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Section 264.1 Purpose, scope and applicability.

(a) The purpose of this part is to establish minimum standards which define the acceptable management of hazardous waste.
(b) The standards in this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste, except as specifically provided otherwise in this part or Part 261 of these regulations.
(c) The requirements of this part apply to a person disposing of hazardous waste by means of ocean disposal subject to permit issued under the Marine Protection, Research, and Sanctuary Act, only to the extent they are included in a permit by rule granted to such a person under §122.60(a) of these regulations.
(d) The underground injection of hazardous waste is banned in the State of Delaware.
(e) The requirements of this part apply to the owner or operator of POTW which treats, stores, or disposes of hazardous waste only to the extent they are included in a permit by rule granted to such a person under Section 122.60(c) of these regulations.
(f) [Reserved]
(g) The requirements of this part do not apply to:
(1) The owner or operator of a facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this part by §262.14 of these regulations;
(2) The owner or operator of a facility managing recyclable materials described in §261.6(a)(2), (3), and (4) of these regulations (except to the extent they are referred to in Part 279 or Subparts C, F, G or H of Part 266 of these regulations).
(3) A generator accumulating waste on‑site in compliance with §§262.14, 262.15, 262.16, or 262.17 of these regulations.
(4) A farmer disposing of waste pesticides from his own use in compliance with §262.70 of these regulations;
(5) The owner or operator of a totally enclosed treatment facility as defined in §260.10.
(7) To a person who treats, stores, or disposes of hazardous waste in a state which is authorized under Subpart A or B of 40 CFR Part 271 if the state has not been authorized to carry out the requirements and prohibitions applicable to the treatment, storage, or disposal of hazardous waste at his facility which are imposed pursuant to the Hazardous and Solid Waste Amendments of 1984. The requirements and prohibitions that are applicable until a state receives authorization to carry them out include all Federal program requirements identified in 40 CFR §271.1(j).
(8) (i) Except as provided in paragraph (g)(8)(ii) of this section, a person engaged in treatment or containment activities during immediate response to any of the following situations:
(A) A discharge of hazardous waste;
(B) An imminent and substantial threat of a discharge of hazardous waste;
(C) A discharge of a material which, when discharged, becomes a hazardous waste.
(D) An immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in §260.10.
(ii) An owner or operator of a facility otherwise regulated by this part must comply with all applicable requirements of Subparts C and D.
(iii) Any person who is covered by paragraph (g)(8)(i) of this section and who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this part and Parts 122 ‑ 124 of these regulations for those activities.
(iv) In the case of an explosives or munitions emergency response, if a Federal, State, Tribal or local official acting within the scope of his or her official responsibilities, or an explosives or munitions emergency response specialist, determines that immediate removal of the material or waste is necessary
(9) A transporter storing manifested shipments of hazardous waste in containers meeting the requirements of §262.30 at a transfer facility for a period of ten days or less, except as otherwise specified in §263.12.
(10) The addition of absorbent material to waste in a container (as defined in §260.10 of these regulations) or the addition of waste to absorbent material in a container, provided that these actions occur at the time waste is first placed in the container; and §§264.17(b), 264.171, and 264.172 are complied with.
(11) Universal waste handlers and universal waste transporters (as defined in 260.10) handling the wastes listed below. These handlers are subject to regulation under Part 273, when handling the below listed universal wastes.
(i) Batteries as described in §273.2;
(ii) Pesticides as described in §273.3 of these regulations;
(iii) Mercury-containing equipment as described in §273.4 of these regulations;
(iv) Lamps as described in §273.5 of these regulations; and
(v) Aerosol cans as described in §273.6 of these regulations.
(12) [Reserved]
(13) Reverse distributors accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in §266.500. Reverse distributors are subject to regulation under Part 266 Subpart P in lieu of this part for the accumulation of potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals.
(h) The requirements of this part apply to owners or operators of all facilities which treat, store, or dispose of hazardous wastes referred to in Part 268.
(i) Section 266.205 of these regulations identifies when the requirements of this part apply to the storage of military munitions classified as solid waste under §266.202 of these regulations. The treatment and disposal of hazardous waste military munitions are subject to the applicable permitting, procedural, and technical standards in Parts 260 through 268 and 122.
(j) The requirements of Subparts B, C, and D of this part and §264.101 do not apply to remediation waste management sites. (However, some remediation waste management sites may be a part of a facility that is subject to a traditional hazardous waste permit because the facility is also treating, storing or disposing of hazardous wastes that are not remediation wastes. In these cases, Subparts B, C, and D of this part, and §264.101 do apply to the facility subject to the traditional hazardous waste permit.) Instead of the requirements of Subparts B, C, and D of this part, owners or operators of remediation waste management sites must:
(1) Obtain an EPA identification number by applying to the Secretary using EPA Form 8700‑12;
(2) Obtain a detailed chemical and physical analysis of a representative sample of the hazardous remediation wastes to be managed at the site. At a minimum, the analysis must contain all of the information which must be known to treat, store or dispose of the waste according to this part and Part 268 of these regulations, and must be kept accurate and up to date;
(3) Prevent people who are unaware of the danger from entering, and minimize the possibility for unauthorized people or livestock to enter onto the active portion of the remediation waste management site, unless the owner or operator can demonstrate to the Secretary that:
(i) Physical contact with the waste, structures, or equipment within the active portion of the remediation waste management site will not injure people or livestock who may enter the active portion of the remediation waste management site; and
(ii) Disturbance of the waste or equipment by people or livestock who enter onto the active portion of the remediation waste management site, will not cause a violation of the requirements of this part;
(4) Inspect the remediation waste management site for malfunctions, deterioration, operator errors, and discharges that may be causing, or may lead to, a release of hazardous waste constituents to the environment, or a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment, and must remedy the problem before it leads to a human health or environmental hazard. Where a hazard is imminent or has already occurred, the owner or operator must take remedial action immediately;
(5) Provide personnel with classroom or on-the-job training on how to perform their duties in a way that ensures the remediation waste management site complies with the requirements of this part, and on how to respond effectively to emergencies;
(6) Take precautions to prevent accidental ignition or reaction of ignitable or reactive waste, and prevent threats to human health and the environment from ignitable, reactive and incompatible waste;
(7) For remediation waste management sites subject to regulation under Subparts I through O and Subpart X of this part, the owner or operator must design, construct, operate, and maintain a unit within a 100-year floodplain to prevent washout of any hazardous waste by a 100-year flood, unless the owner or operator can meet the demonstration of §264.18(b);
(8) Not place any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave;
(9) Develop and maintain a construction quality assurance program for all surface impoundments, waste piles and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d) at the remediation waste management site, according to the requirements of §264.19;
(10) Develop and maintain procedures to prevent accidents and a contingency and emergency plan to control accidents that occur. These procedures must address proper design, construction, maintenance, and operation of remediation waste management units at the site. The goal of the plan must be to minimize the possibility of, and the hazards from a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water that could threaten human health or the environment. The plan must explain specifically how to treat, store and dispose of the hazardous remediation waste in question, and must be implemented immediately whenever a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment;
(11) Designate at least one employee, either on the facility premises or on call (that is, available to respond to an emergency by reaching the facility quickly), to coordinate all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan;
(12) Develop, maintain and implement a plan to meet the requirements in paragraphs (j)(2) through (j)(6) and (j)(9) through (j)(10) of this section; and
(13) Maintain records documenting compliance with paragraphs (j)(1) through (j)(12) of this section.
24 DE Reg. 711 (01/01/21)

Section 264.2 [Reserved]

Section 264.3 Relationship to interim status standards.

A facility owner or operator who has fully complied with the requirements for interim status ‑ as defined in 7 Del.C., §6307(g) and regulations under §122.70 of these regulations - must comply with the regulations specified in Part 265 of these regulations in lieu of the regulations in this part, until final administrative disposition of his permit application is made, except as provided under Part 264, Subpart S.
[Comment: As stated in 7 Del.C., §6307(g), after the effective date of regulations under that §, i.e., Parts 122 and 124 of these regulations, the treatment, storage, or disposal of hazardous waste is prohibited except in accordance with a permit. Seven Del.C., §6307(g) provides for the continued operation of an existing facility which meets certain conditions until final administrative disposition of the owner's or operator's permit application is made.]

Section 264.4 Imminent hazard action.

Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to 7 Del.C., §6308.

 

Section 264.10 Applicability.

(a) The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as provided in §264.1 and in paragraph (b) of this section.
(b) §264.18(b) is applicable only to facilities subject to regulation under Subparts I through O of this part and Subpart X of this part.

Section 264.11 Identification number.

Section 264.12 Required notices.

(1) As per §262.84(b) of these regulations, for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in §262.84(b)(1) of these regulations at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per §262.84(d)(2)(xv) of these regulations, a copy of the movement document bearing all required signatures within three (3) working days of receipt of the shipment to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original of the signed movement document must be maintained at the facility for at least three (3) years. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the owner or operator of a facility bears no responsibility.
(3) As per §262.84(f)(4) of these regulations, if the facility has physical control of the waste and it must be sent to an alternate facility or returned to the country of export, such owner or operator of the facility must inform EPA, using the allowable methods listed in §262.84(b)(1) of these regulations of the need to return or arrange alternate management of the shipment.
(4) As per §262.84(g) of these regulations, such owner or operator shall:
(i) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and for shipments recycled or disposed of on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, or DC15 to DC16, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import- export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in §262.81 of these regulations.
(b) The owner or operator of a facility that receives hazardous waste from an off‑site source (except where the owner or operator is also the generator) must inform the generator in writing that he has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as part of the operating record.
(c) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post‑closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this part and Part 122 of these regulations.
[Comment: An owner's or operator's failure to notify the new owner or operator of the requirements of this part in no way relieves the new owner or operator of his obligation to comply with all applicable requirements.]
14 DE Reg. 668 (01/01/11)

Section 264.13 General waste analysis.

(a) (1) Before an owner or operator treats, stores, or disposes of any hazardous wastes, he must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with this part and Part 268 of these regulations.
(2) The analysis may include data developed under Part 261 of these regulations, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes.
[Comment: For example, the facility's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardous waste generated from process similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with paragraph (a)(1) of this section. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part of the information required by paragraph (a)(1) of this section except as otherwise specified in §268.7(b) and (c) of these regulations. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section.]
(3) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated:
(i) When the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste has changed; and
(ii) For off‑site facilities, when the results of the inspection required in paragraph (a)(4) of this section indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.
(4) The owner or operator of an off‑site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.
(b) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which he will carry out to comply with paragraph (a) of this section. He must keep this plan at the facility. At a minimum, the plan must specify:
(1) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste's properties to comply with paragraph (a) of this section);
(2) The test methods which will be used to test for these parameters;
(3) The sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:
(i) One of the sampling methods described in Appendix I of Part 261 of these regulations; or
(ii) An equivalent sampling method.
[Comment: See Part 260 Subpart C of these regulations for related discussion.]
(4) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up-to-date; and
(5) For off‑site facilities, the waste analyses that hazardous waste generators have agreed to supply.
(6) Where applicable, the methods that will be used to meet the additional waste analysis requirements for specific waste management methods as specified in §§264.17, 264.314, 264.341, 264.1034(d), 264.1063(d), 264.1083, and 268.7 of these regulations.
(7) For surface impoundments exempted from land disposal restrictions under §268.4(a), the procedures and schedules for:
(i) The sampling of impoundment contents;
(ii) The analysis of test data; and,
(iii) The annual removal of residues which are not delisted under §260.22 of these regulations or which exhibit a characteristic of hazardous waste and either:
(A) Do not meet applicable treatment standards of Part 268, Subpart D; or
(B) Where no treatment standards have been established:
(1) Such residues are prohibited from land disposal under §268.32 or 7 Del.C., Chapter 63; or
(2) Such residues are prohibited from land disposal under §268.33(f).
(8) For owners and operators seeking an exemption to their air emission standards of Subpart CC in accordance with §264.1082.
(i) If direct measurement is used for the waste determination, the procedures and schedules for waste sampling and analysis, and the results of the analysis of test data to verify the exemption.
(ii) If knowledge of the waste is used for the waste determination, any information prepared by the facility owner or operator or by the generator of the hazardous waste, if the waste is received from off-site, that is used as the basis for knowledge of the waste.
(c) For off‑site facilities, the waste analysis plan required in paragraph (b) of this section must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe:
(1) The procedures which will be used to determine the identity of each movement of waste managed at the facility; and
(2) The sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling.
(3) The procedures that the owner or operator of an off-site landfill receiving containerized hazardous waste will use to determine whether a hazardous waste generator or treater has added a biodegradable sorbent to the waste in the container.

Section 264.14 Security.

(1) Physical contact with the waste, structures, or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and
(2) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this part.
(b) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, facility must have:
(1) A 24‑hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or
(2) (i) An artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and
(ii) A means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).
[Comment: The requirements of paragraph (b) of this section are satisfied if the facility or plant within which the active portion is located itself has a surveillance system, or a barrier and a means to control entry, which complies with the requirements of paragraph (b)(1) or (b)(2) of this section.]
(c) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, a sign with legend, "Danger ‑ Unauthorized Personnel Keep Out", must be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English and in any other language predominant in the area surrounding the facility (e.g., facilities in counties bordering the Canadian province of Quebec must post signs in French; facilities in counties bordering Mexico must post signs in Spanish), and must be legible from a distance of at least 25 feet. Existing signs with a legend other than "Danger ‑ Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.
[Comment: See §264.117(b) for discussion of security requirements at disposal facilities during the post‑closure care period.]

Section 264.15 General inspection requirements.

(a) The owner or operator must inspect his facility for malfunctions and deterioration, operator errors, and discharges which may be causing ‑ or may lead to ‑ (1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment.
(b) (1) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety, and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.
(2) He must keep this schedule at the facility.
(3) The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.).
(4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in §§ 264.174, 264.193, 264.195, 264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033, 264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089 of this part, where applicable. Part 122 of these regulations requires the inspection schedule to be submitted with Part B of the permit application. The Department will evaluate the schedule along with the rest of the application to ensure that it adequately protects human health and the environment. As part of this review, the Department may modify or amend the schedule as necessary.
(c) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.
(d) The owner or operator must record inspections in an inspection log or summary. He must keep these records for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.
24 DE Reg. 711 (01/01/21)

Section 264.16 Personnel Training.

(a) (1) Facility personnel must successfully complete a program of classroom instruction or on‑the‑job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph (d)(3) of this section.
[Comment: Part 122, Subpart B, of these regulations requires that owners and operators submit with Part B of the permit application, an outline of the training program used (or to be used) at the facility and a brief description of how the training program is designed to meet actual job tasks.]
(2) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.
(3) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergency procedures, emergency equipment, and emergency systems, including where applicable:
(i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;
(ii) Key parameters for automatic waste feed cut‑off systems;
(iii) Communications or alarm systems;
(iv) Response to fires or explosions;
(v) Response to groundwater contamination incidents; and
(vi) Shutdown of operations.
(4) For facility employees that receive emergency response training pursuant to Occupational Safety and Health Administration (OSHA) regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the facility is not required to provide separate emergency response training pursuant to this section, provided that the overall facility training meets all the requirements of this section.
(b) Facility personnel must successfully complete the program required in paragraph (a) of this section within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of paragraph (a) of this section.
(c) Facility personnel must take part in an annual review of the initial training required in paragraph (a) of this section.
(1) The job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;
(2) A written job description for each position listed under paragraph (d)(1) of this section. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of employees assigned to each position;
(3) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (d)(1) of this section;
(4) Records that document that the training or job experience required under paragraphs (a), (b), and (c) of this section has been given to, and completed by, facility personnel.
22 DE Reg. 678 (02/01/19)

Section 264.17 General requirements for Ignitable, Reactive, or Incompatible wastes.

(a) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g., from heat‑producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. "No Smoking" signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.
(b) Where specifically required by other sections of the part, the owner or operator of a facility that treats, stores, or disposes ignitable or reactive waste, or mixes incompatible waste or incompatible wastes and other materials, must take precautions to prevent reactions which:
(1) Generate extreme heat or pressure, fire or explosions, or violent reactions;
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment;
(3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;
(4) Damage the structural integrity of the device or facility;
(5) Through other like means threaten human health or the environment.
(c) When required to comply with paragraph (a) or (b) of this section, the owner or operator must document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (e.g., bench scale or pilot scale tests), waste analyses (as specified in §264.13), or the result of the treatment of similar wastes by similar treatment processes and under similar operating conditions.

Section 264.18 Location standards.

(1) Portions of new facilities where treatment, storage, or disposal of hazardous waste will be conducted must not be located within 61 meters (200 feet) of a fault which has had displacement in Holocene time.
(2) As used in paragraph (a)(1) of this section:
(i) Fault means a fracture along which rocks on one side have been displaced with respect to those on the other side.
(ii) Displacement means the relative movement of any two sides of a fault measured in any direction.
(iii) Holocene means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene to the present.
[Comment: Procedures for demonstrating compliance with this standard in Part B of the permit application are specified in §122.14(b)(11). Facilities which are located in political jurisdictions other than those listed in Appendix VI of this part, are assumed to be in compliance with this requirement.]
(1) A facility located in a 100‑year floodplain must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100‑year flood unless the owner or operator can demonstrate to the Secretary's satisfaction that:
(i) Procedures are in effect which will cause the waste to be removed safely, before flood waters can reach the facility, to a location where the wastes will not be vulnerable to flood waters; or
(ii) For existing surface impoundments, waste piles, land treatment units, landfills, and miscellaneous units, no adverse effects on human health or the environment will result if washout occurs, considering:
(A) The volume and physical and chemical characteristics of the waste in the facility;
(B) The concentration of hazardous constituents that would potentially affect surface waters as a result of washout;
(C) The impact of such concentrations on the current or potential uses of and water quality standards established for the affected surface waters; and
(D) The impact of hazardous constituents on the sediments of affected surface waters or the soils of the 100‑year floodplain that could result from washout.
[Comment: The location where wastes are moved must be a facility which is either permitted by DNREC under Part 122 of these regulations, authorized to manage hazardous waste by a State with a hazardous waste management program authorized under 40 CFR, Part 123, or in interim status under Parts 122 and 265 of these regulations.]
(2) As used in paragraph (b)(1) of this section:
(i) 100‑year floodplain means any land area which is subject to a one percent or greater chance of flooding in any given year from any source.
(ii) Washout means the movement of hazardous waste from the active portion of the facility as a result of flooding.
(iii) 100‑year flood means a flood that has a one percent chance of being equaled or exceeded in any given year.
[Comment: Requirements pertaining to other laws which affect the location and permitting of facilities are found in §122.12 of these regulations. For details relative to these laws, see DNREC's manual for SEA (special environmental area) requirements for hazardous waste facility permits. Though DNREC is responsible for complying with these requirements, applicants are advised to consider them in planning the location of a facility to help prevent subsequent project delays. Also, refer to the Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment and Disposal Facilities for further requirements which affect the location and permitting of facilities. Applicants are responsible for complying with these requirements.]
(c) Salt dome formations, salt bed formations, underground mines and caves. The placement of any non‑containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave is prohibited.

Section 264.19 Construction quality assurance program.

(1) A construction quality assurance (CQA) program is required for all surface impoundment, waste pile, and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d). The program must ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program must be developed and implemented under the direction of a CQA officer who is a registered professional engineer.
(2) The CQA program must address the following physical components, where applicable:
(i) Foundations;
(ii) Dikes;
(iii) Low-permeability soil liners;
(iv) Geomembranes (flexible membrane liners);
(v) Leachate collection and removal systems and leak detection systems; and
(vi) Final cover systems.
(b) Written CQA plan. The owner or operator of units subject to the CQA program under paragraph (a) of this section must develop and implement a written CQA plan. The plan must identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan must include:
(1) Identification of applicable units, and a description of how they will be constructed.
(2) Identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications.
(3) A description of inspection and sampling activities for all unit components identified in paragraph (a)(2) of this section, including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description must cover: Sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials; plans for implementing corrective measures; and data or other information to be recorded and retained in the operating record under §264.73.
(1) The CQA program must include observations, inspections, tests, and measurements sufficient to ensure:
(i) Structural stability and integrity of all components of the unit identified in paragraph (a)(2) of this section;
(ii) Proper construction of all components of the liners, leachate collection and removal system, leak detection system, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications;
(iii) Conformity of all materials used with design and other material specifications under §§ 264.221, 264.251, and 264.301.
(2) The CQA program shall include test fills for compacted soil liners, using the same compaction methods as in the full scale unit, to ensure that the liners are constructed to meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field. Compliance with the hydraulic conductivity requirements must be verified by using in-situ testing on the constructed test fill. The Secretary may accept an alternative demonstration, in lieu of a test fill, where data are sufficient to show that a constructed soil liner will meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field.

Section 264.30 Applicability.

Section 264.31 Design and operation of facility.

Section 264.32 Required equipment.

[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]

Section 264.33 Testing and maintenance of equipment.

Section 264.34 Access to communications or alarm system.

Section 264.35 Required aisle space.

[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]

Section 264.36 [Reserved]

 

Section 264.37 Arrangements with local authorities.

(a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations:
(1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility, and possible evacuation routes;
(2) Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any other to provide support to the primary emergency authority;
(3) Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and
(4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.

Section 264.50 Applicability.

Section 264.51 Purpose and implementation of contingency plan.

(a) Each owner or operator must have a contingency plan for his facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non‑sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.
(b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.

Section 264.52 Content of contingency plan.

(c) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency services, pursuant to §264.37.
(d) The plan must list names, addresses (office and home), and telephone numbers (office and home) of all persons qualified to act as emergency coordinator (see §264.55), and this list must be kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates. For new facilities, this information must be provided to the DNREC Secretary at the time of certification, rather than at the time of permit application.
(e) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up-to-date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.
(f) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).
13 DE Reg. 852 (12/01/09)
22 DE Reg. 678 (02/01/19)

Section 264.53 Copies of contingency plan.

(a) Maintained at the facility and made available immediately upon request; and
(b) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.
[Comment: The contingency plan must be submitted to the Secretary with Part B of the permit application under Part 122, Subparts A and B, of these regulations and, after modification or approval, will become a condition of any permit issued.]

Section 264.54 Amendment of contingency plan.

(a) The facility permit is revised;
(b) The plan fails in an emergency;
(c) The facility changes ‑ in its design, construction, operation, maintenance, or other circumstances ‑ in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
(d) The list of emergency coordinators changes; or
(e) The list of emergency equipment changes

Section 264.55 Emergency coordinator.

[Comment: The emergency coordinator's responsibilities are more fully spelled out in §264.56. Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility.]

Section 264.56 Emergency procedures.

(a) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) must immediately:
(1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(2) Notify appropriate State or local agencies with designated response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and a real extent of any released materials. He may do this by observation or review of facility records or manifests, and if necessary, by chemical analysis.
(c) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run‑off from water or chemical agents used to control fire and heat‑induced explosions).
(d) If the emergency coordinator determines that the facility has had a release, fire, or explosion which would threaten human health, or the environment, outside the facility, he must report his findings as follows:
(1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate officials decide whether local areas should be evacuated; and
(2) He must immediately notify either the government official designated as the on‑scene coordinator for that geographical area or the National Response Center (using their 24‑hour toll free number (800) 424‑8802) and the Department of Natural Resources and Environmental Control (using the nos. (800) 662-8802 or (302) 739-9401). The report must include:
(i) Name and telephone number of reporter;
(ii) Name and address of facility;
(iii) Time and type of incident (e.g., release, fire);
(iv) Name and quantity of material(s) involved, to the extent known;
(v) The extent of injuries, if any; and
(vi) The possible hazards to human health, or the environment, outside the facility.
(e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing release waste, and removing or isolating containers.
(f) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure build‑up, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.
(g) Immediately after an emergency, the emergency coordinator must provide for treating,
[Comment: Unless the owner or operator can demonstrate, in accordance with §261.3(c) or (d) of these regulations, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 264 of these regulations.]
(h) The emergency coordinator must ensure that, in the affected area(s) of the facility:
(1) No waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and
(2) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.
(i) The owner or operator must notify the Secretary, and appropriate State and local authorities, that the facility is in compliance with paragraph (h) of this section before operations are resumed in the affected area(s) of the facility.
(j) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Secretary. The report must include:
(1) Name, address, and telephone number of the owner or operator;
(2) Name, address, and telephone number of the facility;
(3) Date, time, and type of incident (e.g., fire, explosion);
(4) Name and quantity of material(s) involved;
(5) The extent of injuries, if any;
(6) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and
(7) Estimated quantity and disposition of recovered material that resulted from the incident.
15 DE Reg. 862 (12/01/11)

Section 264.70 Applicability.

(b) The revised Manifest form and procedures in DRGHW 260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, shall not apply until September 5, 2006. The Manifest form and procedures in §260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, contained in parts 260 to 265 shall be applicable until September 5, 2006.
(a) (1) If a facility receives hazardous waste accompanied by a manifest, the owner, operator, or the owner or operator’s agent, must sign and date the manifest as indicated in paragraph (a)(2) of this section to certify that the hazardous waste covered by the manifest was received, that the hazardous waste was received except as noted in the discrepancy space of the manifest, or that the hazardous waste was rejected as noted in the manifest discrepancy space.
(2) If the facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator or his agent must:
(i) Sign and date each copy of the manifest;
(ii) Note any discrepancies (as defined in §264.72(a)) on each copy of the manifest;
(iii) Immediately give the transporter at least one copy of the manifest;
(iv) Within 30 days of delivery, send a copy (Page 2) of the manifest to the generator;
(v) Submit paper manifests in accordance with:
(A) Options for compliance on June 30, 2018. Beginning on June 30, 2018, send the top copy (Page 1) of any paper manifest and any paper continuation sheet to the e-Manifest system for purposes of data entry and processing, or in lieu of submitting the paper copy to EPA, the owner or operator may transmit to the EPA system an image file of Page 1 of the manifest and any continuation sheet, or both a data file and image file corresponding to Page 1 of the manifest and any continuation sheet, within 30 days of the date of delivery. Submissions of copies to the e-Manifest system shall be made at the mailing address or electronic mail/submission address specified at the e-Manifest program website's directory of services. Beginning on June 30, 2021, EPA will not accept mailed paper manifests from facilities for processing in e-Manifest.
(B) Options for compliance on June 30, 2021. Beginning on June 30, 2021, the requirement to submit the top copy (Page 1) of the paper manifest and any paper continuation sheet to the e-Manifest system for purposes of data entry and processing may be met by the owner or operator only by transmitting to the EPA system an image file of Page 1 of the manifest and any continuation sheet, or by transmitting to the EPA system both a data file and the image file corresponding to Page 1 of the manifest and any continuation sheet, within 30 days of the date of delivery. Submissions of copies to the e-Manifest system shall be made to the electronic mail/submission address specified at the e-Manifest program website's directory of services; and
(vi) Retain at the facility a copy of each manifest for at least three years from the date of delivery. (3) The owner or operator of a facility receiving hazardous waste subject to Part 262, Subpart H of these regulations from a foreign source must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700-22A); and
(ii) Send a copy of the manifest within thirty (30) days of delivery to EPA using the addresses listed in §262.82(e) of these regulations until the facility can submit such a copy to the e-Manifest system per paragraph (a)(2)(v) of this section.
(1) Sign and date each copy of the manifest or shipping paper (if the manifest has not been received) to certify that the hazardous waste covered by the manifest or shipping paper was received;
(2) Note any significant discrepancies (as defined in §264.72(a) in the manifest or shipping paper (if the manifest has not been received) on each copy of the manifest or shipping paper.
(3) Immediately give the rail or water (bulk shipment) transporter at least one copy of the manifest or shipping paper (if the manifest has not been received);
(4) Within 30 days after the delivery, send a copy of the signed and dated manifest or a signed and dated copy of the shipping paper (if the manifest has not been received within 30 days after delivery) to the generator; and
(5) Retain at the facility a copy of the manifest and shipping paper (if signed in lieu of the manifest at the time of delivery) for at least three years from the date of delivery.
(d) As per §262.84(d)(2)(xv) of these regulations, within three (3) working days of the receipt of a shipment subject to Part 262, Subpart H of these regulations, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
(f) Legal equivalence to paper manifests. Electronic manifests that are obtained, completed, and transmitted in accordance with §262.20(a)(3) of these regulations, and used in accordance with this section in lieu of the paper manifest form are the legal equivalent of paper manifest forms bearing handwritten signatures, and satisfy for all purposes any requirement in these regulations to obtain, complete, sign, provide, use, or retain a manifest.
(1) Any requirement in these regulations for the owner or operator of a facility to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 40 CFR §262.25.
(2) Any requirement in these regulations to give, provide, send, forward, or to return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person.
(3) Any requirement in these regulations for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment.
(4) Any requirement in these regulations for an owner or operator to keep or retain a copy of each manifest is satisfied by the retention of the facility's electronic manifest copies in its account on the e-Manifest system, provided that such copies are readily available for viewing and production if requested by any EPA or DNREC inspector.
(5) No owner or operator may be held liable for the inability to produce an electronic manifest for inspection under this section if the owner or operator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the owner or operator bears no responsibility.
(h) Special procedures applicable to replacement manifests. If a facility receives hazardous waste that is accompanied by a paper replacement manifest for a manifest that was originated electronically, the following procedures apply to the delivery of the hazardous waste by the final transporter:
(1) Upon delivery of the hazardous waste to the designated facility, the owner or operator must sign and date each copy of the paper replacement manifest by hand in Item 20 (Designated Facility Certification of Receipt) and note any discrepancies in Item 18 (Discrepancy Indication Space) of the paper replacement manifest,
(2) The owner or operator of the facility must give back to the final transporter one copy of the paper replacement manifest,
(3) Within 30 days of delivery of the waste to the designated facility, the owner or operator of the facility must send one signed and dated copy of the paper replacement manifest to the generator, and send an additional signed and dated copy of the paper replacement manifest to the electronic manifest system, and
(4) The owner or operator of the facility must retain at the facility one copy of the paper replacement manifest for at least three years from the date of delivery.
(i) Special procedures applicable to electronic signature methods undergoing tests. If an owner or operator using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the owner or operator shall also sign with an ink signature the facility's certification of receipt or discrepancies on the printed copy of the manifest provided by the transporter. Upon executing its ink signature on this printed copy, the owner or operator shall retain this original copy among its records for at least 3 years from the date of delivery of the waste.
(j) Imposition of user fee for electronic manifest submissions. (1) As prescribed in 40 CFR §264.1311, and determined in 40 CFR §264.1312, an owner or operator who is a user of the electronic manifest system shall be assessed a user fee by EPA for the submission and processing of each electronic and paper manifest. EPA shall update the schedule of user fees and publish them to the user community, as provided in 40 CFR §264.1313.
(2) An owner or operator subject to user fees under this section shall make user fee payments in accordance with the requirements of 40 CFR §264.1314, subject to the informal fee dispute resolution process of 40 CFR §264.1316, and subject to the sanctions for delinquent payments under 40 CFR §264.1315.
(k) Electronic manifest signatures. Electronic manifest signatures shall meet the criteria described in 40 CFR §262.25.
(l) Post-receipt manifest data corrections. After facilities have certified to the receipt of hazardous wastes by signing Item 20 of the manifest, any post-receipt data corrections may be submitted at any time by any interested person (e.g., waste handler) shown on the manifest.
(1) Interested persons must make all corrections to manifest data by electronic submission, either by directly entering corrected data to the web based service provided in e-Manifest for such corrections, or by an upload of a data file containing data corrections relating to one or more previously submitted manifests.
(2) Each correction submission must include the following information:
(i) The Manifest Tracking Number and date of receipt by the facility of the original manifest(s) for which data are being corrected;
(ii) The item number(s) of the original manifest that is the subject of the submitted correction(s); and
(iii) For each item number with corrected data, the data previously entered and the corresponding data as corrected by the correction submission.
(3) Each correction submission shall include a statement that the person submitting the corrections certifies that to the best of his or her knowledge or belief, the corrections that are included in the submission will cause the information reported about the previously received hazardous wastes to be true, accurate, and complete:
(i) The certification statement must be executed with a valid electronic signature; and
(ii) A batch upload of data corrections may be submitted under one certification statement.
(4) Upon receipt by the system of any correction submission, other interested persons shown on the manifest will be provided electronic notice of the submitter's corrections.
(5) Other interested persons shown on the manifest may respond to the submitter's corrections with comments to the submitter, or by submitting another correction to the system, certified by the respondent as specified in paragraph (l)(3) of this section, and with notice of the corrections to other interested persons shown on the manifest.

Section 264.72 Manifest Discrepancies.

(1) Significant differences (as defined by paragraph (b) of this section) between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity and type of hazardous waste a facility actually receives;
(2) Rejected wastes, which may be a full or partial shipment of hazardous waste that the TSDF cannot accept; or
(3) Container residues, which are residues that exceed the quantity limits for ‘‘empty’’ containers set forth in §261.7(b) of these regulations.
(c) Upon discovering a significant difference in quantity or type, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Secretary a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue.
(d) (1) Upon rejecting waste or identifying a container residue that exceeds the quantity limits for ‘‘empty’’ containers set forth in DRGHW 261.7(b), the facility must consult with the generator prior to forwarding the waste to another facility that can manage the waste. If it is impossible to locate an alternative facility that can receive the waste, the facility may return the rejected waste or residue to the generator. The facility must send the waste to the alternative facility or to the generator within 60 days of the rejection or the container residue identification.
(2) While the facility is making arrangements for forwarding rejected wastes or residues to another facility under this section, it must ensure that either the delivering transporter retains custody of the waste, or, the facility must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest prepared under paragraph (e) or (f) of this section.
(1) Write the generator’s U.S. EPA ID number in Item 1 of the new manifest. Write the generator’s name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator’s site address, then write the generator’s site address in the designated space for Item 5.
(2) Write the name of the alternate designated facility and the facility’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as the offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation, and mail a facility-signed copy of the manifest to the generator identified in Item 5 of the new manifest.
(7) For full load rejections that are made while the transporter remains present at the facility, the facility may forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space. The facility must retain a copy of this manifest for its records, and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (e)(1), (2), (3), (4), (5), and (6) of this section.
(1) Write the facility’s U.S. EPA ID number in Item 1 of the new manifest. Write the designated facility's name and mailing address in Item 5 of the new manifest. If the mailing address is different from the facility’s site address, then write the facility’s site address in the designated space for Item 5 of the new manifest.
(2) Write the name of the initial generator and the generator’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.
(7) For full load rejections that are made while the transporter remains at the facility, the facility may return the shipment to the generator with the original manifest by completing Item 18a and 18b of the manifest and supplying the generator’s information in the Alternate Facility space. The facility must retain a copy for its records and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (f)(1), (2), (3), (4), (5), (6) and (8) of this section.
(8) For full or partial load rejections and container residues contained in non-empty containers that are returned to the generator, the facility must also comply with the exception reporting requirements in § 262.42(a) and (b).
11 DE Reg. 809 (12/01/07)

Section 264.73 Operating Record.

(a) The owner or operator must keep a written operating record at his facility.
(b) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility:
(1) A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix I of this part;
(2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram that shows each cell or disposal area. For all facilities, this information must include cross-references to manifest document numbers if the waste was accompanied by a manifest. [Comment: See §264.119 for related requirements.];
(3) Records and results of waste analyses and waste determinations performed as specified in §§ 264.13, 264.17, 264.314, 264.341, 264.1034, 264.1063, 264.1083, 268.4(a), and 268.7 of these regulations;
(4) Summary reports and details of all incidents that require implementing the contingency plan as specified in §264.56(j);
(5) Records and results of inspections as required by §264.15(d) (except these data need be kept only three years);
(6) Monitoring, testing or analytical data, and corrective action where required by Subpart F of this part and §§ 264.19, 264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252 - 264.254, 264.276, 264.278, 264.280, 264.302 - 264.304, 264.309, 264.347, 264.602, 264.1034(c) - 264.1034(f), 264.1035, 264.1063(d) - 264.1063(i), 264.1064, and 264.1082 - 264.1090 of this part;
(7) For off‑site facilities, notices to generators as specified in §264.12(b);
(8) All closure cost estimates under §264.142, and for disposal facilities, all post‑closure cost estimates under §264.144 of this part;
(9) A certification by the permittee no less often than annually, that the permittee has a program in place to reduce the volume and toxicity of hazardous waste that he generates to the degree determined by the permittee to be economically practicable; and the proposed method of treatment, storage or disposal is that practicable method currently available to the permittee which minimizes the present and future threat to human health and the environment;
(10) Records of the quantities and date of placement for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to §268.5, a petition pursuant to §268.6, and the applicable notice required by a generator under §268.7(a);
(11) For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required by a the generator or the owner or operator under §268.7;
(12) For an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7;
(13) For an off-site land disposal facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator of a treatment facility under §268.7, whichever is applicable;
(14) For an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under §268.7, except for the manifest number;
(15) For an off-site storage facility, a copy of the notice required by the generator or the owner or operator under §268.7
(16) For an on-site storage facility, the information contained in the notice (except the manifest number) required by the generator or the owner or operator under §268.7;
(17) Any records required under §264.1(j)(13); and
(18) Certifications as required by §264.196(f).
22 DE Reg. 678 (02/01/19)

Section 264.74 Availability, retention, and disposition of records.

(a) All records, including plans, required under this part must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of DNREC who is duly designated by the Secretary.
(b) The retention period for all records required under this part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Secretary.
(c) A copy of records of waste disposal locations and quantities under §264.73(b)(2) must be submitted to the Secretary and local land authority upon closure of the facility.

Section 264.75 Annual report.

(a) The EPA identification number, name, and address of the facility;
(b) The calendar year covered by the report;
(c) For off‑site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator;
(d) A description and the quantity of each hazardous waste the facility received during the year. For off‑site facilities, this information must be listed by EPA identification number of each generator;
(e) The method of treatment, storage, or disposal for each hazardous waste;
(f) [Reserved]
(g) The most recent closure cost estimate under §264.142, and for disposal facilities, the most recent post‑closure cost estimate under §264.144; and
(h) For generators who treat, store or dispose of hazardous waste on‑site, a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated.
(i) For generators who treat, store, or dispose of hazardous waste on‑site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years to the extent such information is available for the years prior to 1984.
(j) The certification signed by the owner or operator of the facility or his authorized representative.

Section 264.76 Unmanifested waste report.

(1) The EPA identification number, name, and address of the facility;
(2) The date the facility received the waste;
(3) The EPA identification number, name, and address of the generator and the transporter, if available;
(4) A description and the quantity of each unmanifested hazardous waste and facility received;
(5) The method of treatment, storage, or disposal for each hazardous waste;
(6) The certification signed by the owner or operator of the facility or his authorized representative; and
(7) A brief explanation of why the waste was unmanifested, if known.
(b) Reserved

Section 264.77 Additional reports.

(a) Releases, fires, and explosions as specified in §264.56(j);
(b) Facility closure as specified in §264.115.
(c) As otherwise required by Subparts F, K through N, AA, BB, and CC of this part.
(d) Groundwater contaminations and monitoring data as specified in §265.93 and §265.94.
Note: In this subpart, At least the uppermost aquifer means any aquifer which the facility has the potential to affect.

Section 264.90 Applicability.

(a) (1) Except as provided in paragraph (b) of this section, the regulations in this subpart apply to owners or operators of facilities that treat, store or dispose of hazardous waste. The owner or operator must satisfy the requirements identified in paragraph (a)(2) of this section for all wastes (or constituents thereof) contained in solid waste management units at the facility, regardless of the time at which waste was placed in such units.
(2) All solid waste management units must comply with the requirements in §264.101. A surface impoundment, waste pile, and land treatment unit or landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a "regulated unit") must comply with the requirements of §§264.91 ‑ 264.100 in lieu of §264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer. The financial responsibility requirements of §264.101 apply to regulated units.
(b) The owner or operator's regulated unit or units are not subject to regulation for releases into the uppermost aquifer under this subpart if:
(1) The owner or operator is exempted under §264.1; or
(2) He operates a unit which the Secretary finds:
(i) Is an engineered structure,
(ii) Does not receive or contain liquid waste or waste containing free liquids,
(iii) Is designed and operated to exclude liquid, precipitation, and other run‑on and run‑off,
(iv) Has both inner and outer layers of containment enclosing the waste,
(v) Has a leak detection system built into each containment layer,
(vi) The owner or operator will provide continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and post‑closure care periods, and
(vii) To a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the post‑closure care period.
(3) The Secretary finds, pursuant to §264.280(d), that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of §264.278 has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this subpart during the post‑closure care period; or
(4) The Secretary finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the post‑closure care period specified under §264.117. This demonstration must be certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator must base any predictions made under this paragraph on assumptions that maximize the rate of liquid migration.
(5) He designs and operates a pile in compliance with §264.250(c).
(1) Do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure;
(2) Apply during the post closure care period under §264.117 if the owner or operator is conducting a detection monitoring program under §264.98; or
(3) Apply during the compliance period under §264.96 if the owner or operator is conducting a compliance monitoring program under §264.99 or a corrective action program under §264.100.
(e) The regulations of this subpart apply to all owners and operators subject to the requirements of §122.1(c)(7), when the DNREC issues either a post‑closure permit or an enforceable document (as defined in §122.1(c)(7)) at the facility. When the DNREC issues an enforceable document, references in this subpart to “in the permit” mean “in the enforceable document.”
(f) The Secretary may replace all or part of the requirements of §§ 264.91 through 264.100 applying to a regulated unit with alternative requirements for groundwater monitoring and corrective action for releases to groundwater set out in the permit (or in an enforceable document) (as defined in §122.1(c)(7)) where the Secretary determines that:
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the groundwater monitoring and corrective action requirements of §§ 264.91 through 264.100 because alternative requirements will protect human health and the environment.

Section 264.91 Required programs.

(1) Whenever hazardous constituents under §264.93 from a regulated unit are detected at the compliance point under §264.95, the owner or operator must institute a compliance monitoring program under §264.99. Detected is defined as statistically significant evidence of contamination as described in §264.98(f);
(2) Whenever the groundwater protection standard under §264.92 is exceeded, the owner or operator must institute a corrective action program under §264.100. Exceeded is defined as statistically significant evidence of increased contamination as described in §264.99(d);
(3) Whenever hazardous constituents under §264.93 from a regulated unit exceed concentration limits under §264.94 in ground‑water between the compliance point under §264.95 and the downgradient facility property boundary, the owner or operator must institute a corrective action program under §264.100;
(4) In all other cases, the owner or operator must institute a detection monitoring program under §264.98.
(c) The owner or operator of a facility which is used to manage hazardous waste must submit to the Department within 120 days of the effective date of these regulations, a hydrogeologic report, except as paragraph (d) of this section provides otherwise. This report must be certified by a qualified engineer or qualified geologist except for (c)(1) of this section which must be certified by a qualified geologist. (See §260.10 for definitions of qualified engineer and qualified geologist). This report shall include at a minimum the following:
(1) A definition of the geology of the site and the surrounding areas. This shall include:
(i) A description of the various lithologic units including mineralogy, grain size distribution, shape and color to a depth which includes at least the uppermost confined aquifer underlying the site; and
(ii) Isopachous and structural contour maps and cross-sections showing these various lithostratigraphic units.
(2) A description of the ground‑water movement in at least the water table and uppermost confined aquifers underlying the site and the surrounding area including:
(i) The rate and direction of flow, both horizontally and vertically; and
(ii) A potentiometric surface map and cross‑section of each aquifer.
(iii) A map showing the difference in hydraulic head between the water table and uppermost confined aquifers.
(3) A description of hydrologic characteristics of the lithostratigraphic units to a depth which includes at least the uppermost confined aquifer underlying the site and the surrounding area such as, but not limited to, hydraulic conductivity, porosity, aquifer thickness, transmissivity, and storage coefficient.
(4) A description of the chemical quality of the ground‑water of at least the water table and uppermost confined aquifer underlying the site and surrounding area to include the parameters specified in §265.9(a) and any other parameters specified by the Department depending on the composition of the waste; a description of the chemical quality of nearby surface water may be required if deemed necessary by the Department.
(5) A prediction of the potential movement of any contaminants that may enter the ground‑water underlying the site and the surrounding area including the rate, extent and direction, both horizontal and vertical migration and the potential impact on ground‑water and if applicable on surface water.
(6) An estimate of the amount of leachate which may be generated at the site. This shall be done by using methods described in the following publications: "Hydrologic Simulation on Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Water and Waste Management, SW‑868, September 1980; or the "Use of the Water Balance Method for Predicting Leachate Generation from Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Solid Waste Management Program, SW‑168, October, 1975; or an equivalent method approved by the Department.
(7) A description of the existing ground‑water and, if applicable, surface water monitoring program used to detect and determine any contaminant migration at the site and the surrounding area.
(8) A proposal for future monitoring including additional monitoring wells and if applicable surface water monitoring stations, parameters for analysis and monitoring schedule.
(1) The potential for migration of hazardous waste or hazardous waste constituents from the facility to the upper most aquifer, by an evaluation of:
(i) A water balance of precipitation, evapotranspiration, run‑off, and infiltration; and
(ii) Unsaturated zone characteristics (i.e., geology and geologic materials, physical properties, and depth to ground‑water); and
(2) The potential for hazardous waste or hazardous waste constituents which enter the uppermost aquifer to migrate to a water supply well or surface water, by an evaluation of:
(i) Saturated zone characteristics (i.e., geology and geologic materials, physical properties, and rate of ground‑water flow); and
(ii) The proximity of the facility to water supply wells or surface water.

Section 264.92 Ground‑water protection standard.

(Amended August 10, 1990)

Section 264.93 Hazardous constituents.

(1) Potential adverse effects on ground‑water quality, considering:
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity of ground‑water and the direction of ground‑water flow;
(iv) The proximity and withdrawal rates of ground‑water users;
(v) The current and future uses of ground‑water in the area;
(vi) The existing quality of ground‑water, including other sources of contamination and their cumulative impact on the ground‑water quality;
(vii) The potential for health risks caused by human exposure to waste constituents;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(ix) The persistence and permanence of the potential adverse effects; and
(i) The volume and physical and chemical characteristics of the waste in the regulated unit;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity and quality of ground‑water, and the direction of ground‑water flow;
(iv) The patterns of rainfall in the region;
(v) The proximity of the regulated unit to surface waters;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(viii) The potential for health risks caused by human exposure to waste constituents;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
(x) The persistence and permanence of the potential adverse effects.

Section 264.94 Concentration limits.

(1) Must not exceed the background level of that constituent in the ground‑water at the time that limit is specified in the permit; or
(2) For any of the constituents listed in Table 1, must not exceed the respective value given in that Table if the background level of the constituent is below the value given in Table 1; or
(3) Must not exceed an alternate limit established by the Secretary under paragraph (b) of this section.
Table 1 ‑ Maximum Concentration of Constituents for Ground‑Water Protection
Toxaphene (C10H10Cl6, Technical chlorinated camphene, 67-69 percent chlorine)
FOOTNOTE: 1Milligrams per liter.
(1) Potential adverse effects on ground‑water quality, considering:
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity of ground‑water and the direction of ground‑water flow;
(iv) The proximity and withdrawal rates of ground‑water users;
(v) The current and future uses of ground‑water in the area;
(vi) The existing quality of ground‑water, including other sources of contamination and their cumulative impact on the ground‑water quality;
(vii) The potential for health risks caused by human exposure to waste constituents;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(ix) The persistence and permanence of the potential adverse effects; and
(i) The volume and physical and chemical characteristics of the waste in the regulated unit;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity and quality of ground‑water, and the direction of ground‑water flow;
(iv) The patterns of rainfall in the region;
(v) The proximity of the regulated unit to surface waters;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(viii) The potential for health risks caused by human exposure to waste constituents;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
(x) The persistence and permanence of the potential adverse effects.

Section 264.95 Point of compliance.

(1) The waste management area includes horizontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit.
(2) If the facility contains more than one active regulated unit, the waste management area is described by an imaginary line circumscribing the several regulated units.

Section 264.96 Compliance period.

Section 264.97 General ground‑water monitoring requirements.

(1) Represent the quality of background ground water that has not been affected by leakage from a regulated unit;
(i) A determination of background ground-water quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:
(A) Hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and
(B) Sampling at other wells will provide an indication of background ground‑water quality that is representative or more representative than that provided by the upgradient wells; and
(2) Represent the quality of ground‑water passing the point of compliance.
(3) Allow for the detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer.
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures, lower detection limit of the parameter, and quality control procedure;
(4) Chain of custody control.
(1) A sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer's effective porosity, hydraulic conductivity, and hydraulic gradient, and the fate and transport characteristics of the potential contaminants, or
(2) An alternate sampling procedure proposed by the owner or operator and approved by the Secretary.
(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.
(2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.
(3) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.
(4) A control chart approach that gives control limits for each constituent.
(5) Another statistical test method submitted by the owner or operator and approved by the Secretary.
(2) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a ground‑water protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals or control charts.
(3) If a control chart approach is used to evaluate ground‑water monitoring data, the specific type of control chart and its associated parameter values shall be proposed by the owner or operator and approved by the Secretary if he or she finds it to be protective of human health and the environment.
(4) If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be proposed by the owner or operator and approved by the Secretary if he or she finds these parameters to be protective of human health and the environment. These parameters will be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.
(5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantification limit (pql) approved by the Secretary under §264.97(h) that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.
(6) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

Section 264.98 Detection monitoring program

(1) The types, quantities, and concentrations of constituents in wastes managed at the regulated unit;
(2) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;
(3) The detectability of indicator parameters, waste constituents, and reaction products in ground‑water; and
(4) The concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the ground-water background.
(1) In determining whether statistically significant evidence of contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). These method(s) must compare data collected at the compliance point(s) to the background ground‑water quality data.
(2) The owner or operator must determine whether there is a statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling. The Secretary will specify in the facility permit what period of time is reasonable, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;
(2) Immediately sample the ground water in all monitoring wells and determine whether constituents in the list of Appendix IX of this part are present, and if so, in what concentration. However, the Secretary, on a discretionary basis, may allow sampling for a site-specific subset of constituents from the appendix IX list of this part and other representative/related waste constituents.
(3) For any Appendix IX compounds found in the analysis pursuant to paragraph (g)(2) of this section, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the Secretary and repeat the analysis for those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds in paragraph (g)(2) of this section, the hazardous constituents found during this initial Appendix IX analysis will form the basis for compliance monitoring.
(4) Within 90 days, submit to the Secretary an application for a permit modification to establish a compliance monitoring program meeting the requirements of §264.99. The application must include the following information:
(i) An identification of the concentration of any Appendix IX constituent detected in the ground water at each monitoring well at the compliance point;
(ii) Any proposed changes to the ground‑water monitoring system at the facility necessary to meet the requirements of §264.99;
(iii) Any proposed additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of §264.99;
(iv) For each hazardous constituent detected at the compliance point, a proposed concentration limit under §264.99(a)(1) or (2), or a notice of intent to seek an alternate concentration limit under §264.94(b); and
(5) Within 180 days, submit to the Secretary:
(i) All data necessary to justify an alternate concentration limit sought under §264.94(b); and
(ii) An engineering feasibility plan for a corrective action program necessary to meet the requirement of §264.100, unless:
(A) All hazardous constituents identified under paragraph (g)(2) of this section are listed in Table 1 of §264.94 and their concentrations do not exceed the respective values given in that Table; or
(B) The owner or operator has sought an alternate concentration limit under §264.94(b) for every hazardous constituent identified under paragraph (g)(2) of this section.
(6) If the owner or operator determines, pursuant to paragraph (f) of this section, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to paragraph (a) of this section at any monitoring well at the compliance point, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation or natural variation in the ground water. The owner operator may make a demonstration under this paragraph in addition to, or in lieu of, submitting a permit modification application under paragraph (g)(4) of this section; however, the owner or operator is not relieved of the requirement to submit a permit modification application within the time specified in paragraph (g)(4) of this section unless the demonstration made under this paragraph successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from error in sampling, analysis, or evaluation. In making a demonstration under this paragraph, the owner or operator must:
(i) Notify the Secretary in writing within seven days of determining statistically significant evidence of contamination at the compliance point that he intends to make a demonstration under this paragraph;
(ii) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the contamination or that the contamination resulted from error in sampling, analysis, or evaluation;
(iii) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the detection monitoring program facility; and
(iv) Continue to monitor in accordance with the detection monitoring program established under this section.
22 DE Reg. 678 (02/01/19)

Section 264.99 Compliance monitoring program.

(1) A list of the hazardous constituents identified under §264.93;
(2) Concentration limits under §264.94 for each of those hazardous constituents;
(3) The compliance point under §264.95; and
(4) The compliance period under §264.96.
(1) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with §264.97(g).
(2) The owner or operator must record ground‑water analytical data as measured and in form necessary for the determination of statistical significance under §264.97(h) for the compliance period of the facility.
(1) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). The method(s) must compare data collected at the compliance point(s) to a concentration limit developed in accordance with §264.94.
(2) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of sampling. The Secretary will specify that time period in the facility permit, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of ground‑water samples.
(g) Annually, the owner or operator must determine whether additional hazardous constituents from appendix IX of this part, which could possibly be present but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in §264.98(f). To accomplish this, the owner or operator must consult with the Secretary to determine on a case-by-case basis: which sample collection event during the year will involve enhanced sampling; the number of monitoring wells at the compliance point to undergo enhanced sampling; the number of samples to be collected from each of these monitoring wells; and, the specific constituents from Appendix IX of this part for which these samples must be analyzed. If the enhanced sampling event indicates that Appendix IX constituents are present in the ground water that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the Secretary, and repeat the analysis. If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the Secretary within seven days after the completion of the second analysis and add them to the monitoring list. If the owner or operator chooses not to resample, then he or she must report the concentrations of these additional constituents to the Secretary within seven days after completion of the initial analysis, and add them to the monitoring list.
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded.
(2) Submit to the Secretary an application for a permit modification to establish a corrective action program meeting the requirements of §264.100 within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Secretary under §264.98(g)(5). The application must at a minimum include the following:
(i) A detailed description of corrective actions that will achieve compliance with the ground‑water protection standard specified in the permit under paragraph (a) of this section; and
(ii) A plan for a ground‑water monitoring program that will demonstrate the effectiveness of the corrective action. Such a ground‑water monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.
(1) Notify the Secretary in writing within seven days that he intends to make a demonstration under this paragraph;
(2) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the sampling, analysis, or evaluation;
(3) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and
(4) Continue to monitor in accord with the compliance monitoring program established under this section.
22 DE Reg. 678 (02/01/19)

Section 264.100 Corrective action program.

(1) A list of the hazardous constituents identified under §264.93;
(2) Concentration limits under §264.94 for each of those hazardous constituents;
(3) The compliance point under §264.95; and
(4) The compliance period under §264.96.
(1) Between the compliance point under section 264.95 and the downgradient property boundary; and
(2) Beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the Secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis.
(3) Corrective action measures under this paragraph must be initiated and completed within a reasonable period of time considering the extent of contamination.
(4) Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents under §264.93 is reduced to levels below their respective concentration limits under §264.94.

Section 264.101 Corrective action for solid waste management units.

(1) All hazardous waste disposal facilities;
(2) Waste piles and surface impoundments from which the owner or operator intends to remove the wastes at closure to the extent that these sections are made applicable to such facilities in §§264.228 or 264.258;
(3) Tank systems that are required under §264.197 to meet the requirements for landfills; and
(4) Containment buildings that are required under §264.1102 to meet the requirement for landfills.
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the closure requirements of this subpart (and those referenced herein) because the alternative requirements will protect human health and the environment and will satisfy the closure performance standard of §264.111(a) and (b).

Section 264.111 Closure performance standard.

Section 264.112 Closure plan; amendment of plan.

(1) The owner or operator of a hazardous waste management facility must have a written closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous waste at partial or final closure are required by §§ 264.228(c)(1)(i) and 264.258(c)(1)(i) to have contingent closure plans. The plan must be submitted with the permit application, in accordance with §122.14(b)(13) of these regulations, and approved by the Secretary as part of the permit issuance procedures under Part 124 of these regulations. In accordance with §122.32, the approved closure plan will become a condition of any permit.
(2) The Secretary's approval of the plan must ensure that the approved closure plan is consistent with §§ 264.111 through 264.115 and the applicable requirements of Subpart F of this part, §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601, and 264.1102. Until final closure is completed and certified in accordance with §264.115, a copy of the approved plan and all approved revisions must be furnished to the Secretary upon request, including requests by mail.
(1) A description of how each hazardous waste management unit at the facility will be closed in accordance with §264.111;
(2) A description of how final closure of the facility will be conducted in accordance with §264.111. The description must identify the maximum extent of the operations which will be unclosed during the active life of the facility; and
(3) An estimate of the maximum inventory of hazardous wastes ever on‑site over the active life of the facility and a detailed description of the methods to be used during partial closures and final closure, including, but not limited to, methods for removing, transporting, treating, storing, or disposing of all hazardous wastes, and identification of the type(s) of the off‑site hazardous waste management units to be used, if applicable; and
(4) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure, including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard; and
(5) A detailed description of other activities necessary during the closure period to ensure that all partial closures and final closures satisfy the closure performance standards, including, but not limited to, ground‑water monitoring, leachate collection, and run‑on and run‑off control; and
(6) A schedule for closure of each hazardous waste management unit and for final closure of the facility. The schedule must include, at a minimum, the total time required to close each hazardous waste management unit and the time required for intervening closure activities which will allow tracking of the progress of partial and final closure. (For example, in the case of a landfill unit, estimates of the time required to treat or dispose of all hazardous waste inventory and of the time required to place a final cover must be included.)
(7) For facilities that use trust funds to establish financial assurance under §264.143 or 264.145 and that are expected to close prior to the expiration of the permit, an estimate of the expected year of final closure.
(8) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d), either the alternative requirements applying to the regulated unit, or a reference to the enforceable document containing those alternative requirements.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the closure plan at any time prior to the notification of partial or final closure of the facility.
(2) The owner or operator must submit a written notification or request for a permit modification to authorize a change in the approved closure plan whenever:
(i) Changes in operating plans or facility design affect the closure plan, or
(ii) There is a change in the expected year of closure, if applicable, or
(iii) In conducting partial or final closure activities, unexpected events require a modification of the approved closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d).
(3) The owner or operator must submit a written request for a permit modification including a copy of the amended closure plan for approval at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which had affected the closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator must request a permit modification no later than 30 days after the event. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to prepare a contingent closure plan under §264.228(c)(1)(i) or 264.258(c)(1)(i), must submit an amended closure plan to the Secretary no later than 60 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §264.310, or no later than 30 days from that date if the determination is made during partial or final closure. The Secretary will approve, disapprove, or modify this amended plan in accordance with the procedures in Parts 124 and 122. In accordance with §122.32 of these regulations, the approved closure plan will become a condition of any permit issued.
(4) The Secretary may request modifications to the plan under the conditions described in §264.112(c)(2). The owner or operator must submit the modified plan within 60 days of the Secretary's request, or within 30 days if the change in facility conditions occurs during partial or final closure. Any modifications requested by the Secretary will be approved in accordance with the procedures in Parts 124 and 122.
(1) The owner or operator must notify the Secretary in writing at least 60 days prior to the date on which he expects to begin closure of a surface impoundment, waste pile, land treatment or landfill unit, or final closure of a facility with such a unit. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin final closure of a facility with only treatment or storage tanks, container storage, or incinerator units to be closed. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin partial or final closure of a boiler or industrial furnace, whichever is earlier.
(2) The date when he "expects to begin closure" must be either no later than 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous wastes or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous wastes, no later than one year after the date on which the unit received the most recent volume of hazardous waste. If the owner or operator of a hazardous waste management unit can demonstrate to the Secretary that the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes and he has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements, the Secretary may approve an extension to this one‑year limit.
(3) If the facility's permit is terminated, or if the facility is otherwise ordered, by judicial decree or final order under 7 Del.C., Chapter 63 to cease receiving hazardous wastes or to close, then the requirements of this paragraph do not apply. However, the owner or operator must close the facility in accordance with the deadlines established in §264.113.

Section 264.113 Closure; time allowed for closure.

(1) (i) The activities required to comply with this paragraph will, of necessity, take longer than 90 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is a reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year, and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements.
(1) (i) The partial or final closure activities will, of necessity, take longer than 180 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year; and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable permit requirements.
(1) The demonstration in paragraph (a) must be made at least 30 days prior to the expiration of the 90‑day period in paragraph (a); and
(2) The demonstration in paragraph (b) must be made at least 30 days prior to the expiration of the 180‑day period in paragraph (b).

Section 264.114 Disposal or decontamination of equipment.

Section 264.115 Certification of closure.

22 DE Reg. 678 (02/01/19)

Section 264.116 Survey plat.

Section 264.117 Post‑closure care and use of property.

(a) (1) Post closure care for each hazardous waste management unit subject to the requirements of §§264.117‑264.120 must begin after completion of closure of the unit and continue for 30 years after that date and must consist of at least the following:
(i) Monitoring and reporting in accordance with the requirements of Subparts F, K, L, M, N and X of this part; and
(ii) Maintenance and monitoring of waste containment systems in accordance with the requirements of Subparts F, K, L, M, N and X of this part.
(2) Any time preceding partial closure of a hazardous waste management unit subject to post‑closure care requirements or final closure, or any time during the post‑closure period for a particular unit, the Secretary may, in accordance with the permit modification procedures in Parts 124 and 122:
(i) Shorten the post‑closure care period applicable to the hazardous waste management unit, or facility, if all disposal units have been closed, if he finds that the reduced periods is sufficient to protect human health and the environment (e.g., leachate or ground‑water monitoring results, characteristics of the hazardous wastes, application of advanced technology, or alternative disposal, treatment, or re‑use techniques indicate that the hazardous waste management unit or facility is secure); or
(ii) Extend the post‑closure care period applicable to the hazardous waste management unit or facility if he finds that the extended period is necessary to protect human health and the environment (e.g., leachate or ground‑water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).
(1) Hazardous wastes may remain exposed after completion of partial or final closure; or
(2) Access by the public or domestic livestock may pose a hazard to human health.
(1) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or
(2) Is necessary to reduce a threat to human health or the environment.

Section 264.118 Post‑closure plan; amendment of plan.

(1) A description of the planned monitoring activities and frequencies at which they will be performed to comply with Subparts F, K, L, M, N and X of this part during the post‑closure care period; and
(2) A description of the planned maintenance activities, and frequencies at which they will be performed, to ensure:
(i) The integrity of the cap and final cover or other containment systems in accordance with the requirements of Subparts K, L, M, N and X of this part; and
(ii) The function of the monitoring equipment in accordance with the requirements of Subparts F, K, L, M, N and X of this part, and
(3) The name, address, and phone number of the person or office to contact about the hazardous waste disposal unit or facility during the post‑closure care period.
(4) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d), either the alternative requirements that apply to the regulated unit, or a reference to the enforceable document containing those requirements.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the post‑closure plan at any time during the active life of the facility or during the post‑closure care period.
(2) The owner or operator must submit a written notification of or request for a permit modification to authorize a change in the approved post‑closure plan whenever:
(i) Changes in operating plans or facility design affect the approved post‑closure plan, or
(ii) There is a change in the expected year of final closure, if applicable, or
(iii) Events which occur during the active life of the facility, including partial and final closures, affect the approved post‑closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d).
(3) The owner or operator must submit a written request for a permit modification at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the post‑closure plan. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to submit a contingent post‑closure plan under §§264.228(c)(1)(ii) and 264.258(c)(1)(ii) must submit a post closure plan
(4) The Secretary may request modifications to the plan under the conditions described in §264.118(d)(2). The owner or operator must submit the modified plan no later than 60 days after the Secretary's request, or no later than 90 days if the unit is a surface impoundment or waste pile not previously required to prepare a contingent post‑closure plan. Any modifications requested by the Secretary will be approved, disapproved, or modified in accordance with the procedures in Parts 124 and 122.

Section 264.119 Post‑closure notices.

(1) Record, in accordance with State law, an environmental covenant, per Delaware Code Title 7, Chapter 79, Subchapter II, with the deed to the facility property that will in perpetuity notify any potential purchaser of the property that:
(i) The land has been used to manage hazardous wastes; and
(ii) Its use is restricted under part 264, Subpart G of these regulations; and
(iii) The survey plat and record of the type, location, and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by §264.116 and §264.119(a) have been filed with the local zoning authority or the authority with jurisdiction over local land use and with the Secretary, and
(2) Submit a certification, signed by the owner or operator, that he has recorded the notation specified in paragraph (b)(1) of this section, including a copy of the document in which the notation has been placed, to the Secretary.
(1) The termination of the environmental covenant to the facility property or other instrument normally examined during title search; or

Section 264.120 Certification of completion of post‑closure care.

22 DE Reg. 678 (02/01/19)

Section 264.140 Applicability.

(1) Disposal facilities;
(2) Piles and surface impoundments from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in §264.228 and §264.258;
(3) Tank systems that are required under §264.197 to meet the requirements for landfills; and
(4) Containment buildings that are required under §264.1102 to meet the requirements for landfills.
(1) Prescribes alternative requirements for the regulated unit under §264.90(f) and/or §264.110(c); and
(2) Determines that it is not necessary to apply the requirements of this subpart because the alternative financial assurance requirements will protect human health and the environment.
(a) Closure plan means the plan for closure prepared in accordance with the requirements of §264.112.
(b) Current closure cost estimate means the most recent of the estimates prepared in accordance with §264.142 (a), (b), and (c).
(c) Current post‑closure cost estimate means the most recent of the estimates prepared in accordance with §264.144(a), (b), and (c).
(d) Parent corporation means a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a subsidiary of the parent corporation.
(e) Post‑closure plan means the plan for post‑closure care prepared in accordance with the requirements of §§264.117‑264.120.
Assets means all existing and all probable future economic benefits obtained or controlled by a particular entity.
Current assets means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.
Current liabilities means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.
Independently audited refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.
Liabilities means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.
Net working capital means current assets minus current liabilities.
Net worth means total assets minus total liabilities and is equivalent to owner's equity.
Tangible net worth means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.
(g) In the liability insurance requirements the terms bodily injury and property damage shall have the meanings given these terms by applicable State law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The Department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of these regulations and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.
Accidental occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Legal defense costs means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.
Nonsudden accidental occurrence means an occurrence which takes place over time and involves continuous or repeated exposure.
Sudden accidental occurrence means an occurrence which is not continuous or repeated in nature.
(h) Substantial business relationship means the extent of a business relationship necessary under applicable State law to make a guarantee contract issued incident to that relationship valid and enforceable. A “substantial business relationship” must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the Secretary.

Section 264.142 Cost estimate for closure.

(1) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see §264.112(b)); and
(2) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator (See definition of parent corporation in §264.141(d)). The owner or operator may use costs for on‑site disposal if he can demonstrate that on‑site disposal capacity will exist at all times over the life of the facility.
(3) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.
(4) The owner or operator may not incorporate a zero cost for hazardous wastes that might have economic value.
(5) Owners or operators using the trust fund for closure must include any costs or fees associated with administering the fund into the cost estimate for closure.
(1) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.
(2) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.

Section 264.143 Financial assurance for closure.

(1) An owner or operator may satisfy the requirements of this section by establishing a closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary. An owner or operator of a new facility must submit the originally signed duplicate of the trust agreement to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(2) The wording of the trust agreement must be identical to the wording specified in §264.151(a)(1), and the trust agreement must be accompanied by a formal certification of acknowledgment (for example, see §264.151(a)(2)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the pay‑in period. The payments into the closure trust fund must be made as follows:
(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for treatment, storage, or disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at least equal to the current closure cost estimate, except as provided in §264.143(g), divided by the number of years in the pay‑in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
Next payment = CE-CV / Y
(ii) If an owner or operator establishes a trust fund as specified in §265.143(a) of these regulations, and the value of that trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay‑in period as defined in paragraph (a)(3) of this section.
Next payment = CE-CV / Y
(4) The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the current closure cost estimate at the time the fund is established. However, he must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a closure trust fund after having used one or more alternate mechanisms specified in this section or in §265.143 of these regulations, his first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and §265.143(a) of these regulations, as applicable.
(6) After the pay‑in period is completed, whenever the current closure cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
(7) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate.
(8) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, he may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate covered by the trust fund.
(9) Within 60 days after receiving a request from the owner or operator for release of funds as specified in paragraphs (a)(7) or (8) of this section, the Secretary will instruct the trustee to release to the owner or operator such funds as the Secretary specifies in writing.
(10) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, he may withhold reimbursements of such amounts as he deems prudent until he determines, in accordance with §264.143(i) that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(11) The Secretary will agree to termination of the trust when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this
(2) The wording of the surety bond must be identical to the wording specified in §264.151(b).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the stand by trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond, and
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District Court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in §264.143(g).
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure cost estimate decreases, the penal sum maybe reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent based on his receipt of evidence of alternate financial assurance as specified in this section.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond must be identical to the wording specified in §264.151(c).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Perform final closure in accordance with the closure plan and other requirements of the permit for the facility whenever required to do so; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the approved closure plan and other permit requirements when required to do so, under the terms of the bond the surety will perform final closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate.
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the Secretary. An owner or operator of a new facility must submit the letter of credit to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter‑of‑credit operations are regulated and examined by a Federal or State agency.
(2) The wording of the letter of credit must be identical to the wording specified in §264.151(d).
(3) An owner or operator who uses a letter of credit to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Secretary will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements of the trust fund specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(8) Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the he closure plan and other permit requirements when required to do so, the Secretary may draw on the letter of credit.
(10) The Secretary will return the letter of credit to the issuing institution for termination when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(i) The Secretary deems the facility abandoned; or revoked or a new permit is denied; or
(ii) The permit is terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), USC; or
(v) The premium due is paid.
(10) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(i) The owner or operator must have:
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post‑closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's and
(B) Tangible net worth at least six times the sum of the current closure and post‑closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(2) The phrase current closure and post‑closure cost estimates as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1‑4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year end financial statements for the latest fiscal year with the amounts in such financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternative financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.
11 DE Reg. 809 (12/01/07)
22 DE Reg. 678 (02/01/19)

Section 264.144 Cost estimate for post‑closure care.

Section 264.145 Financial assurance for post‑closure care.

(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at lease equal to the current post‑closure cost estimate, except as provided in §264.145(g), divided by the number of years in the pay‑in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
Next payment = CE-CV / Y
(ii) If an owner of operator establishes a trust fund as specified in §265.145(a) of these regulations, and the value of that trust fund is less than the current post‑closure cost estimate when a permit is awarded for the facility, the amount of the current post‑closure cost estimate still to be paid into the fund must be paid in over the pay‑in period as defined in paragraph (a)(3) of this section. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to Part 265 of these regulations. The amount of each payment must be determined by this formula:
Next payment = CE-CV / Y
(10) During the period of post‑closure care, the Secretary may approve a release of funds if the owner or operator demonstrates to the Secretary that the value of the trust fund exceeds the remaining cost of post‑closure care.
(11) An owner or operator or any other person authorized to conduct post‑closure care may request reimbursements for post‑closure care expenditures by submitting itemized bills to the Secretary. Within 60 days after receiving bills for post‑closure care activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the post‑closure care expenditures are in accordance with the approved post‑closure plan or otherwise justified. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(12) The Secretary will agree to termination of the trust when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and;
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(i) Perform post‑closure care in accordance with the post‑closure plan and other requirements of the permit for the facility; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post‑closure care in accordance with the approved post‑closure plan and other permit requirements, under the terms of the bond the surety will perform post‑closure care in accordance with the post‑closure plan and other permit requirements or will deposit the amount of the penal sum into the standby trust fund.
(10) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(11) The surety will not be liable for deficiencies in the performance of post‑closure care by the owner or operator after the Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations.
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for post‑closure care of the facility by the letter of credit.
(9) Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post‑closure care in accordance with the approved post‑closure plan and other permit requirements, the Secretary may draw on the letter of credit.
(10) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Secretary will draw on the letter of credit. Secretary may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Secretary will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the Secretary.
(11) The Secretary will return the letter of credit to the issuing institution for termination when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(3) The post‑closure insurance policy must be issued for a face amount at least equal to the current post‑closure cost estimate, except as provided in §264.145(g). The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
(i) The Secretary deems the facility abandoned; or
(ii) The permit is terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 USC (Bankruptcy); or
(v) The premium due is paid.
(10) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon‑issue yield announced by the U.S. Treasury for 26‑week Treasury securities.
(11) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(i) The owner or operator must have:
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post‑closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(ii) The owner or operator must have;
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and
(B) Tangible net worth at least six times the sum of the current closure and post‑closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(2) The phrase "current closure and post‑closure cost estimates" as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1‑4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year‑end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(10) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:
(i) On owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(11) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (9) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). A certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform post‑closure care of a facility covered by the corporate guarantee in accordance with the post‑closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.145(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.
11 DE Reg. 809 (12/01/07)
22 DE Reg. 678 (02/01/19)

Section 264.146 Use of a mechanism for financial assurance of both closure and post‑closure care.

Section 264.147 Liability requirements.

(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one EPA Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the insurance policy.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (a)(1) through (a)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (a)(1) through (a)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (a)(1) through (a)(6) of this section.
(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (b)(1) through (b)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (b)(1) through (b)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (b)(1) through (b)(6) of this section.
(c) [Reserved]
(i) The owner or operator must have:
(A) Net working capital and tangible net worth each at least six times the amount of liability overage to be demonstrated by this test; and
(B) Tangible net worth of at least $10 million; and
(C) Assets in the United States amounting to either: (1) At least 90 percent of his total assets; or (2) At least six times the amount of liability coverage to be demonstrated by this test.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's; and
(B) Tangible net worth of at least $10 million; and
(C) Tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and
(D) Assets in the United States amounting to either: (1) at least 90 percent of his total assets; or (2) at least six times the amount of liability coverage to be demonstrated by this test.
(2) The phrase amount of liability coverage as used in paragraph (f)(l) of this section refers to the annual aggregate amounts for which coverage is required under paragraphs (a) and (b) of this section.
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(g). If an owner or operator is using the financial test to demonstrate both assurance for closure or post‑closure care, as specified by §§264.143(f), 264.145(f), 265.143(e), and 265.145(e), and liability coverage, he must submit the letter specified in §264.151(g) to cover both forms of financial responsibility; a separate letter as specified in §264.151(f) is not required.
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year‑end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(i) If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.
(ii) [Reserved]
(ii) In the case of corporations incorporated outside the United States, a guarantee may be used to satisfy the requirements of this section only if (A) the non‑U.S. corporation has identified a registered agent for service of process in each State in which a facility covered by the guarantee is located and in the State in which it has its principal place of business, and (B) the Attorney General or Insurance Commissioner of each State in which a facility covered by the guarantee is located and the State in which the guarantor corporation has its principal place of business, has submitted a written statement to DNREC that a guarantee executed as described in this section and §264.151(h)(2) is a legally valid and enforceable obligation in that State.
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this paragraph and submitting a copy of the letter of credit to the Secretary.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that conforms to the requirements of this paragraph and submitting a copy of the bond to the Secretary.
(1) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary.
22 DE Reg. 678 (02/01/19)

Section 264.148 Incapacity of owners or operators, guarantors, or financial institutions.

Sections 264.149 ‑ 264.150 [Reserved]

 

Section 264.151 Wording of Instruments.

Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator], a [name of State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert "incorporated in the State of____" or "a national bank"], the "Trustee."
Section 1. Definitions. As used in this Agreement:
(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities and Cost Estimates. This agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number, name, address, and the current closure and/or post‑closure cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund" for the benefit of DNREC. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by DNREC.
Section 4. Payment for Closure and Post Closure Care. The Trustee shall make payments from the Fund as the DNREC Secretary shall direct, in writing, to provide for the payment of the costs of closure and/or post‑closure care of the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the DNREC Secretary from the Fund for closure and post‑closure expenditures in such amounts as the DNREC Secretary shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the DNREC Secretary specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of alike character and with like aims; except that;
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
12 DE Reg. 1428 (05-01-09)
Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Annual Valuation. The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the appropriate DNREC Secretary a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the DNREC Secretary shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the DNREC Secretary, and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests and instructions by the DNREC Secretary to the Trustee shall be in writing, signed by the DNREC Secretary and/or EPA Regional Administrators if the facilities are located outside the State, or their designees and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the grantor or DNREC hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or DNREC, except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee shall notify the Grantor and the Secretary or appropriate EPA Regional Administrator, by certified mail within 10 days following the expiration of the 30‑day period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay‑in period is completed, the Trustee shall not be required to send a notice of nonpayment.
Section 16. Amendment of agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, the Secretary, and the appropriate EPA Regional Administrator, or by the Trustee, the Secretary and the appropriate EPA Regional Administrator if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the DNREC Secretary, or by the Trustee and the DNREC Secretary, if the Grantor cease to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
Section 18. Immunity and Indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the DNREC Secretary issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Delaware.
Section 20. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
Whereas said Principal is required, under the 7 Del.C., Chapter 63, to have a permit or interim status in order to own or operate each hazardous waste management facility identified above, and
2. This firm guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, the closure or post-closure care of the following facilities owned or operated by the guaranteed party. The current cost estimates for the closure or post-closure care so guaranteed are shown for each facility:      . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee      ; or (3) engaged in the following substantial business relationship with the owner or operator      , and receiving the following value in consideration of this guarantee      ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter].
[Signature]                 
[Name]                 
[Title]                 
[Date]                 
The firm identified above guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences at the following facilities owned or operated by the following:      . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee      ; or (3) engaged in the following substantial business relationship with the owner or operator      , and receiving the following value in consideration of this guarantee      ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter.]
Alternative II
3. Date of issuance of bond           .
4. Date of maturity of bond           .
Alternative I
*8. Current liabilities $     
Alternative II
5. Date of issuance of bond           
6. Date of maturity of bond           
[Signature]                 
[Name]                 
[Title]                
[Date]                
Effective date:                 
[Name of guarantor]                 
[Authorized signature for guarantor]                
[Name of person signing]                 
[Title of person signing]                 
Signature of witness or notary:                 
(2) Premises that are sold, given away or abandoned by [insert owner or operator] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert owner or operator];
[Signatures]                 
Principal                 
(Notary) Date                 
[Signatures]                 
Claimant(s)                 
(Notary) Date                 
Effective date:                
[Name of guarantor]                
[Authorized signature for guarantor]                
[Name of person signing]                
[Title of person signing]                
Signature of witness or notary:                
1. This endorsement certifies that the policy to which the endorsement is attached provides liability insurance covering bodily injury and property damage in connection with the insured's obligation to demonstrate financial responsibility under §§264.147 or 265.147. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences", "nonsudden accidental occurrences," or "sudden and non sudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of legal defense costs.
(a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its obligations under the policy to which this endorsement is attached.
(b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement by the insured for any such payment made by the Insurer. This provision does not apply with respect to that amount of any deductible for which coverage is demonstrated as specified in §§264.147(f) or 265.147(f).
(c) Whenever requested by a DNREC Secretary, the Insurer agrees to furnish to the DNREC Secretary a signed duplicate original of the policy and all endorsements.
(d) Cancellation of this endorsement, whether by the Insurer, the insured, a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the hazardous waste management facility, will be effective only upon written notice and only after the expiration of sixty (60) days after a copy of such written notice is received by the DNREC Secretary.
(e) Any other termination of this endorsement will be effective only upon written notice and only after the expiration of thirty (30) days after a copy of such written notice is received by the DNREC Secretary.
1. [Name of Insurer], (the "Insurer"), of [address of Insurer] hereby certifies that it has issued liability insurance covering bodily injury and property damage to [name of insured], (the "insured"), of [address of insured] in connection with the insured's obligation to demonstrate financial responsibility under §§264.147 or 265.147. The coverage applies at [list EPA Identification Number, name, and address for each facility] for [insert "sudden accidental occurrences", "nonsudden accidental occurrences", or "sudden and nonsudden accidental occurrences"; if coverage is for multiple facilities and the coverage is different for different facilities, indicate which facilities are insured for sudden accidental occurrences, which are insured for nonsudden accidental occurrences, and which are insured for both]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of
legal defense costs. The coverage is provided under policy number‑‑‑, issued on [date]. The effective date of said policy is [date].
Name and Address of Issuing Institution                
Secretary                
Delaware Department of Natural Resources and Environmental Control
89 Kings Highway
Dover, Delaware 19901
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No.       in the favor of ["any and all third-party liability claimants" or insert name of trustee of the standby trust fund], at the request and for the account of [owner or operator's name and address] for third-party liability awards or settlements up to [in words] U.S. dollars $      per occurrence and the annual aggregate amount of [in words] U.S. dollars $     , for sudden accidental occurrences and/or for third-party liability awards or settlements up to the amount of [in words] U.S. dollars $      per occurrence, and the annual aggregate amount of [in words] U.S. dollars $     , for nonsudden accidental occurrences available upon presentation of a sight draft bearing reference to this letter of credit No.      , and [insert the following language if the letter of credit is being used without a standby trust fund:] (1) a signed certificate reading as follows:
(a) Bodily injury or property damage for which [insert principal] is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that [insert principal] would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert principal] under a workers' compensation, disability benefits, or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal].
(A) Whether [insert principal] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with or repay another person who must pay damages because of the injury to persons identified in paragraphs (1) and (2).
[Signatures]                 
Grantor                 
[Signatures]                 
Claimant(s)                 
(3) Rules and regulations of 7 Del.C., Chapter 63, and the Delaware Regulations Governing Hazardous Waste, particularly ["§264.147" or "§265.147"].
(1) An employee of [insert principal] arising from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of, or arising from, and in the course of employment by [insert principal]. This exclusion applies:
(1) Any property owned, rented, or occupied by [insert principal];
(2) Premises that are sold, given away or abandoned by [insert principal] if the property damage arises out of any part of those premises;
(3) Property loaned to [insert principal];
(4) Personal property in the care, custody or control of [insert principal];
(5) That particular part of real property on which [insert principal] or any contractors or subcontractors working directly or indirectly on behalf of [insert principal] are performing operations, if the property damage arises out of these operations.
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, hereinafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of       [up to $1 million] per occurrence and       [up to $2 million] annual aggregate for sudden accidental occurrences and       [up to $3 million] per occurrence and       [up to $6 million] annual aggregate for nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a standby trust fund, hereafter the "Fund," for the benefit of any and all third parties injured or damaged by [sudden and/or nonsudden] accidental occurrences arising from operation of the facility(ies) covered by this guarantee, in the amounts of       [up to $1 million] per occurrence and       [up to $2 million] annual aggregate for sudden accidental occurrences and       [up to $3 million] per occurrence and       [up to $6 million] annual aggregate for nonsudden occurrences, except that the Fund is not established for the benefit of third parties for the following:
(4) Personal property in the care, custody or control of [insert Grantor];
[Signature]                 
Grantor                 
[Signatures]                 
Claimant(s)                 
State of                 
County of                 
11 DE Reg. 809 (12/01/07)

Section 264.170 Applicability.

24 DE Reg. 711 (01/01/21)

Section 264.171 Condition of containers.

Section 264.172 Compatibility of waste with containers.

Section 264.173 Management of containers.

Section 264.174 Inspections.

Section 264.175 Containment.

[Comment: If the collected material is a hazardous waste under Part 261 of these regulations, it must be managed as a hazardous waste in accordance with all applicable requirements of Parts 262‑266 of these regulations. If the collected material is discharged through a point source to waters of the United States, it is subject to the requirements of §402 of the Clean Water Act as amended.]
(2) [Reserved]

Section 264.176 Special requirements for ignitable or reactive waste.

[Comment: See §264.17(a) for additional requirements.]

Section 264.177 Special requirements for incompatible wastes.

[Comment: The purpose of this section is to prevent fires, explosions, gaseous emission, leaching, or other discharge of hazardous waste or hazardous waste constituents which could result from the mixing of incompatible wastes or materials if containers break or leak.]

Section 264.178 Closure.

[Comment: At closure as throughout the operating period, unless the owner or operator can demonstrate in accordance with §261.3(d) of these regulations that the solid waste removed from the containment system is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262‑266 of these regulations].

Section 264.179 Air emission standards.

Section 264.190 Applicability.

22 DE Reg. 678 (02/01/19)

Section 264.191 Assessment of existing tank system's integrity.

(i) For non‑enterable underground tanks, the assessment must include a leak test that is capable of taking into account the effects of temperature variations, tank end deflection, vapor pockets, and high water table effects, and
(ii) For other than non‑enterable underground tanks and for ancillary equipment, this assessment must include either a leak test, as described above, or other integrity examination, that is certified by a qualified Professional Engineer in accordance with §122.11(d), that addresses cracks, leaks, corrosion, and erosion.
22 DE Reg. 678 (02/01/19)

Section 264.192 Design and installation of new tank systems or components.

(A) Soil moisture content;
(B) Soil pH;
(C) Soil sulfides level;
(D) Soil resistivity;
(E) Structure to soil potential;
(F) Influence of nearby underground metal structures (e.g., piping);
(G) Existence of stray electric current;
(H) Existing corrosion‑protection measures (e.g., coating, cathodic protection), and
(A) Corrosion‑resistant materials of construction such as special alloys, fiberglass reinforced plastic, etc.
(B) Corrosion‑resistant coating (such as epoxy, fiberglass, etc.) with cathodic protection (e.g., impressed current or sacrificial anodes); and
(C) Electrical isolation devices such as insulating joints, flanges, etc.
(i) Tank foundations will maintain the load of a full tank;
(ii) Tank systems will be anchored to prevent flotation or dislodgment where the tank system is placed in a saturated zone, or is located within a seismic fault zone subject to the standards of §264.18(a); and
(iii) Tank systems will withstand the effects of frost heave.
22 DE Reg. 678 (02/01/19)

Section 264.193 Containment and detection of releases.

(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run‑on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain run‑on or infiltration. Such additional capacity must be sufficient to contain precipitation from a 25‑ year, 24 hour rainfall event.
(iii) Free of cracks or gaps;
(iv) Designed and installed to surround the tank completely and to cover all surrounding earth likely to come into contact with the waste if the waste is released from the tank(s) (i.e., capable of preventing lateral as well as vertical migration of the waste).
(v) Provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of wastes into the concrete; and
(vi) For systems installed after January 1, 2011, constructed with chemical-resistant water stops in place at all joints (if any). Documents demonstrating compliance with this requirement must be retained in the facility record.
(i) Designed or operated to contain 100 percent of the capacity of the largest tank within its boundary;
(ii) Designed or operated to prevent run‑on or infiltration of precipitation into the secondary containment system unless the collection system has sufficient excess capacity to contain precipitation from a 25‑year, 24‑hour rainfall event;
(iii) Constructed with chemical‑resistant water stops in place at all joints (if any);
(iv) Provided with an impermeable interior coating or lining that is compatible with the stored waste and that will prevent migration of waste into the concrete;
(v) Provided with a means to protect against the formation of and ignition of vapors within the vault, if the waste being stored or treated:
(A) Meets the definition of ignitable waste under §261.21 of these regulations; or
(B) Meets the definition of reactive waste under §261.23 of these regulations, and may form an ignitable or explosive vapor; and
(vi) Provided with an exterior moisture barrier or be otherwise designed or operated to prevent migration of moisture into the vault if the vault is subject to hydraulic pressure.
(i) Designed as an integral structure (i.e., an inner tank completely enveloped within an outer shell) so that any release from the inner tank is contained by the outer shell;
(ii) Protected, if constructed of metal, from both corrosion of the primary tank interior and of the external surface of the outer shell; and
(iii) Provided with a built‑in continuous leak detection system capable of detecting a release within 24 hours, or at the earliest practicable time, if the owner or operator can demonstrate to the Secretary and the Secretary concludes, that the existing detection technology or site conditions would not allow detection of a release within 24 hours.
(1) In deciding whether to grant a variance based on a demonstration of equivalent protection of groundwater and surface water, the Secretary will consider:
(i) The nature and quantity of the wastes;
(ii) The proposed alternate design and operation;
(iii) The hydrogeologic setting of the facility, including the thickness of soils present between the tank system and groundwater; and
(iv) All other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to groundwater or surface water.
(2) In deciding whether to grant a variance based on a demonstration of no substantial present or potential hazard, the Secretary will consider:
(i) The potential adverse effects on groundwater, surface water, and land quality taking into account:
(A) The physical and chemical characteristics of the waste in the tank system, including its potential for migration,
(B) The hydrogeological characteristics of the facility and surrounding land,
(C) The potential for health risks caused by human exposure to waste constituents,
(D) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents, and
(E) The persistence and permanence of the potential adverse effects;
(ii) The potential adverse effects of a release on groundwater quality, taking into account:
(A) The quantity and quality of groundwater and the direction of groundwater flow,
(B) The proximity and withdrawal rates of groundwater users,
(C) The current and future uses of groundwater in the area, and
(D) The existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater quality;
(iii) The potential adverse effects of a release on surface water quality, taking into account:
(A) The quantity and quality of groundwater and the direction of groundwater flow,
(B) The patterns of rainfall in the region,
(C) The proximity of the tank system to surface waters,
(D) The current and future uses of surface waters in the area and any water quality standards established for those surface waters, and
(E) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and
(iv) The potential adverse effects of a release on the land surrounding the tank system, taking into account:
(A) The patterns of rainfall in the region, and
(B) The current and future uses of the surrounding land.
(i) Comply with the requirements of §264.196, except paragraph (d), and
(ii) Decontaminate or remove contaminated soil to the extent necessary to:
(A) Enable the tank system for which the variance was granted to resume operation with the capability for the detection of releases at least equivalent to the capability it had prior to the release; and
(B) Prevent the migration of hazardous waste or hazardous constituents to the groundwater or surface water; and
(iii) If contaminated soil cannot be removed or decontaminated in accordance with paragraph (g)(3)(ii) of this section, comply with the requirement of §265.197(b).
(4) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of paragraph (g)(1) of this section, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), must:
(i) Comply with the requirements of §264.196(a), (b), (c), and (d); and
(ii) Prevent the migration of hazardous waste or hazardous constituents to groundwater or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed or if groundwater has been contaminated, the owner or operator must comply with the requirements of §264.197(b); and
(iii) If repairing, replacing, or reinstalling the tank system, provide secondary containment in accordance with the requirements of paragraphs (a) through (f) of this section or reapply for a variance from secondary containment and meet the requirements for new tank systems in §264.192 if the tank system is replaced. The owner or operator must comply with these requirements even if contaminated soil can be decontaminated or removed and groundwater or surface water has not been contaminated.
(i) For existing tank systems, at least 24 months prior to the date that secondary containment must be provided in accordance with paragraph (a) of this section.
(ii) For new tank systems, at least 30 days prior to entering into a contract for installation.
(Note: The practices described in the American Petroleum Institute (API) Publication Guide for Inspection of Refinery Equipment, Chapter XIII, "Atmospheric and Low‑Pressure Storage Tanks," 4th edition, 1981, may be used, where applicable, as guidelines for assessing the overall condition of the tank system.)
14 DE Reg. 668 (01/01/11)
22 DE Reg. 678 (02/01/19)

Section 264.194 General operating requirements.

Section 264.195 Inspections.

Section 264.196 Response to leaks or spills and disposition of leaking or unfit‑for‑use tank systems.

(i) Less than or equal to a quantity of one (1) pound and
(ii) Immediately contained and cleaned‑up.
(i) Likely route of migration of the release;
(ii) Characteristics of the surrounding soil (soil composition, geology, hydrogeology, climate);
(iii) Results of any monitoring or sampling conducted in connection with the release (if available). If sampling or monitoring data relating to the release are not available within 30 days, these data must be submitted to the Secretary as soon as they become available.
(iv) Proximity to downgradient drinking water, surface water, and population area; and
(v) Description of response actions taken or planned.
[Note: The Secretary may, on the basis of any information received that there is or has been a release of hazardous waste or hazardous constituents into the environment, issue an order under 7 Del.C., Chapter 63 requiring corrective action or such other response as deemed necessary to protect human health or the environment.]
[Note: See §264.15(c) for the requirements necessary to remedy a failure. Seven Del.C., Chapter 60 requires notification to the Department of all spills or discharges, also 40 CFR Part 302 may require the owner or operator to notify the National Response Center of certain releases.]
22 DE Reg. 678 (02/01/19)

Section 264.197 Closure and post‑closure care.

(2) A contingent post‑closure plan for complying with paragraph (b) of this section must be prepared and submitted as part of the permit application.

Section 264.198 Special requirements for ignitable or reactive wastes.

(i) The resulting waste, mixture, or dissolved material no longer meets the definition of ignitable or reactive waste under §§261.21 or 261.23 of these regulations, and
(ii) Section 264.17(b) is complied with, or

Section 264.199 Special requirements for incompatible wastes.

Section 264.200 Air emission standards.

Section 264.220 Applicability.

Section 264.221 Design and operating requirements.

(A) A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and
(B) A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1X10-7cm/sec.
(ii) The liners must comply with paragraphs (a)(1), (2), and (3) of this section.
(i) Constructed with a bottom slope of one percent or more;
(ii) Constructed of granular drainage materials with a hydraulic conductivity of 1X10-1cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3X10-4m2/sec or more;
(iii) Constructed of materials that are chemically resistant to the waste managed in the surface impoundment and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes and any waste cover materials or equipment used at the surface impoundment;
(iv) Designed and operated to minimize clogging during the active life and post-closure care period; and
(v) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.
(B) The monofill is located more than one‑quarter mile from an “underground source of drinking water” (as that term is defined in §122.2 of the Regulations Governing Underground Injection Control); and
(C) The monofill is in compliance with generally applicable groundwater monitoring requirements for facilities with permits under 7 Del.C., Chapter 63; or
(ii) The owner or operator demonstrates that the monofill is located, designed and operated so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.

Section 264.222 Action leakage rate.

Section 264.223 Response actions.

(ii) Conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and
(iii) Assess the seriousness of any leaks in terms of potential for escaping into the environment; or

Section 264.224 ‑ 264.225 [Reserved]

 

Section 264.226 Monitoring and inspection.

Section 264.227 Emergency repairs, contingency plans.

(i) For any existing portion of the impoundment, a liner must be installed in compliance with §264.221(a); and
(ii) For any other portion of the impoundment, the repaired liner system must be certified by a qualified engineer as meeting the design specifications approved in the permit.

Section 264.228 Closure and post‑closure care.

(ii) Stabilize remaining wastes to a bearing capacity sufficient to support final cover; and
(iii) Cover the surface impoundment with a final cover designed and constructed to:
(A) Provide long‑term minimization of the migration of liquids through the closed impoundment;
(B) Function with minimum maintenance;
(C) Promote drainage and minimize erosion or abrasion of the final cover;
(D) Accommodate settling and subsidence so that the cover's integrity is maintained; and
(E) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.
(i) The closure plan for the impoundment under §264.112 must include both a plan for complying with paragraph (a)(1) of this section and a contingent plan for complying with paragraph (a)(2) of this section in case not all contaminated subsoils can be practicably removed at closure; and
(ii) The owner or operator must prepare a contingent post‑closure plan under §264.118 for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure.

Section 264.229 Special requirements for ignitable or reactive waste.

Section 264.230 Special requirements for incompatible wastes.

Section 264.231 Special requirements for hazardous wastes FO20, FO21, FO22, FO23, FO26, and FO27.

Section 264.232 Air emission standards.

Section 264.233 ‑ 264.249 [Reserved]

 

Section 264.250 Applicability.

Section 264.251 Design and operating requirements.

(ii) Placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and
(iii) Installed to cover all surrounding earth likely to be in contact with the waste or leachate; and
(i) Constructed of materials that are:
(A) Chemically resistant to the waste managed in the pile and the leachate expected to be generated; and
(B) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and
(ii) Designed and operated to function without clogging through the scheduled closure of the waste pile.
(A) A top liner designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into such liner during the active life and post-closure care period; and
(B) A composite bottom liner, consisting of at least two components. The upper component must be designed and constructed of materials (e.g., a geomembrane) to prevent the migration of hazardous constituents into this component during the active life and post-closure care period. The lower component must be designed and constructed of materials to minimize the migration of hazardous constituents if a breach in the upper component were to occur. The lower component must be constructed of at least 3 feet (91 cm) of compacted soil material with a hydraulic conductivity of no more than 1X10-7 cm/sec.
(ii) The liners must comply with paragraphs (a)(1)(i), (ii), and (iii) of this section.
(i) Constructed with a bottom slope of one percent or more;
(ii) Constructed of granular drainage materials with a hydraulic conductivity of 1X10-2 cm/sec or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet drainage materials with a transmissivity of 3X10-5 m2/sec or more:
(iii) Constructed of materials that are chemically resistant to the waste managed in the waste pile and the leachate expected to be generated, and of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and equipment used at the waste pile;
(iv) Designed and operated to minimize clogging during the active life and post-closure care period; and
(v) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to collect and remove liquids from the sump and prevent liquids from backing up into the drainage layer. Each unit must have its own sump(s). The design of each sump and removal system must provide a method for measuring and recording the volume of liquids present in the sump and of liquids removed.
22 DE Reg. 678 (02/01/19)

Section 264.252 Action leakage rate.

Section 264.253 Response actions.

(1) Notify the Secretary in writing of the exceedance within 7 days of the determination;
(2) Submit a preliminary written assessment to the Secretary within 14 days of the determination, as to the amount of liquids, likely sources of liquids, possible location, size, and cause of any leaks, and short-term actions taken and planned;
(3) Determine to the extent practicable the location, size, and cause of any leak;
(4) Determine whether waste receipt should cease or be curtailed, whether any waste should be removed from the unit for inspection, repairs, or controls, and whether or not the unit should be closed;
(5) Determine any other short-term and long-term actions to be taken to mitigate or stop any leaks; and
(6) Within 30 days after the notification that the action leakage rate has been exceeded, submit to the Secretary the results of the analyses specified in paragraphs (b) (3), (4), and (5) of this section, the results of actions taken, and actions planned. Monthly thereafter, as long as the flow rate in the leak detection system exceeds the action leakage rate, the owner or operator must submit to the Secretary a report summarizing the results of any remedial actions taken and actions planned.
(ii) Conduct a fingerprint, hazardous constituent, or other analyses of the liquids in the leak detection system to identify the source of liquids and possible location of any leaks, and the hazard and mobility of the liquid; and
(iii) Assess the seriousness of any leaks in terms of potential for escaping into the environment; or

Section 264.254 Monitoring and inspection.

Section 264.255 [Reserved]

Section 264.256 Special requirements for ignitable or reactive waste.

Section 264.257 Special requirements for incompatible wastes.

Section 264.258 Closure and post‑closure care.

(i) Include in the closure plan for the pile under §264.112 both a plan for complying with paragraph (a) of this section and a contingent plan for complying with paragraph (b) of this section in case not all contaminated subsoils can be practicably removed at closure; and
(ii) Prepare a contingent post‑closure plan under §264.118 for complying with paragraph(b) of this section in case not all contaminated subsoils can be practicably removed at closure.
(2) The cost estimates calculated under §264.142 and 264.144 for closure and post‑closure care of a pile subject to this paragraph must include the cost of complying with the contingent closure plan and the contingent post‑closure plan, but are not required to include the cost of expected closure under paragraph (a) of this section.

Section 264.259 Special requirements for hazardous wastes FO20, FO21, FO22, FO23, FO26, and FO27.

Section 264.260 ‑ 264.269 [Reserved]

Section 264.270 Applicability.

Section 264.271 Treatment program.

Section 264.272 Treatment Demonstration.

(i) The characteristics of the waste (including the presence of Appendix VIII of Part 261 of these regulations constituents);
(ii) The climate in the area;
(iii) The topography of the surrounding area;
(iv) The characteristics of the soil in the treatment zone (including depth); and
(v) The operating practices to be used at the unit.
(i) The characteristics of the waste to be tested;
(ii) The operating and monitoring measures taken during the course of the test;
(iii) The duration of the test;
(iv) The volume of waste used in the test;
(v) In the case of field tests, the potential for migration of hazardous constituents to ground‑water or surface water.

Section 264.273 Design and operating requirements.

Section 264.274 ‑ 264.275 [Reserved]

Section 264.276 Food‑chain crops.

(i) Will not be transferred to the food or feed portions of the crop by plant uptake or direct contact, and will not otherwise be ingested by food‑chain animals (e.g., by grazing); or
(ii) Will not occur in greater concentration in or on the food or feed portions of crops grown on the treatment zone than in or on identical portions of the same crops grown on untreated soils under similar conditions in the same region.
(i) Base the demonstration on conditions similar to those present in the treatment zone, includes soil characteristics (e.g., pH, cation exchange capacity), specific wastes, application rates, application methods, and crops to be grown; and
(ii) Describe the procedures used in conducting any tests, including the sample selection criteria, sample size, analytical methods, and statistical procedures.
(ii) The annual application of cadmium from waste must not exceed 0.5 kilograms per hectare (kg/ha) on land used for production of tobacco, leafy vegetables, or rootcrops grown for human consumption. For other food‑chain crops, the annual cadmium application rate must not exceed:
                                                                         Annual Cd
                                                                        application rate
                                                                        (kilograms
Time Period                                                   per hectare)
Present to June 30, 1984                                   2.0
July 1, 1984 to Dec. 31, 1986                          1.25
Beginning Jan. 1, 1987                                      0.5
(iii) The cumulative application of cadmium from waste must not exceed 5 kg/ha if the waste and soil mixture has a pH of less than 6.5; and
(iv) If the waste and soil mixture has a pH of 6.5 or greater or is maintained at a pH of 6.5 or greater during crop growth, the cumulative application of cadmium from waste must not exceed: 5 kg/ha if soil cation exchange capacity (CEC) is less than 5 meq/100g; 10 kg/ha if soil CEC is 5‑ 15 meq/100g; and 20 kg/ha if soil CEC is greater than 15 meq/100g; or
(ii) The pH of the waste and soil mixture must be 6.5 or greater at the time of waste application or at the time the crop is planted, whichever occurs later, and this pH level must be maintained whenever food‑chain crops are grown;
(iii) There must be an operating plan which demonstrates how the animal feed will be distributed to preclude ingestion by humans. The operating plan must describe the measures to be taken to safeguard against possible health hazards from cadmium entering the food chain, which may result from alternative land uses; and
(iv) Future property owners must be notified by a stipulation in the environmental covenant which states that the property has received waste at high cadmium application rates and that food‑chain crops must not be grown except in compliance with paragraph (b)(2) of this section.

Section 264.277 [Reserved]

Section 264.278 Unsaturated zone monitoring.

(1) The Secretary will specify the hazardous constituents to be monitored in the facility permit. The hazardous constituents to be monitored are those specified under §264.271(b).
(2) The Secretary may require monitoring for principal hazardous constituents (PHCs) in lieu of the constituents specified under §264.271(b). PHCs are hazardous constituents contained in the wastes to be applied at the unit that are the most difficult to treat, considering the combined effects of degradation, transformation, and immobilization. The Secretary will establish PHCs if he finds, based on waste analyses, treatment demonstrations, or other data, that effective degradation, transformation, or immobilization of the PHCs will assure treatment at a least equivalent levels for the other hazardous constituents in the wastes.