1301 Regulations Governing Solid Waste

1.0 Declaration Of Intent

The Delaware Department of Natural Resources and Environmental Control finds and declares that improper solid waste handling and disposal practices may result in environmental damage, including substantial degradation of the surface and ground water and waste of valuable land and other resources, and may constitute a continuing hazard to the health and welfare of the people of the State. The Department further finds that the utilization of solid waste handling and disposal facilities which are properly located, designed, operated, and monitored will minimize environmental damage and protect public health and welfare.

It is the intent of the Department to require that solid waste handling and disposal be conducted in a manner and under conditions which will eliminate the dangerous and deleterious effects of improper solid waste handling and disposal upon the environment and upon human health, safety, and welfare.

The purposes of these regulations are:

1. To encourage, in all appropriate ways, recycling, reuse, and reclamation processes, and

2. To implement the provisions of 7 Del.C. Ch. 60, which directs the Department to put into effect a program for improved solid waste storage, collection, transportation, processing, transfer, and disposal by providing that such activities may henceforth be conducted only in an environmentally acceptable manner pursuant to a permit obtained from the Department.

2.0 Scope And Applicability

2.1 Authority

2.1.1 These regulations are enacted pursuant to 7 Del.C. Ch. 60.

2.1.2 These regulations shall be known as "Regulations Governing Solid Waste" and shall repeal the "Delaware Solid Waste Disposal Regulation".

2.2 Applicability

2.2.1 These regulations apply to any person using land or allowing the use of land for the purposes of storage, collection, processing, transfer, or disposal of solid waste; and to any person transporting solid waste in or through the State of Delaware. The following shall be subject to the provisions of these regulations:

2.2.1.1 Sanitary landfills

2.2.1.2 Industrial landfills

2.2.1.3 Resource recovery facilities

2.2.1.4 Transfer stations

2.2.1.5 Special wastes handling

2.2.1.6 Transportation of solid waste

2.2.1.7 Storage of solid waste

2.2.2 These regulations do not apply to those agricultural wastes that are subject to regulations promulgated by the Division of Water Resources.

2.2.3 For the purposes of these regulations, all wastes defined herein and that are subject to regulations promulgated by the Division of Water Resources shall not be regulated as solid wastes.

2.2.4 These regulations do not apply to any waste which meets the criteria of hazardous waste as described in the Delaware Regulations Governing Hazardous Waste.

2.3 Exemptions

The following activities are exempted from these regulations:

2.3.1 Disposal or land application on a farm of the agricultural wastes that are generated on the farm or result from the operation of the farm. The disposal or land application must be conducted in a manner that is in compliance with all federal, state, and local regulatory requirements and that does not threaten human health or the environment.

2.3.2 Composting, on a private property, the leaves, grass clippings, and other vegetation originating on the property.

2.3.3 Disposal of clean fill.

2.3.4 Creation of brush piles on the property on which the material was generated.

2.3.5 The use of vegetative matter and untreated ground wood products to construct berms on the property on which the materials were generated. (Notification must be made to the Department prior to commencing this activity.)

2.4 Compliance

2.4.1 Existing facilities

All existing facilities must comply with the provisions of these regulations with the following exceptions:

2.4.1.1 Closed facilities or closed portions of facilities will not be required to disturb or replace their cap or cover system for the purpose of coming into compliance with these regulations.

2.4.1.2 Facilities currently operating under a permit which does not require a liner and/or a leachate detection system will not be required to install a liner or leachate detection system in closed or currently active areas for the purpose of coming into compliance with these regulations.

2.4.2 New facilities and expansions of existing facilities

All new facilities and all expansions of existing facilities shall comply with the provisions of these regulations.

2.5 Composting And Recycling Approvals

2.5.1 Composting Approvals

Other than individual household composting, all other composting operations must obtain written approval from the Department prior to commencing a composting operation. To obtain an approval, a person must submit the following information to the Department:

2.5.1.1 A written plan of operation demonstrating to the Department that the requestor of the approval and the person responsible for operating the composting facility understand and will apply the principles and proper methods of composting. The plan of operation must also demonstrate that the composting facility will be operated in a manner that will not pose a threat to human health and the environment; and

2.5.1.2 A written statement explaining how the applicant intends to use the compost.

2.5.2 Recycling Approvals

Recycling solid waste into specific market applications requires written approval prior to commencing this activity. To obtain an approval, a person must submit the following information to the Department:

2.5.2.1 A written plan of operation describing the types and quantities of materials that will be accepted at the facility, the processing methods and equipment that will be used, and the products that will be produced, and

2.5.2.2 Documentation demonstrating the existence of a market or markets for the product(s).

2.6 Other Applicable Requirements. Nothing in these regulations shall be construed as relieving an owner or operator of a facility from the obligation of complying with any other laws, regulations, orders, or requirements which may be applicable.

3.0 Definitions

The following words, phrases, and terms as used in these regulations have the meanings given below:

“100 Year Flood” means a flood that has a one percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

"Action Leakage Rate" means the quantity of liquid collected from a leak detection system of a double liner system over a specified period of time which, when exceeded, requires certain actions to be taken as described in the Action Leakage Rate response plan approved by the Department.

"Active Life" means the period of operation beginning with the initial receipt of solid waste and ending at the completion of closure activities.

"Active Portion" means that portion of a facility that presently has an operating permit issued by the Department of Natural Resources and Environmental Control.

"Agricultural Waste" means carcasses of poultry or livestock, crop residue, or animal excrement.

"Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water.

"ASTM" means the American Society for Testing and Materials.

"Authorized Representative" means the person responsible for the overall operation of a facility or an operational unit (i.e., part of a facility), e.g., the plant manager, landfill manager, superintendent, or person of equivalent responsibility.

"Bottom Ash" means the residue remaining in the bottom of the combustion chamber of an incinerator after the combustion of fuel or waste.

"Buffer Zone" means those onsite areas adjacent to the facility property line which shall be left undeveloped during the active life as well as the inactive life of the facility.

"Bulky Waste" means items whose large size or weight precludes or complicates their handling by normal collection, processing, or disposal methods.

"Cap" or "Capping System" means the material used to cover the top and sides of a sanitary or industrial landfill when fill operations cease.

"Cell" means a discrete engineered area that is designed for the disposal of solid waste and that is a subpart of a landfill.

"Certification" means a statement of professional opinion based upon knowledge and belief.

"CFR" means the Code of Federal Regulations.

"Clay", as a soil separate, means the mineral soil particles less than 0.002 mm in diameter. As a soil textured class, "CLAY" means soil material that is 40% or more clay, less than 45% sand, and less than 40% silt. Clay used as a liner or cap should be classifiable as a CL or CH (Unified Soil Classification System) with a liquid limit between 30 and 60, should place above the A-line on the plasticity chart, and should have a minimum plastic index of 15. A clay liner should have a cation exchange capacity greater than 15 meq/100 grams and be in the neutral pH range.

"Clean Fill" means a non-water-soluble, non-decomposable, environmentally inert solid such as rock, soil, gravel, concrete, broken glass, and/or clay or ceramic products.

"Closed Portion" means that portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all other applicable closure requirements.

“Closure" means the cessation of operation of a facility or a portion thereof and the act of securing such a facility so that it will pose no significant threat to human health or the environment.

"Closure Plan" means written reports and engineering plans detailing those actions that will be taken by the owner or operator of a facility to effect proper closure of that facility or a portion thereof.

"Commercial Waste" means solid waste generated by stores, offices, restaurants, warehouses, and other non-manufacturing, non-processing activities.

"Compost" means a product of composting that has been stabilized to a humus-like product, is free of pathogens at an infectious level and of viable plant seeds, that does not attract insects or vectors, can be handled and stored without nuisance, and is beneficial to the growth of plants.

"Composting" means the biological decomposition and stabilization of organic material, under conditions that allow development of thermophilic temperatures as a result of biologically produced heat, to produce a final product that is stable, free of pathogens and viable plant seeds, and can be beneficially applied to the land.

"Composting Facility" means a facility where organic material is processed using composting technology which may include but is not limited to physical turning, windrowing, in vessel composting, or other mechanical handling of organic material.

"Confined Aquifer" means an aquifer containing ground water which is everywhere at a pressure greater than atmospheric pressure and from which water in a well will rise to a level above the top of the aquifer. A confined aquifer is overlain by material of distinctly lower permeability ("confining bed") than the aquifer.

"Contaminant" means any substance that enters the environment at a concentration that has the potential to endanger human health or degrade the environment.

"Controlling Slopes" means slopes on those areas of a liner that have a direct influence on the maximum leachate head, or slopes that are perpendicular to the collection laterals.

"Daily Cover" means a layer of compacted earth, or other suitable material as approved by the Department, used to enclose a volume of solid waste each working day.

"Department" means The Department of Natural Resources and Environmental Control.

"Dike" means an embankment or ridge of either natural or man-made materials used to prevent or to control the movement of solids, liquids, or other materials.

"Discharge" means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a substance into or onto any land, water, or air.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or upon any land or water.

"Disposal Facility" means any facility or portion of a facility at which solid waste is intended to be and/or is intentionally placed into or onto any land and at which solid waste will remain after closure has taken place.

"Double Liner System" means a liner system consisting of two liners with a leachate detection and collection system in between.

"Dry Waste" (formerly called "Inert Solid Waste") means wastes including, but not limited to, plastics, rubber, lumber, trees, stumps, vegetative matter, asphalt pavement, asphaltic products incidental to construction/demolition debris, or other materials which have reduced potential for environmental degradation and leachate production.

"Environmental Assessment" means a detailed and comprehensive description of the condition of all environmental parameters as they exist at and around the site of a proposed action prior to implementation of the proposed action. This description is used as a baseline for assessing the environmental impacts of a proposed action.

"Environmentally Unsound" means characterized by any condition, resulting from the methods of operation or design of a facility, which impairs the quality of the environment when compared to the surrounding background environment or any appropriate promulgated federal, state, county or municipal standard.

"Existing Facility" means a facility which was in operation or for which construction had commenced on or before the date of enactment of these regulations, provided that the facility was being constructed or operated pursuant to all permits and/or approvals required by the Department at the time of enactment. A facility has commenced construction if either:

(i) an onsite physical construction program has begun and is moving toward completion within a reasonable time; or

(ii) the owner or operator has entered into contractual obligations which cannot be cancelled or modified without substantial loss for physical construction to be completed within a reasonable time.

"Expansion" means the process of increasing the areal dimensions, vertical elevations, or slopes beyond the original approved limits of the facility.

"Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land, used in resource recovery and/or the treatment, handling, composting, storage, or disposal of solid waste. A facility may consist of several operational units (e.g., one or more landfills, cells, incinerators, compactors, or combinations thereof).

"Final Cover" means the material used to cover the top and sides of a landfill cell when fill operations cease.

"Flood Plain" means the lowland and relatively flat areas adjoining inland and coastal waters, that are inundated by the 100 YEAR FLOOD.

"Fly Ash" means a powdery residue resulting from the combustion of fuel or waste and captured by air pollution control equipment prior to exiting the smokestack.

"Free Liquids" means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure, using any or all of the following tests: EPA Paint Filter Test; EPA Plate Test; EPA Gravity Test.

"Garbage" means any putrescible solid and semisolid animal and/or vegetable wastes resulting from the production, handling, preparation, cooking, serving or consumption of food or food materials.

"Generation" means the act or process of producing solid waste.

"Generator" means the producer or the source of the solid waste.

"Geomembrane" means a prefabricated continuous sheet of flexible polymeric or geosynthetic material.

“Gross Vehicle Weight Rating (GVWR)” or gross vehicle weight means the value specified by the manufacturer as the loaded weight of a single vehicle.

"Ground Water" means any water naturally found under the surface of the earth.

"Hazardous Waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating irreversible, illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Without limitation, included within this definition are those hazardous wastes described in Sections 261.31, 261.32, and 261.33 of the Delaware Regulations Governing Hazardous Waste.

"Household Waste" means any solid waste derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).

"Hydraulic Conductivity" means the capacity to transmit water. It is expressed as the volume of water that will move in a unit of time under a unit hydraulic gradient through a unit area.

"Impermeable" means having a hydraulic conductivity equal to or less than 1 x 10⁷ cm/sec as determined by field and laboratory permeability tests made according to standard test methods which may be correlated with soil densification as determined by compaction test.

"Industrial Landfill" means a land site at which industrial waste is deposited on or into the land as fill for the purpose of permanent disposal, except that it will not include any facility that has been approved for the disposal of hazardous waste under the Delaware Regulations Governing Hazardous Waste.

"Industrial Waste" means any water-borne liquid, gaseous, solid, or other waste substance or a combination thereof resulting from any process of industry, manufacturing, trade or business, or from the development of any agricultural or natural resource.

"Infectious Waste": see Section 11.3 for definitions pertaining to infectious waste.

"Institutional Waste" means solid waste that is generated by institutional enterprises such as social, charitable, educational, and government services and that is similar in nature to household waste.

"Intermediate Cover" means a layer of compacted earth, or other suitable material as approved by the Department, applied to a partially completed landfill.

"Landfill" means a natural topographic depression and/or man-made excavation and/or diked area, formed primarily of earthen materials, which has been lined with man-made and/or natural materials or remains unlined and which is designed to hold an accumulation of solid wastes.

"Leachate" means liquid that has passed through, contacted, or emerged from solid waste and contains dissolved, suspended, or miscible materials, chemicals, and microbial waste products removed from the solid waste.

"Lift" means a completed series of compacted layers within a cell.

"Liner" means a continuous layer of impermeable material beneath and on the sides of a landfill or landfill cell.

"Liquid Waste" means a waste that contains less than 20 percent solids or releases free liquids.

"Local Agency" means any special district, authority, municipality, county, or any other political subdivision.

"Materials Recovery Facility" means a facility at which materials, other than source separated materials, are recovered from solid waste for recycling or for use as an energy source.

"Municipal Solid Waste" means household waste and solid waste that is generated by commercial, institutional, and industrial sources and is similar in nature to household waste.

"Municipal Solid Waste Ash" means the ash resulting from the combustion of municipal solid waste in a thermal recovery facility.

"New Sanitary Landfill Cell" means any municipal solid waste landfill unit which has not received waste prior to the effective date of these regulations. "Sanitary Landfill Cell" has the same meaning as "Municipal Solid Waste Landfill Unit" in the RCRA Subtitle D (40 CFR Part 258) Regulations.

"New Solid Waste Facility" means a facility which was not in operation or for which construction had not commenced on or before the date of enactment of these regulations.

"Onsite" means on the same or geographically contiguous property which may be divided by public or private right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access are also considered onsite property.

"Open Burning" means the combustion of solid waste without:

(1) Control of combustion air to maintain adequate temperature for efficient combustion,

(2) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and

(3) Control of the emission of the combustion products.

"Operator" means the person responsible for the overall operation of a solid waste facility.

"Owner" means the person who owns a facility or any part of a facility.

"Permittee" means a person holding a permit issued by the Department pursuant to this regulation.

"Person" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a government corporation), association, state, municipality, commission, political subdivision of a state, any interstate body, company, society, or any organization of any form.

"Personnel" or "Facility Personnel" means all persons who work at, or oversee the operations of, a solid waste facility, and whose actions or failure to act may result in noncompliance with the requirements of the Delaware Solid Waste Regulations or other regulations under the jurisdiction of the State of Delaware.

"Postclosure Care" means maintenance and long-term monitoring of, and financial responsibility for, a closed facility.

"Recharge Area" means that portion of a drainage basin in which the net saturated flow of ground water is directed away from the water table.

"Recyclable Material" means a solid waste that exhibits the potential to be used repeatedly in place of a virgin material.

"Recycling" means the process by which recyclable materials, which would otherwise be disposed of as solid waste, are returned to the economic mainstream in the form of raw materials or products.

"Refuse" means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes, street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes, and construction wastes.

"Regulated Medical Waste": see Section 11.3 for definitions pertaining to Regulated Medical / Infectious Waste.

"Resource Recovery" means the process by which materials, excluding those under control of the Nuclear Regulatory Commission, which still have useful physical or chemical properties after serving a specific purpose are reused or recycled for the same or another purpose, including use as an energy source.

"Resource Recovery Facility" means a facility that is either a Materials Recovery Facility Or A Thermal Recovery Facility.

"Rubbish" means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery, and other waste materials.

"Runoff" means any precipitation that drains over land from any part of a facility.

"Runon" means any precipitation that drains over land onto any part of a facility.

"Salvaging" means the controlled removal of solid waste from any facility for reuse of the waste material.

“Sanitary Landfill" means a land site at which solid waste is deposited on or into the land as fill for the purpose of permanent disposal, except that it will not include any facility that has been approved for the disposal of hazardous waste under the Delaware Regulations Governing Hazardous Waste.

"Sanitary Landfill Cell Boundary" means a vertical surface located at the hydraulically downgradient limit of the cell. This vertical surface extends down into the uppermost aquifer. "Sanitary Landfill Cell Boundary" has the same meaning as "Waste Management Unit Boundary" in the RCRA Subtitle D (40 CFR Part 258) Regulations. "Sanitary Landfill" has the same meaning as "MSWLF" in the RCRA Subtitle D (40 CFR Part 258) Regulations.

"Saturated Zone" means that part of the earth's crust in which all the voids are filled with water.

"Scavenging" means the uncontrolled and/or unauthorized removal of solid waste from any facility.

"Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or his or her duly authorized designee.

"Setback" means the area between the actual disposal area and the property line which can be used for construction of environmental control systems such as runoff diversion ditches, monitoring wells, or scales.

"Site" means the area of land or water within the property boundaries of a facility where one or more solid waste treatment, resource recovery, recycling, storage or disposal areas are located.

"Sludge" means any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

"Solid Waste" means any garbage, refuse, rubbish, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows or industrial discharges which are point sources subject to permits under 7 Del.C. Ch. 60, as amended, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of l954, as amended.

"Source Separated" means divided into its separate recyclable components at the point of generation.

"Special Solid Wastes" means those wastes that require extraordinary management. They include but are not limited to abandoned automobiles, white goods, used tires, waste oil, sludges, dead animals, agricultural and industrial wastes, infectious waste, municipal ash, septic tank pumpings, and sewage residues.

"Storage" means the holding of solid waste for a temporary period, at the end of which time the solid waste is treated, disposed of, or stored elsewhere.

"Subbase" means the supporting soil layers beneath a liner.

"Surface Water" means water occurring generally on the surface of the earth.

"Thermal Recovery Facility" means a facility designed to thermally break down solid waste and to recover energy from the solid waste.

"Topsoil" means the friable dark upper portion of a soil profile that contains mineral substances and organic material in varying degrees of decomposition and is capable of supporting vegetation.

"Transfer Station" means any facility where quantities of solid waste delivered by vehicle are consolidated or aggregated for subsequent transfer by vehicle for processing, recycling, or disposal.

"Transportation" means the movement of solid waste by air, rail, water, over the roadway, or on the ground.

"Transporter" means any person engaged in the transportation of solid waste.

"Treatment" means the process of altering the physical, chemical, or biological condition of the waste to prevent pollution of water, air, or soil or to render the waste safe for transport, disposal, or reuse.

"Unconfined Aquifer" means an aquifer in which the upper surface of the zone of saturation is at atmospheric pressure.

"Uppermost Aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.

"Variance" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure, as provided in 7 Del.C. Ch. 60.

"Vector" means a carrier organism that is capable of transmitting a pathogen from one organism to another.

"Vehicle" means a motorized means of transporting something. "Vehicle" includes both the motorized unit and all containerized units of a conveyance attached thereto.

"Water Table" means that surface in a ground water body at which the water pressure is atmospheric. It is defined by the levels at which water stands in wells that penetrate the water body just far enough to hold standing water.

“Well" means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when the intended use of such excavation is for the location, testing, acquisition or artificial recharge of underground water, and where the depth is greater than the diameter or width.

"Working Face" means that portion of a landfill where waste is discharged, spread and compacted prior to placement of daily cover.

8 DE Reg. 354 (8/1/04)

4.0 Permit Requirements And Administrative Procedures

4.1 General Provisions

4.1.1 Permit required

4.1.1.1 No person shall engage in the construction, operation, material alteration, or closure of a solid waste facility, unless exempted from these regulations under Section 2.3, without first having obtained a permit from the Department.

4.1.1.2 No person that is subject to the requirements of Section 7.2 or 7.3 of these regulations shall transport solid waste in or through the State of Delaware without first having obtained an appropriate solid waste transporter's permit from the Department.

4.1.1.3 Permittees shall abide by the conditions of their permit issued by the Department.

4.1.2 Public notice; hearing

Within 60 days after receipt of a completed application and all other required information, the Department will give public notice and the opportunity for a public hearing as provided in 7 Del.C. Ch. 60. The cost of the advertisement shall be borne by the applicant. A 15 day comment period will follow the publication date of each public notice. If no meritorious adverse public comments are received during this period, and the Secretary does not deem a public hearing to be in the best interest of the State, the Department will enter into the permit approval/denial phase. If a meritorious request for a hearing is received during the comment period, or if the Secretary deems a hearing to be in the best interest of the State, a public hearing will be held as provided in 7 Del.C. §6004 and 6006.

4.1.3 Approval/denial

The Department shall act upon an application for a permit within 60 days after the close of the public notice comment period or upon receipt of the hearing officer's report if a hearing was required. When a final determination is made on an application, the Department shall issue a permit or send a letter of denial to the applicant explaining the reasons for the denial.

4.1.4 Suspension, revocation of permit

A permit may be revoked or suspended for violation of any condition of the permit or any requirement of this regulation, after notice and opportunity for hearing in accordance with 7 Del.C. Ch. 60.

4.1.5 Duration of permit

A permit will be issued for a specific duration which will be determined by the Department.

4.1.5.1 Solid waste facility operating permits (landfills, resource recovery facilities, transfer stations, incinerators) shall not be issued for periods greater than 10 years.

4.1.5.2 Post-closure permits shall be valid and enforceable throughout the entire post-closure period.

4.1.6 Permit renewal

Any person wishing to renew an existing permit that is to expire shall, not less than 180 days prior to the expiration date of the existing permit, submit to the Department, a permit renewal application form with all supporting documentation and appropriate fees as required by these regulations.

In the event that the permittee submits a timely application, (not less than 180 days prior to the expiration date of the existing permit) and the Department, through no fault of the permittee, is unable to make a final determination on the application before the expiration date of the existing permit, the Department may, at its discretion, grant an extension of that permit. If the Department issues an extension, all conditions of the permit will remain in effect, for a period of time which will be determined by the Department.

4.1.7 Modification of permit

4.1.7.1 A permittee may request modifications to a permit. All such requests must be submitted in writing to the Department.

4.1.7.2 The Department may initiate modification of a permit if it finds that the existing permit conditions either are not adequate or are not necessary to protect human health and the environment.

4.1.7.3 Public notice and opportunity for hearing in accordance with paragraph 4.1.2 of this Section shall be accomplished for all major modifications proposed for the permit. In the event a hearing is requested or deemed necessary by the Secretary, only the permit conditions subject to the modification shall be reopened for public comment.

4.1.7.4 Public notice shall not be required for minor modifications to the permit. Minor modifications are those which if granted would not result in any increased impact or risk to the environment or to the public health. Minor modifications include:

4.1.7.4.1 Changes in operation or design which do not involve pollution control devices or procedures.

4.1.7.4.2 Improvements to approved pollution control devices or procedures.

4.1.7.4.3 Administrative changes.

4.1.7.4.4 A change in monitoring or reporting frequency.

4.1.7.4.5 The correction of typographical errors.

4.1.7.4.6 Other permit modifications deemed minor by the Department.

4.1.8 Transfer of a permit.

Until the permit has been transferred in accordance with this section of the regulations, the current permittee shall remain liable for compliance with all solid waste permit requirements, including liability for financial assurance, closure and post-closure care. The following submittals are required in order to complete a permit transfer.

4.1.8.1 At least 60 days prior to the proposed transfer, the current permittee shall submit their written request for transfer of the permit. The permittee shall submit the request to the Department and include the following:

4.1.8.1.1 Written notification of the proposed transfer to include the scope and schedule of the transfer and the company name, address, phone number, and point of contact information for the prospective transferee.

4.1.8.1.2 A written agreement between the current permittee and the prospective transferee, signed by both parties and containing a specific date upon which assets transfer will occur. The agreement must reference the specific solid waste permit for which transfer is sought and state both the current permittee's and the prospective transferee's desire for transfer of the permit. The agreement shall acknowledge that the current permittee is responsible for compliance with all permit requirements until the permit has been transferred to the transferee in accordance with the requirements of this section. The agreement shall acknowledge that the transferee will not interfere with the current permittee's ability to comply with the solid waste permit so long as the current permittee remains responsible for compliance with that permit.

4.1.8.1.3 Demonstration that financial assurance requirements will continue to be met by the current permittee until the permit transfer has been completed, including provisions for providing financial assurance in the event that the solid waste permit cannot be transferred by the time company assets are transferred.

4.1.8.2 At least 60 days prior to the proposed transfer, the prospective transferee shall submit a letter of intent to the Department and include the following:

4.1.8.2.1 A description of the transferee's training and experience with the permitted activity and a demonstration that the prospective transferee will be able to comply with applicable statutes, regulations, permit conditions and other requirements to which the current permittee is subject.

4.1.8.2.2 A written agreement between the current permittee and the prospective transferee, signed by both parties and containing a specific date upon which assets transfer will occur. The agreement must reference the specific solid waste permit for which transfer is sought and state both the current permittee's and the prospective transferee's desire for transfer of the permit. The agreement shall acknowledge that the current permittee is responsible for compliance with all permit requirements until the permit has been transferred to the transferee in accordance with the requirements of this section. The agreement shall acknowledge that the transferee will not interfere with the current permittee's ability to comply with the solid waste permit so long as the current permittee remains responsible for compliance with that permit.

4.1.8.2.3 The environmental permit application background statement required by 7 Del.C. Chapter 79.

4.1.8.2.4 Demonstration that the prospective transferee has satisfied the financial assurance requirements imposed by these regulations. For additional information on financial assurance requirements see section 4.1.11 of these regulations.

4.1.8.3 In the event that the transfer of the permit can not be completed because of either the current permittee's or the prospective transferee's failure to provide the submittals required in 4.1.8.1 and 4.1.8.2 above, the current permittee shall either:

4.1.8.3.1 close the facility in accordance with the closure requirements contained in the solid waste facility permit and these regulations, or

4.1.8.3.2 continue to maintain control of, and responsibility for the facility in compliance with the conditions of the permit and these regulations, including, but not limited to the requirements for financial assurance, operations, recordkeeping, reporting, monitoring, closure, post closure care, and corrective actions if needed.

4.1.9 Enforcement

4.1.9.1 The Department reserves the right to inspect any site, or any vehicle intended for use in the transportation of solid waste, before issuing a solid waste permit for the site or the transporter.

4.1.9.2 The Department may, at any reasonable time, enter any permitted solid waste facility or inspect any vehicle being used in the transportation of solid waste in order to verify compliance with the permit and these regulations.

4.1.9.3 The Department may require such reports, interviews, tests or other information necessary for the evaluation of permit applications and the verification of compliance with the permit and these regulations.

4.1.9.4 Any person using land, or allowing the use of land, for the storage, processing, or disposal of solid waste who violates a requirement of this regulation shall be subject to the provisions of Sections 6005, 6013, 6018, and 6025(c) of 7 Del.C. Ch. 60.

4.1.10 Replacement of Contaminated Water Supplies

If the Department determines, based on information obtained by or submitted to the Department or the Division of Public Health, that any drinking water supply well has become contaminated as a result of the construction or operation of a solid waste facility, the owner or operator of the facility will be required to construct and maintain, at his or her expense, a permanent alternative water supply of comparable quantity and quality to the source before it was contaminated. Such a determination will be subject to the review procedures contained in 7 Del.C. Ch. 60.

4.1.11 Financial Assurance Criteria

4.1.11.1 Applicability and effective date

The requirements of this section apply to owners and operators of all solid waste facilities, except owners or operators who are State or Federal Government entities whose debts and liabilities are the debts and liabilities of the State or the United States.

4.1.11.2 Financial Assurance for Closure, Post-Closure Care, and Corrective Action

4.1.11.2.1 The owner or operator of a solid waste facility must provide assurance that the financial costs associated with closure, post-closure care, and corrective action can be met throughout the life of the facility until released from these requirements by the Department after demonstrating successful completion of compliance with the requirements for each of these activities.

4.1.11.2.2 The mechanisms used to demonstrate financial assurance under this section must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Owners or operators must choose from the options specified in paragraphs (a) through (i) of this section, and comply with any conditions noted therein.

4.1.11.2.2.1 Trust Fund

Condition 1: The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State of Delaware agency.

Condition 2: The trust agreement shall be worded as prescribed by the Department.

Condition 3: The owner or operator shall submit the receipt from the trustee for the initial payment into the trust fund as well as the originally signed duplicate of the trust agreement for Department approval prior to receiving solid waste, or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

Condition 4: Pay-in periods and amounts for all solid waste facilities shall be in accordance with those specified in 40 CFR Part 258.74, subsections (a)(2),(a)(3), (a)(4) and (a)(6) or otherwise acceptable to the Department.

Condition 5: Schedule A, attached to the trust agreement, shall list the facility name and address and the current cost estimate. Schedule A must relate the trust agreement to the specific facility and obligation(s) being assured and shall be updated at least annually to account for inflation or other increases to the cost estimate. Costs reflected in Schedule A shall not be reduced without the written consent of the Department.

Condition 6: Schedule B, attached to the trust agreement, shall list the property or money that the fund consists of initially. Property must consist of cash or securities acceptable to the trustee. Other property (e.g., real estate) is not an acceptable payment into the trust fund.

Condition 7: Exhibit A, attached to the trust agreement, shall list the persons designated by the Grantor to sign orders, requests, and instructions to the trustee.

Condition 8: Annual valuation. Annually, the trustee shall furnish to the Department and to the owner or operator, a statement confirming the value of the trust fund. Any securities in the trust fund shall be valued at market value as of no more than 60 days prior to the date the statement is submitted to the Department. If possible, the statement should be submitted during the month that Schedule A is adjusted annually.

Condition 9: The trustee shall make payments from the fund only as the Department directs to provide for the payment for the costs of corrective action, closure, and/or post-closure care.

Condition 10: After beginning closure, post-closure care, or corrective action, an owner or operator or other person authorized in accordance with Condition 7 may request reimbursements for partial expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure, post-closure care, or corrective action only if sufficient funds are remaining in the trust fund to cover the maximum costs of completing the activities for which the trust agreement was established. Within 60 days after receiving bills for reimbursable closure, post-closure care, or corrective action activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing. Reimbursements will be allowed only if the Secretary determines that the partial or final expenditures are in accordance with the approved closure, post closure care, or corrective action plan or are otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, he/she may withhold reimbursements of such amounts as he/she deems prudent. If the Secretary does not instruct the trustee to make such reimbursements, he/she will provide the owner or operator with a detailed written statement of reasons.

Condition 11: Amendments. The trust agreement may be amended by an instrument in writing executed by the grantor, the trustee, and the Department, or by the trustee and the Department if the grantor ceases to exist.

Condition 12: Irrevocability and termination. Subject to Condition 11, the trust agreement shall be irrevocable and shall continue until terminated at the written agreement of the grantor, the trustee, and the Department, or by the trustee and the Department if the grantor ceases to exist.

4.1.11.2.2.2 Surety Bond for Payment or Performance

Condition 1: At a minimum, the surety company issuing the bond must be listed in Circular 570 of the U.S. Department of Treasury as qualified in the state where the bond was executed.

Condition 2: The surety’s underwriting limit must be at least as great as the amount of the surety bond.

Condition 3: The surety bond shall be worded as prescribed by the Department.

Condition 4: The owner or operator shall submit the bond and standby trust fund for Department approval prior to receiving solid waste, or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

Condition 5: Standby trust fund. The owner or operator must establish a standby trust fund, and the standby trust fund must meet the requirements of these regulations except that initial and annual payments are not required. Updates of Schedule A, and annual valuation reporting will not be required until payment is made into the trust fund. Payments made under the terms of the surety bond shall be deposited by the issuing institution directly into the standby trust fund.

Condition 6: The payment surety bond may not be used for corrective actions.

Condition 7: Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation to the Secretary of the Department, to the Solid and Hazardous Waste Management Branch, and to the owner and operator at least 120 days in advance of cancellation. If the Surety cancels the bond, the owner or operator must obtain alternate financial assurance. The Department may draw on the surety bond if the owner or operator has not provided alternative financial assurance within 90 days after receipt by the Solid Waste Management Branch of a notice of cancellation from the surety.

Condition 8: The owner or operator may cancel the surety bond if the Department provides its written consent to do so. The Department will provide such written consent when the owner substitutes alternate financial assurance as specified in these regulations or the bonded activity has been completed in accordance with these regulations.

Condition 9: The surety shall become liable on the bond when the owner or operator has failed to fulfill the closure, post-closure care or corrective action activities as required. Upon notification by the Department that the owner or operator has failed to perform closure or post-closure care guaranteed by a payment bond, the surety shall place funds in the amount guaranteed for the facility into the standby trust fund. Upon notification that the owner or operator has failed to perform closure, post-closure care, or corrective action as guaranteed by a performance bond, the surety shall either perform the activities guaranteed by the bond or place funds in the amount guaranteed for the facility into the standby trust fund.

4.1.11.2.2.3 Letter of Credit

Condition 1: The issuing financial institution must be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State of Delaware agency.

Condition 2: The letter of credit shall be worded as prescribed by the Department.

Condition 3: Accompanying letter. The owner or operator shall also submit an accompanying letter referring to the letter of credit by number and listing the following information: complete name and address of facility, issuing institution and date, and amount and purpose of funds assured.

Condition 4: The owner or operator shall submit the letter of credit and accompanying letter for Department approval prior to receiving solid waste, or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

Condition 5: The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies the Secretary of the Department, the Solid and Hazardous Waste Management Branch, and the owner or operator of a decision not to extend the expiration date.

Condition 6: Once the issuing financial institution notifies the Solid and Hazardous Waste Management Branch of its intent not to extend the Letter of Credit, the owner or operator must, within 90 days, provide alternate financial assurance. The Department may draw on the letter of credit if the owner or operator has not provided alternative financial assurance within 90 days.

Condition 7: Following a determination by the Secretary of the Department that the owner or operator has failed to perform closure, post-closure care, or corrective action when required to do so, the Department may draw on the letter of credit.

4.1.11.2.2.4 Insurance

Condition 1: The insurer must be licensed to transact the business of insurance in one or more states or be eligible to provide insurance as an excess or surplus lines insurer in one or more states.

Condition 2: Captive insurance companies and risk retention groups can not be used to satisfy the requirements of this section.

Condition 3: Insurance is not an allowable mechanism for demonstrating financial responsibility for corrective action.

Condition 4: The policy must guarantee that the funds will be available whenever needed and that the insurer will be responsible for paying out funds to authorized persons.

Condition 5: The policy must allow assignment to a successor owner or operator. Assignment may be conditional upon consent of the insurer provided that such consent is not unreasonably refused.

Condition 6: The policy must provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy.

Condition 7: If the owner or operator fails to pay the premium, the insurer may cancel the policy by sending notice of cancellation by certified mail to the Secretary of the Department, to the Solid and Hazardous Waste Management Branch, and to the owner or operator of the facility, at least 120 days in advance of the cancellation and date of expiration. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration, the Secretary of the Department deems the facility abandoned; or the permit is terminated or revoked or a new permit is denied; or closure is ordered by the Secretary of the Department, or a U.S. District Court or other court of competent jurisdiction; or the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy) USC; or the premium due is paid.

Condition 8: Prior to requesting reimbursement from the insurer, owners or operators shall submit justification and documentation of the reimbursable expenses to the Department for its consent.

Condition 9: A copy of the policy shall be submitted to the Department for its approval prior to receiving solid waste, or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

4.1.11.2.2.5 Local Government Financial Test and Guarantee

Condition 1: Financial tests and guarantees shall not be used for assuring funds for post-closure periods or corrective actions.

Condition 2: Guarantees shall be worded as specified by the Department.

Condition 3: A local government is not eligible to assure its obligations by this mechanism if it: is currently in default of any outstanding general obligation bonds; or has any general obligation bonds rated lower than Baa as issued by Moody’s or BBB as issued by Standard and Poor’s; or operated at a deficit equal to five percent or more of total annual revenue in each of the past two fiscal years; or received an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant (or appropriate state agency) auditing its financial statement, and the Department deems the reason for the qualification as significant.

Condition 4: Bond Rating/Financial Ratio Alternatives. The local government must meet one of the following two financial tests: a) If the local government has outstanding, rated, general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, it must have a current rating of Aaa, Aa, A, or Baa, as issued by Moody’s, or AAA, AA, A, or BBB as issued by Standard and Poor’s on all such general obligation bonds; or b) Based upon the most recently audited annual financial statement, a ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05, and a ratio of annual debt service to total expenditures less than or equal to 0.20.

Condition 5: The total costs being assured through a financial test must not exceed 43 percent of the local government’s total annual revenue. If the local government assures other environmental obligations through financial tests; including those associated with UIC facilities under 40 CFR 144.62, underground storage tank facilities under 40 CFR Part 280, PCB storage facilities under 40 CFR Part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR Parts 264 and 265; it must add those costs to the closure costs it seeks to assure under this mechanism.

Condition 6: Public Notice. The local government shall place a reference to the closure costs assured through the financial test into its next comprehensive annual financial report (CAFR).

Condition 7: Accountant's Opinion. A Certified Public Accountant’s opinion of the local government's financial statements for the most recent fiscal year must also be included in the initial financial assurance package and annually no later than 90 days after the close of the local government’s fiscal year. The opinion must be unqualified and demonstrate that the local government has prepared its financial statements in accordance with the requirements of the General Accounting Standards Board Statement 18.

Condition 8: Chief Financial Officer letter. The Chief Financial Officer must include a letter demonstrating that the local government has complied with Conditions 3, 4, 5, and 6. The CFO letter shall be submitted to the Department as part of the initial financial assurance package and annually no later than 90 days after the close of the local government’s fiscal year.

Condition 9: If, at the end of any fiscal year, the local government fails to meet the financial test criteria required by conditions 3, 4, or 5, then the local government shall send, within 90 days, by certified mail, notice to the Secretary of the Department and to the Solid and Hazardous Waste Management Branch, that they intend to provide alternate financial assurance as required by these regulations. The local government shall, within 210 days following the close of the fiscal year, obtain alternative financial assurance that meets the requirements of these regulations.

Condition 10: The guarantee, approved by the Department, must be effective prior to the initial receipt of waste or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

Condition 11: The guarantee shall remain in force unless the local government sends notice of cancellation by certified mail to the Secretary of the Department and to the Solid and Hazardous Waste Management Branch. Such notice shall be given at least 120 days in advance of the cancellation. Within 90 days of receipt of this notice of cancellation by the Solid and Hazardous Waste Management Branch, the local government shall provide alternative financial assurance acceptable to the Department.

4.1.11.2.2.6 Corporate Financial Test and Guarantee

Condition 1: Financial tests and guarantees shall not be used for assuring funds for post-closure periods or corrective actions.

Condition 2: Guarantees shall be worded as prescribed by the Department.

Condition 3: A resolution agreeing to the terms and conditions of the guarantee and signed by the guarantor’s board of directors shall be attached to the guarantee.

Condition 4: The guarantor must be the direct or higher tier parent company of the owner or operator, or a firm whose parent corporation is also the parent corporation of the owner or operator.

Condition 5: Minimum size requirement. The guarantor must have a tangible net worth equal to the sum of the costs they seek to assure through a financial test, plus $10 million. The costs that the guarantor seeks to assure are equal to the current cost estimates for closure, post-closure care, corrective action, and any other environmental obligation assured by a financial test and/or corporate guarantee by the guarantor (including other landfills or solid waste facilities; PCB storage facilities; underground storage tanks; hazardous waste treatment, storage, disposal facilities; or underground injection control program facilities).

Condition 6: Bond Rating/Financial Ratio Alternatives. Guarantors must meet one of the following three financial tests:

a) A most recent bond rating no lower than Baa as issued by Moody’s or BBB as issued by Standard and Poor’s.

b) A leverage ratio of less than 1.5 based on the ratio of total liabilities to tangible net worth.

c) A profitability ratio of greater than 0.10 based on the sum of the net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.

Condition 7: Domestic Assets Requirement. Guarantors must have assets in the United States at least equal to the costs they seek to assure through a financial test (costs include those reported for Condition 5).

Condition 8: Chief Financial Officer letter. The Chief Financial Officer must include a letter demonstrating that the guarantor has complied with Conditions 4, 5, 6, and 7. The CFO letter shall be submitted to the Department as part of the initial financial assurance package and annually no later than 90 days after the close of the guarantor's fiscal year.

Condition 9: Accountant's Opinion. A Certified Public Accountant’s opinion of the guarantor's financial statements for the most recent fiscal year must also be included in the initial financial assurance package and annually no later than 90 days after the close of the guarantor’s fiscal year. The opinion must be unqualified (not modified by conditions or reservations) and demonstrate that the firm has prepared its financial statements in accordance with generally accepted accounting principals for corporations.

Condition 10: Special Report. In the event that the CFO does not use financial test figures directly form the annual statements provided to the Securities and Exchange Commission, then a special report from an independent accountant shall be required. In the report, the Certified Public Accountant must confirm that the data used in the CFO letter was appropriately derived from the audited, year-end financial statements.

Condition 11: Incapacity. The guarantor shall notify the Secretary of the Department and the Solid and Hazardous Waste Management Branch by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 Bankruptcy, USC, naming the guarantor, owner or operator of the facility as debtor, within 10 days after commencement of the proceeding.

Condition 12: If, at the end of any fiscal year, the guarantor fails to meet the financial test criteria required by conditions 5, 6, or 7, then the guarantor shall send, within 90 days, by certified mail, notice to the Secretary of the Department, to the Solid and Hazardous Waste Management Branch, and to the owner or operator, that guarantor intends to provide alternate financial assurance as required by these regulations. Within 120 days of such fiscal year, the guarantor shall establish such financial assurance unless the owner or operator has done so.

Condition 13: Within 30 days of being notified by the Department that a determination has been made that the guarantor no longer meets the requirements stated in Conditions 5, 6, or 7, the guarantor shall establish alternate financial assurance in accordance with these regulations.

Condition 14: The guarantee, approved by the Department, must be effective prior to the initial receipt of waste or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

4.1.11.2.2.7 Department-Approved Mechanism.

4.1.11.2.2.8 State Assumption of Responsibility.

Use of Multiple Financial Mechanisms (any combination of the options listed above).

The language of the financial assurance mechanisms listed in this section must satisfy the following criteria:

4.1.11.2.2.8.1 They must ensure that the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed.

4.1.11.2.2.8.2 They must ensure that funds will be available in a timely fashion when needed.

4.1.11.2.2.8.3 They must be obtained by the owner or operator by the effective date of these requirements or prior to the initial receipt of solid waste, whichever is later, in the case of closure and post-closure care, and no later than 120 days after the corrective action remedy has been selected, until the owner or operator is released from the financial assurance requirements.

4.1.11.2.3 They must be legally valid, binding, and enforceable under State law.

4.1.11.2.4 Upon request by the Department, the applicant or permittee shall provide a third party review of the financial assurance documents submitted. The third party review must certify to the Department that the financial assurance documents as submitted by the applicant or permittee meet the requirements of Section 4.1.11.2.2 of these regulations, and be sealed and signed by a Certified Public Accountant duly registered in Delaware, or other professional acceptable to the Department.

4.1.11.2.5 The application shall not be deemed complete until and unless the applicant has complied with Section 4.1.11.2.4 of these regulations as specified above.

4.1.11.3 Cost Estimate for Closure

4.1.11.3.1 The owner or operator must submit to the Department a detailed written estimate, in current dollars, of the cost of closing the facility that is consistent with the closure plan developed in accordance with the closure requirements for that type of facility. The estimate must equal the maximum cost of closure at any time during the active life of the facility. The owner or operator shall also notify the Secretary in writing that the estimate has been placed in the records to be maintained at the facility.

4.1.11.3.2 Until final closure of the facility, the owner or operator must annually adjust the closure cost estimate for inflation, facility expansions, and any other applicable requirements which impact the cost of closure.

4.1.11.3.3 The owner or operator must increase the cost estimate and the amount of financial assurance provided for closure if changes to the closure plan or facility conditions increase the maximum cost of closure at any time during the remaining active life.

4.1.11.3.4 The Department may approve reduction in the amount of financial assurance provided for closure if the latest cost estimate is significantly less than the maximum cost of the current closure plan. The owner or operator must submit to the Secretary in writing the justification for the reduction of the closure cost estimate and the amount of financial assurance. Any changes in the amount of financial assurance must also be placed in the records to be maintained at the facility.

4.1.11.4 Cost Estimate for Post-Closure Care

4.1.11.4.1 The owner or operator of a solid waste facility for which post-closure care is required must demonstrate financial assurance for the cost of thirty (30) years of post-closure care. The owner or operator must submit to the Department a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the solid waste facility in compliance with the post-closure plan. This estimate must be based on the most expensive costs of post-closure care during the post-closure care period. The owner or operator must also notify the Department in writing that the estimate has been placed in the records to be maintained at the facility.

4.1.11.4.2 During the active life of the solid waste facility and during the post-closure care period, the owner or operator must annually adjust the post-closure cost estimate for inflation and other applicable factors.

4.1.11.4.3 The owner or operator must increase the post-closure care cost estimate and the amount of financial assurance provided if changes in the post-closure plan or solid waste facility conditions increase the maximum costs of post-closure care.

4.1.11.4.4 The Secretary may approve the reduction of the post-closure cost estimate and the amount of financial assurance provided if the latest cost estimate is significantly less than the maximum costs of post-closure care remaining over the post-closure care period. The owner or operator must submit to the Secretary in writing the justification for the reduction of the post-closure cost estimate. Any changes in the amount of financial assurance must also be placed in the records to be maintained at the facility.

4.1.11.5 Cost Estimate for Corrective Action

4.1.11.5.1 An owner or operator of a solid waste facility required to undertake a corrective action program must submit to the Secretary in writing a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action. The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator must also notify the Secretary that the cost estimate has been placed in the records to be maintained at the facility.

4.1.11.5.2 The owner or operator must annually adjust the estimate for inflation and any other applicable factors until the corrective action program is completed.

4.1.11.5.3 The owner or operator must increase the corrective action cost estimate and the amount of financial assurance provided if changes in the corrective action program or facility conditions increase the maximum costs of corrective action.

4.1.11.5.4 The Secretary may approve reduction of the amount of the corrective action cost estimate and the amount of financial assurance provided if the cost estimate exceeds the maximum remaining costs of corrective action. The owner or operator must submit to the Secretary in writing the justification for the reduction of the corrective action cost estimate. The owner or operator must also notify the Secretary in writing that the amended amount of financial assurance has been placed in the records to be maintained at the facility.

4.2 Application Procedures For Sanitary And Industrial Landfills

4.2.1 Application

Any person desiring to construct or operate a sanitary or industrial landfill or cell must submit a letter of intent to the Department. The letter should indicate the projected design and usage of the proposed facility. The letter of intent shall be followed by the submission, by the applicant, of the following additional information:

4.2.1.1 A Solid Waste Management Facility Application, provided by the Department. All information provided by the applicant is certified to be true, accurate, and complete by the applicant’s signature on the provided application.

4.2.1.2 Proof of ownership of the property. If the applicant does not own the property, a copy of the lease agreement and the owner's permission to conduct the proposed activity on the property must also be submitted.

4.2.1.3 A plan of operation

This shall include the following:

4.2.1.3.1 A narrative description of the type of facility and of the solid waste handling and disposal procedures to be used,

4.2.1.3.2 A narrative explaining the methods and schedule for operation, modification, use, and maintenance of the various components of the facility,

4.2.1.3.3 A description of the proposed monitoring methods,

4.2.1.3.4 A description of the proposed methods for controlling noise, litter, odors, insects, and rodents, and

4.2.1.3.5 A contingency plan to be implemented in case of emergency (e.g., a fire, explosion, or spill that threatens public health and safety or the environment).

4.2.1.4 An engineering report

This report shall be prepared and signed by a Professional Engineer registered in Delaware and shall include the following:

4.2.1.4.1 Descriptions and specifications of all proposed design features,

4.2.1.4.2 A description of the proposed installation methods and procedures,

4.2.1.4.3 A schedule of events for construction of the facility,

4.2.1.4.4 Proposed design capacity in both tons and cubic yards per day, and projected life expectancy of the facility,

4.2.1.4.5 A construction quality assurance plan.

4.2.1.5 A hydrogeological assessment

A hydrogeological investigation must be performed at the proposed site and approved by the Department before a construction permit will be issued. This investigation shall include a series of test borings and wells, constructed to a depth and in a number sufficient to identify:

4.2.1.5.1 The occurrence and characteristics of the unconfined and first confined aquifers,

4.2.1.5.2 Ground water flow directions,

4.2.1.5.3 Ambient ground water quality,

4.2.1.5.4 Potential pathways of contaminants to points of ground water discharge,

4.2.1.5.5 Approximate ground water flow rates and travel times from the facility to points of discharge (including wells and/or surface water).

In addition, delineation of the anticipated maximum elevation of the seasonal high water table shall be provided.

This investigation and report shall be signed by a Professional Geologist registered in Delaware.

4.2.1.6 An environmental assessment

An environmental assessment shall be performed to provide a detailed analysis of the potential impact of the proposed facility on the environment. Factors to be considered include:

Air quality

Water quality

Stream flow

Fish and wildlife

Plants

Threatened or endangered species

Water uses

Land use

Aesthetics

Traffic

Public health and safety

Cultural, recreational, and natural areas

Historic sites

Social and economic factors.

Soil Quality

If the applicant or the Department determines that the proposed facility may cause a threat to human health or the environment, the applicant must provide a written explanation of how he or she plans to mitigate the potential harm.

4.2.1.7 Topographical and site location maps

This shall include a topographical map or series of maps on a scale satisfactory to the Department but in no case less than one inch equal to 400 feet, showing topographic elevations surveyed with reference to mean sea level, and any necessary narrative descriptions, including but not limited to the following:

4.2.1.7.1 The legal boundaries of the property as determined by a survey performed by a registered surveyor; the names of the present owners of the proposed site and of all adjacent lands; and a description of all title, deed, or usage restrictions affecting the proposed permit area.

4.2.1.7.2 The boundaries of the facility over the estimated total life of the proposed operation, including the boundaries of land that will be affected in each sequence of disposal activity.

4.2.1.7.3 The boundaries of land where solid waste will be stored at any time over the estimated total life of the proposed operation.

4.2.1.7.4 The locations and names of all water supply wells or surface water intakes within 1/4 mile of the disposal site boundaries.

4.2.1.7.5 Proof that all applicable zoning approvals and all appropriate federal, state, and local environmental permits have been obtained.

4.2.1.7.6 Closure plan as described in Section 5.10.3 or 6.10.3, as appropriate.

4.2.1.8 Proof of financial responsibility for closure and post-closure care, as described in Section 4.A.11.

4.2.1.9 Proof that the facility meets the siting criteria required by Section 5.A. or 6.A.

4.2.1.10 Any other related reports, data, maps, or information that the Department requires.

4.2.2 Construction and Operation

4.2.2.1 The applicant shall not commence construction of the landfill or cell until the Department has issued the solid waste permit required by these regulations.

4.2.2.2 After construction has been completed and prior to the placement of solid waste, the permittee shall submit a final report for the Department’s approval. The final report shall certify that the construction of the landfill or cell was completed in accordance with the engineering report to include the Construction Quality Assurance Plan, construction and material specifications, and design drawings. The final report shall be certified correct by the construction quality assurance engineer, who must be a Professional Engineer registered in Delaware. The permittee shall not place solid waste into the newly constructed landfill or cell until the Department has provided its written notification that the construction and the final report meet the requirements of the permit and the Delaware Regulations Governing Solid Waste.

4.2.3 Closure

4.2.3.1 Any person wishing to modify their current permit to allow closure of a facility or part thereof must submit the following to the Department at least 180 days prior to the projected date when wastes will no longer be accepted:

4.2.3.1.1 Notification of intent to close,

4.2.3.1.2 Closure plan as described in Section 5.10.3 or 6.10.3, as appropriate,

4.2.3.1.3 Post-closure care plan describing how the requirements of Section 5.K or 6.K (as appropriate) will be met.

4.2.3.2 If the Department determines that the closure plan and supporting documents are sufficient to ensure closure, it will modify the permit to allow closure to be performed. The owner or operator of the landfill shall not commence closure of the landfill or cell without first obtaining the necessary permit modifications.

4.2.3.3 After closure has been completed, the permittee shall submit a final report for the Department’s approval. The final report shall certify that the closure of the landfill or cell was completed in accordance with the closure plan to include the Construction Quality Assurance Plan, construction and material specifications, and design drawings. The final report shall be certified correct by the construction quality assurance engineer, who must be a Professional Engineer registered in Delaware. The landfill or cell shall not be considered closed until the Department has provided its written notification that the closure has been accomplished in accordance with the solid waste permit and these regulations.

4.2.3.4 Facilities entering the Post-closure period will be issued a post-closure permit based upon the approved post-closure plan, monitoring requirements, gas and leachate control, maintenance, and corrective actions (if required).

4.3 This Paragraph Reserved

4.4 Application Procedures For Resource Recovery Facilities

4.4.1 Application

Any person desiring to construct or operate a resource recovery facility must submit a letter of intent to the Department. The letter should indicate the projected design and usage of the proposed facility. The letter of intent shall be followed by the submission, by the applicant, of the following additional information:

4.4.1.1 A Solid Waste Management Facility Application, provided by the Department. All information provided by the applicant is certified to be true, accurate, and complete by the applicant’s signature on the provided application.

4.4.1.2 Proof of ownership of the property. If the applicant does not own the property, a copy of the lease agreement and the owner's permission to conduct the proposed activity on the property must also be submitted.

4.4.1.3 A plan of operation

This shall include the following:

4.4.1.3.1 A narrative description of the type of facility and of the solid waste handling and disposal procedures to be used.

4.4.1.3.2 A narrative explaining the methods and schedule for operation, modification, use, and maintenance of the various components of the facility. This shall include a description of the procedures for facility start up and for scheduled and unscheduled shut down operations.

4.4.1.3.3 A description of the solid wastes that will be accepted at the facility, the manner in which recyclable components will be removed from the solid waste stream, the markets for these recyclable materials, and the proposed disposition of the nonrecyclable components and residuals.

4.4.1.3.4 A description of the proposed monitoring methods.

4.4.1.3.5 A description of the measures that will be used to ensure that unauthorized and unwanted solid wastes are prevented from entering the facility.

4.4.1.3.6 A description of the personnel training program, including training that will be provided to ensure compliance with Sections 9.4.2.5 and 9.4.2.7 of these regulations.

4.4.1.3.7 A description of the proposed methods for controlling noise, litter, odors, insects, rodents, dust, fires, and explosions.

4.4.1.3.8 A detailed contingency plan to be implemented in case of an emergency such as a spill, accident, or explosion.

4.4.1.4 An engineering report

This report shall be prepared and signed by a Professional Engineer registered in Delaware and shall include the following:

4.4.1.4.1 A drawing or drawings showing the complete layout of the proposed facility.

4.4.1.4.2 Mass and energy balances, including calculations and pertinent facts relating to the development of these balances.

4.4.1.4.3 Descriptions and specifications of all proposed design features that the engineer has provided to the owner of the facility.

4.4.1.4.4 A description of the proposed installation methods and procedures.

4.4.1.4.5 A plan for third party quality assurance for the construction and installation of components of the facility that will be used in the processing, handling, and/or monitoring of solid waste.

4.4.1.4.6 A schedule of events for construction of the facility.

4.4.1.4.7 Proposed design capacity per day, and life expectancy of the facility.

4.4.1.4.8 A description of potential safety hazards and methods of control.

4.4.1.4.9 An analysis of the concept of the facility's expansion at a later date, if and when deemed necessary by the Department.

4.4.1.4.10 An identification of possible ground water and surface water discharges.

4.4.1.5 A recycling analysis

This analysis shall consist of the following:

4.4.1.5.1 Identification of available and potential markets for recovered recyclable.

4.4.1.5.2 An evaluation of the impact that alternative source separation/recyclables recovery programs could have on the facility. If a thermal recovery facility is the subject of the application, this shall include an engineering analysis of the BTU value of the solid waste before and after recyclables recovery for the proposed life of the project to determine if increases in recycling activities will necessitate changes in facility size and capacity.

4.4.1.6 A plan for sampling, analysis, and disposition of the ash generated by the facility (for thermal recovery facilities only). The plan shall include a strategy for ash testing during the test burn phase of construction. Testing shall be in accordance with Delaware's Regulations Governing Hazardous Waste or other testing protocol acceptable to the Department. The plan also shall include a proposal for treatment and/or disposal of the ash. The proposed methods for treatment and/or disposal shall conform to all applicable state and federal regulations.

4.4.1.7 A hydrogeological assessment, if deemed necessary by the Department

A hydrogeological investigation of the proposed site may be required before the Department will issue a permit. The report resulting from this investigation shall be signed by a Professional Geologist registered in Delaware.

4.4.1.8 An environmental assessment

The environmental assessment shall provide a detailed analysis of the potential impact of the proposed facility on the environment. Factors to be considered include, but are not necessarily limited to:

Aesthetics

Air quality

Cultural, recreational, and natural areas

Fish and wildlife

Historic Sites

Land use

Plants

Public health and safety

Social and economic factors.

Soil Quality.

Stream flow

Threatened or endangered species

Traffic

Water quality

Water uses

If the applicant or the Department determines that the proposed facility may cause a threat to human health or the environment, the applicant must provide a written explanation of how he or she plans to mitigate the potential harm.

4.4.1.9 Topographical and site location maps

This shall include a topographical map or series of maps on a scale satisfactory to the Department but in no case less than one inch equal to 400 feet, showing topographic elevations surveyed with reference to mean sea level, and any necessary narrative descriptions, including but not limited to the following:

4.4.1.9.1 The legal boundaries of the property as determined by a survey performed by a registered surveyor; the names of the present owners of the proposed site and of all adjacent lands; and a description of all title, deed, or usage restrictions and all easements affecting the proposed permit area.

4.4.1.9.2 The boundaries of land where solid waste will be stored at any time over the estimated total life of the proposed operation.

4.4.1.9.3 The locations and names of all water supply wells or surface water intakes within 1/4 mile of the site boundaries.

4.4.1.10 Proof that all applicable zoning approvals have been obtained and application has been made for all appropriate federal, state, and local environmental permits.

4.4.1.11 A conceptual closure plan. This shall address the items listed in Section 9.5.3 to the extent possible at the time of initial permit application and shall be revised and updated as necessary to reflect changes in plans that will affect the cost of closure.

4.4.1.12 Proof of financial responsibility for closure, as described in Section 4.1.11.2.

4.4.1.13 Proof that the facility meets the siting criteria required by Section 9.2.

4.4.1.14 Any other related reports, data, maps, or information that the Department requires.

4.4.2 Construction and operation

4.4.2.1 The applicant shall not commence construction of a new resource recovery facility or operate an existing resource recovery facility until the applicant has received a permit from the Department in accordance with these regulations.

4.4.2.2 After the construction of a new resource recovery facility has been completed, and prior to the receipt of solid waste or materials for processing, the permittee shall submit a final report for the Department’s approval. The final report shall certify that the construction of the resource recovery facility was completed in accordance with the engineering report to include the quality assurance plan, construction and material specifications and design drawings. The final report shall be certified correct by the third-party quality assurance engineer, who must be a Professional Engineer registered in Delaware. The permittee shall not commence operations, store or receive solid waste or materials to be processed until the Department has provided its written notification that the construction and the final report meet the requirements of the permit and the Delaware Regulations Governing Solid Waste.

4.4.3 Closure

Any person desiring to close a resource recovery facility shall, at least 180 days before the date on which the facility will stop accepting solid waste, submit the following to the Department:

4.4.3.1 Written notification of intent to close.

4.4.3.2 Updated closure plan.

4.4.3.3 Closure schedule

4.4.3.4 An evaluation of the impact that closing the facility will have on the flow of solid waste in the region serviced by the facility, and a plan for minimizing any disruption in the flow.

If the Department approves the closure plan and closure schedule, it will modify the facility's permit to allow closure to take place.

4.5 Application Procedures For Transfer Stations

4.5.1 Application

Any person desiring to construct or operate a transfer station must submit a letter of intent to the Department. For proposed facilities, the letter shall narrate the projected design and usage of the facility; provide a tentative schedule for construction and startup, and summarize the applicant’s experience and training with transfer station operations. For existing facilities, the letter shall state the reason for the application submittal and include a narration about design, usage, and schedule only if new construction is proposed. After submitting the Letter of Intent, the applicant shall submit the following:

4.5.1.1 A Solid Waste Management Facility Application, provided by the Department. All information provided by the applicant is certified to be true, accurate, and complete by the applicant’s signature on the provided application.

4.5.1.2 Proof of ownership of the property. If the applicant does not own the property, a copy of the lease agreement and the owner's permission to conduct the proposed activity on the property must be submitted.

4.5.1.3 A plan of operation

The applicant shall submit a plan of operation in a format that includes a dated title page (title, name/location of facility, author, permittee name), a table of contents, numbered pages, labeled chapters and subsections, and numbered paragraphs. Content of the plan shall include the following:

4.5.1.3.1 A narrative description of the type of facility and of the solid waste handling procedures to be used.

4.5.1.3.2 A narrative explaining the methods and schedule for operation, modification, use, and maintenance of the various components of the facility.

4.5.1.3.3 A description of the proposed methods for controlling noise, litter, odors, insects, rodents, dust, leachate, and facility washdown water.

4.5.1.3.4 A description of the methods that will be used to prevent unauthorized wastes from being accepted at the facility.

4.5.1.3.5 A contingency plan to be implemented in case of emergency (e.g., a fire, explosion, or spill that threatens public health and safety or the environment.)

4.5.1.4 An engineering report

This report shall be prepared and signed by a Professional Engineer registered in Delaware and shall include the following:

4.5.1.4.1 Descriptions, plans, and specifications of all proposed design features.

4.5.1.4.2 A description of the proposed installation methods and procedures.

4.5.1.4.3 A schedule of events for construction of the facility.

4.5.1.4.4 Proposed design capacity in both tons and cubic yards per day.

4.5.1.5 A hydrogeological assessment, if deemed necessary by the Department. A hydrogeological investigation of the proposed site may be required before the Department will issue a permit. This investigation shall include a series of test borings and wells, constructed to a depth and in a number sufficient to identify:

4.5.1.5.1 The occurrence and characteristics of the water table aquifer.

4.5.1.5.2 Ground water flow directions.

4.5.1.5.3 Ambient ground water quality.

4.5.1.5.4 Potential pathways of contaminants to points of ground water discharge.

This investigation and report shall be signed by a Professional Geologist registered in Delaware.

4.5.1.6 An environmental assessment.

The environmental assessment shall provide a detailed analysis of the potential impact of the proposed facility on the environment. Factors to be considered include:

Aesthetics

Air quality

Cultural, recreational, and natural areas

Fish and wildlife

Historic sites

Land use

Plants

Public health and safety

Social and economic factors.

Soil Quality

Stream flow

Threatened or endangered species

Traffic

Water quality

Water uses

If the applicant or the Department determines that the proposed facility may cause a threat to human health or the environment, the applicant must provide a written explanation of how he or she plans to mitigate the potential harm.

4.5.1.7 Topographical and site maps

This shall include a topographical map or series of maps on a scale satisfactory to the Department but in no case less than one inch equal to 400 feet, showing topographic elevations surveyed with reference to mean sea l