DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Water Resources

Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C. Ch. 60)

FINAL

Secretary’s Order No: 2005-W-0052

Regulations Governing Storm Water Discharges Associated with Industrial Activities

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”), the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding.

On February 10, 2003, the Department approved this proposed rulemaking proceeding Start Action Notice (“SAN”) 2003-03 in order to reissue and amend Regulations Governing Storm Water Discharges Associated with Industrial Activities (“Regulations”). The Regulations are based upon a federal program that enables the Department to issue a general permit under certain circumstances. The Department determined that the regulation of storm water discharges associated with industrial activities was suitable for the general permit program in order to protect the environment and water quality from the harm posed from unregulated storm water discharges.

The Department drafted proposed regulations, held three public workshops in New Castle County, Kent County and Sussex County on July 6, 7, and 14, 2005, published Proposed Regulations in the September 1, 2005 Delaware Register of Regulations, and held a public hearing on September 29, 2005. Based on the record of decision, including the public hearing record reviewed in the December 23, 2005 Hearing Officer’s Report (“Report”) appended hereto, I find and conclude that the recommended regulations should be adopted as final regulations.

The regulations are well-supported and consistent with the law and regulations. They will allow the Department to exercise its authority to protect the environment from the harm posed from unregulated storm water discharges from industrial activities. The regulations will allow the Department to continue the federal program, but they also reflect considerable improvements, as reviewed by the Report. The result is a significant reduction in the number of regulations through the repeal and consolidation of the existing regulations without any loss of regulatory control. In conclusion, the following findings and conclusions are entered:

The Department, acting through this Order of the Secretary, adopts as final regulations the recommended regulations set forth in the Appendix B to the Report;

The issuance of the final regulations will protect and improve the environment from possible harm associated with unregulated release of storm water discharges associated with industrial activities;

The final regulations are approved by this Order were developed consistent with the applicable law and regulatory standards and are adequately supported by sound technical analysis in the record;

The Department provided adequate public notice of the proceeding and the public hearing, held a public hearing, and considered all timely and relevant public comments in making its determination;

The Department’s proposed regulations, as published in the September 1, 2005, Delaware Register of Regulations, and with the minor change set forth in Appendix B to the Report, are well-supported, are consistent with the applicable laws and regulations, and should be approved as final regulations to go into effect ten days after its publication in the next available issue of the Delaware Register of Regulations; and that;

The Department shall provide written notice to the persons affected by the Order, as determined by those who participated in this rulemaking at either the public workshop or at the public hearing, including participation through the submission of written comments.

John A. Hughes, Secretary

Date of Issuance: January 28, 2005

Effective Date: February 11, 2006

SECTION 9 THE GENERAL PERMIT PROGRAM

Subsection 1 - Regulations Governing Storm Water Discharges Associated with Industrial Activities

INDEX

Part 1 - Baseline General Permit (§9.1.01)

Part 2 - Special Conditions for Storm Water Discharges Associated with Construction Land Disturbing Activities (§9.1.02)

Part 3 - Special Conditions for Storm Water Discharges Associated with Concrete Manufacturing Activities (§9.1.03.)

Part 4 - Special Conditions for Storm Water Discharges Associated with Asphalt Manufacturing Activities (§9.1.04.)

Part 5 - Special Conditions for Storm Water Discharges Associated with Chemical Manufacturing Activities (§9.1.05.)

Part 6 - Special Conditions for Storm Water Discharges Associated with Activities Regulated by the Delaware Regulations Governing Solid Waste (§9.1.06.)

Part 7 - Special Conditions for Storm Water Discharges Associated with Automotive Salvaging Activities (§9.1.07.)

Part 8 - Special Conditions for Storm Water Discharges Associated with Scrap Recycling Activities (§9.1.08.)

Part 9 - Special Conditions for Storm Water Discharges Associated with Watercraft Maintenance Activities (§9.1.09.)

Part 10 - Special Conditions for Storm Water Discharges Associated with Air Transportation Maintenance and Deicing Activities (§9.1.10.)

Part 11 - Special Conditions for Storm Water Discharges Associated with Rail Transportation Maintenance Activities (§9.1.11.)

Part 12 - Special Conditions for Storm Water Discharges Associated with Automotive Transportation Maintenance Activities (§9.1.12.)

Part 13 - Special Conditions for Storm Water Discharges Associated with Food Processing Activities (§9.1.13.)

Part 14 - Special Conditions for Storm Water Discharges Associated with Metals Manufacturing Activities (§9.1.14.)

APPENDIX A - WATER PRIORITY CHEMICALS

APPENDIX B- BEST MANAGEMENT PRACTICES (BMPs)

INTRODUCTION

Storm water discharges contribute significantly to water quality degradation across the United States. Storm water-related sources of potential water quality degradation include the following: manufacturing and processing facilities; transportation maintenance areas; urban areas; resource extraction; hydro-habitat modification; land disposal of wastes; and contaminated sediments present in stream and river beds. In November 1990 the USEPA issued Phase I of the NPDES Storm Water Permit Application Regulations for Storm Water Discharges indicating storm water as a major source of impairment to the quality of rivers, streams, and wetlands in the U.S.

In 1993 issued, Section 9 (The General Permit Program), of the State of Delaware, Department of Natural Resources and Environmental Control. The General Permit Program is designed to provide permit coverage for the wide range of discharges which who could not practicably obtain individual permits in the foreseeable future. This approach will allow DNREC resources to concentrate on individual permits for facilities with discharges which have a more significant potential for impacting water quality in the State of Delaware.

A General Permit, as defined by federal law in 40 C.F.R. §122.28, authorizes the discharge of storm water associated with industrial activity from sources within a defined area or that share certain similarities. A General Permit is a self-implementing standard that can apply to multiple discharges which the DNREC has determined can most efficiently be regulated as a category. Conversely, an individual permit contains special conditions specifically tailored to one specific facility. A General Permit is a Department statement of general applicability. A General Permit is a regulation since it implements and prescribes law which affects existing and future facilities.

Subsection 1 of the General Permits Program contains the Regulations Governing Storm Water Discharges Associated With Industrial Activity and is are referred to as the “General NPDES Storm Water Program.” In order to obtain coverage through the General NPDES Storm Water Permit Program, persons t will be required to file with the DNREC a Notice of Intent (NOI). The NOI requirement is in accordance with 40 C.F.R. §122.28(b)(2) of the USEPA NPDES Program. The NOI is equivalent of an NPDES permit application for General NPDES Storm Water Permit coverage. Part 1 of the NPDES General Storm Water Permit Program consists of general provisions applicable to all discharges associated with industrial activity. A letter verifying acquisition of permit coverage instead of an actual permit will be issued to the discharges covered by Subsection 1.

The goal of the General NPDES Storm Water Permit Program is to establish, over a period of time, accepted practices for protecting and improving water quality and minimizing adverse impacts on waters of the State of Delaware by storm water discharges associated with industrial activity. To apply water-quality based numerical limits to storm water runoff, a large expenditure of the DNREC and industry resources (time and money) would be needed to develop and perform the myriad of assessments (e.g. modeling, analytical testing, statistical reviews of the varied rain event occurrences, event intensities, event intensity-deltas, event durations, and rainfall quantities). Therefore, the General NPDES Storm Water Permit Program requires Best Management Practices (BMPs) to be implemented by all facilities as a more efficient approach to protect and improve water quality in the State of Delaware. The BMPs requirements in this regulation will serve in place of numerical limits in accordance with 40 Code of Federal Regulations (CFR) Part 122.44(k).

Subsection 1 of the General NPDES Storm Water Permit Program is divided into 2 14 Parts. Part 1 establishes the baseline of the General NPDES Storm Water Permit Program is established. Parts 2 through 14 applie to construction activities and specific categories of industrial activity. A facility is required to obtain coverage under the each applicable Part. If there is not an applicable industry-specific Part for a facility, then the facility is required to obtain and maintain coverage under Part 1.

The numbering sequence for the regulations is displayed by the following graphic:

§9.1.01.0 DEFINITIONS

The following words and phrases shall have the meaning ascribed to them in this Subsection unless the context clearly indicates otherwise: 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(BMPs): 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.

Co-Permittee: 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" (§9.1.01.5) listed in Parts 3 through 14 of Subsection 1.

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.

Dishcarge of Storm Water Associated With Industrial Activities: means storm water runoff 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 §9.1.01.1.A., 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).

DISCHARGE BUFFERING: means to use various BMPs that are designed to remove, capture or retain pollutants or minimize hydraulic extremes generated by storm water, through the application of detention, settling, biofiltration, or filtering (e.g. settling basins, wet ponds, vegetated swales, sand filters, inlet filters, oil/water separators, sediment traps, berms for diversion, buffer strips). Straw bale and fabric fence may be used for sheet flow or in conjunction with other

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 Areas: means an area(s) which consists of an impervious surface, such as a floor, that is shielded from precipitation and storm water run-on.

Equilvalent Best Manafement Practices (BMPs): 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 Appendix B.

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 §9.1.01.1.A. of this Subsection

Industrial Significant Materials: means 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 Significant 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.

LAND DISTURBING ACTIVITIES: means a land change or construction activity for residential, commercial, silvicultural, industrial and institutional land use which may result in soil erosion from water or wind, or movement of sediments or pollutants into State waters or onto lands in the State, or which may result in accelerated storm water runoff, including, but not limited to, clearing, grading, excavating, transporting, and filling of land. (Contact Division of Soil & Water Conservation for more details.)

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.

MAXIMUM EXTENT PRACTICABLE (MEP): means to complete an objective or requirement of this Part, to a level which bears the most benefit from an environmental standpoint, but not to a level that is physically or economically infeasible or that would jeopardize human health or safety, or that would the conductance of work at the facility.

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 §9.1.01.4. (Monitoring) and §9.1.01.5. (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 (Part 1 generally contains foundation language for Subsection 1, where Part 2 contains the language specific to land disturbing activities through 14 contain language specific to certain categories of industry).

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 duly established entity.

Pervious Surface: means a surface area that allows the entry of water into the soil mantle at a rate present under natural conditions.

PROTOCOLS: means non-structural Best Management Practices such as preventive maintenance, good housekeeping and training measures designed to minimize the contribution of Significant Materials to storm water runoff (e.g., moving Significant Materials closer to the point of use, providing more space between stacked drums containing Significant Materials).

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 runon 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 CFR122.26(b)(14).

Structural Controls: means curbs, dikes, berms, walls, sheds, impervious pads, ditches, diversions or other structures which limit the contribution of Significant 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.

TRUCK RINSE: means the water used to rinse the inside of a rotating barrel (after the barrel has been emptied of concrete) which is used to mix concrete and is mounted on a truck.

Water Prioity 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) – (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 (a) thru (e) of this definition) are not “waters of the State.”

§9.1.01.1 FACILITIES REQUIRED TO OBTAIN Permit Coverage

A. This Subsection shall apply to storm water discharges from the following categories of industrial activities:

Storm water associated with industrial activity which is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant. This Subsection does not include discharges from facilities excluded from the NPDES program.

Subsection 1 applies to the categories of industries identified in subparagraphs (i) through (x) of this Part for, but 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 application or disposal of process waste waters (as defined at 40 C.F.R §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 Significant Materials remain.

Subsection 1 applies to the categories of industries identified in subparagraph (xi) of this Part for storm water discharges from all areas listed in the previous paragraph (except access roads) where Significant Material handling equipment or activities, raw materials, intermediate products, final products, waste materials, by-products, or industrial machinery are exposed to storm water.

For the purpose of this Subsection, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, finished product, by-product, or waste product. The term excludes areas located on plant lands separate fro the plant’s industrial activities, such as office building s and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above-described areas.

Industrial facilities (including industrial facilities that are municipally owned or operated that meet the descriptions listed in this paragraph (i) through (xi)) include those facilities designated under 40 C.F.R Part 122.26(a)(1)(v) of the NPDES Storm Water Regulations. The following categories of facilities are considered to be engaging in “industrial activity” for purposes of this Subsection.

Facilities subject to storm water effluent limitation guidelines, new source performance standards, or toxic pollutant effluent standards under 40 C.F.R subchapter N [except facilities exempt under category xi];

(ii) Facilities classified in the Standard Industrial Classification Manual (Office of Management and Budget, 1987) as: 24 [Lumber and Wood Products] except 2434 [Wood Kitchen Cabinets]; 26 [Paper & Allied Products] except 265 [Paperboard Containers and Boxes] and 267 [Converted Paper & Paperboard Products]; 28 [Chemicals & Allied Products] except 283 [Drugs] and 285 [Paints, Varnishes, Lacquers, Enamels & Allied Products]; 29 [Petroleum Refining & Asphalt]; 311 [Leather Tanning]; 32 [Stone, Clay & Glass Products]; except 323 [Glass Products, Made of Purchased Glass] 33 [Primary Metals Industry]; 3441 [Fabricated Structural Metal]; 373 [Ship Building & Repair];

(iii) Facilities classified as Standard Industrial Classifications 10 [Metal Mining], 11 [Anthracite Mining], 12 [Coal Mining, except for areas of coal mining operations meeting the definition of a reclamation area under 40 C.F.R. §434.11(l)], 13 [Oil & Gas Extraction including exploration, production, processing, or treatment operations, or transmission facilities, that discharge storm water contaminated by contact with or that has come in contact with, any overburden, raw material, intermediate products, finished products, byproducts, or waste products located on the site of such operations], 14 [Nonmetallic Minerals Mining] including active or inactive mining operations. Inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner/operator;

(iv) Hazardous waste treatment, storage, or disposal facilities;

(v) Landfills, land application sites, and open dumps that have received any industrial wastes (waste that is received from any of the facilities described under this Subsection;

(vi) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including but not limited to those classified as Standard Industrial Classification 5015 [Motor Vehicle Parts, Used] and 5093 [Scrap & Waste Materials], but not including recycling collection centers consisting solely of "igloos" or similar structures;

(vii) Steam electric power generating facilities, including coal handling sites;

Transportation facilities classified as Standard Industrial Classifications 40 [Railroad Transportation], 41 [Local & Suburban Transits], 42 [Motor Freight & Warehousing] except 4221 [Farm Product Warehousing & Storage]; 4222 [Refrigerated Warehousing & Storage]; 4225 [General Warehousing & Storage]; 43 [U.S. Postal Service] 44 [Water Transportation], and 45 [Transportation by Air] and 5171 [Bulk Petroleum Terminals]. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (i) through (vii) or (ix) through (xi) of this Subsection are associated with industrial activity;

Treatment works with a design flow of one million gallons per day or more treating domestic sewage or any other sewage sludge or waste water treatment device or system, used in 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.F §503.

Construction activity including clearing, grading, and excavation activities.

(xi) Facilities under Standard Industrial Classifications 20 [Food & Kindred Products]; 21 [Tobacco Products]; 22 [Textile Mill Products]; 23 [Apparel & Other Finished Products Made From Fabrics & Similar Materials]; 2434 [Wood Kitchen Cabinets]; 25 [Furniture & Fixtures]; 265 [Paperboard Containers & Boxes]; 267 [Converted Paper & Paperboard Products]; 27 [Printing, Publishing & Allied Industries]; 283 [Drugs]; 285 [Paints, Varnishes, Lacquers, Enamels, & Allied Products]; 30 [Rubber & Miscellaneous Plastics Products]; 31 [Leather & Leather Products] except 311 [Leather Tanning & Finishing]; 323 [Glass Products, Made of Purchased Glass] ; 34 [Fabricated Metal Products] except 3441 [Fabricated Structural Metal Products]; 35 [Industrial & Commercial Machinery & Computer Equipment]; 36 [Electronic & Other Electrical Equipment & Components, Except Computer Equipment]; 37 [Transportation Equipment] except 373 [Ship & Boat Building & Repairing]; 38 [Measuring, Analyzing & Controlling Instruments/Photographic, Medical and Optical Goods/Watches & Clocks]; 39 [Miscellaneous Manufacturing Industries]; 4221 [Farm Product Warehousing & Storage]; 4222 [Refrigerated Warehousing & Storage]; 4225 [General Warehousing & Storage]; (and which are not otherwise included within categories (i) through (x)).

A. Coverage Under This Subsection

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.

1. Permit Coverage

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 byproducts 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.

2. Permit Applicability

Owners or operators of facilities identified in subparagraphs a. and b. 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 a. and b. are not required to obtain coverage unless specifically designated in writing by the Director as a Sector “AD” facility.

a. Construction Activities: Construction activitiesy including clearing, grading, and excavation activities;

b. Industrial Activities: Coverage under this Subsection may be obtained to authorize discharges of storm water associated with industrial activities, and certain other non-storm water discharges (see §9.1.01.7), from the following sectors. Industrial activities are grouped into thirty sectors of similar activities based on either Standard Industrial Classification (SIC) codes or Industrial Activity Codes. References to “sectors” in this Subsection refer to these sectors.

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.

3. Co-Located Activities

Facilities conducting industrial activities identified by two (2) or more sectors indicated in subparagraph b. 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.

B. Eligibility

The following discharges and activities are eligible for coverage under this Subsection (NPDES General Permit Program).

1 This Subsection covers All new and existing discharges that are composed in whole or in part of storm water associated with industrial activities. This includes any inactive industrial facility where Industrial Materials remain on-site and are exposed to storm water.

2. Facilities with existing individual NPDES permits for discharges other than storm water, may be are covered by this Subsection, for any storm water discharges not covered by the existing individual NPDES permit. For those facilities, coverage under this Subsection shall exist until amendments which fully address storm water discharges can be made to the existing individual NPDES permits.

3. Facilities with individual NPDES permits which do not fully address storm water are covered by this Subsection Regulation until amendments which fully address storm water can be made to on the existing individual NPDES permits.

4.3. No person shall discharge storm water associated with an industrial activity except as authorized by an individual NPDES permit or this Subsection. Part 1 of this Subsection shall apply to all discharges of storm water associated with industrial activitiesy. Parts 2 through 14 of this Subsection shall apply to construction activities certain categories of industrial activity and modifiesy certain parts of Part 1 and/or add requirements for certain specified industrial activities. Coverage under this Subsection Authorization can be obtained through this Subsection by submitting a Notice of Intent (NOI) Form in accordance with the respective Part of this Subsection. Once coverage under through this Subsection has been obtained, the person is authorized to discharge storm water only from the specific outfalls that were listed location indicated on the submitted NOI form.

C. Limits on Eligibility

The following discharges and activities are not eligible for coverage under this Subsection (General Permit Program).

1. Discharges of storm water associated with industrial activities fully addressed by facilities with individual NPDES permits. which fully address storm water discharges associated with the industrial activity at the facility.

2 Activities that have been determined by the Secretary to be significant contributors of a pollutant to storm water runoff and required to be covered under an individual NPDES permit.

3. Discharges of pollutants occurring in watersheds for which there is a Total Maximum Daily Load (TMDL) allocation for associated water bodies are not eligible for coverage under this Subsection unless the facility has an approved Storm Water Plan (SWP) that is shown to reduce pollutant loading to the level required by the TMDL or to the maximum extent practicable. To be eligible for coverage under this Subsection, the facility must incorporate into their SWP any conditions applicable to their discharges necessary for consistency with any TMDL implementation plan for achieving State surface water quality standards. For discharges not eligible for coverage under this Subsection, the discharger must apply for and receive an individual NPDES Permit.

4. Discharges of pollutants in quantities that would cause or contribute to an exceedance of any applicable surface water quality standard for the receiving waters, the discharger must apply for and receive an individual NPDES Permit, including:

a. Discharges of substances or materials in amounts that are toxic, or that would be toxic to humans, fish, aquatic life, or wildlife;

b. Discharges of floatable debris, oils, scum, foam, or grease in other than trace amounts. Excluded from this are naturally occurring substances such as leaves and twigs provided no person has placed such substances in or near the discharges; and

c. Discharges that cause or contribute to degradation or loss of State designated beneficial uses of the receiving waters and violation of State water quality standards.

5. Discharges of materials other than storm water are prohibited and are not authorized by this Subsection.

D. Requesting an Individual NPDES Permit Coverage or Coverage under an Alternative Regulation of this Subsection

1. Any person covered by this Subsection may request to seek coverage under an individual NPDES permit by submitting an individual application (Form 1 and Form 2F*) as prescribed in Section 6 of the “Regulations Governing The Control of Water Pollution.” may request to obtain coverage under an individual NPDES permit or Parts 2 through 14 of this Subsection. The person shall submit an individual application (Form l and Form 2F) and shall submit in writing the reasons supporting the request or an appropriate Notice Of Intent (NOI). Coverage under this Subsection will continue until authorization for coverage under alternative regulation is granted or an individual permit has been issued to the person making the request.

* 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.

2. Part 1 shall no longer apply to any person otherwise subject to it when the person is issued an individual NPDES Storm Water permit for Industrial Activities. Termination of coverage under Part 1 shall occur on the effective date of the individual NPDES Storm Water Permit.

3. No person who is otherwise eligible for coverage under Part 1 whose activities are described in Parts 2 through 14 of this Subjection shall discharge storm water except in compliance with Parts 2 through 14. When a person o is approved for coverage under Parts 2 through 14 of this Subsection, some provisions of Part 1 may be superseded or replaced by the requirements of that Part. In the event that the requirements of Parts 2 through 14 supersede, replace, amend, or delete any requirement of Part 1, the requirements of Part 2 through 14 shall control.

2. The Secretary may require any person covered by this Subsection to submit an application and seek coverage under an individual NPDES permit as described in §9.1.01.1.C.4.

a. The Secretary shall notify a person in writing when an individual permit application is required. The notice shall include a brief statement of the reasons for the decision, an application and a statement setting a deadline for the person to file the application.

b. If a person fails to submit an individual permit application in compliance with a notice from the Secretary, the applicability of this Subsection to the person shall automatically terminate at the end of the day specified for application.

3 When an individual NPDES permit is issued to a person for discharges otherwise covered by this Subsection, the applicability of this Subsection is automatically terminated on the effective date of the individual NPDES permit.

E. Requiring an Individual NPDES Permit

1. The Secretary may require any person covered by Part 1 of this Subsection to obtain either an individual NPDES permit or coverage under Parts 2 through 14 of this Subsection. Any interested citizen may also petition the Secretary to take action under this paragraph. The Secretary may take action when:

a. there is noncompliance with the provisions of this Subsection;

b. there is newly demonstrated, higher efficiency control technology or practices applicable to an activity subject to this Subsection;

c. the U. S. Environmental Protection Agency develops effluent limitation guidelines for an activity covered by this Subsection;

d. this Subsection is no longer appropriate for a discharge or type of activity;

e. there is evidence indicating potential or realized impacts on water quality due to any storm water discharge covered by this Subsection; or

f. other circumstances merit the application of this Subsection.

2. The Secretary shall notify a person in writing when an individual permit application or an alternative NOI is required. The notice shall include a brief statement of the reasons for the decision, an application or appropriate NOI form, and a statement setting a deadline for the person to file the application or NOI. The Secretary shall notify the person in writing that permit coverage has been obtained under an alternative Part of this Subsection once a completed, an alternative NOI has been received by the Department, or that permit coverage under this Subsection shall automatically terminate on the effective date of the individual NPDES permit that is issued to the person.

3. If a person fails to submit an individual permit application or an NOI in compliance with a notice from the Secretary, the applicability of Part 1 of this Subsection to the person shall automatically terminate at the end of the day specified for application or NOI submittal.

E. Conditional “No Exposure” Exclusion

1. A Conditional “No Exposure” Exclusion from the requirements of §9.1.01.4. (Monitoring) and §9.1.01.5. (Storm Water Plan) of this Subsection is available for industrial facilities whose processes and materials are protected by storm resistant shelters to prevent exposure to rain, snow, snowmelt, and/or runoff, as defined herein. This exclusion is applicable to all industrial categories identified in §9.1.01.1.A.2.b. of this Subsection. To qualify for a Conditional “No Exposure” Exclusion, the facility must submit and receive written Department approval of a “No Exposure” Certification Form. A facility who obtains an approved Conditional “No Exposure” Exclusion is covered under this Subsection, but excluded from having to comply with the requirements of §9.1.01.4. and §9.1.01.5.

2. A “No Exposure” Certification Form must be provided for each facility qualifying for the Conditional “No Exposure” Exclusion. The exclusion is available on a facility-wide basis only, not for individual outfalls.

3. A storm resistant shelter is not required for the following industrial materials and activities:

a. Lidded Dumpsters: Lidded dumpsters containing waste materials, providing the containers are completely covered and there are no holes in the bottom of the container to allow leakage. Industrial refuse and trash that is stored uncovered, however, is considered exposed.

b. Adequately Maintained Vehicles: Adequately maintained vehicles such as trucks, automobiles, forklifts, trailers, or other general purpose vehicles found on-site (but no industrial machinery) which are not leaking or are otherwise a potential source of contaminants.

c. Fueling Activities: Vehicle or vessel maintenance facilities in which the only maintenance activity conducted on-site is vehicle fueling. If the fuel is dispensed from an above ground storage tank, there must be adequate secondary containment for the tank or the tank must be double walled. In addition, a spill containment and clean-up kit must be maintained on-site.

d. Above Ground Storage Tanks: Storm resistant shelters are not required for above ground storage tanks provided the following conditions are met:

1. Above ground storage tanks must be physically separated from and not associated with vehicle maintenance operations;

2. There must be no piping, pumps or other equipment leaking contaminants that could contact storm water;

3. The tanks must be double walled tanks or must be provided with secondary containment.Secondary containment structures must be constructed to hold at least 110% of the entire contents of the tank plus 6 inches to allow for precipitation;

4. Precipitation collected in secondary containment structures must be properly managed; and

5. A spill containment and clean-up kit must be available for personnel dispensing product.

e. Final Products: Final products built and intended for use outdoors (e.g., new cars), provided the final products have not deteriorated or are otherwise a potential source of contaminants. Types of products not qualifying for “no exposure” certification:

1. Products that would be mobilized in storm water discharges (e.g., rock salt);

2. Products which may, when exposed, oxidize, deteriorate, leak, or otherwise be a potential source of contaminants (e.g., junk cars, stockpiled train rails); and

3. Final products which are, in actuality, intermediate products. Intermediate products are those used in composition of yet another product (e.g., sheet metal, tubing and paint used in making tractors). Even if the intermediate product is final for a manufacturer and destined for incorporation in a final product intended for use outdoors, these products are not allowed to be exposed because they may be chemically treated or are insufficiently impervious to weathering.

4. There are circumstances where permanent, uninterrupted sheltering of industrial activities or materials is not possible. Under such conditions:

a. Materials and activities may be sheltered with temporary covers (e.g., tarpaulins) until permanent enclosure can be achieved; and

b. The “No Exposure” provision does not specify every such situation, but the Secretary can address this issue on a case-by-case basis, i.e., determine if the temporary covers will meet the requirements of §9.1.01.1.E.

5. The “No Exposure” Exclusion is conditional. If there is a change in circumstances that causes the exposure of industrial activities or materials to storm water, the owner/operator is required to comply immediately with all requirements of this Subsection.

6. The Secretary retains the authority to require the facility to comply with the requirements of this Subsection if it is determined that there is exposure at the facility, or that the discharge of storm water is contributing to the violation of water quality standards.

§9.1.01.2 Standard Conditions

A. Entry and Inspection

Any person subject to this Subsection shall allow the Department to:

1. enter the facility subject to this Subsection during standard business hours;

2. inspect and copy at reasonable times, any records that must be kept under the conditions of this Subsection;

3. inspect at reasonable times any facilities or equipment; and

4. perform sampling of the storm water discharges from the site.

B. Signature Requirements

1. All Notice Of Intents (NOI) Forms and “No Exposure” Certification Forms shall be signed by:

a. a president, vicepresident, secretary or treasurer for a corporation; or

b. a general partner or proprietor for a partnership or sole proprietorship; or

c. a principal executive officer or ranking official for a municipality or public agency.

2. All other reports or information required by this Subsection shall be signed by a person described above or

by a duly authorized representative. A person is a duly authorized representative only if:

a. the authorization is made in writing by the person described above and is submitted to the Department; and

b. the authorization specifies either an individual or position having responsibility for the overall operation of the regulated facility, such as the position of manager, operator, superintendent, or position of equivalent responsibility or an individual or position having overall responsibility of environmental matters (A duly authorized representative may thus be either a named individual or any individual occupying a named position).

3. Any person signing documents in accordance with this Subsection shall make 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 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."

C. Proper Procedures Operation and Maintenance

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 conditions of this Subsection and with the measures requirements of the Storm Water Plan.

D. Need to Halt or Reduce Activity Not a Defense

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.

E.D. Duty to Mitigate

Any person subject to this Subsection shall take all reasonable steps to minimize or prevent any discharge of pollutants in violation of this Subsection.

F. Duty to Provide Information

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.

G. Property Rights

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.

H Adverse Impacts

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.

I. Transfers

1. For industrial activities identified in §9.1.01.1.A.2.a. (construction activities), coverage under this Subsection is transferable. Coverage under this Subsection shall be transferred in accordance with the provisions outlined in §9.1.02.

2. For industrial activities identified in §9.1.01.1.A.2.b., coverage under this Subsection is not transferable. When the ownership of a facility changes, the new operator must submit either an NOI Form or “No Exposure” Certification Form within ten (10) days of the change in ownership.

J. Continuation of Regulatory Requirements

The requirements of this Subsection shall continue in force and effect until this Subsection is re-promulgated.

K. Severability

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.

E. L. Other State or Federal Laws

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.

F. M. Penalties for Violations

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.

G. N. Oil and Hazardous Substance Liability

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.

H. Additional Requirements for Salt Storage

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. Dischargers shall demonstrate compliance with this provision as expeditiously as practicable, but in no event later than three years after the date of issuance of this Subsection.

§9.1.01.3 Notification

A. Any person who intends to obtain coverage for storm water discharges associated with industrial activity through this Subsection, must submit a Notice of Intent (NOI) in accordance with this Subsection. The Notice of Intent should be submitted by certified mail.

1. Any person intending to obtain coverage through this Subsection for storm water discharges associated with industrial activities, existing before the effective date of this Subsection, must submit an NOI within 90 days after the effective date of this Subsection.

2. Any person intending to obtain coverage through this Subsection for storm water discharges associated with industrial activities , commencing after the effective date of this Subsection, must submit an NOI at least 180 days prior to the commencement of industrial activities that could potentially impact storm water at the facility listed on the NOI.

A. Application For Coverage

1. Any person who intends to obtain coverage for storm water discharges associated with industrial activity under through this Subsection, must submit a Notice of Intent (NOI) Form in accordance with this Subsection. For those persons who intend to certify that a condition of “no exposure” exists at their facility, a “No Exposure” Certification Form must be submitted in accordance with this Subsection. Once the submitted documentation has been approved, the permittee will receive a letter either acknowledging coverage under this Subsection or exclusion of coverage under this Subsection. Failure to submit a complete and accurate Form will result in the facility being denied coverage under this Subsection.

2. Where a facility or activity is owned by one person but is operated by another person, it is the operator’s duty to submit the NOI Form or the “No Exposure” Certification Form.

3. When ownership changes, the new owner of the facility must submit a new NOI Form or a new “No Exposure” Certification Form consistent with the Transfers provision of §9.1.01.2.I.

B. Deadlines

1. Industrial Activities identified in §9.1.01.1A.2.b., excluding Industrial Activity Codes HZ and LF. Any person intending to obtain coverage under this Subsection for storm water discharges associated with the industrial activities identified in §9.1.01.1.A.2.b., excluding those facilities classified as Industrial Activity Codes HZ and LF, shall meet the following deadlines.

a. Facilities Currently Covered Under This Subsection

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”.

b. Facilities With Coverage Pending

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.

c. New Facilities or Existing Facilities Not Covered Under This Subsection

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.

d. Where a facility that has been granted a Conditional “No Exposure” Exclusion proposes changes to its activities that will result in industrial activities or materials being exposed to storm water, the Conditional “No Exposure” Exclusion shall become void. The facility must then obtain full coverage under this Subsection or apply for an individual NPDES permit within 30 days prior to implementing proposed changes.

2. Industrial Activities Classified as Industrial Activity Codes HZ and LF

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.

a. Facilities Currently Covered Under This Subsection

Coverage will continue for all facilities with existing coverage under this Subsection unless otherwise notified by the Department.

b. Facilities With Coverage Pending

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.

c. New Facilities or Existing Facilities Not Covered Under This Subsection

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.

(1) The requirements of notification will be satisfied when an NOI Form with accompanying information is submitted in accordance with this Subsection.

(2) Persons complying with §9.1.01.3.B.2., shall be considered in compliance with the NOI provisions outlined in §9.1.01.3, B.1.c. of this Subsection.

(3) Persons identified in any plans required by a DRGSW permit or approval shall sign and maintain on-site a copy of the following certification statement before conducting any professional service identified in the plans:

“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.”

3. Construction Activities

Any person who intends to obtain coverage under this Subsection for storm water discharges associated with the industrial activities described in §9.1.01.1.A.2.a. (construction activities) of this Subsection shall comply with the provisions of §9.1.02. of the Regulations.

B. C. Contents of the Notice of Intent Form

The Notice of Intent (NOI) shall be submitted on a form provided by the Department. The NOI form shall include , but not be limited to, the following information:

1. For industrial activities described in §9.1.01.1.A.2.b., the NOI Form shall include, at a minimum, the following information:

a. 1. The name of the owner, the facility, facility mailing address and location, if different from the mailing address;

b.2. The latitude and longitude of the facility;

c.3. Up to four Standard Industrial Classification (SIC) codes that best represent the principal products or activities of the facility;

d. A brief description of the type of industrial activities conducted and products manufactured at the facility.

e. 4. The name, address and telephone number of the individual who is directly responsible for development, implementation, maintenance, and revision of the Storm Water Plan; and

f.5. The name of the receiving waters or municipal storm water system.

g. The following certification:

“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.”

6. Whether the facility has participated in a Group application and the EPA number assigned to that Group.

2. For industrial activities described in §9.1.01.1.A.2.a. (construction activities), the NOI Form shall be submitted in accordance with the provisions of §9.1.02.

D. Contents of the “No Exposure” Certification Form

The Conditional “No Exposure” Certification shall be submitted on a form provided by the Department. The “No Exposure” Certification Form shall include, at a minimum, the following information:

1. The name of the owner, the facility, facility mailing address and location (if different from the mailing address);

2. The latitude and longitude of the facility;

3. Up to four Standard Industrial Classification (SIC) Codes that best represent the principal products or activities of the facility;

4. Indication as to whether or not the facility was previously covered under a NPDES storm water permit;

5. Indication as to whether or not the facility paved or roofed over a formerly exposed, pervious area in order to qualify for the Conditional “No Exposure” Exclusion; and

6. An Exposure Checklist. The facility must indicate whether or not the following areas are exposed to precipitation, now or in the foreseeable future. If any of the following areas are or will be exposed to precipitation, the facility is not eligible for the Conditional “No Exposure” Exclusion:

a. Industrial materials used, stored, or cleaned and that remain and are exposed to storm water;

b. Materials or residuals on the ground or in storm water inlets from spills/leaks;

c. Materials or products from past industrial activity;

d. Material handling equipment (except adequately maintained vehicles);

e. Materials or products during loading/unloading or transporting activities;

f. Materials or products stored outdoors (except final products intended for outside use [e.g., new cars] where exposure to storm does not result in the discharge of pollutants).

g. Materials contained in exposed storage drums, barrels, tanks (provided the tanks do not meet the conditions outlined in §9.1.01.E.3.c.), and similar containers;

h. Materials or products handled/stored on roads or railways owned or maintained by the discharger;

i. Waste material (except waste in covered, non-leaking containers [e.g., dumpsters]);

j. Application or disposal or process wastewater (unless otherwise permitted); and

k. Particulate matter or visible deposits of residuals from roof stacks and/or vents not otherwise regulated (i.e., under an air quality control permit) and evident in the storm water outflow.

7. The following certification:

“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.”

C.E. Other Additional Information

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.

D.F. Where to Submit

Persons intending to obtain coverage through this Subsection must submit an NOI to the following address:

1. Persons intending to obtain coverage under this Subsection for industrial activities identified in §9.1.01.1.A.2.b. must submit an NOI Form or “No Exposure” Certification Form 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

2. Persons intending to obtain coverage under this Subsection for industrial activities identified in §9.1.01.1.A.2.a. (construction activities), must submit an application with accompanying information in accordance with the provisions of §9.1.02. of the Regulations.

G. Failure to Notify

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.

§9.1.01.4 Monitoring

A. Persons subject to this Part shall monitor the discharges of storm water associated with industrial activity as specified below beginning on the effective date of this Subsection:

1. analyze a grab taken within the first half hour of a storm water discharge.

2 allow for two full days of standard operating activities at the facility since the last rainfall event that resulted in runoff from the facility.

3. samples taken shall be representative of the monitored discharge. Sampling and analysis must be conducted according to test procedures approved under 40 C.F.R. Part 136, or an alternative method approved by the Department for this purpose.

4. allow for at least 180 days from the last sample; and

5. analyze samples in accordance with the following parameters:

a. please refer to applicable Part (Parts 2-14) for requirements.

b. Water Priority Chemical Facilities

Facilities that have released a Water Priority Chemical (WPC), {see Appendix A for a list of WPCs} that are subject to §313 of SARA Title III or have WPCs exposed to storm water, are required to sample the storm water discharges associated with the area of the release or exposure. The storm water discharges shall be analyzed for the constituents which will indicate the presence of WPCs as follows:

Discharge Parameter Units Frequency Sample Type

Flow gal/min at each sampling estimated 1

Indicator #1 2 mg/l 2/year grab

Indicator #2 2 mg/l 2/year grab

Indicator #3 mg./l 2/year grab

6. Representative Discharge

If any person subject to this Subsection reasonably believes that two or more outfalls discharge storm water substantially identical (based on a consideration of industrial activity, Significant Materials, management practices and activities within the area drained bythe outfalls, that person may test the discharges of one of such outfalls and report that the quantitative data also applies to the substantially identical outfalls.

A. Beginning on the effective date of this Subsection, persons conducting industrial activities:

1. identified in §9.1.01.1.A.2.b., excluding those facilities classified as Industrial Activity Codes HZ and LF, shall monitor the discharges of storm water associated with industrial activities as specified by this Part.

2. identified in §9.1.01.1.A.b. as Industrial Activity Codes HZ and LF shall perform monitoring in accordance with the DRGSW.

3. identified in §9.1.01.1.A.2.a. (construction activities) shall perform monitoring in accordance with the provisions of §9.1.02 (Part 2) of this Subsection.

B. Sampling Procedures and Conditions

Storm water must be sampled according to the instructions below.

1. Sample Type

A grab sample shall be collected from a storm water discharge resulting from a storm event that is greater than 0.1 inches of magnitude and that occurs at least 72 hours from the previously measured (greater than 0.1 inch rainfall) storm event. The required 72 hour interval is waived where a preceeding measurable storm event did not result in a measurable discharge from the facility. The grab sample shall be taken within the first thirty (30) minutes of a storm water discharge. If it is not practicable to take the sample during the first 30 minutes, sample during the first hour of discharge and indicate why a grab sample during the first 30 minutes was impracticable. The permittee shall also allow for two (2) full days of standard operating activities at the facility since the last rainfall event that resulted in runoff from the facility.

For discharges from holding ponds or other impoundments with a 24-hour or greater retention capability, grab samples of the discharge may be obtained at any time.

2. Sample Location

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.

3. Test Methods

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.

4. Representative Discharge

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).;

5. Flow Measurement

For each representative sampled storm event, person subject to this Part must provide the following information:

a. the date and duration (in hours) of the storm event(s) sampled;

b. rainfall measurements (in inches) or estimates of runoff (in gallons) of the storm event that generated the sampled runoff;

c. the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event; and

d. an estimate of the total volume (in gallons) of the discharge sampled.

6. Monitoring Frequency

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 §9.1.01.4.C., visual monitoring shall be performed on a quarterly basis and analytical monitoring shall be performed on a semi-annual basis.

C Industry-Specific Monitoring Requirements and Effluent Limitations

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 §9.1.01.4. 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.

1. Quarterly Visual Monitoring

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.

2. Analytical Monitoring – Benchmark Monitoring Concentrations and Effluent Limitations

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) {§9.1.01.5.}. 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.

a. Sector A – General Sawmills and Planning Mills

1. Numeric Effluent Limitation

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

(2) 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

b. Sector B – Paper and Allied Products

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

c. Sector C – Chemical and Allied Product Manufacturing

1. Numeric Effluent Limitations

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

2. Benchmark Monitoring Requirements

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

d. Sector D – Asphalt Paving and Roofing Materials and Lubricant Manufacturers

1. Numeric Effluent Limitations

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

(2) Benchmark Monitoring Requirements

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

e. Sector E – Glass, Clay, Cement, Concrete and Gypsum Products

(1) Numeric Effluent Limitations

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

(2) Benchmark Monitoring Requirements

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

f. Sector F – Primary Metals

Benchmark Monitoring Requirements

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

g. Sector J – Mineral Mining and Dressing

1. Numeric Effluent Limitations

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

2. Benchmark Monitoring Requirements

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

h. Sector M – Automobile Salvage Yards

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

i Sector N – Scrap Recycling and Waste Recycling Facilities

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

j. Sector O - Steam Electric Generating Facilities

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

k. Sectors P – Land Transportation and Warehousing

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

l. Sector Q – Water Transportation

Benchmark Monitoring Requirements

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

m. Sector S – Air Transportation

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

n. Sector U – Food and Kindred Products

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

o. Sector Y - Rubber, Miscellaneous Plastic Products and Miscellaneous Manufacturing Industries

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

p. Sector Z - Leather Tanning and Finishing

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

q. Sector AA – Fabricated Metal Product

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

r. Coal Pile Runoff

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

D.B. Records Keeping of all Sampling and Analysis shall include the following:

1. Records of all analytical monitoring shall include the following:

1. a. the date, exact place and time of sampling or measurements;

2. b. the name(s) of the individual(s) who performed the sampling or measurements as well as the procedures used for sample collection and preservation;

3. c. the date and time when the analysis of the samples took place along with the name of the individual(s) who performed the analysis;

4. d. references and written procedures, when available, for the analytical techniques or methods used; and

5. e. the results of such analyses, including the bench sheets, instrument readouts, computer disks or tapes, used to determine these results.

f. In the event that analytical results exceed Benchmark Monitoring Concentration values or Numeric Effluent Limitations, the facility shall investigate the cause for such exceedance and the results of this investigation shall be documented. The results of the investigation shall identify potential sources of pollution, additional Best Management Practices (BMPs) necessary, revisions to the Industrial Material Management Section of the SWP, or identify other areas of the SWP that may require revision in order to meet the goal of the Benchmark Monitoring Concentration values. Background concentrations of specific pollutants may also be considered during the investigation.

2. Records of all quarterly visual monitoring shall include the following:

a. the date, outfall location and time of examination;

b. the name(s) of the individual(s) who performed the examination;

c. the nature of the discharge (i.e., runoff or snowmelt);

d. visual quality of the storm water discharge (including observations of color, odor, clarity, floating solids, settled solids, suspended solids, foam, oil sheen and other obvious indicators of storm water pollution); and

e. probable sources of any observed storm water contamination.

E. Additional Monitoring

The Secretary may provide written notification to any facility, including those otherwise exempt from sampling requirements, requiring additional storm water monitoring.

F. Monitoring Waiver

The Department may waive specific monitoring requirements, as follows:

1. Adverse Climatic Conditions

When the permittee is unable to collect samples or perform visual examinations within a specific sampling period due to adverse climatic conditions, the permittee shall collect a substitute sample from a separate qualifying event in the next sampling period. Adverse weather conditions are those that create dangerous conditions for personnel (such as local flooding, high winds, hurricane, tornadoes, electrical storms, etc) or otherwise make the collection of a sample impracticable (drought, extended frozen conditions, etc.).

2. Inactive or Unstaffed Facilities

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 (§9.1.01.5.).

3. Benchmark Monitoring Waivers

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.

a. Samples were collected in four (4) consecutive monitoring periods and the parameter concentrations were below the benchmark monitoring concentration values indicated.

b. A waiver request is submitted and approved by the Department. The waiver request should include supporting monitoring data for 4 consecutive monitoring periods and a certification that based on current potential pollutant sources and Best Management Practices (BMPs) used, discharges from the facility are reasonably expected to be essentially the same (or cleaner) compared to when the monitoring for the 4 consecutive periods was completed.

Following the sampling suspension, sampling shall resume as specified in this Part.

5. Representative Discharge

If any person subject to this Subsection reasonably believes that two or more outfalls discharge storm water substantially identical (based on a consideration of industrial activity, Significant 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 outfalls.

§9.1.01.5 Storm Water Plan (SWP)

Persons covered by this Subsection shall develop and administer a Storm Water Plan (SWP). The goal of developing and administering the SWP is to create a program for continually assessing the potential for Significant Materials to be exposed to precipitation and storm water run-on, implementing and maintaining practices which eliminate or minimize the transport of Significant Materials from the facility by storm water runoff, as well as reviewing the success of the implemented practices and amending the SWP when appropriate.

A. Persons covered by this Subsection:

1. Who engage in industrial activities identified in §9.1.01.1.A.2.b., excluding those facilities classified as Industrial Activity Codes HZ and LF, shall develop and continually implement administer a Storm Water Plan (SWP). The SWP shall identify potential sources of pollutants, which may reasonably be expected to affect the quality of storm water discharges associated with industrial activities from a facility. In addition, the SWP shall describe and ensure the implementation of practices and programs which are used to reduce or eliminate the pollutants in storm water discharges associated with industrial activity at a facility and to assure compliance with the terms and conditions of this Subsection. The goal of developing and administering the SWP is to create a program for continually assessing the potential for Significant Materials to be exposed to precipitation and storm water run-on, implementing and maintaining practices which eliminate or minimize the transport of Significant Materials from the facility by storm water runoff, as well as reviewing the success of the implemented practices and amending the SWP when appropriate.

2. Who engage in industrial activities identified as Industrial Activity Codes HZ and LF shall, in place of the SWP, maintain at the site/central location of activities subject to the “Delaware Regulations Governing Solid Waste” (DRGSW), any certifications and/or approved plans for complying with the DRGSW.

3. Who engage in industrial activities identified by §9.1.01.1.A.2.a. (construction activities), shall comply with the provisions of §9.1.02.5. (Sediment and Stormwater Plan) of the Regulations.

B. Facilities must implement §9.1.01.5 as a condition of this Subsection.

B.C. The SWP shall be signed in accordance with this Subsection Part and maintained kept at the facility.

C. Persons covered by this Subsection shall retain records of all information required by the SWP (i.e., monitoring results, inspection reports, and any other documentation of compliance with this Subsection) for a minimum of five (5) years.

D. SWP Deadlines

1. Existing Facilities

a. Persons covered by this Subsection shall comply with the following deadlines unless granted a different deadline by any of Parts 2 trhough 14:

(1) develop a SWP within 90 days of the effective date; and

(2) initiate implementation of the SWP within 180 days of the effective date.

b. Persons Not Covered by Any of Parts 2 through 14

(1) Persons with a current NOI on file at the Department shall maintain the existing SWP Persons subject only to Part 1 shall continue to implement the existing SWP unless informed of SWP deficiencies in writing by the Department.

(2) Persons without a current NOI on file at the Department shall develop a SWP in accordance with this Part. Persons without a current NOI on file at the Department shall submit the SWP to the Department for review within 60 days of the effective date of these Regulations. The SWP shall be implemented within 60 days after the date of approval.

2. New Facilities

Facilities which were not engaged in industrial activity prior to the effective date shall be required to develop a SWP 90 days before the start of industrial operations at the facility. Full implementation of the SWP shall coincide with the start of industrial activity at the facility.

D. Keeping the SWP Current

Persons covered by this Subsection shall amend the SWP whenever:

1. there is a change in the design, construction, operation, or maintenance of activities associated with industrial activities conducted at the facility, which has a significant effect on the potential for the discharge of pollutants to the waters of the State;

2. the SWP proves to be ineffective in eliminating or significantly minimizing pollutants from Industrial Materials identified in §9.1.01.5.G.2.c., or in otherwise achieving the general objectives of controlling pollutants in storm water discharges associated with industrial activity;

3. any sources or potential sources of pollution identified as a result of a facility’s Inspection Program pursuant to §9.1.01.5. G.4.; or

4. notified by this Department that the SWP does not adequately address the requirements of this Subsection, persons subject to this Subsection shall amend the SWP and submit these amendments to this Department within 30 days of notification. The notification from the Department shall list and describe deficiencies of the SWP. The Department may grant additional time for amending the SWP. This extension must be obtained from the Department in writing.

E. Failure to Prepare or Amend the SWP

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.

F. SWP Deadlines

1. Existing Facilities

a. Facilities that were covered under the 1998 regulation who are continuing coverage under this Subsection shall update and implement any revisions to the SWP within 45 days of the effective date of this Subsection. Once updated, the SWP shall be submitted to the Department for review.

b. Where the owner of an existing facility that is covered by this permit changes, the new owner of the facility must update and implement any revisions to the SWP within 30 days of the ownership change.

2. New Facilities

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.

3. Extensions

Upon a showing of good cause, the Director may establish a later date in writing for the preparation and compliance with the SWP.

E.G. Contents of 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:

1. Facility Identification

The name, address, and telephone number of the individual who is responsible for development, implementation, maintenance and revision of the SWP.

2. Facility Assessment

a. Facility Description:

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:

1. loading and unloading areas (including areas where chemicals and other materials are transferred);

2. outdoor storage areas;

3. outdoor processing areas;

4. dust producing activities;

5. on-site waste disposal;

6. vehicle/equipment maintenance, cleaning and fueling areas;

7. liquid storage tanks;

8. railroad sidings, tracks, and rail cars; and

9. other.

Ab. A Map of the Facility

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:

1. all of the buildings at the facility;

2. the areas where Significant Industrial Materials are stored, handled or used in processes and the types of Significant Industrial Materials associated with each areas;

3. the drainage areas associated with each storm water discharge from the facility/site and the associated ground cover;

4. all storm water related drainage and discharge structures including all conveyances systems and appurtenances;

5. any structural storm water controls (i.e. detention basins, secondary containment, storm water diversions);

6. all surface waters that receive storm water discharges from the facility;

7. directions of storm water flow;

8. locations of the following activities where such activities are exposed to precipitation: fueling stations, vehicle and equipment maintenance and/or cleaning areas, loading/unloading areas, locations used for the treatment, storage or disposal of wastes and liquid storage tanks;

9. locations of non-storm water discharges;

10. locations of the following activities where such activities are exposed to precipitation; processing and storage areas, access roads, rail cars and tracks, the location of transfer of substance in bulk and machinery;

11. location and source of runoff from adjacent property containing significant quantities of

pollutants of concern to the facility (an evaluation of how the quality of the storm water running onto your facility impacts your storm water discharges may be included); and

12. locations of where major spills or leaks have occurred.

b.c. An Inventory of Industrial Significant Materials

An estimate of the yearly quantities of Industrial Significant Materials handled by the facility, unless subject to only Part 2. This inventory of materials shall will 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. could result in storm water.

c.d. An Inventory of Spills and Leaks

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 Significant 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.

3. Industrial Significant Material Management

The Storm Water Plan shall contain, but not be limited to, language which identifies and describes the practices which will be implemented by the permitted in order to conform with the following requirements unless subject to any of Parts 2 through 14: 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:

a. Non-structural control practices implemented to eliminate or minimize the exposure of Significant Materials to precipitation and storm water run-on during handling, transferring and shipping of Significant Material;

a. Good Housekeeping Practices

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.

b. Structural Controls, when needed, to store, cover, enclose, contain, trap or treat Significant Materials or storm water containing Significant Materials;

b. Preventative Maintenance Program

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.

c. Spill Prevention and Response Measures

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, a the spill response plan which shall addresses 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.

d. Maintenance

A maintenance program shall describe a schedule of inspections in order to prevent or correct any functional deficiencies of management devices or equipment used to control or prevent the transport of pollutants from the facility by storm water – including any equipment that has the potential to release pollutants to the storm water system as a result of failure or breakdown.

Qualified facility personnel shall be identified to inspect designated equipment and areas of the facility at appropriate intervals specified in the SWP. A set of tracking or follow-up procedures shall be used to ensure that appropriate actins are taken in response to the inspections. A log of inspections and any actions taken shall be maintained at the site.

d.

Minimizing Exposure

Where practicable, industrial materials and activities should be protected by a storm resistant shelter to prevent exposure to rain, snow, snowmelt or runoff.

e. Erosion Control Practices

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.

f. Best Management Practices

The SWP shall include a section that establishes BMPs to reduce the discharge and potential discharge of pollutants in storm water. Appendix B includes a list of BMPs for specific industrial activities. Facilities conducting activities described in Appendix B 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 Appendix B 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 Appendix B 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.

g. Additional Requirements for Salt Storage

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 exposureresulting from adding or removing materials from the pile.

h. Management of Runoff

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.

i Off-Site Vehicle Tracking

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.

4. Interim Significant Material Management Practices

During the time between the effective date of this Part and the date when any of §9.1.01.5, E.3.a.b., c., or d. are completed, all Significant Materials shall be managed in a responsible manner.

4. Inspections. The SWP shall detail the following inspection programs. Results of each inspection shall be maintained with the SWP.

a. Routine Inspections

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.

b. Comprehensive Site Evaluations

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:

(1) areas identified in the Inventory of Industrial Materials of the SWP;

(2) structural controls, including their maintenance and effectiveness;

(3) non-structural controls, including good housekeeping measures and spill prevention;

(4) storm water outfalls and reasonably accessible areas immediately downstream of each storm water outfall that is authorized under this Subsection; and

(5) records required by this Subsection.

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.

c. Secondary Containment Inspections

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.

b Structural Control Practices when needed, shall be implemented to store, cover, enclose, contain, trap or treat Significant Materials or storm water containing Significant Materials.

4. Interim Significant Material Management Practices

During the time between the effective date of this Part and the date when any of §9.1.01.5, G.E.3.a., b., c., or d. are completed, all Significant Materials shall be managed in a responsible manner.

5 Inadequate Significant Material Management

If a continued transport of substantial amounts of Significant Material through a facility's storm water discharges persists, the Department may require treatment of the contaminated storm water discharges along with limits for contaminant levels. If treatment of the contaminated storm water discharges or along with limits for contaminant levels is required, permit coverage through an individual NPDES Storm Water Permit may be required.

5. Monitoring Data

The SWP shall include a description of the monitoring program and sampling data for storm water discharges at the facility, in accordance with §9.1.01.4.

H. 6. Training

Facility employees and contractor personnel that work in areas where Significant 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.

7. Non-Storm Water Certification

The SWP shall include the Non-Storm Water Certification required by §9.1.01.6.

J. 8. Facility Security

Facilities shall have the necessary security systems to prevent an accidental or intentional discharge of hazardous material or oil through vandalism.

K. 9. Additional Requirements for Facilities Subject to SARA III §313 (Water Priority Chemicals)

The SWP shall indicate that appropriate containment, drainage control and/or diversionary structures are shall be 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).

a. Storage locations for Non-liquid WPCs shall have roofs, covers or other forms of appropriate protection to prevent exposure of storage piles to storm water and wind; and

b. Storage locations for Liquid WPCs shall include secondary containment providing at least 110% of the entire contents of the largest single tank plus 6 inches to allow for precipitation.

F. Non-storm Water Discharges

Discharges to a storm water system of anything other than storm water shall be eliminated or be in compliance with an appropriate NPDES permit. If non-storm water discharges to a storm water system occur, compliance with this part must be attained by performing one of the following:

1. Obtain coverage through an appropriate Part (general permit) of these regulations; or

2. Develop and submit to the Department a schedule which shall include

a. a date for submittal of an application for individual NPDES permit coverage for the non-storm water discharges; or

b. a sequence of steps which will result in the elimination of the non-storm water discharges to the storm water system; and

The schedule shall be submitted to the Department within 15 days of when the permittee has knowledge of the non-storm water discharge unless granted a written extension by the Department.

Enclosed areas where Significant Material is used, stored, handled, shipped, or received shall not have drains connected to any storm water conveyance unless approved by the Department in writing.

G. Review of Plans, Reports, Records or SWP

1. Upon notification from this Department that the SWP does not adequately address the requirements of this Subsection, persons subject to this Subsection shall amend the SWP and submit these amendments to this Department within 30 days of notification. The notification from the Department shall list and describe the deficiencies of the Storm Water Plan.

2. This Department may grant additional time for amending a SWP. This extension must be obtained from the Department in writing.

H. Inadequate Industrial Material Management

If a continued transport of substantial amounts of Industrial Material through a facility's storm water discharges persists, the Department may require treatment 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.

I. Consistency with Other Plans

The Storm Water Plan must comply with any other plans developed for the facility to control discharges of Significant Industrial Materials into the environment.

J. Copy of Permit Requirements

Persons subject to this Part must include a copy of your letter indicating acquisition of coverage under this Subsection with the SWP.

§9.01.1.6 EFFECTIVE DATE OF COVERAGE UNDER THIS PART

A. Commencement of Coverage

Coverage under this Part begins when the Department has received notification pursuant to the NOI requirements outlined in §9.1.01.3.

B Renotification

Any person subject to the provisions of this Subsection is required to submit a new NOI in accordance with the requirements of the reissued Subsection.

§9.01.1.6 Outfall Identification

All persons conducting industrial activities identified in §9.1.01.1.A.2.b. 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.

§9.1.01.7 Non-Storm Water

A. Discharges to a storm water system of anything other than storm water, except those discharges described in subparagraph (B) below, shall either be eliminated or in compliance with an appropriate individual NPDES permit.

If nonstorm 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.

B. Industrial facilities that qualify for coverage under this Subsection may discharge the following non-storm water discharges, through outfalls identified in the SWP:

1. discharges from fire fighting activities and fire hydrant flushings;

2. uncontaminated potable water sources including waterline flushings;

3. lawn watering and similar irrigation drainage;

4. water from the routine external washing of buildings, conducted without the use of detergents or other chemicals;

5. water from the routine washing of pavement conducted without the use of detergents or other chemicals and where spills or leaks or toxic or hazardous materials have not occurred (unless a spilled material has been removed);

6. uncontaminated air conditioner condensate, compressor condensate, and condensate that externally forms

on steam lines;

7. water from foundation or footing drains where flows are not contaminated with pollutants (e.g. process

materials, solvents, and other pollutants);

8. springs and other uncontaminated ground water; and

9. mist discharges which originate from cooling towers (as long as the discharge has been evaluated for contaminated chemicals used in the cooling tower and determined that the levels of such chemicals in discharges would not cause or contribute a violation of applicable water quality standards).

C. The facility shall include a certification that the storm water discharges have been evaluated or tested for the presence of non-storm water discharges. Such certification shall be signed in accordance with §9.1.01.2.B. and shall be maintained with the SWP. The certification shall include:

1. the identification of potential sources of non-storm water at the site;

2. a description of the results of any tests or evaluation for the presence of non-storm water discharges;

3. the evaluation criteria or testing method used;

4. the date of any testing or evaluation; and

5. the on-site drainage points that were directly observed during the test.

D. Any facility that is unable to provide the certification required by §9.1.01.7.C., shall notify the Department 60 days after submitting an NOI Form to be covered by this Subsection. If the failure to certify is caused by the inability to perform adequate tests for evaluations, such notification shall describe:

1. the procedure of any test conducted for the presence of non-storm water discharges;

2. the results of such test or other relevant observations;

3. potential sources of non-storm water discharges to the storm water conveyance system(s); and

4. why adequate tests for such storm water conveyance system(s) were not feasible.

§9.1.01.8 Effective Date of Coverage Under This Part Subsection

A. Commencement of Coverage

Coverage under this Part Subsection begins when the Department has received and approved of notification pursuant to the NOI or “No Exposure” Certification requirements outlined in §9.1.01.3.

B. Duration of Coverage

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.

B.C. Re-notification

1. Any person wishing to extend or renew coverage under this Subsection must submit a new NOI Form or a new “No Exposure” Certification Form not less than 60 days prior to the expiration date of coverage, unless permission for a later date has been granted by the Department. In the event that the permittee submits a timely request to extend or renew existing coverage, and the Department through no fault of the permittee, is unable to make a final determination on the request before the expiration date of coverage, the terms and conditions of the existing coverage shall be continued and remain fully effective and enforceable until the Department makes a final determination on the request.

2. Any person subject to the provisions of this Subsection is required to submit a new NOI Form or a new “No Exposure” Certification Form in a timeframe specified by the Department upon re-promulgation of this Subsection.

[§9.1.01.9 Best Management Practices

The Department is authorized under the federal regulations (40 CFR 122.44) to impose Best Management Practices (BMPs) to control or abate the discharge of pollutants in lieu of numeric effluent limitations when the Department finds that BMPs are reasonably necessary to achieve effluent limitations and standards, or to carry out the purposes and intent of the State and Federal Acts.

The Department shall maintain a list of Best Management Practices that would eliminate or reduce the contact of industrial materials, areas, and or activities with storm water. These BMPs are a means to meet the requirements for BMPs listed in as applicable and are considered the minimum set of required BMPs for an industrial activity. Equivalent BMPs may be selected which result in equal or better quality of stormwater discharge.]

Part 2 SPECIAL CONDITIONS FOR STORM WATER DISCHARGES ASSOCIATED WITH CONSTRUCTION LAND DISTURBING ACTIVITIES

§ 9.1.02.0 Definitions

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 (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.

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. BMPs include the following, among other practices and measures: structural and non-structural controls; treatment requirements; operating procedures and practices to control site runoff, or sludge disposal, or waste disposal, or spillage, or leaks, or drainage from raw materials storage.

Certified Construction Reviewer: 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.

C.F.R.: means the Code of Federal Regulations.

Clean Water Act (Cwa): means 33 U.S.C. 1251 et seq. (formerly known as the Federal Water Pollution Control Act Amendment of 1972).

Co-permittee: is a discharger of storm water associated with construction activity who is jointly and individually responsible for compliance with all conditions of this Part 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.

Department: means the State of Delaware Department of Natural Resources and Environmental Control.

Discharge Of Storm Water Associated With Construction Activity: means a discharge of storm water 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 storm water directly related to the construction process (e.g. concrete or asphalt batch plants) are located.

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 become operative.

Facility: means any building, any structure, any complex of buildings or structures, or any process, production, equipment, or machinery, which makes it possible for any activity to be conducted.

Final Stabilization : means that:

• All soil disturbing activities at the site have been completed and either of the two following criteria are met:

• A uniform (e.g. evenly distributed, without large bare areas) perennial vegetative cover with a density of 70% of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures, or

• Equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed.

• 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 :

• The homebuilder has completed final stabilization as specified above, or

• The homebuilder has established temporary stabilization including perimeter controls for an individual lot prior to occupation of the home by the homeowner and informing the homeowner of the need for, and benefits of, final stabilization.

• 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.

Individual Permit: means a permit which is written for one specific facility or site.

Municipal Separate Storm Water System: means a conveyance system which is not intended to convey anything but storm water and is owned by a municipal or public entity.

Notice Of Intent (Noi): serves as an application for NPDES permit coverage under this Part.

Notice Of Termination (Not): serves as an application for termination of NPDES permit coverage under this Part.

Npdes (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 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.”

Operational Control: means the responsibility for managing a construction activity subject to the provisions of this Part.

Operator: for the purpose of this Part, means any person associated with construction activity who has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications.

Permit Coverage: means an authorization granted to a category of storm water discharges pursuant to this Subsection.

Permittee: is a discharger of storm water associated with construction activity who is responsible for compliance with all conditions of this part and to whom coverage under this Part has been granted.

Person: means any individual, partnership, corporation, association, institution, enterprise, municipality, commission, political subdivision, or duly established entity.

Project Completion: occurs when all items and conditions of the Plan have been satisfied, as-built documentation has been approved by the Plan approval agency, and final stabilization has been achieved in accordance with the definition in this document. It is at project completion that permit coverage is terminated.

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 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 Delaware Sediment and Stormwater Law and Regulations.

Storm Water: means runon or runoff of water from the surface of the land resulting from precipitation or snow or ice melt.

These Regulations: means the State of Delaware Special Conditions for Storm Water Discharges Associated with Construction Activity.

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 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.

Transferee: means the person who accepts permit responsibility from the original permittee.

Transfer Of Authorization: means to transfer control of permitted construction activities to either a duly authorized person who will control the permitted activities, or a new owner/operator for the site for which the permit has been issued.

Transferor: means the original permittee who transfers permit responsibility to another entity.

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) – (d).

Waste and storm water treatment systems that would otherwise meet this definition are not “waters of the State.”

§ 9.1.02.1 Coverage

This Part covers all new and existing storm water discharges that are composed in whole or in part of storm water associated with land disturbing activities. The coverage area under this Part includes all areas within the State of Delaware.

A. Eligibility

The following discharges and activities are eligible for NPDES General Industrial Storm Water Permit coverage under this Part.

1. This Part covers all new and existing storm water discharges that are composed in whole or in part of discharges associated with construction activity [as defined by 40 Code of Federal Regulations (CFR), Section 122.26 (b)(14)(x), (15); see §9.1.02.0 DEFINITIONS]

2. Discharges from support activities (e.g., concrete or asphalt plants, equipment staging yards, material storage areas, excavated material disposal areas, borrow areas) provided:

a. The support activity is directly related to the construction site required to have NPDES permit

overage for discharges of storm water associated with construction activity;

b. The support activity is not a commercial operation serving multiple unrelated construction projects by different operators, and does not operate beyond the completion of the construction activity it supports; and

c. Appropriate controls and measures are identified in a Sediment and Stormwater Plan covering the discharges from the support activity areas.

3. Discharges composed of allowable discharges listed in 9.1.02.1.A and 9.1.02.6.B commingled with a discharge authorized by a different NPDES permit and/or a discharge that does not require NPDES permit authorization.

4. Storm water discharges associated with construction activity at facilities which have permit coverage for a discharge other than storm water can be covered by this Part, or at the discretion of the Secretary, an existing individual permit may be amended to cover storm water discharges associated with construction activities.

B. Limits on Eligibility

The following discharges and activities are not eligible for NPDES General Industrial Storm Water Permit coverage under this Subsection.

1. Discharges of storm water associated with industrial activity fully addressed by facilities with individual NPDES permits.

2. Discharges of pollutants occurring in watersheds for which there is a Total Maximum Daily Load (TMDL) allocation for associated water bodies are not eligible for coverage under this Part unless the facility has an approved Sediment and Stormwater Plan (Plan) that is shown to reduce pollutant loading to the level required by the TMDL or to the maximum extent practicable.  To be eligible under this Part, the facility must incorporate into their Plan any conditions applicable to their discharges necessary for consistency with any TMDL implementation plan or plan for achieving State surface water quality standards.  For discharges not eligible for coverage under this Part, the discharger must apply for and receive an individual NPDES permit.

3. Discharges of pollutants in quantities that would cause or contribute to an exceedance of any applicable surface water quality standard for the receiving waters, including:

a. Discharges of substances or materials in amounts that are toxic, or that would be toxic to humans, fish, aquatic life, or wildlife;

b. Discharges of floatable debris, oils, scum, foam, or grease in other than trace amounts. Excluded from this are naturally occurring substances such as leaves and twigs provided no person has placed such substances in or near the discharge; and

c. Discharges that cause or contribute to degradation or loss of State designated beneficial uses of the receiving waters.

4. Discharges of materials other than storm water are prohibited and are not authorized by this Subsection.

5. Discharges of storm water from post-construction that originate from the site after project completion, including any temporary support activity.

6. Discharges mixed with non-storm water. This exclusion does not apply to discharges identified in 9.1.02.6(B).

7. Storm water discharges, allowable non-storm water discharges, and storm water discharge-related activities that are likely to jeopardize the continued existence of any species that are federally-listed as endangered or threatened (“listed”) under the Endangered Species Act (ESA) or result in the adverse modification or destruction of habitat that is federally-designated as critical under the ESA (“critical habitat”).

8. Storm water discharges, allowable non-storm water discharges, or storm water discharge-related activities that would cause a prohibited “take” of federally-listed endangered or threatened species (as defined under section 3 of the ESA and 50 CFR 17.3), unless such takes are authorized under sections 7 or 10 of the ESA.

9. Storm water discharges, allowable non-storm water discharges, or storm water discharge-related activities that would negatively affect a property that is listed or is eligible for listing in the National Historic Register.

C. Individual NPDES Permit Coverage

1. Any person covered by this Subsection may request to seek coverage under an individual permit by submitting an individual application (Form 1 and Form 2F*) as prescribed in Section 6 of the Regulations Governing The Control of Water Pollution. Coverage under this Subsection will continue until authorization for coverage under an individual permit has been issued to the person making the request.

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 activity.

2. The Secretary may require any person covered by this Subsection to submit an application and seek coverage under an individual NPDES permit.

a. The Secretary shall notify a person in writing when an individual permit application is required. The notice shall include a brief statement of the reasons for the decision, an application, and a statement setting a deadline for the person to file the application. The Secretary shall notify the person in writing that permit coverage under this Subsection shall automatically terminate on the effective date of the individual NPDES permit that is issued to the person.

b. If a person fails to submit an individual permit application in compliance with a notice from the Secretary, the applicability of this Subsection to the person shall automatically terminate at the end of the day specified for application or NOI submittal.

3. When an individual NPDES permit is issued to a person for discharges otherwise covered by this Subsection, the applicability of this Subsection is automatically terminated on the effective date of the individual NPDES permit.

D. Authorization

To be authorized to discharge storm water under this Part, a person planning a construction activity must submit, in accordance with the requirements of §9.1.02.3, an NOI form prior to commencement of any construction activities. Unless notified by the Secretary to the contrary, persons who submit such notification and have either obtained approved Sediment and Stormwater Plans or have been deemed exempt in accordance with the Delaware Sediment and

Stormwater Law and Regulations, are authorized to discharge storm water associated with construction activity under the terms and conditions of this Part.

E. Transfer of Authorization

1. Transfer of control of permitted activities at the site.

A person submitting an NOI who does not intend to control the permitted activities on the site shall transfer authorization under this Part, at least ten (10) days prior to any land disturbing activities, to a duly authorized person who will control the permitted activities. To transfer authorization under this Part, the facility must submit and receive written Department approval of a completed Transfer of Authorization form, signed by both the transferor and transferee.

2. Transfer of property to a new owner.

A permittee/transferor may transfer coverage under this Part to a new owner should ownership change during the construction period. To transfer authorization under this Part, the facility must submit and receive written Department approval of a completed Transfer of Authorization form, signed by both the transferor and transferee.

3. Obligations of the permittee/transferor.

The permittee/transferor must familiarize the person who is assuming control of the permitted activities, the transferee or new owner, with the program and provide the transferee/new owner with a copy of the Sediment and Stormwater Plan as required in §9.1.02.5. All conditions and obligations outlined in this Part will apply to the transferee/new owner upon transfer.

4. The Department will maintain guidance related to Transfer of Authorization.

F. Shared Operational Control (Co-Permittee Status)

1. Construction activities at a permitted site may become the responsibility of multiple persons when more than one person has operational control (see §9.1.02.0 Definitions) of the site. When multiple persons maintain operational control, all are considered co-permittees of the site.

2. A person submitting an NOI who will share control of the permitted activities on the site shall require a duly authorized person to submit to the Department a Co-Permittee form. The co-permittee condition shall become effective upon receipt and written Department approval of a completed Co-Permittee form, signed by both the original and subsequent co-permittee. If operational control will be shared by more than one additional co-permittee, a Co-Permittee form shall be submitted for all subsequent co-permittees.

3. The original permittee must familiarize the subsequent co-permittees with the program and provide the subsequent co-permittees with a copy of the Sediment and Stormwater Plan as required in §9.1.02.5. All conditions and obligations outlined in this Part will apply to the co-permittees upon completion of the Co-Permittee form.

4. The Department will maintain guidance related to Co-Permittees.

§ 9.1.02.2 Standard Conditions

Activities covered by this Part shall comply with all of the provisions of §9.1.01.2 of Part 1 of the Regulations.

A. Entry and Inspection

Any person subject to this Subsection shall allow the Department to:

1. enter the facility subject to this Subsection during standard business hours;

2. inspect and copy at reasonable times, any records that must be kept under the conditions of this Subsection;

3. inspect at reasonable times any facilities or equipment; and

4. perform sampling of the storm water discharges from the site.

B. Signature Requirements

1. All Notice Of Intent (NOI) Forms shall be signed by:

a. a president, vicepresident, secretary or treasurer for a corporation; or

b. a general partner or proprietor for a partnership or sole proprietorship; or

c. a principal executive officer or ranking official for a municipality or public agency.

2. All other reports or information required by this Subsection shall be signed by a person described above or

by a duly authorized representative. A person is a duly authorized representative only if the authorization

is made in writing by the person described above and is submitted to the Department.

3. Any person signing documents in accordance with this Subsection shall make 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 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."; and

“I certify under penalty of law that I understand the terms and conditions of the Delaware National Pollutant Discharge Elimination System (NPDES) Special Conditions for Storm Water Discharges Associated with Construction Activities.”

C. Proper Procedures

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 Sediment and Stormwater Plan.

D. Duty to Mitigate

Any person subject to this Subsection shall take all reasonable steps to minimize or prevent any discharge of pollutants in violation of this Subsection.

E. Adverse Impacts

Any person subject to the requirements of this Subsection shall take all reasonable steps to minimize any adverse impact to State waters, including such accelerated or additional monitoring as necessary to determine the nature and extent of the non-complying discharge.

F. Transfers

Coverage under this Part is transferable. Coverage under this Part shall be transferred in accordance with the provisions outlined in §9.1.02.1.E.

G. Continuation of Expired Coverage

The requirements of this Part shall continue in force and effect until this Part is re-promulgated.

H. Other State or Federal Laws

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.

I. Penalties for Violations

Any person who violates conditions of this Subsection may be subject to penalties in accordance with 7 Del. C. Chapter 60. Violation of this Subsection is also a violation of the Clean Water Act and may be subject to penalties established under that statute.

J. Oil and Hazardous Substance Liability

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.

K. Need to Halt or Reduce Activity Not a Defense

Persons subject to this Part may not use as a defense in an enforcement action that it would have been necessary to halt or reduce the construction activity subject to this Part to maintain compliance with the conditions of this Part.

L. Property Rights

The issuance of a permit under the requirements of this Part does not convey any property rights of any sort, nor any exclusive privileges, nor does it authorize any injury to private property nor any invasion of personal rights, nor any infringement of Federal, State, or local laws or regulations.

M. Severability

The provisions of this Part are severable, and if any provision of this Part, or the application of any provision of this Part to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this Part shall not be affected thereby.

§ 9.1.02.3 Notification

A. Deadlines

Persons who intend to obtain coverage under this Part for storm water discharges associated with land disturbing activity which commence after the effective date of this Part shall submit certification that a Sediment and Stormwater Management Plan has been approved, and shall be implemented, in accordance with 7 Del. C. Chapter 40 and the Delaware Sediment and Stormwater Regulations. Land disturbing activities shall not commence and coverage under this Part shall not apply until the Sediment and Stormwater Management Plan for a site has been approved, stamped, signed, and dated by the Appropriate Plan Approval Agency in accordance with the review schedule outlined in Section 8 of the Delaware Sediment and Stormwater Regulations.

The requirements of the NOI will be satisfied when an application with accompanying information is submitted in accordance with the Delaware Sediment and Stormwater Regulations. The NOI shall be submitted through the Appropriate Plan Approval Agency to:

The Department of Natural Resources and Environmental Control

Division of Soil and Water Conservation

89 Kings Highway, P.O. Box 1401

Dover, DE 19903

1. New Projects

Any person who intends to obtain coverage under this Part for storm water discharges associated with construction activity, commencing after the effective date of this Part, must submit a Notice of Intent (NOI) Form in accordance with this Part prior to the onset of construction as a condition of approval of the Sediment and Stormwater Plan.

2. Permitted Ongoing Projects

a. Any person who has or had permit coverage for storm water discharges associated with construction activity immediately prior to the effective date of this Part, who wishes to continue coverage must submit a new Notice of Intent (NOI) within 90 days of re-promulgation of this Part.

b. Any person who has or had permit coverage for storm water discharges associated with construction activity prior to the effective date of this Part, and meets the termination of coverage requirements in accordance with § 9.1.02.7.B must submit a Notice of Termination (NOT) within 90 days of re-promulgation of this Part.

3. Unpermitted Ongoing Projects

For any person subject to this Part who has or had not obtained permit coverage for storm water discharges associated with construction activity taking place prior to the effective date of this Part, authorization to discharge under the renewed Part occurs at the time that the NOI is submitted. The Department reserves the right to seek enforcement action for any unpermitted discharges or noncompliance that occurs between commencement of construction and discharge authorization.

4. Late Notification

Any person subject to this Part is not precluded from submitting an NOI in accordance with the requirements of this Part after initiating construction activities. Authorization to discharge occurs at the time that the NOI is submitted. The Department reserves the right to seek enforcement action for any unpermitted discharges or noncompliance that occurs between commencement of construction and discharge authorization.

B. Contents of the Notice of Intent (NOI) Form

The Notice of Intent (NOI) shall be submitted on a form provided by the Department. The NOI shall include, at a minimum, the following information.

1. Applicant information including the operator name, contact person, mailing address, and telephone number;

2. Project information including the project name, location, county, and municipality, if applicable;

3. The project type and proposed methods of permanent storm water management;

4. The latitude and longitude of the facility;

5. The name of the receiving waters or municipal separate storm water system;

6. The plan approval agency name;

7. The total land area and the estimated area to be disturbed; and

8. The estimated construction start and project completion dates.

Persons complying with §9.1.02.3, A. shall be considered in compliance with the NOI provisions outlined in §9.1.01.3, A. through D. of Part 1 of the Regulations.

C. Additional Information

When any person subject to this Part becomes aware that any relevant facts were omitted or submitted incorrectly on the NOI Form, or any other records required by this Part, that person shall promptly submit such corrected information to the Department.

Any person identified in the Sediment and Stormwater Management Plan shall sign a copy of the following certification statement before conducting any professional service identified in the Sediment and Stormwater Management Plan:

"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 Land Disturbing Activities."

D. Where to Submit

Persons intending to obtain permit coverage under this Part must submit an NOI Form to the following address:

The Department of Natural Resources and

Environmental Control

Division of Soil and Water Conservation

Sediment and Stormwater Program

89 Kings HighwayDover, DE 19901

E. Fees

The completed NOI Form must be accompanied by the appropriate fee required by the Department and established by the State regulations to be considered complete.

F. Failure to Notify

Persons who discharge storm water associated with construction activity, who fail to notify the Department of their intent to be covered under this Part, 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.

§ 9.1.02.4 Monitoring

In lieu of the monitoring requirements of §9.1.01.4 of Part 1, all monitoring shall be conducted in accordance with the Delaware Sediment and Stormwater Regulations.

A. Effluent Limitations

The Department has not established specific effluent limitations for storm water discharges associated with construction activity. Therefore, this Part establishes effluent limitations in terms of performance standards established with the Best Available Technology (BAT) for erosion and sediment control and storm water management. Compliance with BAT associated with the Delaware Sediment and Stormwater Regulations, and/or Sediment and Stormwater Program standards and specifications, guidance, and policy will constitute compliance with effluent limitations for storm water discharges associated with construction activity.

B. For the purposes of monitoring, persons subject to this Part must:

1. During construction, maintain at the site the approved Sediment and Stormwater Plan (see §9.1.02.5).

2. Conduct the following:

a. weekly maintenance inspections of erosion and sediment controls, and constructed storm water management measures; and

b. inspections of erosion and sediment controls and storm water management practices the next business day after a rainfall event that results in runoff.

C. Record Keeping

1. During construction, persons subject to this Part must maintain at the site, written reports of all inspections conducted in accordance with item B above, that include:

a. the date and time of the inspection;

b. the name(s) of the individual(s) who performed the inspection;

c. as assessment of the condition of erosion and sediment controls, and constructed storm water management measures;

d. a description of any erosion and sediment control and storm water management measures construction or implementation and maintenance performed on those measures; and

e. a description of the site’s present phase of construction.

2. Persons subject to this Part shall maintain all inspection reports, notices of violations, enforcement actions, and correspondence issued by the Department, its authorized agents, the appropriate plan approval agency, or a required Certified Construction Reviewer.

3. Reporting Requirements

Persons subject to this Part must retain the records described in §9.1.02.4, B(1), and §9.1.02.4.C and submit the information upon request to the Department at the following address:

The Department of Natural Resources and

Environmental Control

Division of Soil and Water Conservation

Sediment and Stormwater Program

89 Kings Highway

Dover, DE 19901

D. Additional Monitoring

The Secretary may provide written notification to any facility, requiring additional monitoring.

§ 9.1.02.5 Sediment And Stormwater Plan (Plan Storm Water Plan (Swp)

A. Persons covered by this Part shall develop, fully implement, and maintain at the site, the approved Sediment and Stormwater Plan (Plan) and any other records that are required in accordance with 7 Del.C. Chapter 40 and the Delaware Sediment and Stormwater Regulations. The Plan shall cover all site activities from the date of initiation of construction activity to the date of project completion. Pollution prevention measures, in accordance with Delaware Erosion and Sediment Control Handbook standard and specification for Construction Site Pollution Prevention, shall be incorporated into the Plan for construction activity.

In lieu of the Storm Water Plan required by §9.1.01.5.of Part 1, persons covered by this Part shall maintain at the site of land disturbing activities the approved Sediment and Stormwater Management Plans and any other records that are required in accordance with 7 Del. C. Chapter 40, and the Delaware Sediment and Stormwater Regulations from the date of initiation of land disturbing activity to the date of permanent stabilization.

B. The Plan shall be signed in accordance with this Part and kept at the facility.

C. Persons covered by this Part shall retain records of all information required by the Plan for a minimum of five (5) years.

D. Keeping the Plan Current

1. Persons covered by this Part shall amend the Plan whenever:

b. The Plan proves to be ineffective in eliminating or significantly minimizing the discharge of pollutants, or in otherwise achieving the general objectives of controlling pollutants in storm water discharges associated with construction activity; or a. There is a change in the design, construction, operation, or maintenance of erosion and sediment controls or storm water management measures on the site; or

c. To address any sources or potential sources of pollution identified as a result of a site inspection pursuant to §9.1.02.4.B.; or

d. Upon notification by the Department or the appropriate plan approval agency that the Plan does not adequately address the requirements of this Part. The notification from the Department or the appropriate plan approval agency shall list and describe the deficiencies of the Plan.

2. Persons subject to §9.1.02.5.D.1.(a) shall amend the Plan and submit these amendments to the Department or appropriate plan approval agency and receive approval for the amendments prior to construction or modification of the erosion and sediment controls or storm water management measures on the site.

3. Persons subject to Part §9.1.02.5.D.1.(b), (c), and (d) shall amend the Plan and submit these amendments to the Department or appropriate plan approval agency and receive approval for the amendments within 30 days of notification by the persons subject to this Part, inspector, Certified Construction Reviewer, Department, or appropriate plan approval agency that the current Plan is inadequate. The Department may grant additional time for amending the Plan. A written request for an extension shall be made by the person subject to this Part to the Department.

4. Under the requirements of the Delaware Sediment and Stormwater Law and Regulations, the Plan remains valid for three (3) years following the date of approval. If construction continues beyond that three-year time period, an extension or renewal of the Plan may be granted by the Department or the appropriate plan approval agency. Unless the plan is extended or renewed, the plan is considered expired and any construction activity that occurs after the expiration date occurs in violation of the Delaware Sediment and Stormwater Law and Regulations and this Part. For the purposes of this Part, permit coverage is only valid within the three (3) year period as long as construction activity is taking place.

E. Failure to Prepare or Amend Plan

In no event shall failure to complete or update a Plan in accordance with this Part relieve any persons covered under this Part of responsibility to implement actions required to protect the waters of the State, complete any actions that would have been required by such Plan, and to comply with all conditions of this Part.

F. Sediment and Stormwater Plan Deadlines

The Plan must be approved, and the NOI Form submitted to the Department, prior to the onset of construction activity at the site for which coverage has been granted. Failure to obtain an approved Plan prior to construction activity constitutes a violation of the Delaware Sediment and Stormwater Law and Regulations and this Part.

§ 9.1.01.6 Non-storm Water Discharges

A. Discharges to a storm water system of anything other than storm water, except those discharges described in subparagraph (B) below, shall either be eliminated or in compliance with an appropriate individual NPDES permit.

B. Industrial facilities that qualify for coverage under this Subsection may discharge the following non-storm water discharges, through outfalls identified in the Plan:

1. discharges from fire fighting activities and fire hydrant flushings;

2. uncontaminated potable water sources including waterline flushings;

3. lawn watering and similar irrigation drainage;

4. water from the routine external washing of buildings, conducted without the use of detergents or other

chemicals;

5. water from the routine washing of pavement conducted without the use of detergents or other chemicals and where spills or leaks or toxic or hazardous materials have not occurred (unless a spilled material has been removed);

6. uncontaminated air conditioner condensate, compressor condensate, and condensate that externally forms

on steam lines;

7. water from foundation or footing drains where flows are not contaminated with pollutants (e.g. process

materials, solvents, and other pollutants);

8.

springs and other uncontaminated ground water; and

9. mist discharges which originate from cooling towers (as long as the discharge has been evaluated for contaminated chemicals used in the cooling tower and determined that the levels of such chemicals in discharges would not cause or contribute a violation of applicable water quality standards).

§ 9.1.02.67 Effective Date Of Coverage

A. Commencement of Coverage

Coverage under this Part begins when the Department has been notified pursuant to the provisions outlined in §9.1.02.3 of this Part.

B. Termination of Coverage

Coverage under this Part Subsection continues until a completed Notice of Termination (NOT) form has been submitted to the Department or appropriate plan approval agency and it is determined and final site stabilization has been approved by the Department or appropriate plan approval agency that:

1. All items and conditions of the Plan have been satisfied in accordance with the Delaware Sediment and Stormwater Regulations,

2. As-built documentation verifies that the permanent stormwater management measures have been constructed in accordance with the approved Plan and the Delaware Sediment and Stormwater Regulations, and

3. Final stabilization has been achieved in accordance with the definition in 9.1.02.0.

9 DE Reg. 1250 (02/01/06) (Final)