7 Del. Admin. Code § 7201-9.0
Introduction. This section of the regulations, the General Permit Program, is designed to provide NPDES permit coverage to a specified group, category or class of discharges that are substantially similar in nature or type of pollutants discharged. These regulations outline the general provisions or requirements that apply to all discharges within the specified category. This approach eases the administrative burden of developing and issuing a large number of individual NPDES permits for essentially the same type of discharge. By issuing general permits, the Department can provide a quicker and less expensive mechanism for the regulated community to obtain permit coverage. It also allows staff resources to concentrate on discharges that may have more significant potential for impacting the quality of Delaware's surface waters.
General NPDES Permits as defined by federal regulations in 40 C.F.R. § 122.28, authorize a category of discharges from sources within a defined area that share certain similarities. General NPDES Permits are self-implementing standards applicable to multiple dischargers that the DNREC has determined can best be regulated as a class. Conversely, individual NPDES permits are issued to a potential discharger who applies for a permit with special conditions specifically tailored to the discharger. Thus, a General NPDES Permit is an agency statement of general applicability and future effect that implements and prescribes law and as such is a regulation.
Although no individual permits will be issued to the categories of dischargers covered by this section of the regulations, the subsections dealing with each category may be referred to as "General NPDES Permits" and the entire Section of these regulations may be referred to as the "General NPDES Permit Program."
In order to obtain coverage under this section of these regulations (the General NPDES Permit Program), most persons will be required to file with the Department a Notice of Intent to be covered in accordance with 40 C.F.R. § 122.28(b)(2). The Department will consider this the equivalent of an NPDES Permit application for a General NPDES Permit.
§ 9.1 provides NPDES permit coverage for storm water discharges associated with industrial activity. Industrial activity is that which is directly related to manufacturing, processing, raw material handling or waste handling. The regulations in §1 seek to define a program for controlling material handling and other industrial activities such that the potential for exposing significant materials to precipitation and the subsequent transport of such materials via storm water runoff or infiltration is eliminated or minimized to the maximum extent practicable. Significant materials are those substances, products or wastes that become exposed to precipitation as a result of the industrial activity and potentially contribute pollutants to storm water runoff or storm water infiltration. The types of activities or categories of industries covered under this subsection are listed in § 9.1.1.1, as well as in the federal regulations, 40 CFR Part 122.26(b)(14).
§ 9.1 consists of general provisions that apply to each category of industrial activity specified in § 9.1.1.1. Part 2 outlines specific provisions applicable to storm water discharges associated with land disturbing activities (i.e. construction activities). The regulations in Part 2 are designed to mesh NPDES permit program requirements with existing provisions for sediment and erosion control under 7 Del.C. Ch. 40 and the Delaware Sediment and Stormwater Regulations. The remaining Parts under Subsection 1 outline category-specific storm water requirements that are tailored to the activity conducted.
§§ 9.2 through 9.6 provide NPDES permit coverage for the following categories of discharges: discharges from aquaculture or aquatic animal production facilities; discharges from the clean up of gasoline and fuel oil released from underground storage tanks; discharges from feedlot or concentrated animal feeding operations; discharges associated with car washes and other motor vehicle washing operations; and discharges associated with the operation of swimming pools and spas.
As used in this Subsection, the following terms shall be defined as outlined herein:
Appropriate Plan Approval Agency means the Department, Conservation District, county, municipality, or State agency that is responsible in a jurisdiction for review of a Sediment and Stormwater Management Plan.
Best Available Control Technology (BACT) means the latest stage of development (state of the art) of processes, facilities, measures of operation, indicating the practical suitability of such processes, facilities, and measures and methods for preventing or reducing the discharge of pollutants. In determining the BACT, special consideration is given to comparable measures, technological advances, changes in scientific understanding, economic feasibility, time limitations and harmful effects that are likely as a result of the discharge of pollutants.
Background Concentration means the concentration of a substance that is consistently present and naturally occurring, or that is the result of human activities unrelated to a discharge or release from the facility. Background concentrations can be divided into two (2) classes: naturally occurring background concentrations and anthropogenic background concentrations.
Naturally Occurring Background Concentration means the concentration of a substance present in the environment, which has not been influenced by humans and which existed before any industrial activities occurred at a facility. Because most organic compounds are not naturally occurring, the term background concentration refers to inorganic metals that are commonly found in soil. However, some organic compounds associated with petroleum hydrocarbons may be present at naturally occurring concentrations because of natural events such as decaying organic matter.
Anthropogenic Background Concentration means the concentration of substances present in the environment, which are caused by humans and which originate from off-site sources such as industry, automobiles and agriculture. Anthropogenic concentrations generally result from indirect human activities that are unrelated to waste management and industrial activities at a facility. Common examples of these indirect activities are deposition of hazardous substances from automobile and industrial emissions, and widespread use or application of hazardous substances such as pesticides. The key aspects of anthropogenic concentrations are that they are not specifically related to facility activities and that they occur at uniformly low concentrations across a wide region.
Both classes of background concentrations have equal applicability. At any given site, naturally occurring and anthropogenic concentrations may be present.
Benchmark Concentration: means a pollutant concentration used by Part 1 of this Subsection as a threshold, below which a pollutant is considered unlikely to cause a water quality violation and above which it may. Benchmark concentrations are not water quality criteria and site-specific conditions must still be considered to determine if an actual water quality violation exists.
Best Management Practices (BMP's) means schedules of activities, prohibition of practices, maintenance procedures, and other management practices or measures to prevent or reduce the discharge of pollutants. BMPs include the following, among other practices and measures: structural and non-structural controls; treatment requirements; and operating procedures and practices to control plant site runoff, or sludge disposal, or waste disposal, or spillage, or leaks, or drainage from raw materials storage.
Certified Construction Reviewer (CCR) means those individuals, having passed a Department-sponsored or approved training course, who provide on-site inspection for sediment control and storm water management in accordance with the "Delaware Sediment and Stormwater Regulations."
CFR means the Code of Federal Regulations.
Clean Water Act means 33 U.S.C. 1251 et seq. (formerly known as the Federal Water Pollution Control Act Amendment of 1972).
Clean Water Act, Section 303(d) LIST: means a list of all surface waters in the State for which beneficial uses of the water - such as for drinking, recreation, aquatic habitat, and industrial use - are impaired by pollutants. These are water quality limited estuaries, lakes and streams that fall short of the State's Surface Water Quality Standards (SWQS). Waters placed on the 303(d) list require the preparation of Total Maximum Daily Loads (TMDLs).
Co-Located Industrial Activities means a facility where multiple categories of industrial activities are conducted on-site. An activity at a facility is not considered co-located if the activity, when considered separately, does not meet the description of a category of industrial activities identified in § 9.1.01.1. A.
CoPermittee means a discharger of storm water associated with construction activity who is jointly and individually responsible for compliance with all conditions of this Subsection and applicable laws with another entity.
Comparable Level means an estimated level of environmental benefit, related to the quality of the storm water discharges, equivalent to what would be achieved by implementing the requirements described under "Storm Water Plan" (§ 9.1.5)
Construction Activity means clearing, grading and excavating activities that result in a land disturbance equal to or greater than one (1) acre, including the disturbance of less than one acre of land that is part of a larger common plan of development or sale that will ultimately disturb more than one acre.
Department means the State of Delaware Department of Natural Resources and Environmental Control.
Discharge of Storm Water Associated with Industrial Activities means storm water runoff that exits any system that is used for collecting and conveying storm water that originates from manufacturing, processing, or raw materials storage areas at an industrial facility. The term does not include discharges from facilities or activities excluded from the NPDES program under 40 CFR Part 122 . For the categories of industrial activities identified in § 9.1.1.1, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas for raw materials, and intermediate and finished products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water. The definition is restricted, for the purposes of this Subsection, to those storm water discharges that qualify for authorization under the provisions of this Subsection (on an outfall by outfall consideration).
Effective Date means the date when these regulations have formally passed through a public comment period, a public hearing and have been formally adopted by the Department and start being operative.
Emergency means a situation in which human safety is at risk and/or significant destruction of property is a possibility.
Enclosed Area means an area which consists of an impervious surface, such as a floor, that is shielded from precipitation and storm water run-on.
Equivalent Best Management Practices (BMP's) means operational, source control, treatment, or innovative BMPs which result in equal or better quality of storm water discharge to surface water or to ground water than BMPs selected from section 9.1.9.
Facility means any building; any structure; any complex of buildings or structures; or any process, production, equipment or machinery which makes it possible for an industrial activity to be conducted.
General Permit means a permit which covers multiple discharges of a point source category within a designated geographical areas, in lieu of individual permits being issued to each discharge.
GRAB Sample means an individual sample collected in less than 15 minutes.
Good Housekeeping Practices means the maintenance of an orderly work environment in order to minimize material losses and prevent unnecessary waste generation through routine procedures. Good housekeeping practices must include measures to eliminate or reduce the exposure of garbage and refuse materials to precipitation or runoff prior to their disposal. Typical good housekeeping practices include activities that are performed on a daily basis by employees during the course of normal work activities. Good housekeeping practices not only contribute to the prevention of accidents, but also support employee health and safety programs, eliminate wastes and generally prevent the deterioration of facility property and equipment.
Inactive Industrial Facility means a facility that is no longer actively engaging in industrial activity (i.e., no longer engaging in business, production, the provision of services or any auxiliary operation) but either still has industrial materials stored on-site or that may resume industrial activity at any time.
Impervious Surface means a hard surface area which either prevents or retards the entry of water into the soil mantle at a rate lower than that present under natural conditions prior to development; and/or a hard surface area which causes water to runoff the surface in greater quantities and at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, roof tops, walkways, patios, driveways, parking lots, storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, or other surfaces which similarly impeded the natural infiltration of surface and storm water runoff.
Individual Permit means a permit which is written for one specific facility or site.
Industrial Activity refers to the eleven (11) categories of industrial activities included in the definition of "storm water discharges associated with industrial activities", 40 CFR 122.26(b)(14). These activities are indicated in § 9.1.1.1. of this Subsection.
Industrial Materialsmeans substances, products, or wastes that are exposed to precipitation and that can potentially contribute pollutants to storm water runoff or storm water infiltration (Materials which cannot contribute pollutants to storm water runoff are not considered Industrial Materials. Industrial materials or activities include, but are not limited to: material handling equipment or activities; industrial machinery; raw materials; intermediate products; by-products; final products; or waste products, however packaged.
Maintenance means the work required to keep vehicles, equipment and/or machinery in proper condition (e.g. painting, paint removal, sanding, grinding, washing, fueling, cleaning, repair, lubrication, replacement of parts or structures, draining or replacing fluids).
Material Handling Activities means the storage, loading, unloading, transportation, or conveyance of any raw material, intermediate product, finished product, by-product or waste product. The term excludes areas located on facility lands separate from the facility's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the previous described areas.
Municipal Separate Storm Sewer System means a conveyance system which is not intended to convey anything but storm water and is owned by a municipal or public entity.
National Pollutant Discharge Elimination System (NPDES) means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits for the discharge of any pollutant or combination of pollutants and imposing and enforcing pretreatment and sludge requirements pursuant to Sections 307, 402, 318, and 405 of the Clean Water Act.
NPDES Permit means any permit authorizing the potential or actual point source discharge of pollutants to State waters, under prescribed conditions, pursuant to Section 6 of the State of Delaware "Regulations Governing the Control of Water Pollution."
"No Exposure" means a condition where all industrial materials and activities are protected by storm resistant shelters, or equivalent measures, so that they are not exposed to rain, snow, snowmelt, or runoff.
"No Exposure" Certification Form serves as facility affirmation that a condition of "no exposure" exists. By receiving Department approval of the submitted "No Exposure" Certification Form, the facility is covered under this Subsection; however excluded from having to comply with requirements of § 9.1.4. (Monitoring) and § 9.1.5. (Storm Water Plan) of this Subsection.
Non-Contact Cooling Water means that which is contained within a leak-free system, i.e., has no contact with any gas, liquid or solid other than the container used for transport.
Non-Structural Controls means practices that are specifically intended to reduce the amount of pollution getting into surface waters. Non-structural controls are generally implemented to address the problem at the source. They do not require any structural changes to the facility. Examples of non-structural control practices include good housekeeping practices and preventative maintenance programs.
Notice of Intent Form serves as an application for NPDES permit coverage under this Subsection.
Operator means the owner or person that is responsible for the management of an industrial facility subject to the provisions of this Subsection.
Operational Control means the responsibility for managing a construction activity subject to the provisions of this Subsection.
PART means a component of Subsection 1.
Permit Coverage means an authorization granted to a category of storm water discharges pursuant to this Subsection.
Permittee means any person to whom coverage under this Subsection has been granted.
Person means any individual, trust, firm, partnership, corporation (including a government corporation), association, institution, enterprise, federal agency, state, municipality, commission, agency, political subdivision of a State or any interstate body, or an agent or employee thereof.
Pervious Surface means a surface area that allows the entry of water into the soil mantle at a rate present under natural conditions.
Qualified Facility Personnel means personnel that are trained and responsible for performing tasks which are related to Significant Material management.
Residual means a solid waste that consists of the accumulated solids and associated liquids which are by-products of a physical, chemical, biological, or mechanical process.
Secretary means the Secretary of the State of Delaware Department of Natural Resources and Environmental Control or his duly authorized designee.
Sediment and Stormwater Plan means an engineered plan developed in accordance with the requirements of the Delaware Sediment and Stormwater Law and Regulations.
Significant Quantities means the volume, concentrations, or mass of a pollutant that can cause or threaten to cause pollution, contamination, or nuisance; adversely impact human health or the environment; and/or cause or contribute to a violation of any applicable water quality standard for the receiving water.
Significant Spills means including, but not limited to, releases of oil or hazardous substances in excess of reportable quantities under Section 311 of the Clean Water Act or Section 102 of CERCLA.
Storm-Resistant Shelters means the mechanism(s) by which facilities limit the exposure of industrial materials to precipitation and runoff. Storm resistant shelters include completely roofed and walled buildings or structures, as well as structures with only a top cover but no side coverings, provided material under the structure is not otherwise subject to any run-on and subsequent runoff of storm water.
Storm Water means run-on or runoff of water from the surface of the land resulting from precipitation or snow or ice melt.
Storm Water Associate with Industrial Activities refers to storm water, that if allowed to discharge, would constitute a storm water discharge associated with industrial activities as defined in 40 CFR 122.26(b)(14).
Structural Controls means curbs, dikes, berms, walls, sheds, impervious pads, ditches, diversions or other structures which limit the contribution of Industrial Materials to storm water discharges from a facility.
These Regulations means the State of Delaware Regulations Governing Storm Water Discharges Associated with Industrial Activity (Subsection 1).
"Total Maximum Daily Load"or "TMDL" means the amount of a given pollutant that may be discharged to a waterbody from point, nonpoint and natural background sources and still allow attainment or maintenance of the applicable narrative and numerical water quality standards. A "TMDL" is the sum of the individual wasteload allocations (WLAs) for point sources and load allocations (LAs) for nonpoint sources of pollution and natural background. A "TMDL" may include a reasonable margin of safety (MOS) to account for uncertainties regarding the relationship between mass loading and resulting water quality. In simplistic terms, a "TMDL" attempts to match the strength, location and timing of pollution sources within a watershed with the inherent ability of the receiving water to assimilate the pollutant without adverse impact.
Transferee means the person who accepts permit responsibility from the original permittee.
Transfer of Authorization means to transfer control of permitted activities on a construction site to either a duly authorized person who will control the permitted activities, or a new owner/operator for the site which the permit has been issued.
Transferor means the original permittee who transfers permit responsibility to another entity.
Water Priority Chemicals means the list of chemicals presented in Appendix A of these Regulations. Appendix A is a list of chemicals or chemical categories which:
are listed at 40 CFR 372.65 pursuant to Section 313 of Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986; also titled the Emergency Planning and Community Right-to-Know Act of 1986;
are present at or above threshold levels at a facility subject to SARA Title III, Section 313 reporting requirements; and that meet at least one of the following criteria:
are listed in Appendix D of 40 CFR 122 on either Table II (organic priority pollutants), Table III (certain metals, cyanides, and phenols) or Table V (certain toxic pollutants and hazardous substances);
are listed as hazardous substances pursuant to Section 311(b)(2)(A) of the Clean Water Act at 40 CFR 116.4; or
are pollutants for which EPA has published acute or chronic water quality criteria.
Waters of the State means all water, on the surface and under the ground, wholly or partially within, or bordering the State of Delaware, or within its jurisdiction including but not limited to:
* Waters which are subject to the ebb and flow of the tide including, but not limited to, estuaries, bays and
* the Atlantic Ocean;
* All interstate waters, including interstate wetlands;
* All other waters of the State, such as lakes, rivers, streams (including intermittent and ephemeral streams), drainage ditches, tax ditches, creeks, mudflats, sandflats, wetlands, sloughs, or natural or impounded ponds;
* All impoundments of waters otherwise defined as waters of the State under this definition; and
* Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in (a) through (d).
* Waste and storm water treatment systems including, but not limited to, treatment ponds or lagoons designed to meet the requirements of the Clean Water Act (other than cooling ponds which otherwise meet the requirements of subparagraphs (1) through (5) of this definition) are not "waters of the State."
Storm water discharges from facilities engaging in industrial activities are point source discharges of pollutants and are subject to the National Pollutant Discharge Elimination System (NPDES) Permit Program requirements of Section 6 of the State of Delaware "Regulations Governing the Control of Water Pollution." Section 6 requires storm water discharges associated with industrial activities to comply with the requirements set forth within this Subsection. This Subsection does not include discharges from facilities or activities excluded from the NPDES Program, as identified by Section 6.
Coverage under this Subsection authorizes discharges of storm water associated with industrial activities from regulated facilities to waters of the State or to municipal separate storm sewer systems (MS4s). Private entities, State and local government facilities are required to obtain coverage under this Subsection for both new and existing facilities. Storm water discharges that must be covered under this Subsection include, but are not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling activities; refuse sites; sites used for the application or disposal of process waste waters (as defined at 40 CFR § 401); sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and finished products; and areas where industrial activity has taken place in the past and Industrial Materials remain.
This Subsection contains effluent limitations and requirements applicable to industrial activities that are eligible for coverage.
Owners or operators of facilities identified in subparagraphs 9.1.1.1.2.1 and 9.1.1.1.2.2 below must obtain authorization to discharge storm water under this Subsection (The General Permit Program). Unless otherwise precluded, such facilities are eligible for coverage under this Subsection. Commercial facilities that do not perform any of the activities identified in subparagraphs 9.1.1.1.2.1 and 9.1.1.1.2.2 are not required to obtain coverage unless specifically designated in writing by the Director as a Sector "AD" facility.
SIC Code or Activity Code | ACTIVITY REPRESENTED |
Sector A: Timber Products | |
2421 | General Sawmills and Planning Mills |
2491 | Wood Preserving |
2411 | Log Storage and Handling |
2426 | Hardwood Dimension and Flooring Mills |
2429 | Special Product Sawmills, Not Elsewhere Classified |
2431-2439 (except 2434) | Millwork, Veneer, Plywood and Structural Wood |
2448, 2449 | Wood Containers |
2451, 2452 | Wood Buildings and Mobile Homes |
2493 | Reconstituted Wood Products |
2499 | Wood Products, Not Elsewhere Classified |
Sector B: Paper and Allied Products | |
2611 | Pulp Mills |
2621 | Paper Mills |
2631 | Paperboard Mills |
2652-2657 | Paperboard Containers and Boxes |
2671-2679 | Converted Paper and Paperboard Products, Except Containers and Boxes |
Sector C: Chemical and Allied Products | |
2812-2819 | Industrial Inorganic Chemicals |
2821-2824 | Plastics Materials and Synthetic Resins, Synthetic Rubber, Cellulosic and Other Manmade Fibers Except Glass |
| 2833-2836 | Medicinal Chemicals and Botanical Products, Pharmaceutical Preparations, Invitro and Invivo Diagnostic Substances and Biological Products Except Diagnostic Substances |
| 2841-2844 | Soaps, Detergents and Cleaning Preparations, Perfumes, Cosmetics and Other Toilet Preparations |
| 2851 | Paints, Varnishes, Lacquers, Enamels and Allied Products |
| 2861-2869 | Industrial Organic Chemicals |
| 2873-2879 | Agricultural Chemicals (including facilities that make fertilizer solely from leather scraps and leather dust) |
| 2891-2899 | Miscellaneous Chemical Products |
| 3952 (limited to list) | Inks and Paints, Including China Painting Enamels, India Ink, Drawing Ink, Platinum Paints for Burnt Wood or Leather Work, Paints for China Painting, Artist's Paints and Artist's Watercolors |
| Sector D: Asphalt Paving and Roofing Materials and Lubricants | |
| 2951, 2952 | Asphalt Paving and Roofing Materials |
| 2992, 2999 | Miscellaneous Products of Petroleum and Coal |
| Sector E: Glass Clay, Cement, Concrete and Gypsum Products | |
| 3211 | Flat Glass |
| 3221, 3229 | Glass and Glassware, Pressed or Blown |
| 3231 | Glass Products Made of Purchased Glass |
| 3281 | Cut Stone and Stone Products |
| 3291-3292 | Abrasive and Asbestos Products |
| 3296 | Mineral Wool |
| 3299 | Nonmetallic Mineral Products, Not Elsewhere Classified |
| 3241 | Hydraulic Cement |
| 3251-3259 | Structural Clay Products |
| 3261-3269 | Pottery and Related Products |
| 3297 | Non-Clay Refractories |
| 3271-3275 | Concrete, Gypsum and Plaster Products |
| 3295 | Minerals and Earth's, Ground or Otherwise Treated |
| Sector F: Primary Metals | |
| 3312-3317 | Steel Works, Blast Furnaces and Rolling and Finishing Mills |
| 3321-3325 | Iron and Steel Foundries |
| 3331-3339 | Primary Smelting and Refining of Nonferrous Metals |
| 3341 | Secondary Smelting and Refining of Nonferrous Metals |
| 3351-3357 | Rolling, Drawing, and Extruding of Nonferrous Metals |
| 3363-3369 | Nonferrous Foundries (Casting) |
| 3398, 3399 | Miscellaneous Primary Metal Products |
| Sector G: Metal Mining (Ore Mining and Dressing) | |
| 1011 | Iron Ores |
| 1021 | Copper Ores |
| 1031 | Lead and Zinc Ores |
| 1041, 1044 | Gold and Silver Ores |
| 1061 | Ferroalloy Ores, Except Vanadium |
| 1081 | Metal Mining Services |
| 1094, 1099 | Miscellaneous Metal Ores |
| Sector H: Coal Mines and Coal Mining Related Facilities | |
| 1221-1241 | Coal Mines and Coal Mining-Related Facilities |
| Sector I: Oil and Gas Extraction and Refining | |
| 1311 | Crude Petroleum and Natural Gas |
| 1321 | Natural Gas Liquids |
| 1381-1389 | Oil and Gas Field Services |
| 2911 | Petroleum Refineries |
| Sector J: Mineral Mining and Dressing | |
| 1411 | Dimension Stone |
| 1422-1429 | Crushed and Broken Stone, Including Rip Rap |
| 1481 | Nonmetallic Minerals Services, Except Fuels |
| 1442, 1446 | Sand and Gravel |
| 1455, 1459 | Clay, Ceramic and Refractory Minerals |
| 1474-1479 | Chemical and Fertilizer Mineral Mining |
| 1499 | Miscellaneous Nonmetallic Minerals, Except Fuels |
| Sector K: Hazardous Waste Treatment, Storage, or Disposal Facilities | |
| HZ | Hazardous Waste Treatment, Storage, or Disposal Facilities subject to the "Delaware Regulations Governing Solid Waste" (DRGSW) |
| Sector L: Landfills and Land Application Sites | |
| LF | Landfills, Land Application Sites and Open Dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this Subsection) subject to the DRGSW. |
| Sector M: Automobile Salvage Yards* | |
| 5015 | Automobile Salvage Yards |
| Sector N: Scrap Recycling Facilities* | |
| 5093 | Scrap Recycling Facilities |
| Sector O: Steam Electric Generating Facilities | |
| SE | Steam Electric Generating Facilities |
| Sector P: Land Transportation and Warehousing** | |
| 4011, 4013 | Railroad Transportation |
| 4111-4173 | Local and Highway Passenger Transportation |
| 4212-4231 | Motor Freight Transportation and Warehousing |
| 4311 | United States Postal Service |
| 5171 | Petroleum Bulk Stations and Terminals |
| Sector Q: Water Transportation** | |
| 4412-4499 | Water Transportation |
| Sector R: Ship and Boat Building or Repairing Yards | |
| 3731, 3732 | Ship and Boat Building or Repairing Yards |
| Sector S: Air Transportation | |
| 4512-4581 | Air Transportation Facilities |
| Sector T: Treatment Works*** | |
| TW | Treatment Works |
| Sector U: Food and Kindred Products | |
| 2011-2015 | Meat Products |
| 2021-2026 | Dairy Products |
| 2032 | Canned, Frozen and Preserved Fruits, Vegetables and Food Specialties |
| 2041-2048 | Grain Mill Products |
| 2051-2053 | Bakery Products |
| 2061-2068 | Sugar and Confectionary Products |
| 2074-2079 | Fats and Oils |
| 2082-2087 | Beverages |
| 2091-2099 | Miscellaneous Food Preparations and Kindred Products |
| 2111-2141 | Tobacco Products |
| Sector V: Textile Mills, Apparel, and Other Fabric Product Manufacturing, Leather and Leather Products | |
| 2211-2299 | Textile Mill Products |
| 2311-2399 | Apparel and Other Finished Products Made From Fabrics and Similar Materials |
| 3131-3199 (except 3111) | Leather Products |
| Sector W: Furniture and Fixtures | |
| 2511-2599 | Furniture and Fixtures |
| 2434 | Wood Kitchen Cabinets |
| Sector X: Printing and Publishing | |
| 2711-2796 | Printing, Publishing, and Allied Industries |
| Sector Y: Rubber, Miscellaneous Plastic Products and Miscellaneous Manufacturing Industries | |
| 3011 | Tires and Inner Tubes |
| 3021 | Rubber and Plastics Footwear |
| 3052, 3053 | Gaskets, Packing and Sealing Devices, and Rubber and Plastics Hose and Belting |
| 3061, 3069 | Fabricated Rubber Products, Not Elsewhere Classified |
| 3081-3089 | Miscellaneous Plastics Products |
| 3931 | Musical Instruments |
| 3942-3949 | Dolls, Toys, Games and Sporting and Athletic Goods |
| 3951-3955 (except 3952 facilities as specified in Sector C) | Pens, Pencils, and Other Artists' Materials |
| 3961, 3965 | Costume Jewelry, Costume Novelties, Buttons and Miscellaneous Notions, Except Precious Metals |
| 3991-3999 | Miscellaneous Manufacturing Industries |
| Sector Z: Leather Tanning and Finishing | |
| 3111 | Leather Tanning and Finishing |
| Sector AA: Fabricated Metal Products | |
| 3411-3499 | Fabricated Metal Products, Except Machinery and Transportation Equipment and Cutting, Engraving and Allied Services |
| 3911-3915 | Jewelry, Silverware and Plated Ware |
| 3479 | Coating, Engraving and Allied Services |
| Sector AB: Transportation Equipment, Industrial or Commercial Machinery | |
| 3511-3599 (except 3571, 3579) | Industrial and Commercial Machinery (Except Computer and Office Equipment - see Sector AC) |
| 3711-3799 (except 3731, 3732) | Transportation Equipment (Except Ship and Boat Building and Repairing - see Sector R) |
| Sector AC: Electronic, Electrical, Photographic and Optical Goods | |
| 3612-3699 | Electronic, Electrical Equipment and Components, Except Computer Equipment |
| 3812-3873 | Measuring, Analyzing and Controlling Instrument, Photographic and Optical Goods, Watches and Clocks |
| 3571-3579 | Computer and Office Equipment |
| Sector AD: Non-Classified Facilities | |
| N/A | Other storm water discharges designated by the Department as needing a permit or any facility discharging storm water associated with industrial activities not described by any of Sectors A-AC. Note: Facilities may not elect to be covered under Sector AD. Only the Department may assign a facility to Sector AD. |
| * Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers and salvage yards, including but not limited to those classified as Standard Industrial Classification codes 5015 [Motor Vehicle Parts, Used] and 5093 [Scrap & Waste Materials], but not including recycling collection centers consisting solely of "igloos" or similar structures. | |
| ** Only those portions of the facility that are involved in vehicle maintenance activities (including vehicle rehabilitation, mechanical repairs, painting, fueling and lubrication), equipment cleaning operations, and/or airport deicing operations are associated with industrial activity. | |
| *** Treatment works with a design flow of one (1) million gallons per day or more treating domestic sewage or any other sewage sludge or waste water treatment device or system, used in the storage, treatment, recycling and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that are located within the confines of the facility, or required to have an approved pretreatment program under 7 Del.C. § 6033. Not included are farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with 40 C.F.R. § 503 . | |
Facilities conducting industrial activities identified by two (2) or more sectors indicated in subparagraph 9.1.1.1.2.2 above, must comply with all applicable sector-specific requirements indicated in this Subsection. The extra sector-specific requirements apply only to areas of the facility where the extra-sector activities occur.
The following discharges and activities are eligible for coverage under this Subsection (NPDES General Permit Program).
The following discharges and activities are not eligible for coverage under this Subsection (General Permit Program).
Any person subject to this Subsection shall allow the Department to:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for willful violations."
Any person subject to this Subsection shall at all times properly operate and maintain all facilities, systems and practices of pollution control which are installed, or implemented to achieve compliance with the requirements of this Subsection and with the measures of the Storm Water Plan.
It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
Any person subject to this Subsection shall take all reasonable steps to minimize or prevent any discharge of pollutants in violation of this Subsection.
The permittee shall furnish to the Secretary, within a reasonable timeframe, any information which the Secretary may request to determine cause for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the Secretary upon request, copies of records required to be maintained by this Subsection.
Coverage under this Subsection does not convey any property rights of any sort, any exclusive privileges, any authorization to damage, injure or use any private property, any authority to invade personal rights, any authority to violate federal, State, or local laws or regulations, or any taking, condemnation or use of eminent domain against any property owned by third parties. The State does not warrant that the permittee's compliance with this permit and operation under this permit will not cause damage, injury, or use of private property, an invasion of personal rights, or violation of federal, state, or local laws or regulations. The permittee is solely and severably liable for all damage, injury or use of private property, invasion of personal rights, infringement of federal, State, or local laws and regulations, or taking or condemnation of property owned by third parties, which may result from actions taken under the permit.
Any person subject to the requirements of this Subsection shall take all reasonable steps to minimize any adverse impact to State waters resulting from noncompliance with this Subsection, including such accelerated or additional monitoring as necessary to determine the nature and extent of the non-complying discharge.
The requirements of this Subsection shall continue in force and effect until this Subsection is re-promulgated.
Any portion of this permit that is found to be void, or that is challenged, shall not affect the validity of the various permit requirements that are not void or challenged.
Nothing in this Subsection shall be construed to preclude the institution of any legal action or relieve any person subject to this regulation from any responsibilities, liabilities, or penalties established pursuant to any applicable State or Federal law or regulation.
Any person who violates conditions of this Subsection may be subject to penalties in accordance with 7 Del.C. Chapter 40, 7 Del.C. Chapter 60, or both. Violation of this Subsection is also a violation of the Clean Water Act and may be subject to penalties established under that statute.
Nothing in this Subsection shall preclude the institution of any legal action or relieve any person from any responsibilities, liabilities, or penalties to which a person is or may be subject under 40 C.F.R. Part 117 or 7 Del.C. Chapters 60, 62 or 63.
Coverage will continue for all facilities with existing coverage under this Subsection unless otherwise notified by the Department. Any person intending to obtain a Conditional "No Exposure" Exclusion from the requirements of this Subsection, that presently have and intend to maintain coverage, but will attain a condition of "no exposure" in the future, may submit a "No Exposure" Certification Form at any time during the permit's term following completion of the on-site changes that will result in the condition of "no exposure".
Facilities that submitted NOI Forms for coverage under the previous regulations that were received before the effective date of this Subsection, but processing was incomplete, will be processed for coverage under the reissued Subsection. Those with pending NOI Forms are not required to submit new NOI Forms unless otherwise notified by the Department.
New facilities and existing facilities that currently are not covered under this Subsection must submit an NOI Form or, if eligible, a "No Exposure" Certification Form to obtain coverage. New facilities shall submit an NOI Form or "No Exposure" Certification Form within 10 days prior to the commencement of industrial activities. Existing facilities shall submit an NOI Form or "No Exposure" Certification Form within 10 days of notification by the Department that coverage is required.
Any person intending to obtain coverage under this Subsection for storm water discharges associated with the industrial activities identified as Industrial Activity Codes HZ and LF, shall meet the following deadlines.
Coverage will continue for all facilities with existing coverage under this Subsection unless otherwise notified by the Department.
Facilities that submitted NOI Forms for coverage under the previous regulations that were received before the effective date of this Subsection, but processing was incomplete, will be processed for coverage under the reissued Subsection. Those with pending NOI Forms are not required to submit new NOI Forms unless otherwise notified by the Department.
Any person who intends to obtain coverage under this Subsection for storm water discharges associated with the industrial activities classified as Industrial Activity Codes HZ and LF, which commence after the effective date of this Subsection, shall submit a certification that a permit or approval has been obtained in accordance with the "Delaware Regulations Governing Solid Waste" (DRGSW). Activities subject to the DRGSW shall not commence and coverage under this Subsection shall not apply until a permit or approval has been obtained in accordance with the DRGSW.
"I certify under penalty of law that I understand the terms and conditions of the Delaware National Pollutant Discharge Elimination System (NPDES) General Permit Regulation for Storm Water Discharges Associated with Activities subject to the DRGSW."
Any person who intends to obtain coverage under this Subsection for storm water discharges associated with the industrial activities described in § 9.1.1.3.1.1 (construction activities) of this Subsection shall comply with the provisions of § 9.1.2 of the Regulations.
The Notice of Intent (NOI) shall be submitted on a form provided by the Department.
"I certify under penalty of law this document and all attachments were prepared under my direction, or supervision, in accordance with a system designed to assure that qualified personnel gathered and evaluated the information submitted. Based upon my inquiry of the person(s) directly responsible for gathering the information, the information is, to the best of my knowledge, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for willful violations."
The Conditional "No Exposure" Certification shall be submitted on a form provided by the Department.
"I certify under penalty of law that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial facility. I understand that I am obligated to submit a "No Exposure" Certification Form as required by the Department. I understand that I must allow the Department to perform inspections to confirm the condition of "no exposure." I understand that I must obtain coverage under a NPDES permit prior to any point source discharge of storm water from the facility."
When any person subject to this Subsection becomes aware that any relevant facts were omitted or submitted incorrectly on the NOI Form, the "No Exposure" Certification Form, or on any other records required by this Subsection, that person shall promptly submit such corrected information to the Department.
Persons intending to obtain coverage through this Subsection must submit an NOI to the following address:
Delaware Department of Natural Resources and Environmental Control
Division of Water Resources
Surface Water Discharges Section - NPDES Storm Water Program
89 Kings Highway
Dover, DE 19901
Persons who discharge storm water associated with industrial activity, who fail to notify the Department of their intent to be covered under this Subsection, and who discharge to waters of the State without an individual NPDES permit, are in violation of 7 Del.C. Chapter 60 and the federal Clean Water Act and may be subject to penalties.
Storm water must be sampled according to the instructions below.
Sampling is conducted to capture storm water with the greatest exposure to significant sources of pollution. Each distinct point of discharge (outfall) off-site must be sampled and analyzed separately if activities and site conditions that may pollute the storm water are likely to result in discharges that will significantly vary in the concentration or type of pollutants. All samples, except storm water discharges from coal piles, are to be taken as close to the point of discharge as reasonably practical and can be achieved safely. Storm water from coal piles is sampled before the storm water from the coal pile commingles with storm water for other sources.
Samples shall be representative of the monitored discharge. Sample collection and analysis must be conducted according to test procedures approved under 40 CFR Part 136, or an alternative method approved by the Department.
If any person subject to this Part reasonably believes that two or more outfalls discharge storm water substantially identical (based on consideration of industrial activity, Industrial Materials, management practices and activities within the area drained by the outfalls) that person may test the discharges of one of such outfalls and report that the quantitative data also applies to the substantially identical outfall(s).
For each representative sampled storm event, person subject to this Part must provide the following information:
Persons subject to the monitoring requirements of this Part, shall implement their monitoring program in the first full calendar quarter following submission of the NOI Form. In accordance with § 9.1.4.3, visual monitoring shall be performed on a quarterly basis and analytical monitoring shall be performed on a semi-annual basis.
Storm water must be sampled according to the instructions below unless persons subject to this Part submit an alternative plan as a modification of coverage and it is approved by the Department. Persons subject to this Part are not required to sample outside of regular business hours or during unsafe conditions. There are three (3) individual and separate categories of monitoring requirements [Visual Monitoring, Benchmark Monitoring and Numeric Effluent Limitations] that a facility may be subject under § 9.1.4. The monitoring requirements applicable to a facility depend on the types of industrial activities generating storm water runoff from the facility. Persons subject to the monitoring requirements of this Part must review Tables 2.a. through 2.r. below and determine which monitoring requirements apply.
Sector-specific monitoring requirements and limitations are applied discharge by discharge at facilities with co-located activities. Where storm water from the co-located activities are commingled, the monitoring requirements and limitations are additive. Where more than one numeric limitation for a specified parameter applies to a discharge, compliance with the more restrictive limitation is required.
All facilities required to monitor storm water discharges, must perform and document quarterly visual examinations of storm water discharges associated with industrial activities from each storm water outfall. The examination(s) must be made at least once in each of the following three-month periods: January through March, April through June, July through September, and October through December. The examination must document observations of color, odor, clarity, floating solids, settled solids, suspended solids, foam, oil sheen and other obvious indicators of storm water pollution. The examination must be performed during daylight hours and must be made of samples collected within the first thirty (30) minutes of when runoff or snowmelt begins discharging from the facility. If no storm event resulted in runoff from the facility during a monitoring quarter, the permittee is excused fro visual monitoring for that quarter provided that documentation is included with the monitoring records indicating that no runoff occurred.
Analytical monitoring is required for the industry sectors or sub-sectors that are determined to have a high potential to discharge a pollutant at concentrations of concern. Facilities conducting industrial activities shall analyze grab samples for the parameters identified in Tables a. through r. below on a semi-annual basis. Monitoring shall be completed at least once in each of the following six-month periods: January through June and July through December. Industry-specific monitoring requirements and limitations are applied discharge by discharge at facilities with co-located activities. Where indicated, monitored results shall be compared to Numeric Effluent Limitations or Benchmark Monitoring Concentration values. The Numeric Effluent Limitations and Benchmark Monitoring Concentrations are requirements applicable to a facility and depend on the types of industrial activities generating storm water runoff from the facility. The discharge of pollutants at a level more than that identified and authorized by a specified Numeric Effluent Limitation shall constitute a violation of this Part. The Benchmark Monitoring Concentration values represent target pollutant concentrations for a facility to achieve through implementation of its Storm Water Plan (SWP) {§ 9.1.5.}. Analytical results that exceed Benchmark Monitoring Concentration values are not a violation of this Part as these values are not Numeric Effluent Limitations. However, results that exceed a Benchmark Monitoring Concentration value are indications that the storm water discharge could potentially cause, or contribute to causing, water quality impairment in the receiving waterbody. The Benchmark Monitoring Concentration values are also viewed as a level, that if below, the discharge presents little potential for water quality concern.
Facilities identified by SIC code 2411 shall analyze grab samples for the parameters listed in the following table and shall not exceed the indicated Numeric Effluent Limitations. Persons subject to these Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage.
Parameter | Units | Effluent Limitations |
Wet Decking Discharges at Log Storage and Handling Areas (SIC Code 2411) | ||
Debris (woody material such as bark, twigs, branches, heartwood, or sapwood) | ------------ | No discharge of debris that will not pass through a 2.54 cm (1 inch) diameter round opening. |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring
Facilities identified by SIC codes 2411, 2421, 2426, 2429, 2431-2439 (except 2334), 2448, 2449, 2451, 2452, 2491 and 2593 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Log Storage and Handling (SIC Code 2411) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
General Sawmills and Planning Mills (SIC Code 2421) | ||
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
Total Suspended Solids (TSS) | mg/l | 100.0 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Wood Preserving (SIC Code 2491) | ||
Total Arsenic | mg/l | 0.16854 |
Total Copper | mg/l | 0.0636 |
pH | standard units | 6.0-9.0 |
Hardwood Dimension and Flooring Mills (SIC Codes 2426, 2429, 2431-2439 (except 2434), 2448, 2449, 2451, 2452, 2499 and 2593) | ||
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
Total Suspended Solids (TSS) | mg/l | 100.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC code 2631 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Paperboard Mills (SIC Code 2631) | ||
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
pH | standard units | 6.0-9.0 |
Facilities identified by SIC code 2874 shall analyze grab samples for the parameters listed in the following table and shall not exceed the indicated Numeric Effluent Limitations. Persons subject to Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage.
Parameter | Units | Effluent Limitations | |
Daily Maximum | 30-Day Average | ||
Phosphate Subcategory of the Fertilizer Manufacturing Point Source Category (SIC Code 2874) - applies to precipitation runoff that, during manufacturing or processing, comes into contact with any raw materials, intermediate product, finished product, by-products or waste product | |||
Total Phosphorus (as P) | mg/l | 105.0 | 35.0 |
Fluoride | mg/l | 75.0 | 25.0 |
pH | standard units | 6.0-9.0 | |
Facilities identified by SIC codes 2812-2819, 2821-2824, 2841-2844 and 2873-2879 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Industrial Inorganic Chemicals (SIC Codes 2812-2819) | ||
Total Recoverable Aluminum | mg/l | 0.75 |
Total Recoverable Iron | mg/l | 1.0 |
Nitrate plus Nitrite Nitrogen | mg/l | 0.68 |
pH | standard units | 6.0-9.0 |
Plastics, Synthetics, and Resins (SIC Codes 2821-2824) | ||
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Soaps, Detergents, Cosmetics, and Perfumes (SIC Codes 2841-2844) | ||
Nitrate plus Nitrite Nitrogen | mg/l | 0.68 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Agricultural Chemicals (SIC Codes 2873-2879) | ||
Nitrate plus Nitrite Nitrogen | Nitrate plus Nitrite Nitrogen | 0.68 |
Total Recoverable Iron | mg/l | 1.0 |
Total Recoverable Zinc | mg/l | 0.117 |
Phosphorus | mg/l | 2.0 |
Total Recoverable Lead | mg/l | 0.0816 |
pH | standard units | 6.0-9.0 |
Facilities identified by SIC codes 2951 and 2952 shall analyze grab samples for the parameters listed in the following table and shall not exceed the indicated Numeric Effluent Limitations. Persons subject to Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage.
Parameter | Units | Effluent Limitations | |
Daily Maximum | 30-Day Average | ||
Discharges from areas where production of asphalt paving and roofing emulsions occurs (SIC Codes 2951 and 2952) | |||
Total Suspended Solids (TSS) | mg/l | 23.0 | 15.0 |
Oil and Grease | mg/l | 15.0 | 10.0 |
pH | standard units | 6.0-9.0 | |
Facilities identified by SIC codes 2951 and 2952 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Asphalt Paving and Roofing Materials and Lubricant Manufacturers (SIC Codes 2951 and 2952) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
pH | standard units | 6.0-9.0 |
Facilities conducting cement manufacturing activities shall analyze grab samples for the parameters listed in the following table and shall not exceed the indicated Numeric Effluent Limitations. Persons subject to Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage.
Parameter | Units | Effluent Limitations |
Daily Maximum | ||
Cement Manufacturing Facility, Material Storage Runoff: Any discharge composed of runoff that derives from the storage of materials including raw materials, intermediate products, finished products and waste materials that are used in or derived from the manufacture of cement. | ||
Total Suspended Solids (TSS) | mg/l | 50.0 |
pH | standard units | 6.0-9.0 |
Facilities identified by SIC codes 3245-3259, 3261-3269 and 3271-3275 shall analyze grab samples in accordance with the following parameters:
| Parameter | Units | Benchmark Monitoring Concentrations |
| Clay Product Manufacturers (SIC Codes 3245-3259 and 3261-3269) | ||
| Total Recoverable Aluminum | mg/l | 0.75 |
| pH | standard units | 6.0-9.0 |
| Concrete and Gypsum Product Manufacturers (SIC Codes 3271-3275) | ||
| Total Suspended Solids (TSS) | mg/l | 100.0 |
| Oil and Grease | mg/l | 15.0 |
| Total Recoverable Iron | mg/l | 1.0 |
| pH | standard units | 6.0-9.0 |
Facilities identified by SIC codes 3312-3317, 3321-3325, 3351-3357 and 3363-3369 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Steel Works, Blast Furnaces, and Rolling and Finishing Mills (SIC Codes 3312-3317) | ||
Total Recoverable Aluminum | mg/l | 0.75 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Iron and Steel Foundries (SIC Codes 3321-3325) | ||
Total Recoverable Aluminum | mg/l | 0.75 |
Total Suspended Solids (TSS) | mg/l | 100.0 |
Total Recoverable Copper | mg/l | 0.0636 |
Total Recoverable Iron | mg/l | 1.0 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Rolling, Drawing, and Extruding of Nonferrous Metals (SIC Codes 3351-3357) | ||
Total Recoverable Copper | mg/l | 0.0636 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Nonferrous Foundries (SIC Codes 3363-3369) | ||
Total Recoverable Copper | mg/l | 0.0636 |
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Facilities identified by SIC codes 1422-1429, 1442 and 1446 shall analyze grab samples for the parameters listed in the following table and shall not exceed the indicated Numeric Effluent Limitations. Persons subject to Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage.
| Parameter | Units | Effluent Limitations | |
| Daily Maximum | 30-Day Average | ||
| Mine Dewatering Activities at Construction Sand and Gravel; Industrial Sand; and Crushed Stone Mining Facilities (SIC Codes 1422-1429, 1442 and 1446) | |||
| Total Suspended Solids (TSS) | mg/l | 45.0 | 25.0 |
| pH | standard units | 6.0-9.0 | |
Facilities identified by SIC codes 1411, 1422-1429, 1442, 1446, 1481 and 1489 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Dimension Stone Crushed and Broken Stone and Nonmetallic Minerals (except fuels)(SIC Codes 1411, 1422-1429, 1481 and 1499) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
pH | standard units | 6.0-9.0 |
Sand and Gravel Mining (SIC Codes 1442 and 1446) | ||
Nitrate plus Nitrite Nitrogen | mg/l | 0.68 |
Total Suspended Solids (TSS) | mg/l | 100.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC code 5015 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Automobile Salvage Yards (SIC Code 5015) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
Total Recoverable Aluminum | mg/l | 0.75 |
Total Recoverable Iron | mg/l | 1.0 |
Oil and Grease | mg/l | 15.0 |
Total Recoverable Lead | mg/l | 0.0816 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC code 5093 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Scrap Recycling and Waste Recycling Facilities (SIC Code 5093) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
Total Recoverable Aluminum | mg/l | 0.750 |
Total Recoverable Copper | mg/l | 0.0636 |
Total Recoverable Iron | mg/l | 1.0 |
Total Recoverable Lead | mg/l | 0.0816 |
Total Recoverable Zinc | mg/l | 0.117 |
Oil and Grease | mg/l | 15.0 |
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by Industrial Activity Code SE (Steam Electric Power Generating facilities) are required to analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Steam Electric Generating Facilities (Industrial Activity Code SE) | ||
Total Recoverable Iron | mg/l | 1.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC Codes 4011-4013, 4111-4173, 4212-4273, 4311and 5171 shall analyze grab samples for the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Land Transportation and Warehousing (SIC Codes 4011-4013, 4111-4173, 4212-4273, 4311and 5171) | ||
Oil and Grease | mg/L | 15.0 |
Total Surfactants | mg/L | 1.0 |
Total Suspended Solids | mg/L | 100.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirement
Facilities identified by SIC codes 4412-4499 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Water Transportation Facilities (SIC Codes 4412-4499) | ||
Total Recoverable Aluminum | mg/l | 0.75 |
Total Recoverable Iron | mg/l | 1.0 |
Total Recoverable Zinc | mg/l | 0.117 |
Total Recoverable Lead | mg/l | 0.0816 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC codes 45xx shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Facilities at airports that use more than 100,000 gallons of glycol-based deicing/anti-icing chemicals and/or 100 tons or more of urea on an average annual basis: monitor only those outfalls from the airport facility that collect runoff from areas where deicing/anti-icing activities occur (SIC Codes 45xx) | ||
Biochemical Oxygen Demand (BOD5) | mg/l | 30.0 |
Ammonia | mg/l | 19.0 |
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring Requirements
Facilities identified by SIC codes 2041-2048 and 2074-2079 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Grain Mill Products (SIC Codes 2041-2048) | ||
Total Suspended Solids (TSS) | mg/l | 100.0 |
pH | standard units | 6.0-9.0 |
Fats and Oils Products (SIC Codes 2074-2079) | ||
Biochemical Oxygen Demand (BOD5) | mg/l | 30.0 |
Nitrate plus Nitrite Nitrogen | mg/l | 0.68 |
Total Suspended Solids (TSS) | mg/l | 100.0 |
Chemical Oxygen Demand (COD) | mg/l | 120.0 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring
Facilities identified by SIC codes 3011-3069 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Tires and Inner Tubes; Rubber Footwear; Gaskets, Packing and Sealing Devices; Rubber Hose and Belting; and Fabricated Rubber Products, Not Elsewhere Classified (SIC Codes 3011-3069, rubber) | ||
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring
Facilities identified by SIC code 3111 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Leather Tanning and Finishing (SIC Code 3111) | ||
Total Kjeldahl Nitrogen | mg/l | 1.5 |
pH | standard units | 6.0-9.0 |
Benchmark Monitoring
Facilities identified by SIC codes 3411-3471, 3479, 3482-3499 and 3911-3915 shall analyze grab samples in accordance with the following parameters:
Parameter | Units | Benchmark Monitoring Concentrations |
Fabricated Metal Products Except Coating (SIC Codes 3411-3471, 3482-3499, 3911-3915) | ||
Total Recoverable Aluminum | mg/l | 0.750 |
Total Recoverable Iron | mg/l | 1.0 |
Total Recoverable Zinc | mg/l | 0.117 |
Nitrate plus Nitrite Nitrogen | mg/l | 0.68 |
pH | standard units | 6.0-9.0 |
Fabricated Metal Coating and Engraving (SIC Code 3479) | ||
Total Recoverable Zinc | mg/l | 0.117 |
pH | standard units | 6.0-9.0 |
Facilities that have discharges of storm water from coal storage piles regardless of a facility's sector of industrial activity shall analyze grab samples in accordance with the following parameters and shall not exceed the indicated Numeric Effluent Limitations. The coal pile runoff must not be diluted with other storm water flows in order to meet the Numeric Effluent Limitations indicated below. Persons subject to Numeric Effluent Limitations must be in compliance with these limitations through the duration of coverage
Parameter | Units | Numeric Effluent Limitation |
Coal Pile Runoff | ||
Total Suspended Solids | mg/l | 50.0 |
pH | standard units | 6.0-9.0 |
The Secretary may provide written notification to any facility, including those otherwise exempt from sampling requirements, requiring additional storm water monitoring.
When the permittee is unable to conduct the required monitoring at an inactive or unstaffed facility, the permittee may seek a Department approved waiver from the monitoring requirements as long as the facility remains inactive and unstaffed. The facility must maintain the Department approval letter with its Storm Water Plan (§ 9.1.1.5).
Waivers from Benchmark Monitoring requirements are available to facilities whose discharges are below benchmark monitoring concentration values. On both a parameter by parameter and outfall by outfall basis, the permittee may petition the Department, after the completion of 4 consecutive sampling events, to be exempted from the subsequent 4 sampling events as long as the permittee provides verification that the following conditions have been met. However, a facility that conducts a significant process change must continue monitoring and may not use previous monitoring to demonstrate consistent attainment.
Persons covered by this Subsection shall amend the SWP whenever:
In no event shall failure to complete or update a SWP in accordance with this Part relieve any persons covered under this Subsection of responsibility to implement actions required to protect the waters of the State, complete any actions that would have been required by such Storm Water Plan and to comply with all conditions of this Subsection.
New facilities,facilities covered by an individual permit, and existing facilities not currently covered by a NPDES permit who elect to be covered under this Subsection must prepare and implement the SWP prior to submitting the NOI Form. The SWP must be submitted with the NOI form.
Upon a showing of good cause, the Director may establish a later date in writing for the preparation and compliance with the SWP.
Persons covered by this Subsection shall comply with the following requirements when developing and administering the SWP. The SWP shall include at a minimum, but not be limited to, the following items:
The name, address, and telephone number of the individual who is responsible for development, implementation, maintenance and revision of the SWP.
A narrative description must be developed to describe all activities and potential sources of pollutants that may reasonably be expected to add pollutants to storm water discharges or that may result in dry weather discharges from the storm water conveyance system. Examples include the following activities and potential sources when they are exposed to storm water:
All markings, delineations and designations on the map shall be clearly identifiable. A narrative description of the markings, delineations and designations shall accompany the facility map. The map shall identify:
An estimate of the yearly quantities of Industrial Materials handled by the facility, unless subject to Part 2. This inventory of materials shall list all of the types of materials handled at the site that potentially may be exposed to precipitation or runoff and that may be transported off-site or that may contaminate storm water.
Clearly identify areas where potential spills and leaks, which can contribute pollutants to storm water discharges, can occur and their accompanying drainage points. A list of substantial spills, leaks or residual deposits of Industrial Materials that have occurred within the last three years in areas that are exposed to precipitation or that otherwise drain to a storm water conveyance at the facility. The list shall be updated annually unless subject to Part 2.
The Storm Water Plan shall describe storm water management controls appropriate for a facility and implementation of such controls. The appropriateness for implementing controls listed in the SWP must reflect identified potential sources of pollutants at the facility. The SWP must describe the location of existing non-structural and structural controls selected for the areas where industrial materials or activities are exposed to storm water. For areas where controls are not currently in place, the SWP must describe appropriate controls that will be used to control pollutants in storm water discharges.
The description of storm water management controls must, at a minimum, address the following and provide a reasonable schedule for implementing such controls:
The SWP shall identify the practices/programs used to define the ongoing maintenance and clean-up, as appropriate, of areas which may contribute pollutants to storm water discharges.
The SWP shall include a program that identifies qualified facility personnel to conduct inspections and maintenance of storm water management devices (structural controls) as well as inspections, testing, maintaining and repairing facility equipment and systems to avoid breakdowns and failures that may result in the exposure of industrial materials to storm water. A set of tracking or follow-up procedures shall be used to ensure that appropriate actions are taken in response to the inspections. A log of inspections and any actions taken shall be maintained on-site.
The SWP must describe the procedures that will be followed for cleaning up spills or leaks. The procedures and necessary spill response equipment must be made available to those employees who may cause or detect a spill or leak. Where appropriate, the plan must include an explanation of existing or planned material handling procedures, storage requirements, secondary containment, and equipment (e.g., diversion valves) that are intended to minimize spills or leaks at the facility. If applicable, the spill response plan shall address prevention and minimization of releases of oil and hazardous material into the storm water system. When required, the management of oil and hazardous material shall be performed in accordance with 40 CFR Part 117 and 7 Del.C. Chapters 60, 62, and 63.
The SWP shall identify a team of individuals responsible for implementing spill response procedures. Personnel identified as the spill response team are responsible for follow-up inspections to ensure that spills have been properly handled to meet environmental and safety standards.
Where practicable, industrial materials and activities should be protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt or runoff.
All facilities must evaluate the risk of soil erosion on their site that could contaminate storm water. At a minimum, the SWP must include a narrative that describes whether there is reasonable potential for soil erosion of a significant amount at the site. Where reasonable potential exist, the permittee must include BMPs to prevent or minimize the potential for soil erosion on-site.
The SWP shall include a section that establishes BMPs to reduce the discharge and potential discharge of pollutants in storm water. Section 9.1.9 includes a list of BMPs for specific industrial activities. Facilities conducting activities described in Section 9.1.9 shall implement the corresponding BMPs, as appropriate. Those BMPs listed are considered the minimum set of required structural BMPs for a specific industrial activity. The permittee may select equivalent BMPs that provide the same result as those listed.
Nothing in Section 9.1.9 is intended to preclude the application of innovative treatment, source control, reduction or recycle, or operational BMPs that are not identified by this Part. The permittee may substitute equivalent/superior BMPs for those listed in Section 9.1.9 but must document the basis for the substitution in the SWP, and the permittee assumes the liability if the BMPs are not equivalent/superior to the SWP. Additional BMPs beyond those identified in Appendix B could be necessary to achieve compliance with standards. However, treatment BMPs that include the addition of chemicals to provide treatment must be approved by the Department prior to implementation
The SWP shall provide that storage piles of salt (including pure salt or salt mixed with other materials) shall be enclosed or covered to prevent exposure to precipitation, except for exposure resulting from adding or removing materials from the pile.
The SWP must contain a narrative assessment of the appropriateness of all existing storm water management controls and practices at the facility. Based on an assessment of the potential of various sources at the site to contribute pollutants to storm water discharges, the SWP must provide that storm water management controls, determined to be reasonable and appropriate, are implemented and maintained.
Off-site vehicle tracking of raw, final, or waste materials or sediments, and the generation of dust must be minimized. Tracking or blowing of raw, final, or waste materials from areas of no exposure to exposed areas must be minimized.
The facility shall conduct routine inspections of the equipment and areas of the facility designated in the SWP. The SWP shall identify the frequency for which these inspections are conducted. At a minimum, routine inspections shall be conducted once per quarter. These inspections shall ensure the proper operation of plant equipment and storm water controls. A set of tracking or follow-up procedures shall be used to ensure that appropriate actions are taken in response to the inspections. Records of inspections shall be maintained with the SWP. Any deficiencies noted shall be corrected as soon as practicable, but no later than 14 days after the inspection.
Persons subject to this Part shall conduct comprehensive site evaluations. The comprehensive site evaluations shall be used to assess the effectiveness of the current SWP. The evaluation(s) are in addition to the periodic inspections required by this Part. The evaluations may substitute for a periodic inspection if it is conducted during the regularly scheduled periodic inspection. The comprehensive site evaluations shall be conducted for the frequency indicated in the table below:
SIC Code/Industrial Activity Code | Compliance Evaluation Frequency |
Sectors A, B, G, H, I, J, O, T, V, W, X, Y, Z, and AD | Annual |
Sectors C, D, E, F, P, Q, R, S, U, AA, AB, and AC | Semi-annual [evaluations shall be conducted once in the fall (September-November) and once during the spring (April-June)] |
Sectors M and N | Quarterly [evaluations shall be conducted at least once in each of the following three-month periods: January through March, April through June, July through September, and October through December] |
The evaluations shall be conducted by one or more qualified employees or contractor personnel, who are familiar with the industrial activities performed at the facility and the elements of the SWP, and shall evaluate:
Records of each evaluation shall be maintained, indicating the following: date and time of the inspection; person(s) responsible for conducting inspection; findings of the inspection; and any corrective actions taken. Persons subject to this Part must correct any deficiencies noted during the inspection as soon as practicable, but no later than 14 days after the inspection.
A visual inspection by a facility employee shall be conducted before accumulated storm water is released from a secondary containment system. The secondary containment system shall be visually observed for color, foam, outfall staining, visible sheen and dry weather flow prior to release. Accumulated storm water shall be released if found to be uncontaminated by the material stored within the containment area. Records documenting the individual making the observation, the description of the accumulated storm water and the date and time of the release shall be maintained.
The SWP shall include a description of the monitoring program and sampling data for storm water discharges at the facility, in accordance with § 9.1.4.
Facility employees and contractor personnel that work in areas where Industrial Materials are used or stored shall be appropriately trained to meet the requirements of the SWP. Employee training shall be conducted and documented not less than once per year. Training should address topics such as spill response, good housekeeping practices, material management practices, truck wash out procedures, equipment washdown procedures, etc.
The SWP shall include the Non-Storm Water Certification required by § 9.1.6.
Facilities shall have the necessary security systems to prevent an accidental or intentional discharge of hazardous material or oil through vandalism.
The SWP shall indicate that appropriate containment, drainage control and/or diversionary structures are provided in all areas where Water Priority Chemicals (WPCs) are stored, processed or otherwise handled. At a minimum, the appropriate preventive systems or its equivalent shall be used (an equivalent practice may be used if approved by the Department in writing for this purpose).
If a continued transport of substantial amounts of Industrial Material through a facility's storm water discharges persists, the Department may requiretreatment of the contaminated storm water discharges along with limits for contaminant levels. If treatment of the contaminated storm water discharges or limits for contaminant levels is required, permit coverage through an individual NPDES Storm Water Permit may be required.
The Storm Water Plan must comply with any other plans developed for the facility to control discharges of Industrial Materials into the environment.
Persons subject to this Part must include a copy of your letter indicating acquisition of coverage under this Subsection with the SWP.
All persons conducting industrial activities identified in § 9.1.1.3.1.2 with discharges that flow through a regulated outfall, shall identify each storm water outfall covered under this Subsection with a legible outfall tag or stencil. The mechanism for identification should be attached to an outfall pipe, stenciled on an outfall pipe, or posted in close proximity of the outfall area. The identification shall indicate the designated outfall number.
If non-storm water discharges to a storm water system occur, compliance with this Part must be attained by submitting a schedule to the Department within 15 days of identifying the non-storm water discharge, unless granted a written extension by the Department. The schedule shall indicate a sequence of steps which will either result in the elimination of the non-storm water discharge to the storm water system or that will result in obtaining an appropriate individual NPDES permit.
Coverage under this Subsection begins when the Department has received and approved of notification pursuant to the NOI or "No Exposure" Certification requirements outlined in § 9.1.3.
Coverage under this Subsection shall be granted for a specific duration which will be determined by the Department. In no case shall coverage be valid for more than five years.
Part 2 - SPECIAL CONDITIONS FOR STORMWATER DISCHARGES FROM CONSTRUCTION ACTIVITIES
"Appropriate plan approval agency" means the Department, Conservation District, county, municipality, or State agency that is responsible for review and approval of the Sediment and Stormwater Plan.
"Best available technology" or "BAT" means a level of technology based on the very best (State of the art) control and treatment measures that have been developed or are capable of being developed and that are economically achievable within the appropriate industrial category.
"Certified Construction Reviewer" means those individuals, having passed a Department-sponsored or approved training course, who provide on-site inspection for sediment control and stormwater management in accordance with the Delaware Sediment and Stormwater Regulations.
"CFR" means the Code of Federal Regulations.
"Clean Water Act " or "CWA" means 33 USC 1251 et seq. (formerly known as the Federal Water Pollution Control Act Amendment of 1972).
"Co-permittee" means a discharger of stormwater from construction activity who is jointly and individually responsible for compliance with all conditions of this Part or the CGP and applicable laws with another entity.
"Construction activity" means clearing, grading and excavating activities that result in a land disturbance equal to or greater than one acre, including the disturbance of less than one acre of land that is part of a larger common plan of development or sale that will ultimately disturb more than one acre.
"Construction General Permit" or "CGP" means a permit that is written to cover multiple dischargers with similar operations and types of discharges related to construction activities.
"Department" means the State of Delaware Department of Natural Resources and Environmental Control.
"Final stabilization" means that:
All soil disturbing activities at the site have been completed and either of the two following criteria are met:
When background native vegetation will cover less than 100% of the ground (e.g., arid areas, beaches), the 70% coverage criteria is adjusted as follows: if the native vegetation covers 50% of the ground, 70%of 50% (0.70 X 0.50 = 0.35) would require 35% total coverage for final stabilization. On a beach with no natural vegetation, no stabilization is required.
For individual lots in residential construction, final stabilization means that either:
For construction projects on land used for agriculture purposes (e.g., pipelines across crop or range land, staging areas for highway construction, etc.) final stabilization may be accomplished by returning the disturbed land to its preconstruction agriculture use. Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to "water of the United States" and areas which are not being returned to their preconstruction agricultural use must meet the final stabilization criteria (1) or (2) above.
"Notice of Intent " or "NOI" means an application for NPDES permit coverage under this Part or the CGP.
"Notice of Termination " or "NOT" means an application for termination of NPDES permit coverage under this Part or the CGP.
"NPDES " means the National Pollutant Discharge Elimination System for issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits for the discharge of any pollutant or combination of pollutants and imposing and enforcing pretreatment and sludge requirements pursuant to Sections 307, 402, 318, and 405 of the Clean Water Act.
"NPDES permit" means any permit authorizing the potential or actual point source discharge of pollutants to State waters, under prescribed conditions, pursuant to Section 6.0 of the State of Delaware "Regulations Governing the Control of Water Pollution" and CWA Section 401 and Federal implementing regulations.
"Permit coverage" means an authorization granted to a category of stormwater discharges.
"Permittee" means a discharger of s stormwater from construction activity who is responsible for compliance with all conditions of this Part or the CGP and to whom coverage under this Part or the CGP has been granted.
"Person" means a state or federal agency, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality or other political subdivision of this state, an interstate body or any other legal entity.
"Secretary" means the Secretary of the State of Delaware Department of Natural Resources and Environmental Control or their duly authorized designee.
"Sediment and Stormwater Plan" or "Plan" means a plan for the control of soil erosion, sedimentation, storm water quantity, and water quality impacts resulting from construction activity. For the purposes of this Part, a Sediment and Stormwater Plan is a plan developed in accordance with the requirements of the 7 Del.C. Ch. 40 and the Delaware Sediment and Stormwater Regulations.
"Stormwater" means run-on or runoff of water from the surface of the land resulting from precipitation or snow or ice melt.
"Stormwater discharges from construction activity" means a discharge of stormwater from areas where soil disturbing activities (e.g. clearing, grading, or excavations), construction materials or equipment storage or maintenance (e.g. fill piles, borrow areas, concrete truck washout, fueling), or other industrial stormwater directly related to the construction process (e.g. concrete or asphalt batch plants) are located.
" This Regulation" means the State of Delaware Special Conditions for Stormwater Discharges from Construction Activity.
New Projects. Any person who intends to obtain coverage under this Part and the CGP for stormwater discharges from construction activity, commencing after the effective date of the CGP, must submit a Notice of Intent, or NOI, prior to the onset of construction as a condition of approval of the Sediment and Stormwater Plan.
Any person who has or had permit coverage
"Adequate Storage" for liquid and solid manure systems, means the provision of at least four months holding capacity of liquid or solid manure in accordance with State Technical Standards.
"Agricultural Storm Water Exemption" means a precipitation related exempt discharge of manure, litter or process wastewater. The discharge is exempt provided the manure, litter or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure or process wastewater, which minimize nitrogen and phosphorus movement to surface waters. The agricultural storm water exemption does not apply to discharges from the production area.
"Animal Feeding Operation" or "AFO" means a facility (other than an aquatic animal production facility) where the following conditions are met:
"Animal Waste Management Plan" means a plan written in accordance with State Technical Standards that documents and recommends a combination of conservation practices and management measures for the handling, storage, treatment and management of any or all of the following for use in connection with animal wastes, manures, composted dead animals, or process wastewater from any animal feeding operation.
"Applicant" means any person seeking and or required to obtain a CAFO NPDES permit.
"Apply," "applying," or any variation of the word "apply," as it relates to the application of nutrients, means the human controlled mechanical conveyance of nutrients to land for the purpose of applying organic or inorganic nutrients.
"Application Area" means land under the control of an AFO owner or operator, whether it is owned, licensed, or leased to which manure, litter or process wastewater from the production area is or may be applied.
"Best Available Technology Economically Achievable (BAT)" means those factors involved in assessing the implementation of the best available technology including cost to achieve required effluent reductions, the age of equipment or technology being implemented, process involved, process changes, engineering aspects of the application of various types of control techniques, non-water quality environmental impact, and other such factors as deemed appropriate by the Secretary and in accordance with State Technical Standards.
"Best Conventional Pollutant Control Technology (BCT)"means those factors related to the assessment of best conventional pollutant control technology including consideration of the reasonableness of the relationship between costs of attaining a reduction in effluents and the effluent reduction benefits derived, and the comparison of the cost and level of reduction of such pollutants from the discharges, process employed, process changes, engineering aspects of the application of various types of control techniques, non-water quality environmental impact and other such factors as deemed appropriated by the Secretary and in accordance with State Technical Standards.
"Best Management Practices" or "BMP" means those practices that have been approved by the Delaware Nutrient Management Commission and meet State Technical Standards. Best Management Practices (BMPs) are recommended activities which enhance agronomic results, benefit the environment, and prevent or reduce pollution to Waters of the State. BMPs are not to be interpreted as mandatory implementation actions of a plan (e.g., Pre-side dress Soil Nitrate Test, cover crops, vegetative buffer strips, litter additives, manure incorporation, timing/method, etc.) unless specified in the nutrient management plan, animal waste management plan, or site-specific practices described in § 9.5.5.
"Best Practicable Control Technology Currently Available (BPT)" means those factors relating to the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, age of equipment and facilities, processes, process changes, engineering aspects of the application of various types of control techniques, non-water quality environmental impacts, and other such factors deemed appropriate by the Secretary and in accordance with State Technical Standards.
"Catastrophic Mortalities" means any mortality that exceeds the designed disposal system capacity, as described in State Technical Standards, to accommodate losses within 24 hours. Most disposal systems are designed to handle the normal anticipated mortality. If enough animals are lost and the disposal system cannot hold them all without causing serious disruption in the disposal process, then it is a catastrophic loss.
"Certified Nutrient Consultant" means a person who is approved by the Delaware Nutrient Management Commission to engage in the activities of advising or consulting with another person who is required to have a certificate under the Delaware Nutrient Management Regulations, regarding the formulation, application, or scheduling of organic or inorganic nutrients within Delaware. Provided however any employee of any federal, State or local government agency or the University of Delaware, or other organization duly recognized by the Commission for such purpose, who provides advice or consultation in his capacity as such an employee, without compensation, shall not be deemed to be a nutrient consultant unless such advice and consultation constitutes a direct and substantial part of a nutrient management plan developed pursuant to these regulations.
"Concentrated Animal Feeding Operation" or "CAFO" means an animal feeding operation (AFO) subject to the terms and conditions of these regulations and defined as a "Large CAFO", or a "Medium CAFO", or "Designated" as a CAFO in accordance with § 9.5.3.2 of these regulations.
"Delaware Nutrient Management Commission," "DNMC", or "Commission" means the Commission established by 3 Del.C. § 2220"or its designee."
"Department" means the Delaware Department of Natural Resources and Environmental Control who shall administer the program with the assistance of the Delaware Department of Agriculture.
"Discharge of a Pollutant" or "discharge" means the addition of any pollutant or combination of pollutants, to state waters or the ocean, from any source or activity other than a vessel or other floating craft when being used as a means of transportation and in compliance with the Clean Water Act. This definition includes, but is not limited to additions of pollutants into State waters from:
"Drainage Ditch" means a constructed or reconstructed watercourse with a drainage area less than 800 acres. A constructed or reconstructed watercourse with a drainage area greater than 800 acres is considered a stream.
"Effluent Limitation" means any restrictions, prohibitions, or permit requirements established under State or Federal law, including but not limited to, standards of performance for new sources, best management practices or BMPs, effluent standards and ocean discharge criteria on the quantities, rates, and concentrations of the chemical, physical, biological, or other constituents discharged into state waters.
"Freeboard Action Level" means the liquid level within a lagoon or other liquid storage structure that indicates the structure is full and requires that immediate steps be taken to transfer liquid out of the waste storage structure.
"Ground Water" means any water naturally found under the surface of the earth.
"Inorganic Fertilizer(s)" means a fertilizer comprised of chemically synthesized plant nutrient elements that are essential for plant growth and include at least nitrogen or phosphorus.
"Land Application Area" is equivalent to "Application Area".
"Linear Rate" means an approach that expresses rates of application of nutrients as pounds of nitrogen and phosphorus, as described in State Technical Standards.
"Liquid Manure" means less than 12% solids. Wash water, runoff, precipitation, and so forth are added, if needed to dilute the manure and lower the solids content.
"Manure" means fecal and urinary defecations of animals as referenced in § 9.5.3.1.1 and § 9.5.3.12, and may include, but is not limited to comingled spilled feed, bedding, soil, and compost.
"Manure and processed wastewater application setbacks" means the distance between the land application area and any down-gradient surface waters.
"Maximum Operating Level" means the maximum operating level for liquid waste storage ponds and shall be the pond level that provides for the required volume less the volume contribution of precipitation and runoff from the 25-year, 24-hour storm event plus the volume allowance for residual solids after liquids have been removed.
"Narrative Rate" means an approach that expresses rates of application as a narrative rate of application that results in the amount, in tons or gallons, of manure, litter, and process wastewater to be land applied, as described in the State Technical Standards.
"New Discharger" means any building, structure, facility or installation:
* Which prior to August 13, 1979, had not discharged pollutants;
* Which had never received a final effective NPDES permit for discharges at that site;
* From which there is or may be a new or additional discharge of pollutants; and
* Which does not fall in the definition of "new source".
"New Source" means any building, structure, facility or installation from which there is or may be a discharge of pollutants, the construction of which commences:
* After promulgation of standards of performance under §306 of the Act which are applicable to such source; or
* After proposal of standards of performance under §306 of the Act which are applicable to such source, but only if the standards are promulgated within 120 days of their proposal. In addition, any building, structure, facility or installation constructed after the effective date of these regulations must also meet the siting criteria described in § 7.0 of these regulations.
"NPDES" or "National Pollutant Discharge Elimination System" means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits for the discharge of any pollutant or combination of pollutants and imposing and enforcing pretreatment and sludge requirements pursuant to the Clean Water Act.
"Notice of Intent" or "NOI" means the form used to serve as a notification of the intention of the facility identified on the form to adhere to the provisions of these regulations.
"Nutrient Management Plan" or "Plan" means a plan written by a certified nutrient consultant in accordance with State Technical Standards to manage the amount, placement, timing and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turf grass.
"Nutrients" means nitrogen, phosphorus, and any other elements necessary for or helpful to plant growth.
"Operator" means any person in control of, or having responsibility for, the operation of the CAFO.
"Overflow" means the discharge of manure or process wastewater resulting from the filling of wastewater or manure storage structures beyond the point at which no more manure, process wastewater, or storm water can be contained in the structure.
"Owner" means any person who owns a CAFO.
"Person" means any individual, partnership, association, fiduciary, corporation, or any organized group of persons, whether incorporated or not.
"Pollutant" means for the purposes of these regulations any substance, which causes or contributes to, or may cause or contribute to, the degradation of water, and soil resources. Examples may include, but are not limited to excess nutrients, chemicals, toxic substances, industrial, municipal or agricultural wastes, etc.
"Process Wastewater" means any water directly or indirectly used in the operation of an AFO including, but not limited to spillage or overflow from animal or poultry watering systems; washing, cleaning, or flushing pens, barns, manure pits; direct contact swimming, washing, or spray cooling of animals; dust control; or any water which comes into contact with any manure or litter, bedding, or any other raw material or intermediate or final material or product used in or resulting from the production of animals or poultry or direct products (e.g., milk, eggs).
"Production Area" means, unless otherwise modified in this document, that part of an AFO that includes the "animal confinement area", the "manure storage area", the raw materials storage area and the "waste containment areas", egg washing or processing facility and any area used in the storage, handling, treatment or disposal of mortalities. Animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milk rooms, milking centers, cow yards, barnyards, medication pens, walkers, animal walkways, and stables. Manure Storage Area includes but is not limited to lagoons, runoff ponds, storage sheds, and stockpiles, under house or pit storages, liquid impoundments, static piles, and composting piles. Waste Containment Area includes but is not limited to settling basins, and areas within berms and diversion which separate uncontaminated storm water.
"Realistic Yield Goals" means the expected crop yields based on the best four (4) out of seven (7) years of recorded data. Yield goals higher than the average require written justification from a certified nutrient consultant. Without actual crop yield data, use realistic yield goals in accordance with State Technical Standards.
"Secretary" means the Secretary of the Delaware Department of Natural Resources and Environmental Control (or his/her designee), who shall administer the program with the assistance of the Secretary of the Delaware Department of Agriculture (or his/her designee).
"State Nutrient Management Law" means the law and associated regulations authorized in 3 Del.C. § 2200 et.al.
"State Nutrient Management Program" or "SNMP" means all the nutrient management program elements developed by the Delaware Nutrient Management Commission, whether or not reduced to rules or regulations.
"State Technical Standards" means those technical standards established by the Secretary and in consultation with a collaborative group of technical experts representing technical resources and endorsed by the Delaware Nutrient Management Commission. State Technical Standards are available at the Department.
"State Waters" or "Waters of the State" means all water, on the surface and under the ground, wholly or partially within, or bordering the State, or within its jurisdiction including but not limited to:
"Stockpiling" means the temporary location of manure piles in the production area for no more than 14 days unless the manure/litter is located under cover in an approved Manure Storage Structure. Stockpiling must be conducted and positioned in accordance with State Technical Standards.
"Stormwater" means runoff from rain, snow or other forms of precipitation resulting in surface runoff and drainage.
"Storm Water Treatment System" means a system of vegetative, structural, and other facilities or measures that control the volume, conveyance and rate of storm water runoff, and manage water quality impacts of storm water runoff. This may include constructed wetlands developed for the purpose of storm water runoff management.
"Temporary Field Staging" means the location of manure in a field for 90 days or less prior to its application in the land application area. Temporary Field Staging criteria and performance standards are further described in State Technical Standards.
"Vegetated Buffer" means a permanent strip of dense perennial vegetation naturally occurring or established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters. For the purposes of these regulations, vegetated buffers will be measured from the top of the bank of the water body that is being buffered.
"Water Quality Standard" means any rule or limit established by the Secretary of the Department of Natural Resources and Environmental Control which consists of a designated use or uses for Waters of the State and the water quality criteria for such waters based upon such designated uses.
"25-Year, 24-Hour Rainfall Event" means the runoff event produced by a storm having an annual probability of occurrence of 4%, as defined by the National Weather Service Technical Paper Number 40, "Rainfall Frequency Atlas of the United States" (as amended), equivalent to regional or state rainfall probability information developed there from, or a rain event resulting in 6.0 inches of rainfall for New Castle county, 6.5 for Kent county and 6.7 for Sussex county in a 24-hour period.
"100-Year, 24-Hour Rainfall Event" means the runoff event produced by a storm having an annual probability of occurrence of 1%, as defined by the National Weather Service Technical Paper Number 40, "Rainfall Frequency Atlas of the United States", equivalent to regional or state rainfall probability information developed there from, or a rain event resulting in 8.0 inches of rainfall for New Castle county, 8.9 for Kent county and 9.2 for Sussex county in a 24-hour period.
| 1,000 | Cattle other than mature dairy cows or veal calves. Includes but is not limited to heifers, steers, bulls, and cow/calf pairs. |
| 700 | mature dairy cattle (whether milked or dry cows), |
| 2,500 | swine each weighing over 55 pounds, |
| 10,000 | swine weighing under 55 pounds, |
| 500 | horses, |
| 10,000 | sheep or lambs, |
| 55,000 | turkeys, |
| 30,000 | laying hens or broilers, if the AFO uses a liquid manure handling system, |
| 125,000 | chickens except laying hens (if other than a liquid manure handling system), |
| 82,000 | laying hens (if other than a liquid manure handling system), |
| 1,000 | veal calves. |
| 30,000 | ducks (if the AFO uses other than a liquid manure handling system), |
| 5,000 | ducks (if the AFO uses a liquid manure handling system). |
| 300 to 999 | Cattle other than mature dairy cows or veal calves. Includes but is not limited to heifers, steers, bulls, and cow/calf pairs. |
| 200 to 699 | mature dairy cattle (whether milked or dry cows), |
| 750 to 2,499 | swine each weighing over 55 pounds, |
| 3,000 to 9,999 | swine weighing under 55 pounds, |
| 150 to 499 | horses, |
| 3,000 to 9,999 | sheep or lambs, |
| 16,500 to 54,999 | turkeys, |
| 9,000 to 29,999 | laying hens or broilers, if the AFO uses a liquid manure handling system, |
| 37,500 to 124,999 | chickens except laying hens (if other than a liquid manure handling system), |
| 25,000 to 81,999 | laying hens (if other than a liquid manure handling system), |
| 300-999 | veal calves. |
| 10,000 to 29,999 | ducks (if the AFO uses other than a liquid manure handling system), |
| 1,500 to 4,999 | ducks (if the AFO uses a liquid manure handling system). |
| Regulated parameter | Maximum daily 1 | Maximum monthly average 1 | Maximum daily 2 | Maximum monthly average 2 |
| BOD5 ......................................................................... Fecal coliform ............................................................ | 3.66 (3) | 2.0 (3) | 1.66 (3) | 0.91 (3) |
1Pounds per 1000 ducks
2 Kilograms per 1000 ducks
3 Not to exceed MPN of 400 per 100 ml at any time.
These regulations are promulgated pursuant to the authority provided by 3 Del.C. § 2200 et.al. and 7 Del.C. § 6000 et.al, and 40 CFR Part 122.
The following words and terms, when used in this Subsection, shall have the following meaning unless the context clearly indicates otherwise:
"Action Threshold" means the point at which pest populations or environmental conditions cannot be tolerated necessitating that pest control action be taken based on economic, human health, aesthetic, or other effects. An action threshold may be based on current and/or past environmental factors that are or have been demonstrated to be conducive to pest emergence and/or growth, as well as past and/or current pest presence. Action thresholds are those conditions that indicate both the need for control actions and the proper timing of such actions.
"Active Ingredient" means any substance (or group of structurally similar substances) that will prevent, destroy, repel or mitigate any pest, or that functions as a plant regulator, desiccant, or defoliant within the meaning of FIFRA sec. 2(a). [40 CFR § 152.3 ]. Active ingredient also means a pesticidal substance that is intended to be produced and used in a living plant, or in the produce thereof, and the genetic material necessary for the production of such a pesticidal substance. [40 CFR § 174.3 ]
"Adverse Incident" means an unusual or unexpected incident that an Operator has observed upon inspection or of which the Operator otherwise becomes aware, in which:
The phrase, toxic or adverse effects, also includes any adverse effects to humans or domesticated animals that occur either from direct contact with or as a secondary effect from a discharge to Waters of the State that are temporally and spatially related to exposure to a pesticide residue (e.g., skin rashes, vomiting, lethargy, sickness from consumption of plants or animals containing pesticides).
"Agricultural land management practices" means those methods and procedures generally accepted by the Conservation Districts and used in the cultivation of land in order to further crop and livestock production and conservation of related soil and water resources.
"Annual Treatment Threshold" means an area (in acres) or linear distance (in miles) in a calendar year to which an Operator is authorizing and/or performing pesticide applications as identified below:
| Table 1. Annual Treatment Thresholds | |
| Pesticide Use | Annual Threshold |
| Mosquitoes and Other Flying Insect Pest Control (larvaecide and adulticide) | 6400 acres of treatment area cumulative |
| Weed and Algae Pest Control | 20 linear miles or 80 acres of water (i.e. surface area) |
| Animal Pest Control | 20 linear miles or 80 acres of water (i.e. surface area) |
| Forest Canopy Pest Control | 6400 acres of treatment area cumulative |
For calculating annual treatment areas for Mosquitoes and Other Flying Insect Pest Control and Forest Canopy Pest for comparing with any threshold in Table 1, count each pesticide application activity to a treatment area (i.e., that area where a pesticide application is intended to provide pesticidal benefits within the pest management area) as a separate area treated. For example, applying pesticides three times a year to the same 3,000 acre site should be counted as 9,000 acres of treatment area for purposes of determining if such an application exceeds an annual treatment area threshold. The treatment area for these two pesticide use patterns is additive over the calendar year.
For calculating annual treatment areas for Weed and Algae Control and Animal Pest Control for comparing with any threshold in Table 1, calculations should include either the linear extent of or the surface area of waters for applications made to Waters of the State or at water's edge adjacent to Waters of the State. For calculating the annual treatment area, count each treatment area only once, regardless of the number of pesticide application activities performed on that area in a given year. Also, for linear features (e.g., a canal or ditch), use the length of the linear feature whether treating in or adjacent to the feature, regardless of the number of applications made to that feature during the calendar year. For example, whether treating the bank on one side of a ten-mile long ditch, banks on both sides of the ditch, and/or water in that ditch, the total treatment area is ten miles for purposes of determining if an Pesticides Discharge Management Plan (PDMP) is required to be created. Additionally, if the same 10 miles area is treated more than once in a calendar year, the total area treated is still 10 miles for purposes of comparing with any threshold in Table 1. The treatment area for these two pesticide use patterns is not additive over the calendar year.
"Best Available Technology (BAT)" is the "best" or most advanced and reasonably cost-effective treatment technology, control measures and practices, including pollution prevention, available to prevent, manage, reduce or remove pollutants taking the following seven factors into account:
"Best Management Practices (BMPs)" means schedules of activities, prohibition of practices, maintenance procedures, and other management practices or measures to prevent or reduce the discharge of pollutants to Waters of the State. BMPs include the following, among other practices and measures: structural and non-structural controls; treatment requirements; and operating procedures and practices to control site runoff, or spillage, or leaks, or drainage from raw materials storage.
"Biological Control Agents" mean those agents that are organisms that can be introduced to Operator sites, such as herbivores, predators, parasites, and hyperparasites. [Source: US FWS IPM Guidance, 2004].
"Biological Pesticides (also called biopesticides)" includes microbial pesticides, biochemical pesticides and plant-incorporated protectants (PIP).
Microbial pesticide means a microbial agent intended to prevent, destroy, repel, or mitigate any pest, or intended for use as a plant regulator, defoliant, or desiccant, that:
Biochemical pesticide means a pesticide that:
Plant-incorporated protectant means a pesticidal substance that is intended to be produced and used in a living plant, or in the produce thereof, and the genetic material necessary for production of such a pesticidal substance. It also includes any inert ingredient contained in the plant, or produce thereof.
"Chemical Pesticides" means all pesticides not otherwise classified as biological pesticides.
"Cultural Methods" means manipulation of the habitat to increase pest mortality by making the habitat less suitable to the pest.
"Declared Pest Emergency" means an event defined by a public declaration by a federal agency, state, or local government of a pest problem determined to require control through application of a pesticide beginning less than ten days after identification of the need for pest control. This public declaration may be based on:
"Department" means the State of Delaware Department of Natural Resources and Environmental Control.
"Discharge" when used without qualification, means the "discharge of a pollutant."
"Discharge of a Pollutant" means the addition of any pollutant, or combination of pollutants, to state waters or the contiguous zone, or the ocean, from any source or activity other than a vessel or other floating craft when being used as a means of transportation and in compliance with Section 312 of the Act. This definition includes additions of pollutants into State waters from: surface runoff that is collected or channeled by man; discharges through pipes, sewers, or other conveyances which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into a treatment works other than a publicly owned treatment works (POTW).
"Facility" means any NPDES "point source" (including land or appurtenances thereto) that is subject to regulation under the NPDES program. [40 CFR § 122.2 ]
"Federal Facility" means any buildings, installations, structures, land, public works, equipment, aircraft, vessels, and other vehicles and property, owned, operated, or leased by, or constructed or manufactured for the purpose of leasing to, the federal government.
"FIFRA" means the Federal Insecticide, Fungicide and Rodenticide Act (7 USC § 136 et seq.) as amended.
"For-Hire" means an individual or company that has been hired to apply pesticides and includes persons who make contractual pesticide applications for which they or their employer receives compensation (e.g., lawn care firms, pest control companies).
"Impaired Water" (or "Water Quality Impaired Water" or "Water Quality Limited Segment") means a water is impaired for purposes of this Subsection if it has been identified by the Department as not meeting applicable State water quality standards (these waters are called "water quality limited segments" under 40 CFR § 130.2(j)). Impaired waters include both waters with approved or established TMDLs, and those for which a TMDL has not yet been approved or established.
"Inert Ingredient" means any substance (or group of structurally similar substances), other than an active ingredient, that is intentionally included in a pesticide product. Inert ingredient also means any substance, such as a selectable marker, other than the active ingredient, where the substance is used to confirm or ensure the presence of the active ingredient, and includes the genetic material necessary for the production of the substance, provided that genetic material is intentionally introduced into a living plant in addition to the active ingredient.
"Integrated Pest Management (IPM)" means an effective and environmentally sensitive approach to pest management that relies on a combination of common-sense practices. IPM uses current, comprehensive information on the life cycles of pests and their interaction with the environment. This information, in combination with available pest control methods, is used to manage pest damage by the most economical means, and with the least possible hazard to people, property, and the environment.
"Large Entity" means any:
"Mechanical/Physical Methods" means mechanical tools or physical alterations of the environment for pest prevention or removal.
"Minimize" means to reduce and/or eliminate pesticide discharges to Waters of the State through the use of "control measures" to the extent technologically available and economically practicable and achievable.
"Non-target Organisms" means the plant and animal hosts of the target species, the natural enemies of the target species and other plants and animals, including vertebrates, living in or near the community that are not the target of the pesticide.
"Operator" means any entity (individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof) associated with the application of pesticides which results in a discharge to Waters of the State. "Operator" includes:
"Person" means an individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof.
"Pest" means any organism under circumstances that make it deleterious to man or the environment, if it is:
"Pesticide Discharge Management Plan (PDMP)" means a document that identifies the control measures (including inspections, maintenance, monitoring, and corrective action) used to comply with the applicable requirements of this Subsection and documents its implementation.
"Pest Management Area" means the area of land, including any water, for which an Operator has responsibility for and is authorized to conduct pest management activities as covered by this Subsection (e.g., for an Operator who is a mosquito control district, the pest management area is the total area of the district).
"Pest Management Measure" means any practice used to meet the effluent limitations outlined herein that complies with manufacturer's specifications as required under FIFRA, industry standards, and recommended industry practices related to the application of pesticides, relevant legal requirements and other provisions that a prudent Operator would implement to reduce and/or eliminate pesticide discharges to waters of the State.
"Pesticide" means:
The term "pesticide" does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321). For purposes of the preceding sentence, the term "critical device" includes any device that is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term "semi-critical device" includes any device that contacts intact mucous membranes but which does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body [FIFRA Section 2(u)].
The term "pesticide" applies to insecticides, herbicides, fungicides, rodenticides, and various other substances used to control pests. The definition encompasses all uses of pesticides authorized under FIFRA including uses authorized under sections 3 (registration), 5 (experimental use permits), 18 (emergency exemptions), 24(c) (special local needs registrations), and 25(b) (exemptions from FIFRA).
The term "pesticide" is used when referring to the "pesticide, as applied." When referring to the chemical in the pesticide product with pesticidal qualities, the term "active ingredient" is used.
"Pesticide Product" means a pesticide in the particular form (including composition, packaging, and labeling) in which the pesticide is, or is intended to be, distributed or sold. The term includes any physical apparatus used to deliver or apply the pesticide if distributed or sold with the pesticide.
"Pesticide Research and Development" means activities undertaken on a systematic basis to gain new knowledge (research) and/or the application of research findings or other scientific knowledge for the creation of new or significantly improved products or processes (experimental development).
"Pesticide Residue" includes that portion of a pesticide application that is discharged from a point source to Waters of the State and no longer provides pesticidal benefits. It also includes any degradates of the pesticide.
"Pesticide Use Pattern" means the method and type of pest that is controlled, and includes the following: mosquito and other flying insect control (adulticide and larvaecide); weed and algae control; animal pest control; and forest canopy pest control.
"Point Source" means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.
"Pollutant" means dredged spoil and other dredged materials, fill material,, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, hydrocarbons, oil, product chemicals, and industrial, municipal, and agricultural waste discharged into water. For purposes of this definition, a "biological pesticide" is considered a "biological material," and any "pesticide residue" resulting from use of a "chemical pesticide" is considered a "chemical waste."
"Secretary" means the Secretary of the State of Delaware Department of Natural Resources and Environmental Control or his duly authorized designee.
"State" means the State of Delaware.
"Target Pest" means the organism(s) toward which Pest Management Measures are being directed.
"Tier 3 Waters" means for anti-degradation purposes, pursuant to 40 CFR § 131.12(a)(3), Tier 3 waters are identified by States or Tribes as having high quality waters constituting an Outstanding National Resource Water (ONRW), which may include waters of National Parks and State Parks, wildlife refuges, and waters of exceptional recreational or ecological significance.
"Total Maximum Daily Loads (TMDLs)" means the amount of a given pollutant that may be discharged to a waterbody from point, nonpoint and natural background sources and still allow attainment or maintenance of the applicable narrative and numerical water quality standards. A "TMDL" is the sum of the individual Waste Load Allocations or WLAs for point sources and load allocations or LAs for nonpoint sources of pollution and natural background. A "TMDL" may include a reasonable margin of safety (MOS) to account for uncertainties regarding the relationship between mass loading and resulting water quality. In simplistic terms, a "TMDL" attempts to match the strength, location and timing of pollution sources within a watershed with the inherent ability of the receiving water to assimilate the pollutant without adverse impact.
"Treatment Area" means the entire area, whether over land or water, where a pesticide application is intended to provide pest control benefits within the pest management area. In some instances, the treatment area will be larger than the area where pesticides are actually applied. For example, the treatment area for a stationary drip treatment into a canal includes the entire width and length of the canal over which the pesticide is intended to control weeds. Similarly, the treatment area for a lake or marine area is the water surface area where the application is intended to provide pest control benefits.
"Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the Operator's reasonable control. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
"Waters of the State" or "State Waters" means all water, on the surface and under the ground, wholly or partially within, or bordering the State, or within its jurisdiction including but not limited to:
Waste and stormwater treatment systems or waste storage structures including, but not limited to, treatment ponds or lagoons designed to meet the requirements of the Clean Water Act (other than cooling ponds which otherwise meet the requirements of this definition) are not "State Waters" or "Waters of the State."
"Water Quality Impaired" See 'Impaired Water'.
"Water Quality Standards" means any rule or limit established by the Secretary which consists of a designated use or uses for Waters of the State and the water quality criteria for such waters based upon such designated uses. Water quality standards also include an antidegradation policy and implementation procedures.
"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetland areas are as delineated under and through 7 Del.C. Ch. 66 and the "Corps of Engineers Wetlands Delineation Manual", dated January, 1987.
This Subsection applies to Operators who fall under any one of the following pesticide use patterns: Mosquito and Other Flying Insect Pest Control (adulticide and larvaecide); Weed and Algae Control; Animal Pest Control; or Forest Canopy Pest Control.
To control public health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water. Public health/nuisance and other flying insect pests in this use category include mosquitoes and black flies.
To control weeds, algae, and pathogens that are pests in water and at water's edge, including ditches and/or canals.
To control animal pests in water and at water's edge. Animal pests in this use category include fish, lampreys, insects, mollusks, and pathogens.
Application of a pesticide to a forest canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pests effectively, a portion of the pesticide unavoidably will be applied over and deposited to water.
Permit coverage may be modified in whole or in part, revoked and reissued, or terminated by the Department during its term for cause as specified herein:
Any introduction of pollutants from non-point source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures and forest lands do not require a NPDES permit, but not discharges from 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 (7 DE Admin. Code §7201- 6.3.1.6).
The Operator is not eligible for coverage for any discharges from a pesticide application to Waters of the State if the water is identified as impaired by that pesticide or its degradates. If the discharge is not eligible because the water is listed as impaired for that specific pesticide, but there is evidence that shows the water is no longer impaired, this information may be submitted to the Department with a request that coverage be allowed.
The Operator is not eligible for coverage for discharges from a pesticide application to waters designated by the Department as Tier 3 for anti-degradation purposes.
Discharges covered by another National Pollutant Discharge Elimination System (NPDES) permit shall apply for permit coverage under this Subsection separately.
The Operator is not eligible for coverage for pesticide applications taking place on federal lands or federal facilities covered under NPDES Pesticides General Permit administered by EPA.
The Department may require the Operator to apply for and/or obtain authorization to discharge under an individual NPDES permit in accordance with Section 6.0 of the "Regulations Governing the Control of Water Pollution." If the Department requires Operator to apply for an individual NPDES permit, the Department will notify the Operator in writing that a permit application is required. This notification will include a brief statement of the reasons for this decision and will provide application information. In addition, if the Operator's discharges are authorized under this Subsection, the notice will set a deadline to file the permit application, and will include a statement that on the effective date of the individual NPDES permit, coverage under this Subsection will terminate. The Department may grant additional time to submit the application if the Operator submits a request setting forth reasonable grounds for additional time. If the Operator is covered and fails to submit an individual NPDES permit application as required by the Department, then the applicability of this permit to the Operator is terminated at the end of the day specified by the Department as the deadline for application submittal. The Department may take enforcement action for any unpermitted discharge or violation of any permit requirement.
The Operator may apply for an individual permit. In such a case, the Operator must submit an individual permit application in accordance with the requirements of Section 6.0 of the "Regulations Governing the Control of Water Pollution", with reasons supporting the request, to the Department. The request may be granted by issuance of an individual permit if the Operator's reasons are warranted.
When an individual NPDES permit is issued to the Operator to discharge a pollutant to Waters of the State as a result of a pesticide application, the Operator's authorization to discharge under this Subsection is terminated on the effective date of the individual permit.
Operators are required to comply with all other applicable federal or state laws and regulations that pertain to application of pesticides.
If an Operator's discharge of pollutants results from the application of pesticide that is being used solely for the purpose of Pesticide Research and Development (as defined in 9.8.2), the Operator must use such pesticide consistent with any applicable research plan and experimental use permit.
At a minimum, all Operators must comply with this Subsection and minimize the discharge of pesticides to Waters of the State from the application of pesticides, through the use of Pest Management Measures, as defined in 9.8.2.
Operators must select and implement efficient and effective means to control and manage pests that minimize any discharges (of pollutants) resulting from the application of pesticides from the Pesticide Use Patterns as in 9.8.3. In developing the Pest Management Measures to be implemented for each pest management area, the Operator must first evaluate [and document according to 9.8.10] the following management options, including a combination of these management options, considering impact to water quality, impact to non-target organisms, feasibility, and cost effectiveness:
If a pesticide is selected to manage pests and the application of the pesticide will result in a discharge to a Waters of the State, Operators must:
During any pesticide application with discharges authorized under this permit, all Operators must, when considerations for safety and feasibility allow, visually assess the area to and around where pesticides are applied for possible and observable adverse incidents, as defined in 9.8.2, caused by application of pesticides, including the unanticipated death or distress of non-target organisms and disruption of wildlife habitat, recreational or municipal water use.
Although no numeric water-quality based effluent limits are established under this Subsection, all Operators must control discharges as necessary to meet applicable numeric and narrative state water quality standards, for any discharges authorized under this Subsection, with compliance required upon beginning such discharge.
If at any time an Operator becomes aware or the Department determines that the Operator's discharge causes or contributes to an excursion of any applicable water quality standard, the Operator must take corrective action as required in 9.8.11 up to and including the ceasing of the discharge, if necessary. At any time, the Department can require water quality-based monitoring by the Operator when deemed necessary. In this circumstance, test procedures to be used shall be those approved 40 CFR Part 136 . Calculations for all limitations that require averaging of measurements must use an arithmetic mean unless otherwise specified by the Department.
Prior to pesticide application, all Operators must do the following for each Pest Management Area, as defined in 9.8.2, and for each Pesticide Use Pattern, as established in 9.8.4:
The PDMP documents how Operators will implement the non-numeric effluent limitations, including the evaluation and selection of Pest Management Measures to meet those non-numeric effluent limitations in order to minimize discharges. In the PDMP, Operators may incorporate by reference any procedures or plans in other documents that meet the requirements of this Subsection. If Operators rely upon other documents to comply with the non-numeric effluent limitations, such as a preexisting pest management plan, the Operator(s) must attach to the PDMP a copy of any portions of any documents that are used to document the implementation of the non-numeric effluent limitations.
The PDMP must include the following elements:
Operators shall modify the PDMP whenever necessary to address any of the triggering conditions for corrective action in 9.8.11 or when a change in pest control activities significantly changes the type or quantity of pollutants discharged. Changes to the PDMP must be made before the next pesticide application that results in a discharge, if practicable, or if not, no later than 90 days after any change in pesticide application activities. The revised PDMP must be signed and dated in accordance with 9.8.10.6.
The Operator shall retain a copy of the current PDMP, along with all supporting maps and documents, at the address provided on the NOI form. The PDMP and all supporting documents must be readily available to the Department, upon request, and copies of any of these documents provided, upon request, to the Department. If requested, the Department may provide copies of the PDMP to members of the public in accordance with Delaware's Freedom of Information Act, 29 Del.C. § 10002(d)(2).
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information contained therein. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information contained is, to the best of my knowledge and belief, 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."
All Operators must comply with the provisions herein, and file associated written reports, for any authorized discharges, with compliance required upon beginning such discharge.
The occurrence of any situation as identified below may constitute a violation of this Subsection. Correcting the situation according to this subsection does not absolve the Operator of liability for any original violation. However, failure to comply with this Subsection constitutes an additional violation. The Department will consider the appropriateness and promptness of corrective action in determining enforcement responses to permit violations.
The Department or a court may impose additional requirements and schedules of compliance, including requirements to submit additional information concerning the condition(s) triggering corrective action, or schedules and requirements more stringent than specified in this Subsection. The requirements and schedules will supersede those requirements below if such requirements conflict.
Operators must review and, as necessary, revise the evaluation and selection of Pest Management Measures, Best Management Practices, and utilization of Best Available Technology as described in 9.8.9.1 and 9.8.9.2 for the following situations:
If an Operator determines that changes to Pest Management Measures, Best Management Practices, and Utilization of Best Available Technology as in 9.8.9.1 and 9.8.9.2 are necessary, such changes must be made before or, if not practicable, as soon as possible after the next pesticide application that results in a discharge.
For situations identified in 9.8.11.1.1, all Operators must document the situation triggering corrective action and planned corrective action within five (5) calendar days of becoming aware of that situation, and retain a copy of this documentation (no submission requirement to the Department). This documentation must include the following information:
Except as provided for in 9.8.11.2.4, if an Operator observes or is otherwise made aware of an adverse incident as defined in 9.8.2, which may have resulted from a discharge from a pesticide application, the Operator must immediately notify the Department utilizing the 24-hour HOTLINE at (800) 662-8802. Operators must also report any noncompliance which may endanger health or the environment. If an Operator is unable to notify the Department immediately of becoming aware of the situation, the Operator must do so as soon as possible and also provide the rationale for why the Operator was unable to provide such notification.
An operator becoming aware of the adverse incident and must provide at least the following information:
Except as provided for in9.8.11.2.4, within five (5) calendar days of a reportable adverse incident or situation endangering human health or the environment, Operators must provide a written report of the adverse incident to the Department to the address as provided in 9.8.15. The adverse incident report shall be signed according to signatory requirements in 9.8.14. Documentation shall include at least the following information:
Where multiple Operators are authorized for a discharge that results in an adverse incident, notification and reporting by any one of the Operators constitutes compliance for all of the Operators, provided a copy of the written report is also provided to all of the other authorized Operators within five (5) days of the reportable adverse incident.
Reporting of adverse incidents is not required under this permit in the following situations:
Where a leak, spill, or other release into Waters of the State containing a hazardous substance or oil in an amount equal to or in excess of a reportable quantity established under 7 Del.C.§ 6028 and the Department's Regulations for Reporting the Discharge of a Pollutant or Air Contaminant (7 DE Admin. Code § 1203) occurs in any 24-hour period, an Operator must notify the Department immediately by calling the Spill Notification 24 hour HOTLINE at (800) 662-8802 as soon as the Operator has knowledge of the release. State or local requirements may necessitate also reporting spills or leaks to local emergency response, public health, or drinking water supply agencies. An operator becoming aware of the spill or leak must report all relevant information as described under Adverse Incident (9.8.11.2.1).
If an Operator becomes aware of a spill, leak, or other unpermitted discharge in an amount equal to or in excess of a reportable quantity established under 7 Del.C.§ 6028 and the Department's Regulations for Reporting the Discharge of a Pollutant or Air Contaminant (7 DE Admin. Code § 1203), the Operator must additionally follow the written reporting protocol and report relevant information (in writing) to the Department as described under Adverse Incident (9.8.11.2) within five (5) calendar days.
Operators must keep written records as required within this Subsection for all discharges covered under this Subsection. These records must be accurate and complete to demonstrate compliance with the conditions of this Subsection. Operators may rely on records and documents developed for other obligations, such as requirements under FIFRA, and state or local pesticide programs, provided all requirements of this Subsection are satisfied.
Anyone hired to apply pesticides on behalf of an Operator who submitted an NOI is to maintain a copy of the NOI and the Department's acknowledgement of permit coverage.
All Operators that fall below the Annual Treatment Thresholds must report Adverse Incidents and Spills and Leak in accordance with 9.8.11.2 and 9.8.11.3. All Operators must additionally document any Corrective Action as in 9.8.11.1.
Operators that are required to have a PDMP, as outlined in 9.8.10, must submit an annual report to the Department. Once an Operator meets the obligation to submit an annual report, the Operator must submit the annual report each calendar year thereafter for the duration of coverage under this Subsection, whether or not the Operator has discharges from the application of pesticides in any subsequent calendar year. The annual report must be submitted no later than February 1 of the following year for all pesticide activities covered under this Subsection occurring during the previous calendar year. Annual reporting requirements begin with those discharges occurring during calendar year 2012.
The annual report must contain the following information:
Annual reporting will not be required for Operators other than as specified above in 9.8.13.1.
The annual report must be submitted and signed in accordance with 9.8.14, and must include the following certification:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information contained therein. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information contained is, to the best of my knowledge and belief, 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."
Written correspondence to the Department should be addressed to:
Delaware Department of Natural Resources and Environmental Control
Division of Water
Surface Water Discharges Section - NPDES
89 Kings Highway
Dover, DE 19901
Any person who violates conditions of this Subsection may be subject to penalties in accordance with 7 Del.C. Ch. 40, 7 Del.C. Ch. 60, or both. Violation of this Subsection is also a violation of the Clean Water Act and may be subject to penalties established under that statute.
Operators must take all reasonable steps to minimize or prevent any discharge in violation of this Subsection, which has a reasonable likelihood of adversely affecting human health or the environment.
It shall not be a defense for an Operator in an enforcement action that it would have been necessary to halt or reduce the permitted activity to maintain compliance with the conditions of this Subsection.
If an Operator wishes to continue an activity regulated by this regulation after the expiration date of this regulation, as stated in 9.8.3.3, the Operator must apply for and obtain authorization as required by Delaware Code.
Nothing shall be construed to preclude the institution of any legal action or relieve any person subject to this Subsection from any responsibilities, liabilities, or penalties established pursuant to any applicable State or Federal law or regulation.
Operators must at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which the Operators installs or uses to achieve compliance with the conditions of this Subsection. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which the Operator installs only when the operation is necessary to achieve compliance with the conditions of this Subsection.
Coverage under this Subsection does not convey any property rights of any sort, any exclusive privileges, any authorization to damage, injure or use any private property, any authority to invade personal rights, any authority to violate federal, State, or local laws or regulations, or any taking, condemnation or use of eminent domain against any property owned by third parties. The Department does not warrant that the Operator's compliance with this Subsection and operation under this Subsection will not cause damage, injury, or use of private property, an invasion of personal rights, or violation of federal, state, or local laws or regulations. The Operator is solely and severably liable for all damage, injury or use of private property, invasion of personal rights, infringement of federal, State, or local laws and regulations, or taking or condemnation of property owned by third parties, which may result from actions taken under the Subsection.
The Operator shall furnish to the Department, within a reasonable timeframe, any information which the Department may request to determine cause for modifying, revoking and reissuing, or terminating coverage, or to determine compliance with this Subsection. The Operator shall also furnish to the Department upon request, copies of records required to be maintained by this Subsection.
Operators must allow the Department upon presentation of credentials and other documents as may be required by law, to do the following:
Invalidation of a portion of this regulation does not render the whole Subsection invalid. The Department's intent is that the Subsection will remain in effect to the extent possible; in the event that any part of this Subsection is invalidated, the remaining parts of the regulation will remain in effect unless the Department issues a written statement otherwise.
The requirements of this Subsection shall continue in force and will be considered administratively extended until this regulation is re-promulgated.
1 Form 1: NPDES permit application containing general information about the applicant and facility. This form must accompany the NPDES permit application, Form 2F. Form 2F: NPDES permit application to discharge storm water associated with industrial activities.
7 Del. Admin. Code § 7201-9.0