basis, it is necessary to express the limitation on the metal in the dissolved or valent form in order to carry out the provisions of the Act; or

6.16.2.3 All approved analytical methods inherently measure only its dissolved form (e.g. hexavalent chromium).

6.16.3 For continuous discharges all interim and final permit effluent limitations, standards, and prohibitions established under §§ 6.14 and 6.15, including those necessary to achieve water quality standards, shall be stated as maximum daily and average monthly discharge limitations, except as provided in § 6.16.5. Such effluent limitations, standards and prohibitions shall be expressed in units of mass or concentration or both mass and concentration, as deemed appropriate. In cases where pollutants are limited in terms of both mass and concentration, the permit shall require the permittee to comply with both limitations.

6.16.4 Permit effluent limitations, standards and prohibitions may be expressed as maximum instantaneous concentrations and established in conjunction with maximum daily and average monthly discharge limitations. Such maximum instantaneous concentration effluent limitations shall account for the variability experienced in comparable, well-operated, properly functioning, systems.

6.16.5 Paragraph c is not applicable for pH, residual chlorine, temperature, radiation, dissolved oxygen or other pollutants when the Department determines it would be more appropriate to express such permit effluent limitations, standards and prohibitions as minimum or maximum instantaneous concentrations, daily minimum or daily maximum concentrations, a range of concentrations or other units of measurement.

6.16.6 Except as provided in paragraph g, effluent limitations imposed in permits shall not be adjusted for pollutants in the intake water.

6.16.7

6.16.7.1 Upon request of the discharger, technology-based effluent limitations or standards imposed in a permit may be adjusted to reflect credit for pollutants in the facility's intake water if:

6.16.7.1.1 The applicable effluent limitations and standards specifically provide for such adjustments (for example, that they are to be applied on a net basis); or

6.16.7.1.2 The discharger demonstrates that the control system it proposes or uses to meet the applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

6.16.7.2 Permit effluent limitations or standards adjusted under this paragraph shall be calculated on the basis of the amount of pollutants present after any treatment steps have been performed on the intake water by or for the permittee. Adjustments under this paragraph shall be made only to the extent that pollutants in the intake water which are limited in the permit are not removed by the treatment technology employed by the permittee.

6.16.7.3 Adjustments may be made only in the absence of a TMDL (in which case, effluent limitations must be based upon the wasteload allocation (WLA) established in the TMDL for the discharger) and only to the extent necessary to meet the applicable limitation or standard, up to a maximum value equal to the influent value. Intake credit determinations shall be made on a pollutant-by-pollutant and outfall-by-outfall basis. Influent, effluent and/or ambient monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

6.16.7.4 Adjustments may be made only if the Secretary determines that the timing and location of the discharge would not cause adverse water quality impacts. If the discharge is to non-attainment waters (i.e., waters that do not meet the applicable surface water quality standards), adjustments may be made only for that portionof the intake water drawn from the receiving waters.

6.16.7.5 Adjustments for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) shall not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limitations are placed on process water pollutants either at the outfall or elsewhere.

6.16.7.6 This paragraph does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

6.16.8 Discharges which are not continuous, as defined in § 6.16.3.1, shall be particularly described and limited, considering the following factors, as appropriate:

6.16.8.1 Frequency;

6.16.8.2 Total mass;

6.16.8.3 Maximum rate of discharge of pollutants during the discharge; and

6.16.8.4 Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure.

6.16.9 Where imposition of permit effluent limitations or standards at the point of discharge is impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams prior to their mixing with other waste streams or cooling water streams. In such instances the monitoring required by Part IV shall also be applied to the internal waste streams.

6.16.10 When calculating effluent limitations, standards and prohibitions, credit shall not be given for process wastes or pollutant discharges that are land applied or that are discharged somewhere other than to State waters (e.g. discharged to a POTW or to underground injection wells). In cases where a discharger utilizes a portion of its process wastes or pollutant discharges or discharges to a POTW or to an underground injection well(s) thereby reducing the flow or level of pollutants being discharged to State waters, the applicable effluent limitations and standards in the NPDES permit shall be adjusted accordingly.

6.17 Schedules of Compliance

6.17.1 When appropriate, permits may contain schedules of compliance that require the permittee to take specific steps to bring its discharge into compliance with applicable standards and limitations and other requirements. Schedules of compliance shall require compliance as soon as possible, but in no case later than an applicable statutory deadline.

6.17.2 If any permit allows a time for achieving final compliance which exceeds one year from the date of permit issuance, the schedule of compliance in the permit shall set forth interim requirements and the dates for their achievement.

6.17.2.1 In no event shall more than one year elapse between dates specified for interim requirements.

6.17.2.2 If the time necessary for completion of any interim requirements (such as the construction of a treatment facility) is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates not more than one year apart for the submission of reports of progress toward completion of the interim requirements.

6.17.2.3 Interim and final compliance dates shall, to the extent practicable, fall on the last day of the month.

6.17.3 A permittee may terminate its direct discharge by cessation of operation or discharge to a treatment works rather than achieve applicable standards and limitations by the final date for compliance established in its permit or in the Act under the following circumstances:

6.17.3.1 If the decision to terminate a direct discharge is made after issuance of a permit:

6.17.3.1.1 The permit may be modified or revoked and reissued to contain a schedule of compliance leading to termination of the direct discharge by a date which is no later than the statutory deadline; or

6.17.3.1.2 The permittee shall terminate direct discharge before noncompliance with any interim requirement specified in the schedule of compliance in the permit.

6.17.3.2 If the decision to terminate a direct discharge is made before issuance of the permit, the permit shall contain a schedule leading to termination of the direct discharge by a date which is no later than the statutory deadline.

6.17.3.3 If the permittee contemplates but has not made a final decision to terminate the direct discharge before the issuance of the permit, the permit shall contain alternative schedules leading to compliance as follows:

6.17.3.2.1 The schedule shall contain an interim requirement requiring such a final decision no later than a date which allows sufficient time to comply with applicable limitations and standards in accordance with § 6.17.3.3.3, (i.e., a milestone event for commencement of construction of control equipment); and

6.17.3.2.2 A subsequent schedule leading to termination of the direct discharge by a date which is no later than the statutory deadline; and

6.17.3.2.3 A subsequent alternative schedule leading to compliance with applicable standards and limitations, no later than the statutory date; and

6.17.3.2.4 A requirement that after the permittee has made a decision pursuant to § 6.17.3.3.1, it shall so notify the Secretary and shall:

6.17.3.2.4.1 Follow the schedule required by § 6.17.3.3.2 if the decision is to terminate its discharge; or

6.17.3.2.4.2 Follow the schedule required by § 6.17.3.3.3 if the decision is not to terminate its discharge.

6.17.4 The Secretary may, upon request of the permittee and subject to the provisions of Part V, modify a schedule of compliance in an issued permit if the Secretary determines good and valid cause (such as an act of God, strike, flood, materials shortage, or other events over which the permittee has little or no control or remedy) exists for such modification under § 6.5. In no case shall the compliance schedule be modified to extend beyond an applicable statutory deadline.

6.17.5 New sources, new dischargers, sources which recommence discharging after terminating operations and those sources which had been indirect dischargers which commence discharging into State waters do not qualify for compliance schedules under this section and are subject to § 6.64.

6.17.6 Within 14 days following each interim date, and the final date of compliance, the permittee shall provide the Secretary with written notice of the permittee's compliance or non-compliance with the interim or final requirement or shall submit progress reports specified per § 6.17.2.2.

6.18 Fact Sheet

6.18.1 A fact sheet shall be prepared for every draft permit for a major discharger, (as defined in the Memorandum of Agreement between the State and EPA), any draft permit which incorporates a variance, and every draft permit which the Secretary finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the major facts and the significant factual, legal, methodological, and policy questions considered in setting the terms of the draft permit. The Secretary shall send this fact sheet to the applicant and to any other interested person on request.

6.18.2 The fact sheet shall include:

6.18.2.1 A brief description of the type of facility or activity which is subject of the draft permit;

6.18.2.2 A quantitative description of the discharge described in the application;

6.18.2.3 A brief explanation of the express statutory or regulatory provisions on which permit requirements are based, including an identification of the designated uses for which the receiving waters have been classified;

6.18.2.4 Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions, including a citation to the applicable guideline or development documents or standard provisions, as required under § 6.15 and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed;

6.18.2.5 When appropriate, a sketch or detailed description of the location of the discharge described in the application;

6.18.2.6 Reasons requested variances or modifications do or do not appear justified;

6.18.2.7 When appropriate, a discussion of any consideration given to intake pollutants (either when adjusting technology-based effluent limitations or when assessing reasonable potential under § 8);

6.18.2.8 A description of the procedures for reaching a final decision on the draft permit including:

6.18.2.8.1 The beginning and ending dates of the comment period under § 6.30 and the address where comments will be received;

6.18.2.8.2 Procedures for requesting a hearing and the nature of that hearing; and

6.18.2.8.3 Any other procedures by which the public may participate in the final decision;

6.18.2.9 When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:

6.18.2.9.1 Limitations to control toxic pollutants under § 6.15.7;

6.18.2.9.2 Limitations on internal wastestreams under § 6.16.8; or

6.18.2.9.3 Limitations on indicator pollutants under § 6.15.7; and

6.18.2.10 Name and telephone number of a person who can provide additional information.

6.19 Statement of Basis

6.19.1 A statement of basis shall be prepared for every draft permit for which a fact sheet under Sections 6.18 is not prepared.

6.19.2 The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for their inclusion in the draft permit or, in the case of notices of intent to deny the permit application or to terminate the permit, reasons supporting the tentative decision.

6.19.3 The Secretary shall send the statement of basis to the applicant and, on request, to any other interested person.

6.20 Effect of Permit

6.20.1 Compliance with a permit during its term constitutes compliance with the Law and the Act except for any standard or prohibition imposed under § 307 of the Act for a toxic pollutant injurious to human health. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as described in Part V.

6.20.2 The issuance of a permit does not:

6.20.2.1 Convey any property rights of any sort, or any exclusive privileges;

6.20.2.2 Authorize, or relieve the permittee from liability for, any injury to private property or invasion of private rights, or any infringement of Federal, State or local laws or regulations; or

6.20.2.3 Preempt, or relieve the permittee from, any duty to obtain any required State or local approval for the activity from which the discharge results.

6.21 Duration of Permits, Continuation of Expiring Permits, and Transferability of Permits

6.21.1 Duration of Permits. All permits shall be issued for fixed terms not to exceed five years. Permits of less than five years duration may be issued in appropriate circumstances. Permits may be modified, revoked and reissued, or terminated as specified in Part V. Except for the continuation provisions of § 6.21.2 for expiring permits, the term of a permit shall not be extended beyond five years from its original date of effectiveness by modification, extension or other means.

6.21.2 Continuation of Expiring Permits.

6.21.2.1 The terms and conditions of an expired permit are automatically continued pending issuance of a new or reissued permit if:

6.21.2.1.1 The permittee has submitted a timely and sufficient application for a new or reissued permit under § 6.10 (at least 180 days prior to the permit expiration date); and

6.21.2.1.2 The Department is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit.

6.21.2.2 Permits continued under § 6.21.2.1 remain fully effective and enforceable against the discharger.

6.21.3 Transferability of Permits.

6.21.3.1 A permit may be transferred to another person by a permittee if:

6.21.3.1.1 The permittee notifies the Secretary, in writing, prior to the proposed transfer;

6.21.3.1.2 A written agreement is submitted to the Secretary, signed by all parties to the transfer, containing a specific date for transfer of permit responsibility and coverage between the current and new permittees (including acknowledgement that the existing permittee is liable for violations up to that date, and that the new permittee is liable for violations from that date on); and

6.21.3.1.3 The Department within 30 days of receipt of the notification of the proposed transfer does not notify the current permittee and the new permittee of its intent to modify, revoke and reissue, or terminate the permit and to require that a new application be filed rather than agreeing to the transfer of the permit.

6.21.3.1.4 The permittee shall provide as much advance notice of a proposed transfer to allow sufficient time for the Department to modify the permit to identify the new permittee and incorporate such other requirements as may be necessary under the Law or the Act.

6.21.3.2 Such a transferred permit shall, as of the date of transfer, be as fully effective as if it had been issued directly to the new permittee.

6.22 Variances

6.22.1 The Secretary may grant or deny requests for extensions under §301(i) or §301(k) and variances under §316(a) of the Act (subject to EPA objection pursuant to 40 CFR 123.44).

6.22.2 The Secretary may deny, or forward to EPA with a written concurrence, or without recommendation, completed requests for variances under §301(c) of the Act, based on the economic capability of the applicant, and variances based on water quality related effluent limitations under §302(b)(2) of the Act.

6.22.3 The Secretary may deny, or forward to EPA with a written concurrence, completed requests for variances based on the presence of fundamentally different factors from those on which an effluent limitation guideline was based and variances based on certain water quality factors under §301(g) of the Act.

6.22.4 The decisions made by the Secretary on variance requests shall be governed by the same procedures as requests for permit modifications under § 6.53. In evaluating variance requests the Secretary will apply the applicable criteria set forth at 40 CFR Part 125 .

Part III - Public Comments and Hearings

6.30 Public Notice of Permit Application. In addition to the public notice provisions of 7Del.C.Ch. 60, § 6004(b), the Department shall follow the procedures outlined herein when processing an application for a NPDES permit.

6.30.1 Every complete application for a NPDES permit, including any request for permit modification, revocation and reissuance or termination, shall be given public notice by publication in a newspaper of general circulation in the county, city or town in which the discharge is located and in a daily newspaper of general circulation throughout the state. Notice shall be provided when the tentative determinations have been made pursuant to § 6.12 and a draft permit prepared. A copy of the notice shall be mailed to the applicant, the agencies listed in § 6.31 and any person or group who have asked to be notified. The Secretary will maintain a mailing list of persons and groups who will be sent copies of notices for all NPDES applications. The Secretary will add the name of any person or group to that list upon written request.

6.30.2 No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under § 6.12. The Secretary shall provide written notice of such decision to the person who filed the request. In cases where the request was filed by someone other than the permittee, the permittee shall be notified as well.

6.30.3 The Secretary shall provide a period of not less than 30 days following the date of the public notice during which time interested persons may submit their written views on the tentative determinations made with respect to the NPDES application. All written comments submitted during the 30-day comment period will be retained by the Department and considered in the formulation of its final determinations with respect to the NPDES application.

6.30.4 The contents of the public notice of any application for a NPDES permit shall include the following minimum information:

6.30.4.1 Name and address of the permittee or permit applicant and if different, of the facility or activity regulated by the permit;

6.30.4.2 A brief description of the activities or operations that result in the discharge described in the permit application;

6.30.4.3 The type of discharge, the name of the receiving water and a general description of the location of each discharge point indicating whether such discharge is a new or an existing discharge;

6.30.4.4 A statement of the tentative determination to issue or deny a NPDES permit for the discharge(s) described in the NPDES application;

6.30.4.5 A brief description of the procedures by which the public may participate in the final permit decision, including the timeframe for providing comments, a description of the procedure for requesting a hearing or if the Secretary has determined to hold a public hearing, the date and time for such hearing; and

6.30.4.6 Address and phone number of the Department office at which interested persons may obtain further information, request copies of the draft permit, the statement of basis or the fact sheet and inspect and/or arrange to receive copies of the NPDES application, forms and related documents.

6.30.5 Copies of the draft permit and the statement of basis or fact sheet shall be sent to the applicant along with the copy of the public notice as outlined herein.

6.30.6 Public notices may describe more than one permit or application.

6.31 Notice to Other Government Agencies. The Secretary will notify other appropriate government agencies of each complete application for a NPDES permit and will provide such agencies an opportunity to submit their written views and recommendations.

6.31.1 At the time public notice is issued pursuant to § 6.30, a copy of the notice will be transmitted to any other State whose waters may be affected by the issuance of a NPDES permit. Upon written request, a copy of the NPDES application, a copy of the proposed draft permit prepared pursuant to § 6.12 and a copy of the statement of basis or the fact sheet will be provided. Each affected State will be afforded an opportunity to submit written recommendations to the Secretary which the Secretary may then incorporate into the permit, if issued. If the Secretary does not incorporate such written recommendations into the permit, a written explanation of the reasons for not incorporating such written recommendations shall be provided to the affected state or states, and to the EPA.

6.31.2 At the time the public notice is issued, pursuant to § 6.30, any interstate agency, which has water quality control authority over waters which may be affected by the issuance of a NPDES permit, will be provided a copy of the notice, and will be afforded an opportunity to submit its written recommendations. Copies of the complete NPDES permit application, the draft permit and the statement of basis or the fact sheet shall be provided, upon written request.

6.31.3 At the time the public notice is issued pursuant to § 6.30, a copy of the notice will be mailed to the following:

6.31.3.1 the appropriate District Engineer of the U.S. Army Corps of Engineers;

6.31.3.2 the U.S. Fish and Wildlife Service;

6.31.3.3 the National Marine Fisheries Service;

6.31.3.4 the Advisory Council on Historic Preservation;

6.31.3.5 the State Historic Preservation Officer;

6.31.3.6 the State of Delaware Department of Natural Resources and Environmental Control Division of Fish and Wildlife;

6.31.3.7 the county or local government having jurisdiction in the area where the facility or activity is located; and

6.31.3.8 any other Federal, State or local agency, if requested.

Each of the entities listed will be provided an opportunity to respond, comment and request a public hearing pursuant to § 6.33.

Copies of the NPDES permit application, the proposed draft permit and the statement of basis or the fact sheet will be provided, upon written request.

6.31.4 The agencies listed herein shall be afforded a minimum of 30 calendar days from receipt of the notice to provide comments and submit recommendations to the Secretary. In the event additional materials are requested (i.e. copies of the permit application, draft permit and statement of basis or fact sheet), the 30-day comment period shall be extended accordingly, to allow sufficient time for the agency to review the additional materials provided.

6.31.5 Any person otherwise entitled to be notified under this section may waive his or her rights to receive such notice.

6.32 Public Access to Information

6.32.1 All information pertaining to permit issuance, reissuance, modification, revocation or termination, including permit applications and attachments thereto, effluent data, comments on permit application, and draft permits and statements of basis or fact sheets, shall be available to the public. The Secretary shall not at any time disclose to any person other than appropriate officials of EPA pursuant to the requirements of the Act any information that would divulge methods or processes entitled to protection as trade secrets or that would otherwise be considered confidential business information pursuant to 29Del.C.§ 10002(d)(2). Any claims that the information is confidential must be asserted at the time of submission and the information clearly identified and denoted as such. Such trade secrets or confidential business information transmitted by the Secretary to EPA shall be subject to appropriate Federal regulations governing confidentiality of such information. If no claim is made at the time of submission, the Secretary may make the information available to the public without further notice.

6.32.2 Claims of confidentiality for the following information will be denied:

6.32.2.1 The name and address of any permittee or permit applicant;

6.32.2.2 Permit applications and any information submitted in support of the application (other than any information entitled to protection as trade secrets pursuant to State law), permits and effluent data.

6.33 Public Comments and Hearings

6.33.1 A comment period of at least 30 days following the date of public notice of the formulation of a draft permit shall be provided. During this period any interested persons may submit written comments on the draft permit and may request a public hearing by submitting a meritorious request. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact. The request for a public hearing shall be in writing and shall state the nature of the issues to be raised at the hearing. All comments shall be considered by the Secretary in preparing the final permit and shall be responded to as provided in § 6.35.

6.33.2 The Secretary may hold a public hearing, at his or her discretion, whenever there is significant public interest relevant to the proposed application. The Secretary may also hold a hearing whenever such a hearing might clarify one or more issues involved in the permit decision. Public notice of that hearing shall be given as specified in § 6.34. Nothing in this paragraph shall relieve the Secretary of the requirement to hold a hearing where a hearing is required by any applicable law or regulation.

6.33.3 Any hearing held by the Secretary shall be conducted in accordance with 7Del.C.Ch. 60, § 6006. All persons shall be given the opportunity to submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements. The submission of written statements may be required. The public comment period under § 6.30.2 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing and otherwise exercise discretion in the conduct of the hearing.

6.33.4 All persons, including the applicant, who believe any condition in the draft permit is inappropriate or that the Secretary's tentative decision to deny the application, terminate the permit or prepare a draft permit is inappropriate, must raise the issues and submit all arguments supporting their position by the close of the public comment period.

6.34 Public Notice of Hearing

6.34.1 Public Notice of any hearing held pursuant to § 6.33 shall be circulated as follows:

6.34.1.1 Notice shall be published in a newspaper of general circulation in the county or city where the discharge is located and in a daily newspaper of general circulation throughout the state;

6.34.1.2 Notice of the hearing shall be sent to all persons and government agencies which received a copy of the notice of the NPDES application;

6.34.1.3 Notice of the hearing shall be sent to all persons who requested the hearing and/or provided comments on the draft permit.

6.34.2 Notice shall be effected pursuant to §§ 6.34.2.1 and 6.34.2.2 above at least 30 days in advance of the hearing.

6.34.3 In addition to the requirements of § 6.30.3, the public notice of any hearing held pursuant to § 6.33 shall include the following:

6.34.3.1 A brief reference to the public notice issued for the NPDES application, including date of issuance unless the public notice includes the hearing notice;

6.34.3.2 Information regarding the date, time and location for the hearing;

6.34.3.3 The purpose of the hearing;

6.34.3.4 A concise statement of the issues raised by the persons requesting the hearing;

6.34.3.5 A brief reference to the rules and procedures to be followed at the hearing.

6.35 Responses to Comments

6.35.1 If the District Engineer of the Corps of Engineers advises the Secretary in writing during the 30-day public comment period that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of a permit, the permit shall be denied and the owner so notified. If the District Engineer advises the Secretary that imposing specified conditions upon the permittee is necessary to avoid any substantial impairment of anchorage or navigation, then the Secretary shall include the specified conditions in the permit. Review or appeal of a denial of a permit under this section or of conditions specified by the District Engineer shall be made through the applicable procedures of the Corps of Engineers, and may not be made through the procedures provided in this regulation.

6.35.2 If during the 30-day public comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any State or other Federal agency with jurisdiction over fish, wildlife, or public health advises the Secretary in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial risk to public health, impairment of fish, shellfish, or wildlife resources, the Secretary may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of the Law or the Act.

6.35.3 The Secretary may consult with one or more of the agencies referred to in this section before preparing a draft permit and may reflect their views in the fact sheet or the draft permit.

6.35.4 The Secretary shall ensure, to a reasonable extent, that thecomments on any draft permit have been addressed. The Secretary shall prepare a written response, indicating which provisions of the draft permit have been changed in the final permit, and the reason for the change, or, if the requested change is not made, the reason for denying the change. Any and all responses shall be available to the public, at the time the notice of a final permit decision is given as provided in § 6.36.

6.35.5 At his or her discretion, the Secretary may reopen or extend the comment period under § 6.30.2 to give interested persons the opportunity to comment on any provisions in the draft permit that were modified or on additional conditions that were to be included in response to the data, information or arguments presented during the initial comment period. Comments filed during such reopened or extended comment period shall be limited to those new or modified provisions. The public notice shall define the scope of the reopening or extension of the comment period.

6.36 Permit Issuance

6.36.1 After the close of the public comment period, the Secretary shall consider all comments made including any additional data, information or arguments presented during the public comment period and render a final permit decision. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

6.36.2 The Secretary shall notify the applicant and each person who submitted comments or requested notice of the final permit decision. The notice shall include the Secretary's response to comments (per § 6.35.4) and a reference to the procedure for appealing the Secretary's decision to the Environmental Appeals Board pursuant to 7Del.C.Ch. 60, § 6008.

6.36.3 The final NPDES permit shall become effective on the first day of the month following the issuance date, unless the issuance date is the 16th day of the month, or later. When the issuance date is the 16th day of the month or later, the final NPDES permit shall become effective on the first day of the second month following the issuance date. The effective date for any permit amendment or permit modification shall be the issuance date for the amended or modified permit.

Part IV - Permit Compliance

6.40 Monitoring

6.40.1 To assure compliance with permit terms and conditions, all permittees shall monitor as specified in the permit:

6.40.1.1 The amount, concentration, or other measurement specified in Section 6.16 for each pollutant specified in the permit;

6.40.1.2 The volume of effluent discharged from each point source; and

6.40.1.3 As otherwise specifically required in the permit, e.g., as required under Section 6.16.

6.40.2 For purposes of § 6.40.1, the Secretary shall specify the following monitoring requirements in the permit:

6.40.2.1 Requirements concerning the proper installation, use, and maintenance of monitoring equipment or methods (including biological monitoring methods when appropriate);

6.40.2.2 Monitoring frequency, type, and intervals sufficient to yield data that are representative of the volume of effluent flow and the quality and/or quantity of pollutants discharged. Variable effluent flows and pollutant quantities shall be required to be monitored at more frequent intervals than relatively constant effluent flows and pollutant quantities; and

6.40.2.3 Test procedures for the analysis of pollutants meeting the requirements of regulations issued by EPA pursuant to the Act.

6.41 Recording of Monitoring Activities and Results

The terms and conditions of any NPDES permit that require monitoring of the authorized discharge shall include the following recording requirements:

6.41.1 The permittee shall maintain records of all information resulting from any monitoring activities required in the permittee's NPDES permit;

6.41.2 Any records of monitoring activities and results shall include at least the following for all samples:

6.41.2.1 The date, place, and time of sampling or measurements;

6.41.2.2 The individual(s) who performed the sampling or measurements;

6.41.2.3 The date(s) analyses were performed;

6.41.2.4 The individual(s) who performed the analyses;

6.41.2.5 The analytical techniques/methods used; and

6.41.2.6 The results of such analyses; and

6.41.3 The permittee shall be required to maintain for a minimum of 3 years any records of monitoring activities and results, including all original strip chart recordings for continuous monitoring and instrumentation, calibration, and maintenance records. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee, or upon request of the Secretary or EPA.

6.42 Reporting of Monitoring Results and Compliance by Permittees

6.42.1 Periodic reporting shall be required by the terms and conditions of every NPDES permit issued by the Secretary. The Secretary, after giving reasonable notification to the permittee, may require more frequent reporting than that contained in the permit. Reports shall contain monitoring results obtained by the permittee pursuant to the monitoring requirements in the NPDES permit, and shall be submitted to the Secretary using the DMR.

6.42.2 If the permittee monitors its discharge for any pollutant more frequently than required by the permit, using approved analytical methods (§ 6.40.2.3), the results of this monitoring shall be reported in the DMR. For purposes of this paragraph, "approved analytical methods" are those test procedures for the analysis of pollutants which conform to EPA promulgated regulations or are specified in the permit.

6.42.3 If the permittee monitors his discharge for any pollutant that is not required to be monitored by the permit, and uses approved analytical methods (§ 6.40.2.3), the results of this monitoring shall be reported in the DMR unless the Secretary approves an alternate reporting procedure. For purposes of this paragraph, "approved analytical methods" are those test procedures for the analysis of pollutants which conform to EPA promulgated regulations.

6.42.4 Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the permit.

6.42.5 Within 14 days after each interim or final permit compliance schedule date, the permittee shall provide the Secretary with written notice of the permittee's compliance or noncompliance with the interim or final requirements.

6.43 Duty to Provide Information. The permittee shall furnish to the Secretary within a reasonable time, any information which the Secretary may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit, or to determine compliance with the permit. The permittee shall also furnish to the Secretary, upon request, copies of records required to be kept by the permittee.

6.44 Toxics Reporting and Notification Levels

6.44.1 In addition to the reporting requirements specified under § 6.42 and in the Department's regulations governing the "Reporting of a Discharge of a Pollutant or an Air Contaminant" pursuant to 7Del.C.Ch. 60, § 6028, all existing manufacturing, commercial, mining, and silvicultural dischargers must notify the Secretary as soon as they know or have reason to believe:

6.44.1.1 That any activity has occurred or will occur which would result in the discharge of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels:"

6.44.1.1.1 One hundred micrograms per liter (100 ug/L);

6.44.1.1.2 Two hundred micrograms per liter (200 ug/L) for acrolein and acrylonitrile; five hundred micrograms per liter (500 ug/L) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/L) for antimony;

6.44.1.1.3 Five (5) times the maximum concentration value reported for that pollutant in the permit application; or

6.44.1.1.4 The level established by the Secretary in accordance with § 6.44.2; and

6.44.1.2 That they have begun or expect to begin to use or manufacture as an intermediate or final product or byproduct any toxic pollutant which was not reported in the permit application.

6.44.2 The Secretary may include in a permit a "notification level" which exceeds the notification level of §§ 6.44.1.1.1, 6.44.1.1.2, or 6.44.1.1.3, upon a petition from the permittee or on the Secretary's initiative. This new notification level may not exceed the level which can be achieved by the technology-based treatment requirements appropriate to the permittee.

Part V - Permit Modification, Revocation and Reissuance, and Termination

6.50 General

6.50.1 Permits shall be modified, revoked and reissued, or terminated only as authorized in this section.

6.50.2 In order to have filed a timely application for the purposes of § 6.20.2.1, any permittee with an expiring permit shall submit an application for reissuance to the Secretary at least 180 days before the expiration date of the permit, unless permission for a later date has been granted by the Secretary.

6.51 Modification, Revocation and Reissuance, and Termination

6.51.1 An issued permit may be modified in whole or in part, revoked and reissued, or terminated during its term for cause as specified in this section.

6.51.2 Permit modifications shall not be used to extend the term of a permit beyond 5 years from the original date of issuance.

6.51.3 Modification, revocation and reissuance, or termination of an issued permit may be initiated by the Secretary under applicable provisions of this regulation. Any interested person may petition the Secretary to modify, revoke and reissue, or terminate an issued permit. All requests shall be in writing and shall contain facts or reasons supporting the request.

6.51.4 Causes for modification, revocation and reissuance, or termination include the following:

6.51.4.1 Violation of any term or condition of the permit;

6.51.4.2 Failure of the permittee to disclose fully all relevant facts in the application or during the permit issuance process or the permittee's misrepresentation of any relevant facts at any time;

6.51.4.3 A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit (e.g., plant closure, termination of discharge by connection to a POTW, the promulgation of any applicable effluent standard or prohibition under §307 of the Act, any change in State law that requires the reduction or elimination of the discharge, etc.);

6.51.4.4 Information indicating that the permitted discharge poses a threat to human health or the environment; or

6.51.4.5 A change in ownership or control of a source which has a permit, where required by the Secretary in accordance with § 6.21.3.

6.51.5 In addition to the provisions of § 6.51.4, the following are causes for modifying a permit; the following are also causes for revoking and reissuing a permit when requested by the permittee or when the permittee agrees:

6.51.5.1 Material and substantial alterations or additions to the permitted facility or activity which are not covered in the effective permit (e.g, production changes, re-location or combination of discharge points, changes in the nature or mix of products produced), provided that such alterations do not constitute total replacement of the process or production equipment causing the discharge which converts it into a new source;

6.51.5.2 The existence of a factor or factors which, if properly and timely brought to the attention of the Secretary, would have justified the application of limitations or other requirements different from those required by applicable standards or limitations, but only if the requestor shows that such factor or factors arose after the final permit was issued. For new sources or new discharges, this cause shall include any significant information derived from any effluent testing that is conducted after permit issuance;

6.51.5.3 Revision, withdrawal, or modification of water quality standards or EPA promulgated effluent limitations guidelines (including interim final effluent limitations guidelines), but only when:

6.51.5.3.1 The permit term or condition requested to be modified or revoked was based on promulgated effluent limitations guidelines or State or EPA approved or promulgated water quality standards; and

6.51.5.3.2 EPA has revised, withdrawn, or modified that portion of the effluent limitations guidelines on which the permit term or condition was based; or EPA has approved a State action with regard to a water quality standard on which the permit term or condition was based; and

6.51.5.3.3 A request for modification, or revocation and reissuance, is filed in accordance with § 6.52 within ninety (90) days after Federal Register notice of:

6.51.5.3.3.1 Revision, withdrawal, or modification of that portion of the effluent limitations guidelines; or

6.51.5.3.3.2 EPA approval of State action regarding a water quality standard;

6.51.5.3.4 Judicial remand and stay of EPA promulgated effluent limitations guidelines, if the remand and stay concerns that portion of the guidelines on which the permit term or condition was based and the request is filed within ninety (90) days of the judicial remand;

6.51.5.3.5 Any modification, or revocation and reissuance of permits specifically authorized by the Act, e.g., §§301(c), 301(g), 301(h), 301(i), 301(k) or 316(a);

6.51.5.3.6 To comply with any applicable standard or limitation promulgated or authorized under the Act, if the effluent standard or limitation so issued or approved:

6.51.5.3.6.1 Contains different conditions or is otherwise more stringent than any effluent limitations in the permit; or

6.51.5.3.6.2 Controls any pollutant not limited in the permit.

6.51.5.3.6.3 The permit as modified or reissued under this paragraph shall also contain any other requirements of the Act then applicable;

6.51.5.3.7 To modify a schedule of compliance in an issued permit for good and valid cause by a date which is no later than the statutory deadline;

6.51.5.3.8 To contain a schedule of compliance leading to termination of the discharge by a date which is no later than the applicable statutory deadline;

6.51.5.3.9 To correct any technical mistakes made in determining permit conditions, such as errors in calculation or mistaken interpretations of law;

6.51.5.3.10 When required by any "reopener" clause included in the permit;

6.51.5.3.11 As necessary under §§ 6.14, 6.17.3 and 6.17.5, and 6.73 of this regulation;

6.51.5.3.12 When the discharger has installed the treatment technology considered by the Department in setting the effluent limitations imposed under §402(a)(1) of the Act, has properly operated and maintained the facilities with reasonable diligence,but nevertheless has been unable to achieve those effluent limitations. In such cases, the limitations in the modified permit may reflect the level of pollutant control technology actually achieved, but shall not be less stringent than required by an applicable effluent limitations guideline;

6.51.5.3.13 Failure to notify a State whose waters may be affected by the discharge, as required by §402(b)(3) of the Act;

6.51.5.3.14 Establishment of "notification level" as provided in § 6.44.1.1; or

6.51.5.3.15 Modification of a schedule of compliance for a publicly owned treatment works (POTW) to reflect the time lost during construction of an innovative or alternative facility. In no case shall the compliance schedule be modified to extend beyond an applicable statutory deadline for compliance.

6.51.6 The following permit modifications shall not require public notice and opportunity for hearing under Part III unless they would render the applicable standards and limitations in the permit less stringent, or unless contested by the permittee:

6.51.6.1 Correction of typographical errors;

6.51.6.2 A change requiring more frequent monitoring or reporting by the permittee;

6.51.6.3 A change in an interim compliance date, but not beyond 120 days and not where the change would interfere with the attainment of a final compliance date;

6.51.6.4 A change in ownership or control of a source which has a permit where no other change in the permit is necessary and where transfer is accomplished in accordance with § 6.21.3; or

6.51.6.5 Deletion of a point source outfall, where the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits.

6.52 Permit Modification, Revocation and Reissuance, and Termination Initiated by the Secretary

6.52.1 When the Secretary determines that cause exists to modify, to revoke and reissue, or to terminate an issued permit as outlined in § 6.51, the Secretary shall make the tentative determinations outlined in § 6.12 and either formulate a draft permit that incorporates the changes proposed or issue a notice of intent to terminate the permit. If additional information is needed to prepare a draft permit, the Secretary may request it under § 6.10.5 or in appropriate cases, may require the submission of a complete new permit application under § 6.10.1. In the case of revoked and reissued permits, the Secretary shall require the submission of a new application.

6.52.2 When a permit is modified, only those conditions being modified are reopened. All other aspects of the permit shall remain in force until the expiration of the permit. If the permit is revoked and reissued, the entire permit is reopened and subject to revision. The draft permit in such cases, is subject to the same procedures as if the permit had expired and was being reissued. During the revocation and reissuance, the permittee shall comply with all conditions of the existing permit until a new permit is issued.

6.52.3 If the changes proposed satisfy any of the criteria for minor permit modifications in § 6.51.6, the Secretary may modify the permit without preparing a draft permit or following the procedures for public comments and an opportunity for a hearing under Part III.

6.53 Requests for Modification, Revocation and Reissuance, or Termination

6.53.1 If any person believes that a permit modification, revocation and reissuance, or termination is justified under the standards of § 6.51, he or she may request such modification, revocation and reissuance, or termination from the Secretary in writing. The request shall set forth all facts or reasons known to the permittee which may be relevant to a decision on the modification request.

6.53.2 If the Secretary agrees that the request to modify, or revoke and reissue, or terminate the permit appears to meet the requirements of § 6.51, the Secretary shall make the tentative determinations outlined in § 6.12 and either formulate a draft permit that incorporates the changes proposed or issue a notice of intent to terminate the permit. If additional information is needed to prepare a draft permit, the Secretary may request it under § 6.10.5 or in appropriate cases may require the submission of a complete new permit application under § 6.10.1. In the case of revoked and reissued permits, the Secretary shall require the submission of a new application.

6.53.3 When a request for a modification under this section is granted and a new draft permit is formulated, only those terms dependent on the request will be reopened. All other aspects of the permit will remain in force until the expiration of the permit. If the permit is revoked and reissued, the draft permit is subject to the same procedures as if the permit had expired and was being reissued. During the revocation and reissuance, the permittee shall comply with all conditions of the existing permit until a new permit is issued.

6.53.4 If the Secretary decides that the request for permit modification, revocation and reissuance, or termination does not appear to meet the requirements of § 6.51, the Secretary shall reply in writing to the requestor briefly setting forth the reasons for that decision. Denials of requests for modification, revocation and reissuance or termination are not subject to public notice, comment or hearings. Such denials may be appealed to the Environmental Appeals Board as outlined in 7Del.C.§ 6008.

Part VI - Special NPDES Program Requirements

6.60 General. The following sections describe NPDES program coverage for certain categories of point source discharges.

6.61 Animal Production Operations

6.61.1 Discharges of pollutants resulting from feedlot, animal feeding operations or animal production facilities shall be managed or controlled in accordance with the applicable provisions of 40 CFR Part 412 - Feedlots Point Source Category and the Delaware Guidelines for animal waste management and supplements as published by the University of Delaware, College of Agricultural Sciences, Agricultural Experiment Station, Cooperative Extension (i.e. "Manure Management for Environmental Protection", Cooperative Bulletin #27, and its supplements), or any regulations promulgated by the Secretary of the Department of Agriculture, with the guidance, advice and consent of the Delaware Nutrient Management Commission, pursuant to Title 3, Del.C.Ch. 22, Nutrient Management.

6.61.2 The Delaware Guidelines for animal waste management and supplements outline the conservation practices and management measures that were determined to be technically, economically and institutionally effective methods for preventing or reducing pollutant discharges resulting from the production and use of animal wastes. The guidelines provide recommended practices that comply with Department regulations for animal waste management.

6.61.3 Animal feeding operations that meet the criteria for a concentrated animal feeding operation specified in Appendix B to 40 CFR Part 122 are point sources subject to the NPDES permit program.

6.62 Concentrated Aquatic Animal Production Facilities

6.62.1 Concentrated aquatic animal production facilities as defined in § 2.0 are point sources subject to the NPDES permit program.

6.62.2 Any warm or cold water aquatic animal production facility not otherwise falling within the definitions may be designated as a concentrated aquatic animal production facility that is subject to the NPDES permit program where the facility is determined by the Secretary to be significant contributor of pollution to State waters. In making this designation, the Secretary shall consider the following factors:

6.62.2.1 The location and quality of the receiving waters;

6.62.2.2 The holding, feeding, and production capacities of the facility;

6.62.2.3 The quantity and nature of the pollutants reaching State waters; and

6.62.2.4 Other relevant factors. A permit application shall not be required from an aquatic animal production facility designated under this paragraph until the Department has conducted an on-site inspection of the facility and under the NPDES permit program has made a determination that the facility should be regulated.

6.63 Aquaculture Projects. These regulations are intended to authorize, on a selective basis, controlled discharges which would otherwise be unlawful under the Act in order to determine the feasibility of using pollutants to grow aquatic organisms which can be harvested and used beneficially. While such projects are to be encouraged, the other beneficial uses of the water must be protected as well.

6.63.1 Discharges of pollutants into aquaculture projects, as defined in § 2.0, are subject to the NPDES permit program.

6.63.2 Permits issued for discharges into aquaculture projects shall include such conditions as are necessary to comply with the applicable provisions of these regulations. Technology-based effluent limitations shall not be applied to discharges into the approved project except with respect to toxic pollutants.

6.63.3 No NPDES permit shall be issued to an aquaculture project unless:

6.63.3.1 The Secretary determines that the aquaculture project:

6.63.3.1.1 Is intended to produce a crop which has significant direct or indirect commercial value (or is intended to be operated for research into possible production of such a crop); and

6.63.3.1.2 Does not occupy a designated project area which is larger than can be economically operated for the crop under cultivation or than is necessary for research purposes.

6.63.3.2 The applicant has demonstrated to the Department's satisfaction that the use of the pollutant to be discharged to the aquaculture project will result in an increased harvest of organisms under culture over what would naturally occur in the area;

6.63.3.3 The applicant has demonstrated to the Department's satisfaction that there will be minimal adverse effects on the biota indigenous to the area and the total commercial value of the introduced species is at least equal to that of the displaced or affected indigenous biota;

6.63.3.4 The Secretary determines that the crop will not have a significant potential for human health hazards resulting from its consumption;

6.63.3.5 The Secretary determines that migration of pollutants from the designated project area to water outside of the aquaculture project will not cause or contribute to a violation of the applicable State water quality standards or the applicable effluent standards and limitations that would govern if the aquaculture project itself were considered a point source. The approval of an aquaculture project shall not result in the enlargement of any mixing zone established by the Department for the original discharge of pollutants.

6.63.4 No NPDES permit shall be issued for any aquaculture project located in the territorial sea, the waters of the contiguous zone, or the ocean, except in conformity with guidelines issued under §403(c) of the Act.

6.63.5 Designated project areas shall not include a portion of a body of water large enough to expose a substantial portion of the indigenous biota to the conditions within the designated project area. For example, the designated project area shall not include the entire width of a watercourse.

6.63.6 Any pollutants not required by or beneficial to the aquaculture crop shall not exceed the applicable standards and limitations when entering the designated project area.

6.64 New Sources and New Dischargers

6.64.1 "New source" and "new discharger" are defined in § 2.0.

6.64.2 Except as otherwise provided in an applicable new source performance standard, a building, structure, facility or installation from which there is or may be a discharge of pollutants is a "new source" if:

6.64.2.1 It is constructed at a site at which no other source is located; or

6.64.2.2 It totally replaces the process or production equipment that causes the discharge of pollutants at an existing facility; or

6.64.2.3 Its processes are substantially independent of an existing source at the same site. In determining whether the processes are substantially independent, the Department shall consider such factors as the extent to which the new facility is integrated with the existing plant and the extent to which the new facility is engaged in the same general type of activity as the existing source.

6.64.3 A source meeting the requirements of section 6.64.2 is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.

6.64.4 Construction at a site or facility where an existing source is located is cause for permit modification under Part V rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility or installation meeting the criteria in § 6.64.2, but otherwise alters, replaces or adds to existing process or production equipment.

6.64.5 Construction of a new source as defined in § 2.0 has commenced if the owner or operator has:

6.64.5.1 Begun, or caused to begin as part of a continuous construction program:

6.64.5.1.1 Any placement, assembly or installation of facilities or equipment; or

6.64.5.1.2 Significant site preparation work including clearing, excavation or removal of existing buildings, structures or facilities which is necessary for the placement, assembly or installation of new source facilities or equipment; or

6.64.5.1.3 Entered into a binding contract obligation for the purchase of facilities or equipment which are intended to be used in its operation. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering or design studies do not constitute a contractual obligation under this paragraph.

6.64.6 Effect of compliance with new source performance standards.

6.64.6.1 Except as provided in § 6.64.2, any new discharge on which construction commenced after October 18, 1972, or any new source, which meets the applicable promulgated new source performance standards before the commencement of discharge, shall not be subject to any more stringent new source performance standards, or to any more stringent technology-based standards under §301(b)(2) of the Act for the shortest of the following periods:

6.64.6.1.1 Ten years from the date that construction is completed;

6.64.6.1.2 Ten years from the date the source begins to discharge process or other non-construction related wastewater; or

6.64.6.1.3 The period of depreciation or amortization of the facility for the purposes of § 167 or 169 (or both) of the Internal Revenue Code of 1954, as amended through August 29, 2000.

6.64.6.2 The protection from more stringent standards of performance afforded by § 6.64.1.1 does not apply to:

6.64.6.2.1 Additional or more stringent permit conditions that are not technology based, e.g., conditions based on water quality standards, or effluent standards or prohibitions under §307(a) of the Act; and

6.64.6.2.2 Additional permit conditions controlling pollutants listed as toxic under §307(a) of the Act or as hazardous substances under § 311 of the Act and which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic or hazardous where control of those other pollutants has been specifically identified as the method to control the toxic or hazardous pollutant.

6.64.6.3 Where a NPDES permit issued to a source enjoying a "protection period" under § 6.64.2.1 will expire on or after the expiration of the protection period, such permit shall require the owner or operator of the source to be in compliance with the requirements of §301 of the Act and any other applicable requirements of the Act immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed except when necessary to achieve compliance with requirements promulgated less than 3 years before the expiration of the protection period.

6.64.6.4 The owner or operator of a new source, a new discharger, a source recommending discharge after terminating operations, or a source which had been an indirect discharger which commences discharging into State waters shall install and have in operating condition, and shall "start- up", all pollution control equipment required to meet the terms and conditions of its permit before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit terms and conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under 6.17.

6.64.6.5 After the effective date of new source performance standards it shall be unlawful for any owner of any new source to operate such source in violation of those standards applicable to such source.

6.65 Silvicultural Activities

Silvicultural point sources, as defined in § 2.0, are point sources subject to the NPDES permit program.

Part VII - Requirements for Pretreatment and Controlling Discharges to a POTW

6.70 Purpose and Scope

6.70.1 The regulations in this part establish the responsibilities of the Department, local governments, industry and the public in implementing the National Pretreatment Standards and in controlling pollutants that have the potential to upset, pass through or interfere with treatment processes employed at a publicly owned treatment plant (POTW) or residuals (i.e. sewage sludge, biosolids or other residuals) generated at a POTW.

6.70.2 This part applies to:

6.70.2.1 Pollutants from non-domestic sources covered by National Pretreatment Standards that are indirectly discharged into a POTW or transported by truck or rail or otherwise introduced into a POTW;

6.70.2.2 POTWs that receive wastewater from sources subject to National Pretreatment Standards; and

6.70.2.3 Any new or existing source that is subject to National Pretreatment Standards.

Sources that discharge to a sewer which is not connected to a POTW are not subject to National Pretreatment Standards.

6.70.3 The objective of these regulations are threefold:

6.70.3.1 To prevent the introduction of pollutants into POTWs that will upset or interfere with the effective operation of a POTW, including any pollutants that may preclude or otherwise interfere with the beneficial use or disposal of residuals generated at the POTW;

6.70.3.2 To prevent the introduction of pollutants into POTWs that will pass through the treatment works without being treated, or that will otherwise be incompatible with such works; and

6.70.3.3 To improve opportunities to recycle and reclaim municipal and industrial wastewaters and sludges.

6.71 Pretreatment Standards and Prohibited Discharges

6.71.1 General Prohibitions. An industrial user or indirect discharger may not introduce into any POTW any pollutant(s) which pass through the POTW without treatment, cause an upset or otherwise interfere with the effective operation of the treatment works or cause a violation of a permitted effluent limitation or applicable water quality standard. These general prohibitions and the specific prohibitions in § 6.71.2 apply to each industrial user or indirect discharger introducing pollutants into a POTW, whether or not the industrial user or indirect discharger is subject to other National Pretreatment Standards or any national, state or local pretreatment requirements.

6.71.2 Specific Prohibitions. In addition to the general prohibitions in § 6.71.1, the following pollutants shall not be introduced into a POTW:

6.71.2.1 Pollutants which create a fire or explosion hazard in the POTW, including, but not limited to, wastestreams with a closed cup flashpoint of less than 140 degrees Fahrenheit or 60 degrees Centigrade using the test methods specified in 40 CFR 261.21;

6.71.2.2 Pollutants which will cause corrosive structural damage to the POTW, but in no case discharges with pH lower than 5.0, unless the treatment works is specifically designed to accommodate such discharges;

6.71.2.3 Solid or viscous pollutants in amounts which will cause obstruction to the flow in the POTW resulting in interference;

6.71.2.4 Any pollutant, including oxygen demanding pollutants (BOD, etc.) released in a discharge at a flow rate and/or pollutant concentration which will cause interference with the POTW;

6.71.2.5 Heat in amounts which will inhibit biological activity in the POTW resulting in interference, but in no case heat in such quantities that the temperature at the influent to the treatment plant exceeds 40^oC (104^oF) unless the Secretary and the EPA Regional Administrator, upon request of the POTW, approves alternate temperature limits;

6.71.2.6 Petroleum oil, nonbiodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass through;

6.71.2.7 Pollutants which result in the presence of toxic gases, vapors, or fumes within the POTW in a quantity that may cause acute worker health and safety problems; or

6.71.2.8 Any trucked or hauled pollutants, except at discharge points designated by the POTW.

6.71.3 POTW-specific Prohibitions or Discharge Limitations

6.71.3.1 Each POTW that develops a pretreatment program under § 6.72, shall formulate and enforce specific limitations to implement the prohibitions listed in 6.71 a. and 6.71 b. Each POTW with an approved pretreatment program shall continue to develop these limits as necessary and shall effectively enforce such limits.

6.71.3.2 In cases where pollutants introduced by an industrial user or indirect discharger result in upset or interference, pass through or the violation of any applicable water quality standards, and such incidents are likely to recur, the POTW shall develop and enforce specific effluent or discharge limitations for the industrial user or indirect discharger, and all other users, as appropriate, which, together with appropriate operational changes or modifications to the treatment facilities, as are necessary to ensure renewed and continued compliance with the POTW's NPDES permit or sludge use or disposal practices.

6.71.3.3 POTW-specific limitations on indirect discharges shall not be developed and enforced without individual notice to those industrial users or indirect dischargers affected and any persons or groups who have requested such notice and an opportunity to respond.

6.71.3.4 Where specific prohibitions or discharge limitations on pollutants or pollutant parameters are developed by a POTW in accordance with § 6.71.3, such prohibitions or discharge limitations shall be deemed Pretreatment Standards for the purpose of §307(d) of the Act.

6.71.3.5 All POTWs with approved pretreatment programs shall provide a written technical evaluation of the need to revise any POTW-specific limitations within one year of reissuance of the POTW's NPDES permit, or within one year of any modifications to the POTW's NPDES permit that result in significant changes in the POTW's permitted effluent limitations, pretreatment operations, sludge use or sludge disposal methods.

6.71.4 Affirmative Defenses. An industrial user or indirect discharger shall have an affirmative defense in any action brought against it alleging a violation of prohibitions listed in §§ 6.71.1 and 6.71.2.3. through 6.71.2.7 where the industrial user or indirect discharger can demonstrate that:

6.71.4.1 It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass through or interference; and

6.71.4.2 A POTW-specific limitation designed to prevent pass through and/or interference, as the case may be, either:

6.71.4.2.1 Was developed in accordance with § 6.71.3 for each pollutant in the user's discharge that caused pass through or interference, and the user was in compliance with such POTW-specific limitation directly prior to and during the incident of pass through or interference; or

6.71.4.2.2 Has not been developed in accordance with § 6.71.3 for the pollutant(s) that caused the pass through or interference, and the user's discharge directly prior to and during the incident of pass through or interference did not change substantially in nature or constituents from the user's prior discharge activity when the POTW was operating effectively and regularly in compliance with its NPDES permit, including any applicable requirements for residuals use or disposal.

6.72 Pretreatment Program Requirements, Development and Implementation of a Pretreatment Program

6.72.1 POTWs that receive wastes from industrial users or other nondomestic sources shall control such indirect discharges or sources through permit, order or similar means to ensure compliance with the pretreatment standards and prohibitions outlined in § 6.71. In addition, such POTWs shall require any industrial users or indirect dischargers within its jurisdiction to comply with all applicable effluent standards, effluent prohibitions, pretreatment standards and other pretreatment requirements established pursuant to §§307 and 308 of the Act.

6.72.1.1 In the case of industrial users that meet the definition of "significant industrial user" in § 2.122 or identified as significant under 40 CFR 403.3(t), the control required herein shall be achieved through permits, individual control mechanisms or equivalent authorizations issued to each such user. Such control mechanisms must be enforceable and contain, at a minimum, the following conditions:

6.72.1.1.1 Statement of duration (in no case more than five years);

6.72.1.1.2 Statement of non-transferability without, at a minimum, prior notification to the POTW and provision of a copy of the existing permit, control mechanism or equivalent authorization to the new owner or operator;

6.72.1.1.3 Effluent limits based on the applicable pretreatment standards;

6.72.1.1.4 Self monitoring, sampling, reporting, notification and recordkeeping requirements, including an identification of the pollutants to be monitored, sampling location, sampling frequency, and sample type, based on the applicable pretreatment standards; and

6.72.1.1.5 Statement of applicable civil and criminal penalties for violation of any pretreatment standards and requirements, and any applicable compliance schedule. Such schedules may not extend the compliance date beyond the applicable statutory deadlines.

6.72.2 Any POTW with a total design flow greater than five million gallons per day (5 mgd) and receiving wastes from industrial users or other indirect dischargers that contain pollutants that may pass through or interfere with the operation of the POTW or that are otherwise subject to pretreatment standards, shall develop and administer a pretreatment program to control the introduction of such pollutants or indirect discharges as outlined in these regulations. Such pretreatment program shall meet the criteria set forth in 40 CFR Part 403.8(f) and include any other provisions needed to ensure compliance with any applicable pretreatment standards and requirements.

6.72.3 The Secretary may require that a POTW with a design flow of five million gallons per day (5 mgd) or less develop a pretreatment program if he or she finds that the circumstances warrant such requirement in order to prevent interference with the operation of the POTW or pass through (e.g. the nature or volume of the indirect discharge or combination of indirect discharges is such that it affects or may affect the operation of the POTW; incidents of treatment process upsets; violation(s) of the POTW's effluent limitations; contamination of the POTW's sludge; or violations of surface water quality standards).

6.72.4 Timeframes for Pretreatment Submission and Implementation

6.72.4.1 Any POTW identified as being required to develop a pretreatment program under § 6.72.3 shall do so and submit such program to the Secretary as soon as possible, but in no case later than one year after being notified of such identification. The Secretary shall then forward the POTW's submission to the EPA Regional Administrator for approval, with or without comments or a recommendation to approve the proposed program.

6.72.4.2 In the event there is insufficient time for the Secretary to review and forward to the EPA Regional Administrator a POTW's submission in advance of the one year deadline specified in 40 CFR 403.8(b) for submitting a pretreatment program for approval, the POTW shall submit its pretreatment program to both the EPA Regional Administrator and the Secretary.

6.72.4.3 The approved pretreatment program shall be implemented within the timeframe established in the POTW's NPDES permit. A reasonable schedule for implementing any newly-approved pretreatment programs or any substantial changes to established programs shall be provided in the permit, but shall not exceed three years.

6.73 The Department's Role in Implementing Pretreatment Standards and Controlling Discharges to a POTW

6.73.1 In order to meet the objectives in § 6.70.3 and to ensure POTW and/or industrial user compliance with any applicable pretreatment requirements, discharge standards or prohibitions, the Secretary may:

6.73.1.1 Incorporate the POTW's approved pretreatment program as an enforceable condition in the POTW's NPDES permit;

6.73.1.2 Include in the POTW's NPDES permit any conditions or requirements necessary to prevent or control the introduction of pollutants into the POTW that will pass through the treatment works, upset treatment processes or otherwise interfere with the effective operation of the POTW, or preclude the beneficial use or disposal of residuals generated at the plant;

6.73.1.3 Require any POTW to develop, submit for approval, administer and enforce a pretreatment program;

6.73.1.4 Require compliance by industrial users with pretreatment standards, discharge limitations or prohibitions;

6.73.1.5 Require any POTW or industrial user to submit reports, monitor activities and maintain records to ensure compliance with pretreatment conditions, standards or requirements;

6.73.1.6 Conduct inspections, surveillance and monitoring activities that will determine, independent of any information supplied by the POTW, whether the POTW is in compliance with any pretreatment conditions incorporated into the POTW's NPDES permit;

6.73.1.7 Conduct inspections, surveillance and monitoring activities that will determine, independent of any information supplied by the industrial user, whether the industrial user is in compliance with pretreatment standards; or

6.73.1.8 Seek penalties and injunctive relief as provided under state law, including 7Del. C.§§ 6005 and 6013, for noncompliance by the POTW with pretreatment conditions incorporated into the POTW's NPDES permit and for noncompliance with pretreatment standards by industrial users, even if a POTW has acted to seek such relief (e.g. if the POTW has sought a penalty which the Secretary finds to be insufficient).

7 Del. Admin. Code § 7201-6.0