Department of Natural Resources and Environmental Control

Division of Water Resources

Secretary’s Order No.: 2005-W-0037

final

I. Background

The Department of Natural Resources and Environmental Control, the Department of Agriculture and the Nutrient Management Commission held public hearings on January 25, January 27, June 22, and June 23, 2005 to receive comments on proposed revisions to the Department’s Regulations Governing the Control of Water Pollution. The proposed revisions and a notice advertising the aforementioned public hearings were published in the Delaware Register of Regulations on January 1, and June 1, 2005.

Subsequent to the public hearings, the Hearing Officers prepared their report and recommendations in the form of a Hearing Officer’s Report to the Secretary dated August 9, 2005, and that report is expressly incorporated herein by reference. Proper notice of the hearings was provided as required by law.

II. Findings and Conclusions

All of the findings and conclusions contained in the Hearing Officer’s Report dated August 9, 2005, are expressly incorporated herein and explicitly adopted as the findings and conclusions of the Secretary.

III. Order

In view of the above, I hereby order that the proposed revisions be promulgated and implemented in the manner and form provided by law, as recommended in the Hearing Officer’s report.

IV. Reasons

This rulemaking represents careful, deliberate and reasoned action by the Department of Natural Resources and Environmental Control, the Department of Agriculture and the Nutrient Management Commission to address Concentrated Animal Feeding Operations. The adoption of these regulations will help to improve the overall water quality of the State of Delaware in furtherance of the policies and purposes of 7 Del.C. Ch. 60 and 3 Del.C. Ch. 22.

Regulations Governing the Control of Water Pollution

Introduction

This section of the regulations, the General Permit Program, is designed to provide NPDES permit coverage to a specified group, category or class of discharges that are substantially similar in nature or type of pollutants discharged. These regulations outline the general provisions or requirements that apply to all discharges within the specified category. This approach eases the administrative burden of developing and issuing a large number of individual NPDES permits for essentially the same type of discharge. By issuing general permits, the Department can provide a quicker and less expensive mechanism for the regulated community to obtain permit coverage. It also allows staff resources to concentrate on discharges that may have more significant potential for impacting the quality of Delaware's surface waters.

General NPDES Permits as defined by federal regulations in 40 C.F.R. §122.28, authorize a category of discharges from sources within a defined area that share certain similarities. General NPDES Permits are self-implementing standards applicable to multiple dischargers that the DNREC has determined can best be regulated as a class. Conversely, individual NPDES permits are issued to a potential discharger who applies for a permit with special conditions specifically tailored to the discharger. Thus, a General NPDES Permit is an agency statement of general applicability and future effect that implements and prescribes law and as such is a regulation.

Although no individual permits will be issued to the categories of dischargers covered by this section of the regulations, the subsections dealing with each category may be referred to as "General NPDES Permits" and the entire Section of these regulations may be referred to as the "General NPDES Permit Program."

In order to obtain coverage under this section of these regulations (the General NPDES Permit Program), most persons will be required to file with the Department a Notice of Intent to be covered in accordance with 40 C.F.R. §122.28(b)(2). The Department will consider this the equivalent of an NPDES Permit application for a General NPDES Permit.

§9.1 provides NPDES permit coverage for storm water discharges associated with industrial activity. Industrial activity is that which is directly related to manufacturing, processing, raw material handling or waste handling. The regulations in §1 seek to define a program for controlling material handling and other industrial activities such that the potential for exposing significant materials to precipitation and the subsequent transport of such materials via storm water runoff or infiltration is eliminated or minimized to the maximum extent practicable. Significant materials are those substances, products or wastes that become exposed to precipitation as a result of the industrial activity and potentially contribute pollutants to storm water runoff or storm water infiltration. The types of activities or categories of industries covered under this subsection are listed in §9.1.1.1, as well as in the federal regulations, 40 CFR Part 122.26(b)(14).

§9.1 consists of general provisions that apply to each category of industrial activity specified in §9.1.1.1. Part 2 outlines specific provisions applicable to storm water discharges associated with land disturbing activities (i.e. construction activities). The regulations in Part 2 are designed to mesh NPDES permit program requirements with existing provisions for sediment and erosion control under 7 Del.C. Ch. 40 and the Delaware Sediment and Stormwater Regulations. The remaining Parts under Subsection 1 outline category-specific storm water requirements that are tailored to the activity conducted.

§§9.2 through 9.6 provide NPDES permit coverage for the following categories of discharges: discharges from aquaculture or aquatic animal production facilities; discharges from the clean up of gasoline and fuel oil released from underground storage tanks; discharges from feedlot or concentrated animal feeding operations; discharges associated with car washes and other motor vehicle washing operations; and discharges associated with the operation of swimming pools and spas.

9.1 Regulations Governing Storm Water Discharges Associated with Industrial Activities

Part 1 - Baseline General Permit (§9.1.1)

Part 2 - Special Conditions for Storm Water Discharges Associated with Land Disturbing Activities (§9.1.2.)

Part 3 - Special Conditions for Storm Water Discharges Associated with Concrete Manufacturing Activities (§9.1.3)

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 De-icing 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 - Water Priority Chemicals

9.2 Regulations Governing Discharges from Aquaculture or Aquatic Animal Production Facilities (Reserved)

9.3 Regulations Governing Discharges from the Clean Up of Gasoline and Fuel Oil Released from Underground Storage Tanks (Reserved)

9.4 The Concentrated Animal Feeding Operation (CAFO)

PREAMBLE

These regulations have been developed pursuant to 3 Del.C. §2201-2290 and 7 Del.C. §6000 et.al., 40 Code of Federal Regulations (C.F.R) §122.23 and 40 C.F.R. §122, Appendix B and 40 CFR part 412. These statutory and regulatory authorities establish the requirement that a National Pollutant Discharge Elimination System (NPDES) permitting program for Concentrated Animal Feeding Operations (CAFOs) be implemented. These regulations will function as the baseline CAFO standards for compliance of NPDES permits applicable to certain farms. The Delaware Department of Agriculture (DDA) will administer these regulations, while the legal framework and authority is maintained by the Delaware Department of Natural Resources and Environmental Control. In general, NPDES general permits, as provided in these regulations, are effective for five years. After five years, new or updated CAFO General Permit regulations will be promulgated. These regulations were developed by the Delaware Nutrient Management Commission, the Delaware Department of Agriculture and the Delaware Department of Natural Resources and Environmental Control. They are to be adopted with the guidance, advice and consent of the Commission.

9.4.1 Authority.

These regulations are promulgated pursuant to the authority provided by 3 Del.C. §2200 et.al. and 7 Del.C. §6000 et.al.

9.4.2 Purpose.

The purpose of these regulations is to establish requirements for certain animal feeding operations defined as a Concentrated Animal Feeding Operation (CAFO) in order to protect water quality from activities associated with CAFO management sustain and provide a profitable agricultural industry and to help meet or exceed Federal and State mandated water quality standards.

9.4.3 Definitions.

For purposes of these regulations, the following words or terms shall have the meanings as indicated:

“Agricultural Storm Water Exemption” means an exempt discharge of manure, litter or process wastewater provided the manure or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure or process wastewater. [The agricultural storm water exemption does not apply to the production area.]

“Animal Feeding Operation” or “AFO” means a lot or facility (other than an aquatic animal production facility) where the animals have been, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and the animal confinement areas do not sustain crops, vegetation, forage growth or post-harvest residues in the normal growing season. Two or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals in an operation, if the production areas adjoin each other or if the AFOs use a common area or system for the disposal of wastes. (For example, facilities or production areas that are commonly managed, co-located and share manure storage systems are considered a single AFO. A poultry operation with many facilities in a single location or address is deemed a single AFO).

“Animal Waste Management Plan” means a plan written by a certified nutrient management consultant that documents and recommends a combination of conservation practices and management measures for the handling, storage, treatment and management of any or all of the following for use on cropland and pastureland: animal wastes, manures, composted dead animals, or process wastewater from any animal feeding operation.

“Applicant” means any person seeking and or required to obtain an individual CAFO permit or coverage under a general permit.

“Application Area” means land under the control of an AFO owner or operator, whether it is owned, rented, or leased, or which manure, litter or process wastewater from the production area is or may be applied.

“Apply,” “applying,” or any variation of the word “apply,” as it relates to the application of nutrients, means the human controlled mechanical conveyance of nutrients to land for the purpose of applying organic and/or inorganic nutrients.

“Best Management Practices” or “BMP” means those practices that have been approved by the Delaware Nutrient Management Commission.

“Catastrophic Mortalities” means any mortality that exceeds the approved disposal system capacity to accommodate losses within 24 hours. Most disposal systems are designed to handle the normal anticipated mortality. If enough animals are lost and the disposal system cannot hold them all without causing serious disruption in the disposal process, then it is a catastrophic loss.

“Concentrated Animal Feeding Operation” or “CAFO” is an animal feeding operation that is subject to the terms and conditions of these regulations. A CAFO is designated by the confinement of the number of animals specified in Section 9.4.4 of these regulations.

“Delaware Nutrient Management Commission,” “DNMC,” or “Commission” means the Commission established by 3 Del.C. §2220 “or its designee.”

“Department” means the Delaware Department of Agriculture.

“Discharge of a Pollutant” means the addition of any pollutant or combination of pollutants, to state waters or contiguous zones, or the ocean, from any source or activity other than a vessel or other floating craft when being used as a means of transportation and in compliance with §312 of the Act. This definition includes additions of pollutants into State waters from:

Surface runoff that is collected or channeled by man;

Discharges through pipes, sewers, and other conveyances which do not lead to a treatment works; and

Discharges through pipes, sewers, or other conveyances, leading into a treatment works other than a publicly owned treatment works (POTW).

“Drainage Ditch” is defined as a constructed or reconstructed watercourse with a drainage area less than 800 acres. A constructed or reconstructed watercourse with a drainage area greater than 800 acres is considered a stream.

“Effluent Limitation” means any restrictions, prohibitions, or permit requirements established under State or Federal law, including but not limited to, standards of performance for new sources, best management practices or BMPs, effluent standards and ocean discharge criteria on the quantities, rates, and concentrations of the chemical, physical, biological, or other constituents discharged into State waters.

“Freeboard Action Level” is the liquid level within a lagoon or other liquid storage structure that indicates the structure is full and implies that immediate steps be taken to transfer liquid out of the waste storage structure.

“General Permit” means an authorization granted to a category of point sources discharges pursuant to §9.0 of the Regulations Governing the Control of Water Pollution.

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

“Inorganic Fertilizer(s)” means a fertilizer comprised of chemically synthesized plant nutrient elements that are essential for plant growth and include at least nitrogen or phosphorus.

“Liquid Manure” means usually less than 8.0% solids. Wash water, runoff, precipitation, and so forth are added, if needed to dilute the manure and lower the solids content.

“Liquid Manure Handling System” means an operation where animals are raised outside with swimming areas or ponds, or with a stream running through an open lot, or in confinement buildings where water is used to flush the manure to a lagoon, pond, or some other liquid storage structure.

“Manure” is defined to include fecal and urinary defecations of livestock and poultry; may include spilled feed, bedding, soil, compost and raw materials if commingled with manure.

“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 §307, 402, 318, and 405 of the Act.

“Notice of Intent (NOI)” means the form used to serve as a notification of the intention of the facility identified on the form to adhere to the provisions of The Concentrated Animal Feeding Operation Regulations.

“Nutrient Management Plan” or “Plan” means a plan by a certified nutrient consultant to manage the amount, placement, timing and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turf grass.

“Nutrients” means nitrogen, nitrate, phosphorus, organic matter and any other elements necessary for or helpful to plant growth.

“Phosphorus Site Index or PSI” means the assessment tool developed by the University of Delaware designed to evaluate the site characteristics and management factors in determining Phosphorus loss to the environment.

“Person” means any individual, partnership, association, fiduciary, corporation, or any organized group of persons, whether incorporated or not.

“Pollutant” means any substance, which causes or contributes to, or may cause or contribute to, pollution.

“Process Wastewater” means any process-generated wastewater directly or indirectly used in the operation of an AFO (such as spillage or overflow from animal or poultry watering systems; washing, cleaning, or flushing pens, barns, manure pits; direct contact swimming, washing, or spray cooling of animals; and dust control) or any precipitation (rain or snow) which comes into contact with any manure or litter, bedding, or any other raw material or intermediate or final material or product used in or resulting from the production of animals or poultry or direct products (e.g., milk, eggs).

“Production Area” means that part of an AFO that includes the animal confinement area, the manure storage area, the raw materials storage area and the waste containment areas. The animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables. The manure storage area includes but is not limited to lagoons, runoff ponds, storage sheds, stockpiles, under house or pit storages, liquid impoundments, static piles, and composting piles. The raw material storage area includes but is not limited to feed silos, silage bunkers, and bedding materials. The waste containment area includes but is not limited to settling basins, and areas within berms and diversions which separate uncontaminated storm water. Also included in the definition of production area is any egg washing or egg processing facility and any area used in the storage, handling, treatment or disposal of mortalities.

“Secretary” means the Secretary of the Delaware Department of Agriculture or his/her designee.

“Sinkhole” is defined as a depression in the landscape where limestone has been dissolved.

“Soil Productivity” means the capacity of a soil, in its normal environment, to produce a specified plant or sequence of plants under a specified system of management. The “specified” limitations are needed because no soil can produce all crops with equal success and a single system of management cannot achieve the same effect on all soils. Productivity means the capacity of soil to produce crops and is expressed in terms of yields.

“State Nutrient Management Program” or “SNMP” means all the nutrient management program elements developed by the Commission, whether or not reduced to rules or regulations.

“State Waters” or “Waters of the State” means all water, on the surface and under the ground, wholly or partially within, or bordering the State, or within its jurisdiction including but not limited to:

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, sand flats, wetlands, sloughs, or natural or impounded ponds;

All impoundments of waters otherwise defined as waters of the State under this definition;

Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in the above four statements.

Waste and storm water treatment systems or waste storage structures including, but not limited to, treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds which otherwise meet the requirements of this definition) are not “State waters” or “waters of the State.” This exclusion applies only to manmade bodies of water, which neither were originally created in waters of the State nor resulted from the impoundment of waters of the State

“Realistic Yield Goals” are defined as the expected crop yields based on the best 4 out of 7 years of recorded data. Without yield records, one shall use soil productivity classes. Yield goals higher than the average, require written justification from a certified consultant.

“Vegetated Buffer” means a narrow, permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for the purposes of slowing water runoff, enhancing water infiltration, and minimizing the risk of any potential nutrients or pollutants from leaving the field and reaching surface waters.

“Water Quality Standard” means any rule or limit established by the Secretary of the Department of Natural Resources and Environmental Control which consists of a designated use or uses for waters of the State and the water quality criteria for such waters based upon such designated uses.

“25-Year, 24-Hour Rainfall Event” means the maximum 24-hour precipitation event with a probable recurrence interval of once in 25 years, as defined by the National Weather Service Technical Paper Number 40, “Rainfall Frequency Atlas of the United States”, equivalent to regional or state rainfall probability information developed there from, or a rain event greater than 5.7 inches for New Castle county, 5.9 for Kent county and 6.3 for Sussex county.

“100-Year, 24-Hour Rainfall Event” means the maximum 24-hour precipitation event with a probable recurrence interval of once in 100 years, as defined by the National Weather Service Technical Paper Number 40, “Rainfall Frequency Atlas of the United States”, equivalent to regional or state rainfall probability information developed there from, or a rain event greater than 7.3 inches for New Castle county, 7.6 for Kent county and 7.9 for Sussex county.

9.4.4 Applicability

9.4.4.1 Any person who owns or operates a CAFO (Concentrated Animal Feeding Operation) may request general or individual CAFO NPDES permit coverage under these regulations.

9.4.4.2 These NPDES permit requirements shall apply to any person who engages in the management of a CAFO where animal manure is, has been or will be generated and the AFO (Animal Feeding Operation) is not currently compliant with the State Nutrient Management Law and Regulations. An AFO is a CAFO if the number of animals equal or exceed the following criteria:

9.4.4.2.1 More than the numbers of animals specified in any of the following categories:

9.4.4.2.1.1 1,000 beef cattle or heifers,

9.4.4.2.1.2 700 mature dairy cattle (whether milked or dry cows),

9.4.4.2.1.3 2,500 swine each weighing over 55 pounds,

9.4.4.2.1.4 10,000 swine weighing under 55 pounds,

9.4.4.2.1.5 500 horses,

9.4.4.2.1.6 10,000 sheep or lambs,

9.4.4.2.1.7 55,000 turkeys,

9.4.4.2.1.8 30,000 laying hens or broilers, if the AFO uses a liquid manure handling system,

9.4.4.2.1.9 125,000 chickens except laying hens (if other than a liquid manure handling system),*

9.4.4.2.1.10 82,000 laying hens (if other than a liquid manure handling system),

9.4.4.2.1.11 1,000 veal calves.

*Note: An alternative criterion for square footage calculations may be utilized and adopted as policy that qualifies a CAFO based on the area within the confined facility. For example the animal density of 0.75 square feet per bird calculates to 93,750 square feet and can be defined as a CAFO. This alternative may not supersede the actual number of chickens maintained.

9.4.4.2.2 Provided one of the following conditions are met and the number of animals is equal to or greater than the number specified below, the operator has a duty to apply:

9.4.4.2.2.1 Pollutants are discharged into waters of the State through a man-made ditch, flushing system, or other similar man-made device; or

9.4.4.2.2.2 Pollutants are discharged directly into waters of the State, which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation;

9.4.4.2.2.3 Pollutants are discharged into waters of the State caused by the improper handling of animal mortalities or improper manure management as identified by standards adopted by NRCS and or the commission; or

9.4.4.2.2.4. Pollutants are discharged into waters of the State from the application area as agricultural storm water, except for agricultural storm water exemption.

9.4.4.2.2.4.1 300 beef cattle or heifers,

9.4.4.2.2.4.2 210 mature dairy cattle (whether milked or dry cows),

9.4.4.2.2.4.3 750 swine each weighing over 55 pounds,

9.4.4.2.2.4.4 3,000 swine weighing under 55 pounds,

9.4.4.2.2.4.5 150 horses,

9.4.4.2.2.4.6 3,000 sheep or lambs,

9.4.4.2.2.4.7 1 6,500 turkeys,

9.4.4.2.2.4.8 9,000 laying hens or broilers, if the AFO uses a liquid manure handling system,

9.4.4.2.2.4.9 37,500 chickens except laying hens (if other than a liquid manure handling system),*

9.4.4.2.2.4.10 24,600 laying hens (if other than a liquid manure handling system),

9.4.4.2.2.4.11 300 veal calves.

9.4.4.2.2.3 These General NPDES permit requirements shall apply to any person notified in writing by the Secretary and covered by the Nutrient Management Law (3 Del.C. §2200 et.al.) as specified in §9.4.7 of these regulations or anyone requesting coverage.

9.4.5 Application for Coverage

9.4.5.1 Any one who owns or operates a CAFO or is designated as a CAFO must submit a Notice of Intent (NOI) on a form provided by the Department, to the Secretary within 120 calendar days of the effective date of these regulations or upon operation of a new facility. Anyone who expands their operation and becomes a CAFO must submit a NOI within 90 days of becoming a CAFO. The NOI will serve as a formal commitment by the CAFO applicant to comply with the standards established in these regulations. The NOI shall include, but not be limited to, the following information:

9.4.5.1.1 The name of the farm/facility, mailing address, manager or applicant, contact information to include emergency address or closest road name intersection of the CAFO.

9.4.5.1.2 The name, address and contact information of the farm/facility owner if different than the applicant.

9.4.5.1.3 Annual operation data to include, animal type(s), number of animals confined, estimated manure generation by type per year, manure storage capacity, manure storage system, animal mortality system, process waste water (quantity where applicable), and total number of acres under control and available for land application.

9.4.5.1.4 The NOI must be signed by the owner or other person who performs similar policy-making or decision-making functions for the facility. Any person signing documents in accordance with this subsection shall certify that the information submitted is, to the best of his/her knowledge and belief, true, accurate and complete. Such person is advised that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for willful violations.

9.4.5.1.5 A copy of the Nutrient Management Plan, containing at a minimum the following components:

9.4.5.1.5.1 Field maps showing reference points (such as building, stream, irrigation equipment, etc.), number of acres and soil types:

9.4.5.1.5.2 Soil and organic nutrient analyses;

9.4.5.1.5.3 Current and planned crop rotations;

9.4.5.1.5.4 Expected yields based on best 4 out of 7 years data or, in absence thereof, soil productivity charts;

9.4.5.1.5.5 Recommended rates, timing and methods of nutrient applications. This information must accompany the NOI and shall be submitted to the Delaware Department of Agriculture, Nutrient Management Program, 2320 S. DuPont Highway, Dover, DE 19901.

9.4.5.1.6 A person’s obligation to independently seek and secure an NPDES permit is not conditioned upon or qualified by having received a notice that an NPDES permit is required from the Secretary.

9.4.5.2 Effective date of coverage: Permit coverage under these regulations begins at the time when the NOI is received by the Department.

9.4.5.3 Expiration date of coverage: Permit coverage for a CAFO under these regulations will continue until an individual NPDES permit is issued to the CAFO or until the deadline for notices of intent to be filed under new general permit regulations that are promulgated for CAFOs. These regulations shall expire five years from the effective date.

9.4.5.4 Duty to maintain permit coverage: No later than 180 days before the expiration of the permit, the permittee must submit an application to renew its permit, unless the facility has ceased operation or is no longer a CAFO.

9.4.6 Requirements For General CAFO NPDES Permits. Each person covered by these regulations shall meet or exceed the minimum standards of a general permit that consists of the following and applicable contents:

9.4.6.1 A nutrient management plan or animal waste management plan required by the Commission and developed by a Delaware certified consultant. A required nutrient management plan or animal waste management plan consists of the following applicable contents:

9.4.6.1.1 Plan Identification:

9.4.6.1.1.1 Applicant name, mailing address, county road number or name, telephone number and watershed designation of operation.

9.4.6.1.1.2 The name of the farm/facility, mailing address, manager or applicant, contact information to include emergency address or closest road name intersection of the CAFO.

9.4.6.1.1.3 Nutrient consultant's name and company:

9.4.6.1.1.3.1 Address and telephone number.

9.4.6.1.1.3.2 Nutrient management consultant certification number.

9.4.6.1.1.3.3 Date of plan and duration of animal waste or nutrient management plan (not to exceed 3 years).

9.4.6.1.1.4 Total acres under control (owned, rented or leased) of the CAFO represented in the nutrient management plans and a brief description of agricultural commodities produced within the operation.

9.4.6.1.1.5 Certification statement signed by the applicant documenting the intention to implement the nutrient management and/or animal waste management plan.

9.4.6.1.2 Field maps or aerial photographs that include the following:

9.4.6.1.2.1 Individual field identification and boundaries for all owned, rented or leased fields under control of the CAFO.

9.4.6.1.2.2 A copy of soil survey map showing all soil types on each field or the soil texture identification of all pertinent soils.

9.4.6.1.2.3 The location of all surface waters including drainage ditches, streams, ponds, etc.

9.4.6.1.2.4 Irrigation systems where applicable.

9.4.6.1.3 Crop and Nutrient Information:

9.4.6.1.3.1 The total number and type of animals, annual quantity estimate of waste generation and storage methods.

9.4.6.1.3.2 Description and method of temporary outside storage/stockpiling of manure.

9.4.6.1.3.3 Total acres (controlled by the CAFO, owned, rented or leased) represented by the animal waste management plan and/or nutrient management plan and summary of needed nutrients.

9.4.6.1.3.4 Realistic yield goal determined (average yield for the best 4 of the last 7 years).

9.4.6.1.3.5 Without yield records use soil productivity classes or provide written justification if realistic yield goals are higher than average.

9.4.6.1.3.6 Soil test (no older than 3 years) from an agronomic laboratory approved by the Commission.

9.4.6.1.3.7 Current and planned crop rotation.

9.4.6.1.3.8 Determine nitrogen rate based on realistic yield goal of crop(s) to be grown.

9.4.6.1.3.9 The application rate of phosphorus to high soil phosphorus levels, as defined by the Commission, cannot exceed a three-year crop removal rate. Optionally, a University of Delaware approved Phosphorus Site Index (PSI) may be performed and Phosphorus may be added as indicated by the PSI value.

9.4.6.1.3.10 Manure analysis (annually) results or a nutrient value average with written justification.

9.4.6.1.3.11 Estimate residual nitrogen (organic nutrients, fertilizer, or legume crops from prior year) in absence of a Pre-sidedress Soil Nitrate Test (PSNT).

9.4.6.1.3.12 Nutrient source(s) selected, rates and approximate timing of application(s).

9.4.6.1.4 Best Management Practices (BMPs) are recommendations to enhance agronomic and environmental practices should be recommended to better advise and educate persons and are not to be interpreted as mandatory implementation actions of a plan (e.g., Pre-sidedress Soil Nitrate Test, cover crops, vegetative buffer strips, litter additives, manure incorporation, timing/method, etc.) unless specified in site-specific practices covered in §9.4.6.2 below.

9.4.6.2 Site-specific management requirements that supplement the animal waste management plan and/or nutrient management plan by addressing the following site-specific measures to protect waters of the State shall include:

9.4.6.2.1 An overall manure balance budget that clearly identifies available manure, intended manure use, manure storage capacity, and excess manure determined by the animal waste management plan and/or nutrient management plan. This budget must identify intended use to include land application, exportation, or other described uses. Operations must account for excess manure in the Annual Nutrient Management Report.

9.4.6.2.2 A description of manure storage capacity and general schedule or timeframe when manure is removed or transported from storage site to include but not be limited to:

9.4.6.2.2.1 Management practices to prevent storage, collection, and conveyance systems from leaking pollutants to ground or surface water.

9.4.6.2.2.2 For liquid storage: storage must be conducted to prevent a discharge and must include a calendar plan for liquid and sediment removal, with a freeboard action level of not less than one foot, with a depth marker.

9.4.6.2.2.3 For solid storage: permanent and temporary storage must be conducted to prevent a discharge and be consistent with standards adopted by NRCS and/or the Commission.

9.4.6.2.2.4 Emergency actions for spills and catastrophic events for existing CAFO liquid storage systems to include the volume of water generated and collected by a 25-year, 24-hour rainfall event or as specified in Section 9.4.14.2.1.1.

9.4.6.2.3 A description and action plan to divert or segregate all clean water as appropriate from the production area and/or for collecting all water coming in contact with the production area to include but not limited to the following categories:

9.4.6.2.3.1 Roof runoff control to prevent contact of clean runoff with production areas where animal manures are present;

9.4.6.2.3.2 Direct contact between animals and waters of the State; and

9.4.6.2.3.3 Runoff coming into contact with animal waste.

9.4.6.2.4 A detailed animal mortality plan indicating as outlined. Burial of dead animals is prohibited except with approval and under special circumstances such as serious bio-security circumstances as approved by the state veterinarian.

9.4.6.2.4.1 Daily handling and disposal of dead animals in a manner that prevents contamination of ground/surface waters as recommended by the BMPs approved by the Commission.

9.4.6.2.4.2 Methods for handling catastrophic mortalities as recommended by the BMPs approved by the Commission.

9.4.6.2.5 Manure and processed wastewater application setbacks. These setbacks are defined as the distance between the application area and any down-gradient surface waters, open tile line, intake structures, sinkholes or other conduits to surface waters. The direct application of manure or processed wastewater to ditches or surface waters is prohibited. These setback standards are provided as three options:

9.4.6.2.5.1 100-foot application setback, or

9.4.6.2.5.2 35-foot vegetated buffer where applications of manure, litter, and process wastewater are prohibited, or

9.4.6.2.5.3 Alternative compliance practices as follows:

9.4.6.2.5.3.1 For surface waters other than drainage ditches:

9.4.6.2.5.3.1.1 50-foot application setback for the field under the conservation practice of incorporation or planting a winter cover crop following the crop receiving manure, litter or process wastewater.

9.4.6.2.5.3.1.2 15-foot application setback for the field under the conservation practice of incorporation within 2 days of application and planting a winter cover crop following the crop receiving manure, litter or process wastewater.

9.4.6.2.5.3.2 For drainage ditches:

9.4.6.2.5.3.2.1 20-foot application setback for the field under the conservation practice of incorporation or planting a winter cover crop following the crop receiving manure, litter or process wastewater.

9.4.6.2.5.3.2.2 10-foot application setback for the field under the conservation practice of incorporation within 2 days of application and planting a winter cover crop following the crop receiving manure, litter or process wastewater.

9.4.6.2.5.3.3 Any alternative compliance practice approved by the Commission.

9.4.6.2.6 Chemicals and other contaminants handled on-site are not to be disposed of in any manure, litter, process wastewater, or storm water storage or treatment system unless specifically designed to treat such chemicals and contaminants.

9.4.6.3 A nutrient management plan and/or animal waste management plan and site-specific management requirements shall be updated a minimum of every three years or upon significant alteration to include, but not be limited to, a 25 percent increase in animal units or acres of crops grown. Such plans shall be reported to the Commission no later than December 15 of the year in which they must be updated.

9.4.7 Requirements for Individual CAFO NPDES Permit

9.4.7.1 With the guidance, advice and consent of the Commission, the Secretary may require any person covered by these regulations and the Nutrient Management Law (3 Del.C. §2248) to apply for and obtain an individual NPDES permit. Cases where an individual NPDES permit may be required include but not limited to the following:

9.4.7.1.1 There is noncompliance with the provisions of these regulations, the Nutrient Management Law (3 Del.C. §2200 et.al.), or the SNMP.

9.4.7.1.2 There is evidence indicating that a person is a significant contributor of a pollutant to waters of the State as specified in Section 9.4.4.2.2.

9.4.7.1.3 There is a request for coverage by an applicant who is not required to obtain coverage.

9.4.7.2 Each person designated to need an individual CAFO permit will be notified in writing by the Secretary. Such notice shall include a brief statement of the reasons for the decision, an application form, a deadline for submission of the application and a statement regarding the effective date of coverage.

9.4.7.3 A CAFO Individual NPDES Permit will establish standards for mitigating or preventing pollutants from entering waters of the State and will consist of, but not be limited to, the following information:

9.4.7.3.1 All applicable contents found in a General Permit (§9.4.6).

9.4.7.3.2 Conditions and compliance measures to mitigate or prevent pollutants from entering waters of the State.

9.4.7.3.3 The time line for implementation requirements and an expiration date not to exceed five years.

9.4.8 Reporting and Emergency Notification Requirements

9.4.8.1 Reporting Requirements: Each person covered by these regulations shall submit to the Department and the Commission by March 1 of every calendar year, on a form developed and supplied by the Commission, a report detailing, at a minimum, the following:

9.4.8.1.1 Annual plan identification to include:

9.4.8.1.1.1 Applicants name, mailing address and telephone number.

9.4.8.1.1.2 Nutrient consultant’s name and company.

9.4.8.1.1.3 Date Nutrient Management plan was prepared and duration of plan not to exceed 3 years.

9.4.8.1.1.4 Total acres represented by the nutrient management plan and a brief description of agricultural commodities produced within the operation.

9.4.8.1.2 The annual operating data to include animal type(s), number of animals confined and manure generation by type.

9.4.8.1.3 The quantity of animal manure in tons or thousand gallons applied to land managed within operation and the quantity of land to which applied.

9.4.8.1.4 The quantity of inorganic fertilizers applied to the land and the quantity of land to which applied.

9.4.8.1.5 The quantity and type of manure exported from operation; and the name, address and organization of person(s) responsible for utilizing the manure.

9.4.8.1.6 All reports submitted under this subsection shall not be considered public records under the Delaware Freedom of Information Act and shall not be disclosed. Such data may be used for data compilation.

9.4.8.1.7 A statement indicting that the current nutrient management plan was developed by a certified Nutrient Consultant.

9.4.8.2 Emergency Notification: If for any reason, there is a discharge from a CAFO the applicant shall verbally notify the Department within 24 hours of becoming aware of the discharge and document the incident in writing within five (5) days. In general, discharges occur when manure is conveyed by means of surface flow from a confinement facility, holding area, manure storage structure. The information to be provided shall include:

9.4.8.2.1 A description of the discharge and cause, including a description of the flow path to the receiving waters, an estimate of the flow and volume discharged.

9.4.8.2.2 The period of discharge, including exact dates and times and if not corrected, the anticipated time the discharge is expected to continue and the steps being taken to reduce, eliminate and prevent recurrence of the discharge.

9.4.8.2.3 If the discharge was caused by a precipitation event(s), the amount of rainfall, as measured with a rain gauge at the site.

9.4.8.2.4 Results of any sampling and analysis of the discharge, if available.

9.4.8.2.5 For further questions or assistance, call the Delaware Department of Agriculture at 1-800-282-8685, (Nutrient Management Program), or DNREC Emergency at 1-800-662-8802.

9.4.9 Record Keeping

9.4.9.1 Those persons requiring coverage by these regulations must maintain records of implementation for six years. All animal waste management plans, nutrient management plans, site-specific management requirements and records of implementation shall be kept by the landowner or person responsible for the plans or records. Animal waste management plans, nutrient management plans and records of implementation [shall not be considered as public records under the Delaware Freedom of Information Act and shall not be disclosed, except, however, that they] shall be made available for inspection as specified in Section 9.4.10. Records of implementation shall include:

9.4.9.1.1 Soil test results and recommended nutrient application rates or the nutrient management plan.

9.4.9.1.2 Quantities, analyses and sources of all nutrients applied to fields.

9.4.9.1.3 Dates, weather conditions (as specified by the Commission) and methods of nutrient application(s).

9.4.9.1.4 Crops planted, yields, and plant matter (grain, silage, etc.) removed from the land.

9.4.9.1.5 The annual report and supporting documents.

9.4.9.2 Off site use of manure

9.4.9.2.1 If the manure is sold or given to other persons for disposal and/or utilization, the following applicant information shall be maintained at the facility generating the waste or manure:

9.4.9.2.1.1 The date of manure removal.

9.4.9.2.1.2 Name of receiver and contact information.

9.4.9.2.1.3 Quantity (tons/gallons) of waste removed.

9.4.9.2.1.4 A copy of the manure nutrient analysis shall be given to the receiver.

9.4.9.3 Corrective actions taken as a result of visual inspections of storm water diversion devices, water lines, manure, litter, and process wastewater impoundments.

9.4.10 Entry and Evaluation

9.4.10.1 The Secretary or the Commission, or authorized designee shall be authorized to evaluate implementation of these regulations and furthermore be allowed to:

9.4.10.1.1 Enter and inspect the facility subject to these regulations following proper notification.

9.4.10.1.2 Have access to and the right to copy, at reasonable times, any records that must be kept under the conditions of these regulations.

9.4.10.1.3 Sample or monitor any discharges from the site.

9.4.10.2 Facility applicant and/or the landowner shall be notified 48 hours in advance. Entry and evaluation shall be in accordance with any biosecurity requirements of the individual or commodity industry involved.

9.4.10.3 In cases where there is a probable blatant violation, in the sole judgment of the Secretary to these regulations, no advanced notice is required.

9.4.10.4 The implementation of these regulations shall not deny any property rights of either real or personal property, nor shall it authorize any injury to private property or any invasion of personal rights.

9.4.11 Duty to Comply. All practices required by these regulations shall be consistent with the terms and conditions of these regulations. The discharge of any pollutant more frequently than, or at a level in excess of, that identified and authorized herein shall constitute a violation of these regulations and shall be grounds for enforcement action as provided in 3 Del.C. §2200 et.al. and 7 Del.C. §6000 et.al.; for loss of authorization to discharge pursuant to these regulations; or for denial of a permit renewal application. The Department may seek voluntary compliance with a warning, notice or other educational means. However, the law does not require that such voluntary means be used before proceeding with enforcement.

9.4.12 Transfer of Ownership

9.4.12.1 In the event of any pending change in ownership of facilities covered by a CAFO general or individual permit, the new owner or applicant shall submit either an application for an individual NPDES permit or Notice Of Intent (NOI) to the Department as outlined in 9.4.5. (Application for Coverage).

9.4.12.2 Such written notice shall include the proposed date of transfer. The new owner is encouraged to provide notice at least 30 days prior to the proposed transfer to avoid any lag in coverage.

9.4.12.3 The Secretary per 3 Del.C. §2248(d) may require the new owner to apply for and obtain an individual NPDES permit, as provided in 9.4.7.

9.4.13 Effluent Standards and Limitations. Discharge limitations: No discharges of process wastewater from any animal feeding operation subject to these regulations may enter waters of the United States. The requirements do allow a discharge caused by a rainfall event, provided the following conditions are met:

9.4.13.1 The production area must be designed, built, operated and maintained to handle all of the process wastewater, plus the runoff and direct precipitation from a 25-year, 24-hour rainfall event.

9.4.13.2 The discharge may consist only of overflows caused by the rainfall event. Dry weather discharges are not permitted. Discharges caused by poor management are never permitted.

9.4.14 Criteria for New Facilities. New CAFO facilities permitted after the effective date of these regulations shall meet the following criteria:

9.4.14.1 Siting of Control Facilities.

9.4.14.1.1 Waste storage structures shall not be located in the 100-year flood plain unless the facility is designed and constructed such that the manure from a facility is protected from floodwaters from a storm of 24 hours duration having a one (1) percent chance of recurrence within a given year. Such events are defined as 100-year 24-hour rainfall event. Waste storage structures and treatment lagoons are to be designed as essentially watertight structures in accordance with NRCS practices and standards.

9.4.14.1.2 Waste storage structures shall not be located closer than 300 feet from a public water well nor 200 feet from domestic water well.

9.4.14.1.3 No waters of the State shall come into direct contact with the animals confined at the facility. Fences or other practices may be used to restrict such access.

9.4.14.1.4 Animal confinement areas shall not be located:

9.4.14.1.4.1 In the 100 year flood plain unless they are protected from inundation and damage that may occur during that flood event.

9.4.14.1.4.2 Closer than 300 feet from a public water well, nor 200 feet from a domestic water well.

9.4.14.1.5 The handling, treatment, and management of AFO wastes shall not:

9.4.14.1.5.1 Result in the inadvertent destruction or adverse modification of the critical habitat of endangered or threatened species of plant, fish, or wildlife.

9.4.14.1.5.2 Create a public health hazard.

9.4.14.1.5.3 Result in groundwater contamination.

9.4.14.2 Effluent Limitations

9.4.14.2.1 No discharges of process wastewater from any animal feeding operation subject to these regulations may enter waters of the United States. The requirements do allow a discharge caused by a rainfall event, provided the following conditions are met:

9.4.14.2.1.1 The production area for horse, sheep, duck, dairy and beef (other than veal) must be designed, built, operated and maintained to handle all of the process wastewater, plus the runoff and direct precipitation from a 25-year, 24-hour rainfall event.

9.4.14.2.1.2 The production area for swine, veal calf, turkey and chickens must be designed, built, operated and maintained to handle all of the process wastewater, plus the runoff and direct precipitation from a 100-year, 24-hour rainfall event.

9.4.14.2.1.3 The discharge may consist only of overflows caused by the rainfall event. Dry weather discharges are not permitted. Discharges caused by poor management are never permitted.

9.4.15 Enforcement, Fines, and Penalties

9.4.15.1 Whoever violates these regulations shall be subject to the following fines and penalties:

9.4.15.1.1 A civil penalty shall be imposed by the Justice of the Peace Court of not less than $25 nor more than $1,000 for each violation. Each day of continued violation shall be considered as a separate violation up to a limit of $10,000. The Justice of the Peace Court shall have jurisdiction of a violation in which a civil penalty is sought. In setting penalty amounts under this section, consideration shall be given to offsetting any economic benefit from non-compliance or any delayed or avoided costs to any person. Further, penalty assessments shall be sufficient to deter recurrence of non-compliance. If there is a substantial likelihood that non-compliance will reoccur, the Commission may recommend that the Secretary also seek a permanent or preliminary injunction or temporary restraining order in the Court of Chancery. Civil penalties imposed under this section may not be suspended.

9.4.15.1.2 In its discretion, the Commission may recommend that the Secretary impose an administrative penalty of not more than $1,000 for each violation. Prior to assessment of an administrative penalty, written notice of the Secretary’s proposal to impose such penalty shall be given to the violator and the violator shall have 30 days from receipt of said notice to request a public hearing. Any public hearing, if requested, right of appeal and judicial appeal shall be conducted pursuant to this section. Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the violation or violations, ability of the violator to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any), resulting from the violation and such other matters as justice may require.

9.4.15.2 Any expenses or civil administrative penalties collected by the Department under this section are hereby appropriated to the Department for use in assisting persons in achieving compliance or to demonstrate the application of research that may be of substantial benefit to any individuals seeking compliance with this section.

9.4.15.3 Any person wishing to file a complaint against any person regarding an alleged violation of these regulations shall follow the process established by Regulations Governing the Processing of Complaints and Violations published in the January 1, 2001 Register of Regulations.

9.4.16 Effective Date. These regulations shall become effective [September 11, 2005].

9.5 Regulations Governing Discharges Associated with Car Washes and Other Motor Vehicle Washing Operations (Reserved)

9.6 Regulations Governing Discharges Associated with the Operation and Maintenance of Swimming Pools and Spas (Reserved)