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Section 265.1 Purpose, Scope, and Applicability.

(a) The purpose of this Part is to establish minimum state standards that define the acceptable management of hazardous waste during the period of interim status and until certification of final closure or, if the facility is subject to post‑closure requirements, until post‑closure responsibilities are fulfilled.
(b) Except as provided in §265.1080(b), the standards of this part, and of §§ 264.552, 264.553, and 264.554, apply to owners and operators of facilities that treat, store or dispose of hazardous waste who have fully complied with the requirements for interim status under 7 Del.C., §6307(g) and §122.10 of these regulations until either a permit is issued under 7 Del.C., Chapter 63 or until applicable Part 265 closure and post-closure responsibilities are fulfilled, and to those owners and operators of facilities in existence on November 19, 1980 who have failed to provide timely notification as required by 7 Del.C., Chapter 63 and/or failed to file Part A of the permit application as required by §122.10(e) and (g). These standards apply to all treatment, storage, or disposal of hazardous waste at these facilities after the effective date of these regulations, except as specifically provided otherwise in this part or Part 261 of these regulations.
(1) A person disposing of hazardous waste by means of ocean disposal subject to a permit issued under the Marine Protection, Research, and Sanctuaries Act;
[Comment: These Part 265 regulations do apply to the treatment or storage of hazardous waste before it is loaded onto an ocean vessel for incineration or disposal at sea, as provided in paragraph (b) of this section.]
(2) [Reserved]
(3) The owner or operator of a POTW which treats, stores, or disposes of hazardous waste;
[Comment: The owner or operator of a facility under paragraphs (c)(1) through (3) of this Section is subject to the requirements of Part 264 of these regulations to the extent they are included in a permit by rule granted to such a person under Part 122.60 of these regulations.]
(4) A person who treats, stores, or disposes of hazardous waste in a State with a RCRA hazardous waste program authorized under Subparts A or B of 40 CFR Part 271, except that the requirements of this part will continue to apply:
(i) If the authorized State with a RCRA hazardous waste program does not cover disposal of hazardous waste by means of underground injection; or
(ii) To a person who treats, stores, or disposes of hazardous waste in a State authorized under Subparts 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 Act 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 §271.1(j).
(5) 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; of these regulations provides otherwise;
(6) 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).
(7) A generator accumulating waste onsite in compliance with applicable conditions for exemption in §§262.14 through 262.17 and Subpart L of Part 262 of these regulations, except to the extent the requirements are included in those sections and subparts of these regulations;
(8) A farmer disposing of waste pesticides from his own use in compliance with §262.70 of these regulations; or
(9) The owner or operator of a totally enclosed treatment facility, as defined in §260.10.
(10) The owner or operator of an elementary neutralization unit or a wastewater treatment unit as defined in §260.10 of these regulations, provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory defined in §268.40 of these regulations, Table Treatment Standards for Hazardous Wastes), or reactive (D003) waste, to remove the characteristic before land disposal, the owner or operator must comply with the requirements set out in §265.17(b).
(11) (i) Except as provided in paragraph (c)(11)(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 a hazardous waste;
(B) An imminent and substantial threat of a discharge of a hazardous waste;
(C) A discharge of a material which when discharged, becomes a hazardous waste; or
(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 40 CFR, 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 (c)(11)(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 to protect human health or the environment, that official or specialist may authorize the removal of the material or waste by transporters who do not have EPA identification numbers and without the preparation of a manifest. In the case of emergencies involving military munitions, the responding military emergency response specialist's organizational unit must retain records for three years identifying the dates of the response, the responsible persons responding, the type and description of material addressed, and its disposition.
(12) 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.
(13) The addition of absorbent material to waste in a container (as defined in §260.10 of these regulations) or the addition of waste to the absorbent material in a container provided that these actions occur at the time waste is first placed in the containers; and §265.17(b), §265.171, and §265.172 are complied with.
(14) 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.
(15) [Reserved]
(16) 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.
(d) The following hazardous wastes must not be managed at facilities subject to regulation under this part.
(1) EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, or F027 unless:
(i) The wastewater treatment sludge is generated in a surface impoundment as part of the plant's wastewater treatment system:
(ii) The waste is stored in tanks or containers:
(iii) The waste is stored or treated in waste piles that meet the requirements of §264.250(c) as well as all other applicable requirements of Subpart L of this part:
(iv) The waste is burned in incinerators that are certified pursuant to the standards and procedures in §265.352; or
(v) The waste is burned in facilities that thermally treat the waste in a device other than an incinerator and that are certified pursuant to the standards and procedures in §265.383.
24 DE Reg. 711 (01/01/21)

Section 265.2‑265.3 [Reserved]

Section 265.4 Imminent Hazard Action.

Section 265.10 Applicability.

Section 265.11 Identification Number.

Section 265.12 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 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.
[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 265.13 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 the requirements of 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 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 processes 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 analyst 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 offsite 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.
(1) The parameters for which each hazardous waste will be analyzed and the rational 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.
(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;
(5) For off‑site facilities, the waste analyses that hazardous waste generators have agreed to supply; and
(6) Where applicable, the methods which will be used to meet the additional waste analysis requirements for specific waste management methods as specified in §§ 265.200, 265.225, 265.252, 265.273, 265.314, 265.341, 265.375, 265.402, 265.1034(d), 265.1063(d), 265.1084, and 268.7 of these regulations.
(7) For surface impoundments exempted from land disposal restrictions under §268.4(a) of these regulations, the procedures and schedule 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 the air emission standards of Subpart CC of this part in accordance with §265.1083.
(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.
(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 offsite 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.
(Amended June 19, 1992, August 1, 1995, August 21, 1997, January 1, 1999)

Section 265.14 Security.

(1) Physical contact with the waste, structures, or equipment with 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 the part.
(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.]
[Comment: See §265.117(b) for discussion of security requirements at disposal facilities during the postclosure care period.]

Section 265.15 General Inspection Requirements.

(b) (1) The owner or operator must develop and follow a written schedule for inspecting all monitoring equipment, safety and emergency equipment, security devices, and operation 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 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 265.174, 265.193, 265.195, 265.226, 265.260, 265.278, 265.304, 265.347, 265.377, 265.403, 265.1033, 265.1052, 265.1053, 265.1058, and 265.1084 through 265.1090, where applicable.
(Amended August 29, 1988, August 1, 1995, January 1, 1999, August 23, 1999)
22 DE Reg. 678 (02/01/19)
(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 ensure that 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.
(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 emergencies by familiarizing them with 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.
(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 qualification, and duties of facility personnel 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 265.17 General Requirements for Ignitable, Reactive, or Incompatible Wastes.

(1) Generate extreme heat or pressure, fire or explosion, or violent reaction;
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health;
(3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;
(5) Through other like means threaten human health or the environment.

Section 265.18 Location Standards.

(Amended May 8, 1986)

Section 265.19 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 §§ 265.221(a), 265.254, and 265.301(a). 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);
(vi) Final cover systems.
(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 §265.73.
(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 of these regulations.
(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), 264.251(c)(1), and 264.301(c)(1) of these regulations in the field. Compliance with the hydraulic conductivity requirements must be verified by using in-situ testing on the constructed test fill. The test fill requirement is waived where data are sufficient to show that a constructed soil liner meets the hydraulic conductivity requirements of §§ 264.221(c)(1), 264.251(c)(1), and 264.301(c)(1) of these regulations in the field.
(Amended August 1, 1995)

Section 265.20 ‑ 265.29 [Reserved]

Section 265.30 Applicability.

Section 265.31 Maintenance and Operation of Facility.

(Amended August 29, 1988)

Section 265.32 Required Equipment.

Section 265.33 Testing and Maintenance of Equipment.

Section 265.34 Access to Communication or Alarm System.

Section 265.35 Required Aisle Space.

Section 265.36 [Reserved]

Section 265.37 Arrangements with Local Authorities.

(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 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 specific police and a specific fire department, and agreements with any others 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.
(Amended July 11, 2002)

Section 265.50 Applicability.

Section 265.51 Purpose and Implementation of Contingency Plan.

(Amended January 1, 1999)

Section 265.52 Content of Contingency Plan.

(b) If the owner or operator has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with 40 CFR Part 112 or some other emergency or contingency plan, he need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the requirements of this part. The owner or operator may develop one contingency plan which meets all regulatory requirements. EPA recommends that the plan be based on the National Response Team's Integrated Contingency Plan Guidance (“One Plan”). When modifications are made to non-RCRA provisions in an integrated contingency plan, the changes do not trigger the need for a RCRA permit modification.
(Amended August 21, 1997)
13 DE Reg. 852 (12/01/09)
22 DE Reg. 678 (02/01/19)

Section 265.53 Copies of Contingency Plan.

(a) Maintained at the facility and made available immediately upon request; and
(Amended July 23, 1996, January 1, 1999, July 11, 2002)
15 DE Reg. 862 (12/01/11)

Section 265.54 Amendment of Contingency Plan.

Section 265.55 Emergency Coordinator.

[Comment: The emergency coordinator's responsibilities are more fully spelled out in §265.56. 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 265.56 Emergency Procedures.

(1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(2) Immediately, notify DNREC at (302) 7399401 or (800) 662-8802 and other appropriate state and local agencies with designated response roles. The facility will during this notification identify the following:
(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.
(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.
(vi) The possible hazards to human health, or the environment, outside the facility.
[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 265 of these regulations.]
(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.
(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.
(Amended August 29, 1988)
15 DE Reg. 862 (12/01/11)

Section 265.70 Applicability.

Section 265.71 Use of Manifest System.

(2) If a facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator, or his/her agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in § 265.72(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; and
(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 (Page1) 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 that receives 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 to EPA using the addresses listed in §262.82(e) of these regulations within thirty (30) days of delivery 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.
(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 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 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 hazardous 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 EPA 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 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 hazardous 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 use. (1) As prescribed in 40 CFR §265.1311, and determined in 40 CFR §265.1312, 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 §265.1313.
(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 §265.1314, subject to the informal fee dispute resolution process of 40 CFR §265.1316, and subject to the sanctions for delinquent payments under 40 CFR §265.1315.
(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 265.72 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).
(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.
(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 in 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 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).
(g) If a facility rejects a waste or identifies a container residue that exceeds the quantity limits for ‘‘empty’’ containers set forth in DRGHW §261.7(b) after it has signed, dated, and returned a copy of the manifest to the delivering transporter or to the generator, the facility must amend its copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest. The facility must also copy the manifest tracking number from Item 4 of the new manifest to the discrepancy space of the amended manifest, and must re-sign and date the manifest to certify to the information as amended. The facility must retain the amended manifest for at least three years from the date of amendment, and must within 30 days, send a copy of the amended manifest to the transporter and generator that received copies prior to their being amended.
15 DE Reg. 862 (12/01/11)

Section 265.73 Operating Record.

(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 §§ 265.119, 265.279, and 265.309 for related requirements.]
(3) Records and results of waste analysis, waste determinations, and trial tests performed as specified in §§ 265.13, 265.200, 265.225, 265.252, 265.273, 265.314, 265.341, 265.375, 265.402, 265.1034, 265.1063, 265.1084, 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 §265.56(j);
(5) Records and results of inspections as required by §265.15(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 by §§ 265.19, 265.90, 265.93(d)(2), 265.93(d)(5), 265.94, 265.191, 265.193, 265.195, 265.196(f), 265.224, 265.226, 265.255, 265.259, 265.260, 265.276, 265.278, 265.280(d)(1), 265.302 through 265.304, 265.347, 265.377, 265.1034(c) through 265.1034(f), 265.1035, 265.1063(d) through 265.1063(i), 265.1064, and 265.1083 through 265.1090.
[Comment: As required by §265.94, monitoring data at disposal facilities must be kept throughout the post-closure period.]
(7) All closure cost estimates under §265.142 and, for disposal facilities, all post‑closure cost estimates under §265.144.
(8) 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 of these regulations, or monitoring data required pursuant to a petition under §268.6 of these regulations, or the applicable notice required by a generator under §268.7 of these regulations.
(9) For an off-site treatment facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7;
(10) 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.
(11) 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;
(12) For an on-site land disposal 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 of a treatment facility under §268.7.
(13) For an off-site storage facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7; and
(14) For an on-site storage 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 of a treatment facility under §§268.7.
22 DE Reg. 678 (02/01/19)

Section 265.74 Availability, Retention, and Disposition of Records.

Section 265.75 Annual Report.

Section 265.76 Unmanifested Waste Report.

(a) If a facility accepts for treatment storage, or disposal any hazardous waste from an off‑site source without an accompanying manifest, or without an accompanying shipping paper as described in §263.20(e) of these regulations, and if the waste is not excluded from the manifest requirement of these regulations, then the owner or operator must prepare and submit a single copy of a report to the Secretary within 15 days after receiving the waste. The unmanifested waste report must include the following information:
(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 the 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 265.77 Additional Reports.

Section 265.90 Applicability.

(1) A definition of the geology of the site and surrounding area. This shall include:
(i) A description of the various lithologic units including grain size distribution, shape and color to a depth which includes at least the uppermost confined aquifer underlying the site; and
(ii) Isopach and structure contour maps and cross‑sections showing these various lithostratigraphic units.
(2) A description of the groundwater movement in at least the water table and uppermost confined aquifers underlying the site and the surrounding area including:
(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 the hydrologic characteristics of the lithostratigraphic units to a depth which includes at least the uppermost confined aquifers 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 groundwater of at least the water table and uppermost confined aquifers underlying the site and surrounding area to include the parameters specified in §265.92(b)(1), (b)(2), (b)(3) 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 groundwater underlying the site and the surrounding area including the rate, extent and direction, both horizontal and vertical migration and the potential impact on groundwater 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 EPA.
(7) A description of the existing groundwater and, if applicable, surface water monitoring program used to detect and determine and contaminant migration at the site and surrounding area.
(8) A proposal for further 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 uppermost 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.
(1) By the effective date of these amendments, submit to the Secretary a specific plan, certified by a "qualified engineer" or "qualified geologist" which satisfies the requirements of §265.93(d)(3) for an alternate groundwater monitoring system. This plan is to be placed in the facility's operating record and maintained until closure of the facility.
(2) No later than the effective date of these amendments, initiate the determinations specified in §265.93(d)(4).
(3) Prepare and submit a written report in accordance with §265.93 (d)(5) and place in the facility's operating record until closure of the facility.
(4) Continue to make the determination specified in §265.93(d)(4) on a quarterly basis until final closure of the facility; and
(5) Comply with the recordkeeping and reporting requirements in §265.94(b).
(1) A 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 requirements of this subpart because the alternative requirements will protect human health and the environment. The alternative standards for the regulated unit must meet the requirements of §264.101(a).
22 DE Reg. 678 (02/01/19)

Section 265.91 Ground‑water Monitoring System.

(1) Monitoring wells (at least one) installed hydraulically upgradient (i.e., in the direction of increasing static head) from the limit of the waste management area. Their number, locations, and depths must be sufficient to yield ground‑water samples that are:
(i) Representative of background ground‑water quality in at least the uppermost aquifer near the facility; and
(ii) Not affected by the facility; and
(2) Monitoring wells (at least three) installed hydraulically downgradient (i.e., in the direction of decreasing static head) at the limit of the waste management area. Their number, locations, and depths must ensure that they immediately detect any statistically significant amounts of hazardous waste or hazardous waste constituents that migrate from the waste management area to at least the uppermost aquifer.
(3) The facility owner or operator may demonstrate that an alternate hydraulically downgradient monitoring well location will meet the criteria outlined below. The demonstration must be in writing and kept at the facility. The demonstration must be certified by a qualified ground-water scientist and establish that:
(i) An existing physical obstacle prevents monitoring well installation at the hydraulically downgradient limit of the waste management area; and
(ii) The selected alternate downgradient location is as close to the limit of the waste management area as practical; and
(iii) The location ensures detection that, given the alternate location, is as early as possible of any statistically significant amounts of hazardous waste or hazardous waste constituents that migrate from the waste management area to the uppermost aquifer.
(iv) Lateral expansion, new, or replacement units are not eligible for an alternate downgradient location under this paragraph.
(1) In the case of a facility consisting of only one surface impoundment, landfill, or land treatment area, the waste management area is by the waste boundary (perimeter).
(2) In the case of a facility consisting of more than one surface impoundment, landfill, or land treatment area, the waste management area is described by an imaginary boundary zone which circumscribes the several waste management components.
(d) Prior to installation of a monitoring well, the owner or operator of a facility must obtain a permit from the Department in accordance with 7 Del.C., §6003(a)(3). Also installation of monitoring well should be conducted by a licensed driller in accordance with 7 Del.C., §6023(a)(1).

Section 265.92 Sampling and Analysis.

(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures; and
(4) Chain of custody control.
[Comment: See "Procedures Manual for Ground‑water Monitoring at Solid Waste Disposal facilities," EPA‑530/SW‑611, August 1977 and "Methods for Chemical Analysis of Water and Wastes," EPA‑600/4‑79‑020, March 1979 for discussion of sampling and analysis procedures.]
(1) Parameters characterizing the suitability of the groundwater as a drinking water supply, as specified in Appendix III.
(2) Parameters establishing ground‑water quality:
(i) Chloride
(ii) Iron
(iii) Manganese
(iv) Phenols
(v) Sodium
(vi) Sulfate
[Comment: These parameters are to be used as a basis for comparison in the event a ground‑water quality assessment is required under §265.93(d).]
(3) Parameters used as indicators of ground‑water contamination:
(i) pH
(ii) Specific Conductance
(iii) Total Organic Carbon
(iv) Total Organic Halogen
(c) (1) For all monitoring wells, the owner or operator must establish initial background concentrations or values of all parameters specified in paragraph (b) of this section. He must do this quarterly for one year.
(2) For each of the indicator parameters specified in paragraph (b)(3) of this section, at least four replicate measurements must be obtained for each sample and the initial background arithmetic mean and variance must be determined by pooling the replicate measurements for the respective parameter concentrations or values in samples obtained from upgradient wells during the first year.
(1) Samples collected to establish ground‑water quality must be obtained and analyzed for the parameters specified in paragraph (b)(2) of this section at least semi‑annually.
(2) Samples collected to indicate ground‑water contamination must be obtained and analyzed for the parameters specified in paragraph (b)(3) of this section at least semi‑annually.
(3) Samples collected for any specific parameters, designated by the Department other than those provided in (b)(1), (b)(2) and (b)(3) of this section must be obtained and analyzed at least semi‑annually.
(4) Samples collected to characterize the suitability of the groundwater as a drinking water supply, must be obtained as analyzed for the parameters specified in Appendix III of the regulations, at least annually.

Section 265.93 Preparation, Evaluation and Response.

(1) Whether hazardous waste or hazardous waste constituents have entered the groundwater;
(2) The rate and extent of migration of hazardous waste or hazardous waste constituents in the groundwater; and
(3) The concentrations of hazardous waste or hazardous waste constituents in the groundwater.
(c) (1) If the comparisons for the upgradient wells made under paragraph (b) of this section show a significant increase (or pH decrease) the owner or operator must submit this information in accordance with §265.94(a)(2)(ii).
(2) If the comparisons for downgradient wells made under paragraph (b) of this section show a significant increase (or pH decrease), the owner or operator must then immediately obtain additional ground‑water samples from those downgradient wells where a significant difference was detected, split the samples in two, or obtain analyses of all additional samples to determine whether the significant difference was a result of laboratory error.
(d) (1) If the analyses performed under paragraph (c)(2) of this section confirm the significant increases (or pH decrease), the owner or operator must provide written notice to the Secretary ‑ within seven days of the date of such confirmation ‑ that the facility may be affecting ground‑water quality.
(2) Within 15 days after the notification under paragraph (d)(1) of this section, the owner or operator must develop and submit to the Secretary a specific plan, based on the outline required under paragraph (a) of this section and certified by a "qualified engineer" or "qualified geologist" for a ground‑water quality assessment program at the facility. This report is to be placed in the facility's operating record and maintained until closure of the facility.
(3) The plan to be submitted under §265.90(e)(1) or paragraph (d)(2) of this section must specify:
(i) The number, location, and depth of wells;
(ii) Sampling and analytical methods for those hazardous wastes or hazardous waste constituents in the facility;
(iii) Evaluation procedures, including any use of previously gathered ground‑water quality information; and
(iv) A schedule of implementation.
(4) The owner or operator must implement the ground‑water quality assessment plan which satisfies the requirements of paragraph (d)(3) of this section, and, at a minimum, determine:
(i) The rate and extent of migration of the hazardous waste or hazardous waste constituents in the groundwater; and
(ii) The concentrations of the hazardous waste or hazardous waste constituents in the groundwater.
(5) The owner or operator must make his first determination under paragraph (d)(4) of this section as soon as technically feasible, and, within 15 days after that determination, submit to the Secretary a written report containing an assessment of the ground-water quality. This report is to be placed in the facility's operating record and maintained until closure of the facility.
(6) If the owner or operator determines, based on the results of the first determination under paragraph (d)(4) of this section, that no hazardous waste or hazardous waste constituents from the facility have entered the groundwater, then he may reinstate the indicator evaluation program described in §265.92 and paragraph (b) of this section. If the owner or operator reinstates the indicator evaluation program, he must so notify the Secretary in the report submitted under paragraph (d)(5) of this section.
(7) If the owner or operator determines, based on the first determination under paragraph (d)(4) of this section, that hazardous waste or hazardous waste constituents from the facility have entered the groundwater, then he:
(i) Must, within 180 days of this determination, submit to the Department a plan including measures to mitigate and prevent and if necessary further monitor the spread of hazardous waste or hazardous waste constituents off site. Subsequent to written approval of the plan or portions thereof by the Department, the plan must be implemented by the owner or operator of the facility in accordance with the timetable specified by the Department. Depending on the contents of the mitigation plan, including the nature of the mitigation measures, the plan must be prepared and implemented by a "qualified engineer" and/or "qualified geologist", as appropriate. The mitigation plan must include the following as a minimum:
(1) Analysis of the concentration and extent of migration of the hazardous waste or hazardous waste constituents and potential problems associated with this condition. This must include an isopach map and cross‑section showing the extent of migration of hazardous waste or hazardous waste constituents, if any.
(2) A detailed technical plan including the proposed procedure for containing and removing the condition of contamination.
(3) A schedule for implementation of the plan.
(4) An assessment of the potential impact of the mitigation program on the quality and quantity of groundwater and surface water.
(5) A proposed monitoring program to detect and determine the impact of the mitigation lan on groundwater and surface water at the site.
(ii) Must continue to make the determinations required under paragraph (d)(4) of this section on a quarterly basis until final closure of the facility, if the ground‑water quality assessment plan was implemented prior to final closure of the facility; or
(iii) May cease to make the determinations required under paragraph (d)(4) of this section, if the ground‑water quality assessment plan was implemented during the post‑closure care period.

Section 265.94 Recordkeeping and Reporting.

(1) Keep records of the analyses required in §265.92(c) and (d), the associated ground‑water surface elevations required in §265.92(e), and the evaluations required in §265.93(b) throughout the active life of the facility, and, for disposal facilities, throughout the post‑closure care period as well; and
(2) Report the following ground‑water monitoring information to the Secretary:
(i) During the first year when initial background concentrations are being established for the facility: Concentrations or values of the parameters listed in §265.92(b) for each ground‑water monitoring well within 15 days after completing each quarterly analysis. The owner or operator must separately identify for each monitoring well any parameters whose concentration or value has been found to exceed the maximum contaminant levels listed in Appendix III.
(ii) Semi‑annually: concentrations or values of the parameters listed in §265.92(b)(3) and other specific parameters designated by the Department as addressed in §265.93(d)(3), for each ground‑water monitoring well, along with the required evaluations for these parameters under §265.93(b). The owner or operator must separately identify any significant differences from initial background found in the upgradient wells, in accordance with §265.93(c)(1). The data shall be submitted to the Department within fifteen (15) days of completing the analysis.
(iii) Semi‑annually: the concentrations or values of the parameters listed in §265.92(b)(2) and annually the concentrations or values of the parameters listed in §265.92(b)(1). The data shall be submitted to the Department within fifteen (15) days of completing the analysis.
(iv) The ground‑water surface elevations as measured under §265.92(e) shall be included along with the corresponding data, submitted under §265.940 (a)(2)(i), (ii) and (iii).
(v) As part of the annual report required under §265.75: results of the evaluation of ground-water surface elevations under §265.93(f), and a description of the response to that evaluation, where applicable.
(1) Keep records of the analyses and evaluations specified in the plan, which satisfies the requirements of §265.93(d)(3), throughout the active life of the facility, and, for disposal facilities, throughout the post‑closure care period as well; and
(2) Annually, until final closure of the facility, submit to the Secretary a report containing the results of his ground‑water quality assessment program which includes, but is not limited to, the calculated (or measured) rate of migration of hazardous waste or hazardous waste constituents in the groundwater during the reporting period. This report must be submitted as part of the annual report required in §265.75.

Section 265.110 Applicability.

(1) All hazardous waste disposal facilities;
(2) Waste piles and surface impoundments for 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 §§265.228 or 265.258;
(3) Tank systems that are required under §265.197 to meet requirements for landfills; and
(4) Containment buildings that are required under §265.1102 to meet the requirements for landfills.
(1) A 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/or those referenced herein) because the alternative requirements will protect human health and the environment, and will satisfy the closure performance standard of §265.111(a) and (b).

Section 265.111 Closure Performance Standard.

Section 265.112 Closure Plan; Amendment of Plan.

(1) A description of how each hazardous waste management unit at the facility will be closed in accordance with §265.111; and
(2) A description of how final closure of the facility will be conducted in accordance with §265.111. The description must identify the maximum extent of the operation 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 and final closure, including, but not limited to methods for removing, transporting, treating, storing or disposing of all hazardous waste, identification of and the type(s) of off‑site hazardous waste management unit(s) 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 necessary to satisfy the closure performance standard; and
(5) A detailed description of other activities necessary during the partial and final closure periods to ensure that all partial closures and final closure 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.); and
(7) An estimate of the expected year of final closure for facilities that use trust funds to demonstrate financial assurance under §265.143 or §265.145 and whose remaining operating life is less than twenty years, and for facilities without approved closure plans.
(8) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 265.90(f), 265.110(d), and/or 265.140(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 must amend the closure plan whenever:
(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 closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 265.90(f), 265.110(d), and/or 265.140(d).
(2) The owner or operator must amend the closure plan 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 closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator must amend the closure plan no later than 30 days after the unexpected event. These provisions also apply to owners and operators or surface impoundments and waste piles who intended to remove all hazardous wastes at closure, but are required to close as landfills in accordance with §265.310.
(3) An owner or operator with an approved closure plan must submit the modified plan to the Secretary at least 60 days prior to the proposed change in facility design or operation, or no more than 60 days after an unexpected event has occurred which has affected the closure plan. If an unexpected event has occurred during the partial or final closure period, the owner or operator must submit the modified plan no more than 30 days after the unexpected event. These provisions also apply to owners or operators of surface impoundments and waste piles who intended to remove all hazardous wastes at closure but are required to close as landfills in accordance with §265.310. If the amendment to the plan is a Class 2 or 3 modification according to the criteria in §122.42, the modification to the plan will be approved according to the procedures in §265.112(d)(4).
(4) The Secretary may request modifications to the plan under the conditions described in paragraph (c)(1) of this section. An owner or operator with an approved closure plan must submit the modified plan within 60 days of the request from the Secretary, or within 30 days if the unexpected event occurs during partial or final closure. If the amendment is considered a Class 2 or 3 modification according to the criteria in §122.42, the modification to the plan will be approved in accordance with the procedures in §265.112(d)(4).
(1) The owner or operator must submit the closure plan to the Secretary at least 180 days prior to the date on which he expects to begin closure of the first surface impoundment, waste pile, land treatment, or landfill unit, or final closure if it involves such a unit, whichever is earlier. The owner or operator must submit the closure plan to the Secretary at least 45 days prior to the date on which he expects to begin partial or final closure of a boiler or industrial furnace. The owner or operator must submit the closure plan to the Secretary at least 45 days prior to the date on which he expects to begin final closure of a facility with only tanks, container storage, or incinerator units. Owners or operators with approved closure plans 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, landfill, or land treatment unit, or final closure of a facility involving such a unit. Owners or operators with approved closure plans 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. Owners or operators with approved closure plans 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 tanks, container storage, or incinerator units.
(2) The date when he "expects to begin closure" must be either:
(i) Within 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 interim status requirements, the Secretary may approve an extension to this one-year limit; or
(ii) For units meeting the requirements of §265.113(d), no later than 30 days after the date on which the hazardous waste management unit receives the known final volume of nonhazardous wastes, or if there is a reasonable possibility that the hazardous waste management unit will receive additional nonhazardous wastes, no later than one year after the date on which the unit received the most recent volume of nonhazardous wastes. If the owner or operator can demonstrate to the Secretary that the hazardous waste management unit has the capacity to receive additional nonhazardous 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 interim status requirements, the Secretary may approve an extension to this one-year limit.
(3) The owner or operator must submit his closure plan to the Secretary no later than 15 days after:
(i) Termination of interim status except when a permit is issued simultaneously with termination of interim status; or
(ii) Issuance of a judicial decree or final order under 7 Del.C., §6309 to cease receiving hazardous wastes or close.
(4) The Secretary will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the plan and request modifications to the plan no later than 30 days from the date of the notice. He will also, in response to a request or at his own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning a closure plan. The Secretary will give public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined). The Secretary will approve, modify, or disapprove the plan within 90 days of its receipt. If the Secretary does not approve the plan he shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The Secretary will approve or modify this plan in writing within 60 days. If the Secretary modifies the plan, this modified plan becomes the approved closure plan. The Secretary must assure that the approved plan is consistent with §§ 265.111 through 265.115 and the applicable requirements of Subpart F of this part, and §§ 265.197, 265.228, 265.258, 265.280, 265.310, 265.351, 265.381, 265.404, and 265.1102. A copy of the modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator.
(f) Tank Closure at less than 90 day/180 day generator sites
(1) The owner or operator of a tank used to accumulate hazardous waste under the requirements of Part 262 of these regulations at less than 90 day generator sites, or at 180/270 day generator sites with a tank capacity greater than 1000 gallons, must submit a written closure plan to the Secretary for approval at least 45 days prior to the date on which he expects to begin closure of one or more hazardous waste tank systems, so as to close his tank(s) in a manner that:
(a) Minimizes the need for further maintenance; and
(b) Controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere; and
(c) Complies with the closure requirements of this section.
(2) At a minimum the plan shall identify the steps necessary to perform final closure of each tank system to be removed from hazardous waste service. The plan is to include:
(a) A description of each hazardous waste tank system to be closed and how each hazardous waste tank system will be closed to achieve the requirements of §265.112(f)(1); and
(b) A detailed description of the steps necessary to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during closure, including but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and the criteria for determining the extent of decontamination necessary to satisfy the plan’s closure performance standard; and
(c) A detailed description of other activities necessary during the closure period to ensure the closure satisfies the plan’s stated closure performance standard; and
(d) A schedule for closure for each hazardous waste tank system; and
(e) Provisions if the closure performance standard cannot be achieved.
(3) At closure of a tank system, the owner or operator must remove or decontaminate all waste residues, contaminated containment system components, contaminated soils, and structures and equipment contaminated with waste. By removing all hazardous waste or hazardous constituents during closure, the owner or operator may generate hazardous waste and must handle that hazardous waste in accordance with all applicable requirements of Part 262 of these regulations unless §261.3(d) of these regulations applies. (4) If the owner or operator cannot demonstrate that the closure performance standard can be achieved or that not all contaminated soils can be practicably removed or decontaminated as required in paragraph (3) of this section, then the owner or operator must close the tank system and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills. In addition, for the purposes of closure, post-closure, and financial responsibility, such a tank system is then considered to be a landfill and the owner or operator must meet all of the requirements for landfills specified in Subparts G and H of part 264.
(5) Within 60 days of completion of closure of each hazardous waste tank system, the owner or operator must submit to the Secretary, a written certification that the hazardous waste tank system was closed in accordance with the specifications in the approved closure plan. The certification must be signed by the owner or operator. Documentation supporting the certification must be furnished to the Secretary upon request.

Section 265.113 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 interim status 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 interim status requirements.
(1) The demonstrations 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 demonstrations in paragraph (b) must be made at least 30 days prior to the expiration of the 180‑day period in paragraph (b).

Section 265.114 Disposal or decontamination of equipment, structures and soils.

(Amended August 29, 1988; August 10, 1990)

Section 265.115 Certification of closure.

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

Section 265.116 Survey plat.

Section 265.117 Post‑Closure care and use of property.

(a) (1) Post‑closure care for each hazardous waste management unit subject to the requirements of §§ 265.117 ‑ 265.120 must begin after completion of closure of the unit and continue for 30 years after that date. It must consist of at least the following:
(i) Monitoring and reporting in accordance with the requirements of Subparts F, K, L, M, and N of this part; and
(ii) Maintenance and monitoring of waste containment systems in accordance with the requirements of Subparts F, K, L, M, and N of this part.
(2) Any time preceding 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 hazardous waste disposal unit, the Secretary may:
(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 period is sufficient to protect human health and the environment (e.g., leachate or ground‑water monitoring results, characteristics of the hazardous waste, 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 265.118 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, and N 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, and N of this part; and
(ii) The function of the monitoring equipment in accordance with the requirements of Subparts F, K, L, M, and N 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 subject to §265.121, provisions that satisfy the requirements of §265.121(a)(1) and (3).
(5) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 265.90(f), 265.110(d), and/or 265.140(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 must amend the post‑closure plan whenever:
(i) Changes in operating plans or facility design affect the post‑closure plan.
(ii) Events which occur during the active life of the facility, including partial and final closures, affect the post‑closure plan.
(iii) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 265.90(f), 265.110(d), and/or 265.140(d).
(2) The owner or operator must amend the post‑closure plan 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.
(3) An owner or operator with an approved post‑closure plan must submit the modified plan to the Secretary at least 60 days prior to the proposed change in facility design or operation, or no more than 60 days after an unexpected event has occurred which has affected the post‑closure plan. If an owner or operator of a surface impoundment or a waste pile who intended to remove all hazardous wastes at closure in accordance with §265.228(b) or 265.258(a) is required to close as a landfill in accordance with §265.310, the owner or operator must submit a post‑closure plan within 90 days of the determination by the owner or operator or Secretary that the unit must be closed as a landfill. If the amendment to the post‑closure plan is a Class 2 or 3 modification according to the criteria in §122.42, the modification to the plan will be approved according to the procedures in §265.118(f).
(4) The Secretary may request modifications to the plan under the conditions described in above paragraph (d)(1). An owner or operator with an approved post‑closure plan must submit the modified plan no later than 60 days of the request from the Secretary. If the amendment to the plan is considered a Class 2 or 3 modification according to the criteria in §122.42, the modifications to the post‑closure plan will be approved in accordance with the procedures in §265.118(f). If the Secretary determines that an owner or operator of a surface impoundment or waste pile who intended to remove all hazardous wastes at closure must close the facility as a landfill, the owner or operator must submit a post‑closure plan for approval to the Secretary within 90 days of the determination.
(1) Termination of interim status (except when a permit is issued to the facility simultaneously with termination of interim status); or
(2) Issuance of a judicial decree or final orders under 7 Del.C., §6309 to cease receiving wastes or close.
(1) The owner or operator or any member of the public may petition the Secretary to extend or reduce the post‑closure care period applicable to a hazardous waste management unit or facility based on cause, or alter the requirements of the post‑closure care period based on cause.
(i) The petition must include evidence demonstrating that:
(A) The secure nature of the hazardous waste management unit or facility makes the post‑closure care requirement(s) unnecessary or supports reduction of the post‑closure care period specified in the current post‑closure plan (e.g., leachate or ground‑water monitoring results, characteristics of the wastes, application of advanced technology, or alternative disposal, treatment, or re‑use techniques indicate that the facility is secure), or
(B) The requested extension in the post‑closure care period or alteration of post‑closure care requirements is necessary to prevent threats to 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).
(ii) These petitions will be considered by the Secretary only when they present new and relevant information not previously considered by the Secretary. Whenever the Secretary is considering a petition, he will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice. He will also, in response to a request or at his own discretion, hold a public hearing whenever a hearing might clarify one or more issues concerning the post‑closure plan. The Secretary will give the public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for written public comments, and the two notices may be combined.) After considering the comments, he will issue a final determination, based upon the criteria set forth in paragraph (g)(1) of this section.
(iii) If the Secretary denies the petition, he will send the petitioner a brief written response giving a reason for the denial.
(2) The Secretary may tentatively decide to modify the post‑closure plan if he deems it necessary to prevent threats to human health and the environment. He may propose to extend or reduce the post‑closure care period applicable to a hazardous waste management unit or facility based on cause or alter the requirements of the post‑closure care period based on cause.
(i) The Secretary will provide the owner or operator and the affected public, through a newspaper notice, the opportunity to submit written comments within 30 days of the date of the notice and the opportunity for a public hearing as in subparagraph (g)(1)(ii) of this section. After considering the comments, he will issue a final determination.
(ii) The Secretary will base his final determination upon the same criteria as required for petitions under paragraph (g)(1)(i) of this section. A modification of the post‑closure plan may include, where appropriate, the temporary suspension rather than permanent deletion of one or more post‑closure care requirements. At the end of the specified period of suspension, the Secretary would then determine whether the requirement(s) should be permanently discontinued or reinstated to prevent threats to human health and the environment.

Section 265.119 Post‑Closure notices.

(a) No later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator must submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a record of the type, location, and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before January 12, 1981, the owner or operator must identify the type, location and quantity of the hazardous wastes to the best of his knowledge and in accordance with any records he has kept.
(b) Within 60 days of certification of closure of the first hazardous waste disposal unit and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator must:
(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 265, 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 §265.116 and §265.119(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 and 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
(2) The amendment of the environmental covenant or instrument indicating the removal of the hazardous waste.

Section 265.120 Certification of Completion of Post‑Closure Care.

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

Section 265.121 Post‑closure requirements for facilities that obtain enforceable documents in lieu of post‑closure permits.

(1) The requirements to submit information about the facility in §122.28;
(2) The requirements for facility‑wide corrective action in §264.101 of these regulations;
(3) The requirements of §§ 264.91 through 264.100.
(b) (1) The Secretary, in issuing enforceable documents under §265.121 in lieu of permits, will assure a meaningful opportunity for public involvement which, at a minimum, includes public notice and opportunity for public comment:
(i) When DNREC becomes involved in a remediation at the facility as a regulatory or enforcement matter;
(ii) On the proposed preferred remedy and the assumptions upon which the remedy is based, in particular those related to land use and site characterization; and
(iii) At the time of a proposed decision that remedial action is complete at the facility. These requirements must be met before the Secretary may consider that the facility has met the requirements of §122.1(c)(7), unless the facility qualifies for a modification to these public involvement procedures under paragraph (b)(2) or (3) of this section.
(2) If the Secretary determines that even a short delay in the implementation of a remedy would adversely affect human health or the environment, the Secretary may delay compliance with the requirements of paragraph (b)(1) of this section and implement the remedy immediately. However, the Secretary must assure involvement of the public at the earliest opportunity, and, in all cases, upon making the decision that additional remedial action is not needed at the facility.
(3) The Secretary may allow a remediation initiated prior to October 22, 1998 to substitute for corrective action required under a post‑closure permit even if the public involvement requirements of paragraph (b)(1) of this section have not been met so long as the Secretary assures that notice and comment on the decision that no further remediation is necessary to protect human health and the environment takes place at the earliest reasonable opportunity after October 22, 1998.

Section 265.140 Applicability.

(1) Disposal facilities;
(2) Tank systems that are required under §265.197 of these regulations to meet the requirements for landfills; and
(3) Containment buildings that are required under §265.1102 to meet the requirements for landfills.
(1) Prescribes alternative requirements for the regulated unit under §§ 265.90(f) and/or 265.110(d), 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.

Section 265.141 Definitions of terms as used in this subpart.

(a) "Closure plan" means the plan for closure prepared in accordance with the requirements of §265.112.
(b) "Current closure cost estimate" means the most recent of the estimates prepared in accordance with §265.142(a), (b), and (c).
(c) "Current post‑closure cost estimate" means the most recent of the estimates prepared in accordance with §265.144(a), (b), (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 §§ 265.117 through 265.120.
"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 worth" means total assets minus total liabilities and is equivalent to owner's equity.
"Net working capital" means current assets minus current liabilities.
"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as good will 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 practice, are excluded from coverage in liability policies for bodily injury and property damage. The agency intends the meaning 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 stand point 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 265.142 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 §265.112(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 §265.141(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 by the sale of hazardous wastes, facility structures or equipment land or other facility assets at the time of partial or final closures.
(4) The owner or operator may not incorporate a zero cost for hazardous waste 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 265.143 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. 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 20 years beginning with the effective date of these regulations or over the remaining operation 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) The first payment must be made by the effective date of these regulations, except as provided in paragraph (a)(5) of this section. The first payment must be at least equal to the current closure cost estimate, except as provided in §265.143(f), divided by the number of years in the pay‑in period.
(ii) 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
(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 the section, his first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annually payments made as specified in paragraph (a)(3) of this section.
(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 the new estimate, the owner or operator, within 60 days after the change in the 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 paragraph (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. No later than 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 §265.143(h) 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 to the owner or operator 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 §265.143(h).
(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. 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(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 standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §265.143(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 §265.143(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 other owner or operator and the Secretary of the 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 §265.143(f).
(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 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 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 an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the Secretary. 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 §265.143(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 §265.143(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 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 closure of the facility by the letter of credit.
(5) The letter of credit must be irrevocable and issued for a period of at least 1 year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Secretary by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the Secretary have received the notice, as evidenced by the return receipts.
(6) The letter of credit must be issued in an amount at least equal to the current closure cost estimate except as provided in §265.143(f).
(7) Whenever the current closure cost estimate increases to an amount greater than the amount of the credit the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals 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 amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(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 approved closure plan when required to do so, the Secretary may draw on the letter of credit.
(9) 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 the 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. The 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.
(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 §265.143(h).
(1) An owner or operator may satisfy the requirements of this section by obtaining closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the Secretary. By the effective date of these regulations the owner or operator must submit to the Secretary a letter from an insurer stating that the insurer is considering issuance of closure insurance conforming to the requirements of this paragraph to the owner or operator. Within 90 days after the effective date of these regulations, the owner or operator must submit the certificate of insurance to the Secretary or establish other financial assurance as specified in this section. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(2) The wording of the certificate of insurance must be identical to the wording specified in §264.151(e).
(3) The closure insurance policy must be issued for a face amount at least equal to the current closure cost estimate, except as provided in §265.143(f). 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.
(4) The closure insurance policy must guarantee that funds will be available to close the facility whenever final closure occurs. The policy must also guarantee that once final closure begins, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the Secretary, to such party or parties as the Secretary specifies.
(5) After beginning partial or final closure, an owner or operator or any other person authorized to conduct closure may request reimbursements for closure expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the Secretary will instruct the insurer to make reimbursements in such 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 face amount of the policy, he may withhold reimbursement of such amounts as he deems prudent until he determines in accordance with §265.143(h), that the owner or operator is no longer required to maintain financial assurance for final closure of the particular facility. If the Secretary does not instruct the insurer to make such reimbursements, he will provide to the owner or operator a detailed written statement of reasons.
(6) The owner or operator must maintain the policy in full force and effect until the Secretary consents to termination of the policy by the owner or operator as specified in paragraph (d)(10) of this section. Failure to pay the premium, without substitution of alternate financial assurance as specified in this section will constitute a significant violation of these regulations, warranting such remedy as the Secretary deems necessary. Such violation will be deemed to begin upon receipt by the Secretary of a notice of further cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.
(7) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.
(8) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the Secretary. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the Secretary and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:
(i) The Secretary deems the facility abandoned; or
(ii) Interim status is terminated or revoked; 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.
(9) Whenever the current closure cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, must either cause the face amount 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 face amount of the current closure cost estimate following written approval by the Secretary.
(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 §265.143(h).
(1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph (e)(1)(i) or (e)(1)(ii) of this section:
(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 his total assets or at least six times the sum of the current closure and post‑closure cost.
(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 his 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 (e)(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)).
(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Secretary:
(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.
(4) The owner or operator may obtain an extension of the time allowed for submission of the documents specified in paragraph (e)(3) of this section if the fiscal year of the owner or operator ends during the 90 days prior to the effective date of these regulations and if the year‑end financial statements for that fiscal year will be audited by an independent certified public accountant. The extension will end no later than 90 days after the end of the owner's or operator's fiscal year. To obtain the extension, the owner's or operator's chief financial officer must send, by the effective date of these regulations, a letter to the Secretary and to the EPA Regional Administrator of each Region in which the owner's or operator's facilities to be covered by the financial test are located. This letter from the chief financial officer must:
(i) Request the extension;
(ii) Certify that he has grounds to believe that the owner or operator meets the criteria of the financial test;
(iii) Specify for each facility to be covered by the test the EPA identification number, name, address, and current closure and post‑closure cost estimates to be covered by the test;
(iv) Specify the date ending the owner's or operator's last complete fiscal year before the effective date of these regulations;
(v) Specify the date, no later than 90 days after the end of such fiscal year, when he will submit the documents specified in paragraph (e)(3) of this section; and
(vi) Certify that the year‑end financial statements of the owner or operator for such fiscal year will be audited by an independent certified public accountant.
(5) After the initial submission of items specified in paragraph (e)(3) of this section, the owner or operator must send updated information to the Secretary within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (e)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph (e)(1) of this section, he must send notice to the Secretary of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year‑end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.
(7) The Secretary may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (e)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (e)(3) of this section. If the Secretary finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (e)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.
(8) The Secretary may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (e)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Secretary will evaluate other qualifications on an individual. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.
(9) The owner or operator is no longer required to submit the items specified in paragraph (e)(3) of this section 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 §265.143(h).
(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 (e)(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). A certified copy of the guarantee must accompany the items sent to the DNREC Secretary as specified in paragraph (e)(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 interim status requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §265.143(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 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.
(g) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the Secretary must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for closure assured by the mechanism. If the facilities covered by the mechanism are outside the State, identical evidence of financial assurance must be submitted to and maintained with the Secretary and Regional Administrators of all appropriate EPA Regions. If the facilities covered by the mechanism are in more than one State identical evidence of financial assurance must be submitted to and maintained with the State Agency regulating hazardous waste or with the appropriate Regional Administrator if the facility is located in an unauthorized State. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each
(Amended August 29, 1988, August 1, 1995, January 1, 1999)
22 DE Reg. 678 (02/01/19)

Section 265.144 Cost Estimate for Post‑Closure Care.

(1) The post‑closure cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct post‑closure care activities. A third party is a party who is neither a parent nor subsidiary of the owner or operator. (See definition of parent corporation in §265.141(d).)
(2) The post‑closure cost estimate is calculated by multiplying the annual post‑closure cost estimate by the number of years of post‑closure care required under §265.117.
3) Owners or operators using the trust fund for post-closure care must include any costs or fees associated with administering the fund into the cost estimate for post-closure care.
(1) The first adjustment is made by multiplying the post‑closure cost estimate by the inflation factor. The result is the adjusted post‑closure cost estimate.
(2) Subsequent adjustments are made by multiplying the latest adjusted post‑closure cost estimate by the latest inflation factor.

Section 265.145 Financial assurance for post‑closure care.

(1) An owner or operator may satisfy the requirements of this section by establishing a post‑closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary. 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 post‑closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made annually by the owner or operator over the 20 years beginning with the effective date of these regulations 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 post‑closure trust fund must be made as follows:
(i) The first payment must be made by the effective date of these regulations, except as provided in paragraph (a)(5) of this section. The first payment must be at least equal to the current post‑closure cost estimate, except as provided in §265.145(f), divided by the number of years in the pay‑in period.
(ii) 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
(4) The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the current post‑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 established post‑closure trust fund after having used one or more alternate mechanisms specified in this section, 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 as specified in paragraph (a)(3) of this section.
(6) After the pay‑in period is completed, whenever the current post‑closure‑cost estimate changes during the operating life of the facility, 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 the new estimate, the owner or operator, within 60 days after the change in the 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 post‑closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
(7) During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post‑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 post‑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 post‑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 paragraph (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) 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 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 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 §265.145(h).
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to requirements of this paragraph and submitting the bond to the Secretary. 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(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 standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §265.145(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 §265.145(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 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 post‑closure cost estimate, except as provided in §265.145(f).
(A) Payments into the trust fund as specified in §265.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post‑closure cost estimates;
(D) Notices of nonpayment as required by the trust agreement.
(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.
(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
(D) Assets in the United States amounting to a least 90 percent of his total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(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; and
(D) Assets located in the United States amounting to at least 90 percent of his total assets or at least six times the sum of the current closure and post‑closure cost estimates.
(2) [Reserved]
(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) 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 §265.145(h).
(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 interim status requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §265.145(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.
(g) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the Secretary must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for post‑closure care assured by the mechanism. If the facilities covered by the mechanism are in more than one Region, identical evidence of financial assurance must be submitted to and maintained with the Regional Administrators of all such Regions. If the facilities covered by the mechanism are in more than one State identical evidence of financial assurance must be submitted to and maintained with the State Agency regulating hazardous waste or with the appropriate Regional Administrator if the facility is located in an unauthorized State. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for post‑closure care of any of the facilities covered by the mechanism, the Secretary may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.
11 DE Reg. 809 (12/01/07)
22 DE Reg. 678 (02/01/19)

Section 265.146 Use of a Mechanism for Financial Assurance of Both Closure and Post‑closure Care.

Section 265.147 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. If requested by a Secretary, the owner or operator must provide a 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.
(1) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this paragraph.
(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. If requested by a Secretary, the owner or operator must provide a 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.
(2) An owner or operator may meet the requirements of this section by passing a financial test or using the guarantee for liability coverage as specified in paragraphs (f) and (g) of this section.
(3) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in paragraph (h) of this section.
(4) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in paragraph (i) of this section.
(5) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in paragraph (j) of this section.
(7) An owner or operator shall notify the Secretary in writing within 30 days whenever:
(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]
(d) Adjustments by the Secretary. If the Secretary determines that the levels of financial responsibility required by paragraphs (a) or (b) of this section are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the Secretary may adjust the level of financial responsibility required under paragraphs (a) or (b) of this section as may be necessary to protect human health and the environment. This adjusted level will be based on the Secretary's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. In addition, if the Secretary determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, he may require that an owner or operator of the facility comply with paragraph (b) of this section. An owner or operator must furnish to the Secretary, within a reasonable time, any information which the Secretary requests to determine whether cause exists for such adjustments of level or type of coverage. The Secretary will process an adjustment of the level of required coverage as if it were a permit modification under §122.15(a)(7)(iii) of these regulations and subject to the procedures of §124.5 of these regulations. Notwithstanding any other provision, the Secretary may hold a public hearing at his discretion or whenever he finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to adjust the level or type of required coverage.
(1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of paragraph (f)(1)(i) or (f)(1)(ii).
(i) The owner or operator must have:
(A) Net working capital and tangible net worth each at least six times the amount of liability coverage 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 in 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 (e)(1) of this section refers to the annual aggregate amounts for which coverage is required under paragraphs (a) and (b) of this section.
(3) To demonstrate that he meets this test, the owner or operator must submit the following three items to the Secretary.
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §265.151(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 is 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.
(4) The owner or operator may obtain a one‑time extension of the time allowed for submission of the documents specified in paragraph (f)(3) of this section if the fiscal year of the owner or operator ends during the 90 days prior to the effective date of these regulations and if the year‑end financial statements for that fiscal year will be audited by an independent certified public accountant. The extension will end no later than 90 days after the end of the owner's or operator's fiscal year. To obtain the extension, the owner's or operator's chief financial officer must send, by the effective date of these regulations, a letter to the Secretary. This letter from the chief financial officer must:
(i) Request the extension;
(ii) Certify that he has grounds to believe that the owner or operator meets the criteria of the financial test;
(iii) Specify for each facility to be covered by the test the EPA identification number, name, address, the amount of liability coverage and, when applicable, current closure and post‑closure cost estimates to be covered by the test;
(iv) Specify the date ending the owner's or operator's last complete fiscal year before the effective date of these regulations;
(v) Specify the date, no later than 90 days after the end of such fiscal year, when he will submit the documents specified in paragraph (f)(3) of this section; and
(vi) Certify that the year‑end financial statements of the owner or operator for such fiscal year will be audited by an independent certified public accountant.
(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Secretary within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of required liability coverage as specified in this section. Evidence of liability coverage must be submitted to the Secretary within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.
(7) The Secretary may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Secretary will evaluate other qualifications on an individual basis. The owner or operator must provide evidence of insurance for the entire amount of required liability coverage as specified in this section within 30 days after notification of disallowance.
(1) Subject to paragraph (g)(2) of this section, an owner or operator may meet the requirements of this section by obtaining a written guarantee, hereinafter referred to as "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 (f)(6) of this section. The wording of the guarantee must be identical to the wording specified in §264.151(h)(2) of these regulations. 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, this 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.
(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]
(2)(i) In the case of corporations incorporated in the United States, a guarantee may be used to satisfy the requirements of this section only if the Attorneys General or Insurance Commissioners of (A) the State in which the guarantor is incorporated, and (B) each State in which a facility covered by the guarantee is located have 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.
(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 which it has its principal place of business, and if
(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.
(2) The financial institution issuing the letter of credit must be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.
(3) The wording of the letter of credit must be identical to the wording specified in § 264.151(k) of these regulations.
(4) An owner or operator who uses a letter of credit to satisfy the requirements of this section may also establish a standby trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund 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.
(5) The wording of the standby trust fund must be identical to the wording specified in §264.151(n).
(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.
(2) The surety company issuing the bond must be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the U.S. Department of the Treasury.
(3) The wording of the surety bond must be identical to the wording specified in §264.151(l) of these regulations.
(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.
(2) 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.
(3) The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the Fund, must either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this section to cover the difference. For purposes of this paragraph, "the full amount of the liability coverage to be provided" means the amount of coverage for sudden and/or nonsudden occurrences required to be provided by the owner or operator by this section, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator.
(4) The wording of the trust fund must be identical to the wording specified in §264.151(m) of this part.
22 DE Reg. 678 (02/01/19)

Section 265.148 Incapacity of Owners or Operators, Guarantors, or Financial Institutions.

Sections 265.149 ‑ 265.150 [Reserved]

Section 265.170 Applicability.

Section 265.171 Condition of containers.

Section 265.172 Compatibility of waste with container.

Section 265.173 Management of containers.

Section 265.174 Inspections.

At least weekly, the owner or operator must inspect areas where containers are stored. The owner or operator must look for leaking containers and for deterioration of containers caused by corrosion or other factors. A written record of the inspections must be maintained onsite for a minimum of 3 years. See §§265.15(c) and 265.171 for remedial action required if deterioration or leaks are detected.

Section 265.175 Containment

(a) In order to prevent the release of hazardous waste or hazardous constituents to the environment, secondary containment that meets the requirements of this section must be provided.

(b) Secondary containment may be provided by one of the three following methods:

(1) Accumulating containers inside a building with a base that underlies the containers and with walls or other curbing all of which are free of cracks or gaps and sufficiently impervious in order to contain leaks and spills until the collected material is detected and removed;

(2) Accumulating containers in a secondary containment system designed and operated as follows:

(i) A base that underlies the containers which is free of cracks or gaps and is sufficiently impervious to contain leaks, spills, and accumulated precipitation until the collected material is detected and removed;

(ii) The base must be sloped or the containment system must be otherwise designed and operated to drain and remove liquids resulting from leaks, spills, or precipitation, unless the containers are elevated or are otherwise protected from contact with accumulated liquids;

(iii) The containment system must have sufficient capacity to contain 10% of the total volume of all containers or the volume of the largest container, whichever is greater. Containers that do not contain free liquids need not be considered in this determination;

(iv) Run-on into the containment system must be prevented unless the collection system has sufficient excess capacity in addition to that required in paragraph (b)(2)(iii) of this section to contain any run-on which might enter the system;

(3) An equivalent method as approved by the Secretary.

(c) Spilled or leaked waste and accumulated precipitation must be removed immediately from the sump or collection area.

[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

16 DE Reg. 784 (01/01/13)

 

Section 265.176 Special requirements for ignitable or reactive waste.

(Amended August 21, 2006)

Section 265.177 Special requirements for incompatible wastes.

Section 265.178 Air emission standards.

Section 265.190 Applicability.

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

Section 265.191 Assessment of existing tank system's integrity.

(1) Design standard(s), if available, according to which the tank and ancillary equipment were constructed;
(2) Hazardous characteristics of the waste(s) that have been or will be handled;
(3) Existing corrosion protection measures;
(4) Documented age of the tank system, if available, (otherwise, an estimate of the age); and
(5) Results of a leak test, internal inspection, or other tank integrity examination such that:
(i) For non‑enterable underground tanks, this assessment must consist of 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,
(ii) For other than non‑enterable underground tanks and for ancillary equipment, this assessment must be either a leak test, as described above, or an internal inspection and/or other tank integrity examination 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 265.192 Design and installation of new tank systems or components.

(1) Design standard(s) according to which the tank(s) and ancillary equipment is or will be constructed.
(2) Hazardous characteristics of the wastes to be handled.
(3) For new tank systems or components in which the external shell of a metal tank or any external metal component of the tank system is or will be in contact with the soil or with water, a determination by a corrosion expert of:
(i) Factors affecting the potential for corrosion, including but not limited to:
(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) Stray electric current; and
(H) Existing corrosion‑protection measures (e.g., coating, cathodic protection).
(ii) The type and degree of external corrosion protection that are needed to ensure the integrity of the tank system during the use of the tank system or component, consisting of one or more of the following:
(A) Corrosion‑resistant materials of construction such as special alloys, fiberglass‑reinforced plastic;
(B) Corrosion‑resistant coating (such as epoxy, fiberglass) with cathodic protection (e.g., impressed current or sacrificial anodes); and
(C) Electrical isolation devices such as insulating joints and flanges.
(4) For underground tank system components that are likely to be affected by vehicular traffic, a determination of design or operational measures that will protect the tank system against potential damage; and
(5) Design considerations to ensure that:
(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; and
(iii) Tank systems will withstand the effects of frost heave.
(1) Weld breaks;
(2) Punctures;
(3) Scrapes of protective coatings;
(4) Cracks;
(5) Corrosion;
(6) Other structural damage or inadequate construction or installation.
22 DE Reg. 678 (02/01/19)

Section 265.193 Containment and detection of releases.

(1) For all new and existing tank systems or components, prior to their being put into service.
(2) For tank systems that store or treat materials that become hazardous wastes, within 2 years of the hazardous waste listing, or when the tank system has reached 15 years of age, whichever comes later.
(1) Designed, installed, and operated to prevent any migration of wastes or accumulated liquid out of the system to the soil, groundwater, or surface water at any time during the use of the tank system; and
(2) Capable of detecting and collecting releases and accumulated liquids until the collected material is removed.
(1) Constructed of or lined with materials that are compatible with the waste(s) to be placed in the tank system and must have sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrological forces), physical contact with the waste to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation (including stresses from nearby vehicular traffic);
(2) Placed on a foundation or base capable of providing support to the secondary containment system and resistance to pressure gradients above and below the system and capable of preventing failure due to settlement, compression or uplift;
(3) Provided with a leak detection system that is designed and operated so that it will detect the failure of either the primary and secondary containment structure or any release of hazardous waste or accumulated liquid in the secondary containment system within 24 hours, or at the earliest practicable time if the existing detection technology or site conditions will not allow detection of a release within 24 hours;
(4) Sloped or otherwise designed or operated to drain and remove liquids resulting from leaks, spills, or precipitation. Spilled or leaked waste and accumulated precipitation must be removed from the secondary containment system within 24 hours, or in as timely a manner as is possible to prevent harm to human health or the environment, if removal of the released waste or accumulated precipitation cannot be accomplished within 24 hours.
(1) A liner (external to the tank);
(2) A vault;
(3) A double‑walled tank; or
(4) An equivalent device as approved by the Secretary.
(1) External liner systems must be:
(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;
(iv) Designed and installed to completely surround the tank and to cover all surrounding earth likely to come into contact with the waste if 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 run‑on or infiltration. Such additional capacity must be sufficient 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 wastes 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 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 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 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 concurs, that the existing leak detection technology or site conditions will not allow detection of a release within 24 hours.
(1) Aboveground piping (exclusive of flanges, joints, valves, and connections) that are visually inspected for leaks on a daily basis;
(2) Welded flanges, welded joints, and welded connections that are visually inspected for leaks on a daily basis;
(3) Sealless or magnetic coupling pumps and sealless valves, that are visually inspected for leaks on a daily basis; and
(4) Pressurized aboveground piping systems with automatic shut‑off devices (e.g., excess flow check valves, flow metering shutdown devices, loss of pressure actuated shut‑off devices) that are visually inspected for leaks on a daily basis.
(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 waste;
(ii) The proposed alternate design and operation;
(iii) The hydrogeologic setting of the facility, including the thickness of soils 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) 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 water in the area,
(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.
(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 and response to 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 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 requirements of §265.197(b);
(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 §265.197(b);
(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 §265.192 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.
(1) The Secretary must be notified in writing by the owner or operator that he intends to conduct and submit a demonstration for a variance from secondary containment as allowed in paragraph (g) of this section according to the following schedule:
(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; and
(ii) For new tank systems, at least 30 days prior to entering into a contract for installation of the tank system.
(2) As part of the notification, the owner or operator must also submit to the Secretary a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration must address each of the factors listed in paragraph (g)(1) or paragraph (g)(2) of this section.
(3) The demonstration for a variance must be completed and submitted to the Secretary within 180 days after notifying the Secretary of intent to conduct the demonstration.
(4) The Secretary will inform the public, through a newspaper notice, of the availability of the demonstration for a variance. The notice shall be placed in a daily or weekly major local newspaper of general circulation and shall provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance. The Secretary also will hold a public hearing, in response to a request or at his own discretion, whenever such a hearing might clarify one or more issues concerning the demonstration for a variance. Public notice of the hearing will be given at least 30 days prior to the date of the hearing and may be given at the same time as notice of the opportunity for the public to review and comment on the demonstration. These two notices may be combined.
(5) The Secretary will approve or disapprove the request for a variance within 90 days of receipt of the demonstration from the owner or operator and will notify in writing the owner or operator and each person who submitted written comments or requested notice of variance decision. If the demonstration for a variance is incomplete or does not include sufficient information, the 90‑day time period will begin when the Secretary receives a complete demonstration, including all information necessary to make a final determination. If the public comment period in paragraph (h)(4) of this section is extended, the 90‑day time period will be similarly extended.
(1) For non‑enterable underground tanks, a leak test that meets the requirements of §265.191(b)(5) must be conducted at least annually;
(2) For other than non‑enterable underground tanks, and for all ancillary equipment, an annual leak test, as described in paragraph (i)(1) of this section, or an internal inspection or other tank integrity examination by a qualified Professional Engineer that addresses cracks, leaks, corrosion, or erosion must be conducted at least annually. The owner or operator must remove the stored waste from the tank, if necessary, to allow the condition of all internal tank surfaces to be assessed.
(3) The owner or operator must maintain on file at the facility a record of the results of the assessments conducted in accordance with paragraphs (i)(1) through (i)(3) of this section.
(4) If a tank system or component is found to be leaking or unfit‑for‑use as a result of the leak test or assessment in paragraphs (i)(1) through (i)(3) of this section, the owner or operator must comply with the requirements of §265.196.
14 DE Reg. 668 (01/01/11)
22 DE Reg. 678 (02/01/19)

Section 265.194 General operating requirements.

(1) Spill prevention controls (e.g., check valves, dry disconnect couplings);
(2) Overfill prevention controls (e.g., level sensing devices, high level alarms, automatic feed cut‑off, or bypass to a standby tank); and
(3) Maintenance of sufficient freeboard in uncovered tanks to prevent overtopping by wave or wind action or by precipitation.

Section 265.195 Inspections.

(1) Overfill/spill control equipment (e.g., waste‑feed cut‑off systems, bypass systems, and drainage systems) to ensure that it is in good working order;
(2) The aboveground portions of the tank system, if any, to detect corrosion or releases of waste;
(3) Data gathered from monitoring equipment and leak‑detection equipment, (e.g., pressure and temperature gauges, monitoring wells) to ensure that the tank system is being operated according to its design; and
(4) The construction materials and the area immediately surrounding the externally accessible portion of the tank system including secondary containment structures (e.g., dikes) to detect erosion or signs of releases of hazardous waste (e.g., wet spots, dead vegetation);
(1) The proper operation of the cathodic protection system must be confirmed within six months after initial installation, and annually thereafter, and
(2) All sources of impressed current must be inspected and/or tested, as appropriate, at least bimonthly (i.e., every other month).

Section 265.196 Response to leaks or spills and disposition of leaking or unfit‑for‑use tank systems.

(1) If the release was from the tank system, the owner or operator must, within 24 hours after detection of the leak, or, if the owner or operator demonstrates that is not possible, at the earliest practicable time remove as much of the waste as is necessary to prevent further release of hazardous waste to the environment and to allow inspection and repair of the tank system to be performed.
(2) If the release was to a secondary containment system, all released materials must be removed within 24 hours or in as timely a manner as is possible to prevent harm to human health and the environment.
(2) Remove, and properly dispose of, any visible contamination of the soil or surface water.
(1) Any release to the environment, except as provided in paragraph (d)(2) of this section, must be reported to the Secretary within 24 hours of detection. If the release has been reported pursuant to 40 CFR Part 302, that report will satisfy this requirement.
(2) A leak or spill of hazardous waste that is:
(ii) Immediately contained and cleaned‑up is exempted from the requirements of this paragraph.
(3) Within 30 days of detection of a release to the environment, a report containing the following information must be submitted to the Secretary:
(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 areas; and
(v) Description of response actions taken or planned.
(1) Unless the owner or operator satisfies the requirements of paragraphs (e)(2) through (4) of this section, the tank system must be closed in accordance with §265.197.
(2) If the cause of the release was a spill that has not damaged the integrity of the system, the owner/operator may return the system to service as soon as the released waste is removed and repairs, if necessary, are made.
(3) If the cause of the release was a leak from the primary tank system into the secondary containment system, the system must be repaired prior to returning the tank system to service.
(4) If the source of the release as a leak to the environment from a component of a tank system without secondary containment, the owner/operator must provide the component of the system from which the leak occurred with secondary containment that satisfies the requirements of §265.193 before it can be returned to service, unless the source of the leak is an aboveground portion of a tank system. If the source is an aboveground component that can be inspected visually, the component must be repaired and may be returned to service without secondary containment as long as the requirements of paragraph (f) of this section are satisfied. If a component is replaced to comply with the requirements of this subparagraph, that component must satisfy the requirements for new tank systems or components in §§ 265.192 and 265.193. Additionally, if a leak has occurred in any portion of a tank system component that is not readily accessible for visual inspection (e.g., the bottom of an inground or onground tank), the entire component must be provided with secondary containment in accordance with §265.193 prior to being returned to use.
[Note: See §265.15(c) for the requirements necessary to remedy a failure. The owner or operator is subject to the reporting requirements of 7 Del.C. Chapter 60, also, 40 CFR Part 302 requires the owner or operator to notify the National Response Center of a release of any "reportable quantity".]
[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 and the environment.]
22 DE Reg. 678 (02/01/19)

Section 265.197 Closure and post‑closure care.

(1) The closure plan for the tank system must include both a plan for complying with paragraph (a) of this section and a contingent plan for complying with paragraph (b) of this section.
(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.
(3) The cost estimates calculated for closure and post‑closure care must reflect the costs of complying with the contingent closure plan and the contingent post‑closure plan, if these costs are greater than the costs of complying with the closure plan prepared for the expected closure under paragraph (a) of this section.
(4) Financial assurance must be based on the cost estimates in paragraph (c)(3) of this section.
(5) For the purposes of the contingent closure and post‑closure plans, such a tank system is considered to be a landfill, and the contingent plans must meet all of the closure, post‑closure, and financial responsibility requirements for landfills under Subparts G and H of this part.

Section 265.198 Special Requirements for Ignitable or Reactive Wastes.

(1) The waste is treated, rendered, or mixed before or immediately after placement in the tank system so that:
(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 265.17(b) is complied with; or
(2) The waste is stored or treated in such a way that it is protected from any material or conditions that may cause the waste to ignite or react; or
(3) The tank system is used solely for emergencies.

Section 265.199 Special Requirements for incompatible wastes.

Section 265.200 Waste analysis and trial tests.

Section 265.201 [Reserved]

Section 265.202 Air emission standards.

Section 265.220 Applicability.

Section 265.221 Design and operating requirements.

(1) The existing unit was constructed in compliance with the design standards of §3004(o)(1)(A)(i) and (o)(5) of the Resource Conservation and Recovery Act; and
(2) There is no reason to believe that the liner is not functioning as designed.
(1) The monofill contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and such wastes do not contain constituents which would render the wastes hazardous for reasons other than the Toxicity Characteristic in §261.24 of these regulations, with EPA Hazardous Waste Numbers D004 through D017; and
(2) (i) (A) The monofill has at least one liner for which there is no evidence that such liner is leaking. For the purposes of this paragraph the term "liner" means a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner at any time during the active life of the facility, or a liner designed, constructed, installed, and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, ground water, or surface water at any time during the active life of the facility. In the case of any surface impoundment which has been exempted from the requirements of paragraph (a) of this section on the basis of a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner, at the closure of such impoundment the owner or operator must remove or decontaminate all waste residues, all contaminated liner material, and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of such impoundment must comply with appropriate post‑closure requirements, including but not limited to groundwater monitoring and corrective action;
(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 these regulations); and
(C) The monofill is in compliance with generally applicable ground‑water monitoring requirements for facilities with permits under 7 Del.C., Chapter 63.
(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.
22 DE Reg. 678 (02/01/19)

Section 265.222 Action leakage rate.

Section 265.223 Containment system.

Section 265.224 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 longer-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.
(1) (i) Assess the source of liquids and amounts of liquids by source,
(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
(2) Document why such assessments are not needed.
22 DE Reg. 678 (02/01/19)

Section 265.225 Waste analysis and trial tests.

(1) Chemically treat a hazardous waste which is substantially different from waste previously treated in that impoundment; or
(2) Chemically treat hazardous waste with a substantially different process than any previously used in that impoundment; the owner or operator must, before treating the different waste or using the different process:
(i) Conduct waste analyses and trial treatment tests (e.g., bench scale or pilot plant scale tests); or
(ii) Obtain written, documented information on similar treatment of similar waste under similar operating conditions; to show that this treatment will comply with §265.17(b).

Section 265.226 Monitoring and inspection.

(1) The freeboard level at least once each operating day to ensure compliance with §265.222, and
(2) The surface impoundment, including dikes and vegetation surrounding the dike, at least once a week to detect any leaks, deterioration, or failures in the impoundment.
(b) (1) An owner or operator required to have a leak detection system under §265.221(a) must record the amount of liquids removed from each leak detection system sump at least once each week during the active life and closure period.
(2) After the final cover is installed, the amount of liquids removed from each leak detection system sump must be recorded at least monthly. If the liquid level in the sump stays below the pump operating level for two consecutive months, the amount of liquids in the sumps must be recorded at least quarterly. If the liquid level in the sump stays below the pump operating level for two consecutive quarters, the amount of liquids in the sumps must be recorded at least semi-annually. If at any time during the post-closure care period the pump operating level is exceeded at units on quarterly or semi-annual recording schedules, the owner or operator must return to monthly recording of amounts of liquids removed from each sump until the liquid level again stays below the pump operating level for two consecutive months.
(3) "Pump operating level" is a liquid level proposed by the owner or operator and approved by the Secretary based on pump activation level, sump dimensions, and level that avoids backup into the drainage layer and minimizes head in the sump. The timing for submission and approval of the proposed "pump operating level" will be in accordance with §265.222(a).

Section 265.227 [Reserved]

Section 265.228 Closure and post‑closure care.

(1) Remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate, and manage them as hazardous waste unless §261.3(d) of these regulations applies; or
(2) Close the impoundment and provide post‑closure care for a landfill under Subpart G and §265.310, including the following:
(i) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues;
(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 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.
(1) Maintain the integrity and effectiveness of the final cover, including making repairs to the cover as necessary to correct the effects of settling, subsidence, erosion, or other events;
(2) Maintain and monitor the leak detection system in accordance with §§ 264.221(c)(2)(iv) and (3) of these regulations and 265.226(b) and comply with all other applicable leak detection system requirements of this part;
(3) Maintain and monitor the groundwater monitoring system and comply with all other applicable requirements of Subpart F of this part; and
(4) Prevent run‑on and run‑off from eroding or otherwise damaging the final cover.

Section 265.229 Special requirements for ignitable or reactive wastes.

(1) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under §§ 261.21 or 261.23 of these regulations; and
(b) (1) The waste is managed in such a way that it is protected from any material or conditions which may cause it to ignite or react; and
(2) The owner or operator obtains a certification from a qualified chemist or engineer that, to the best of his knowledge and opinion, the design features or operating plans of the facility will prevent ignition or reaction; and

Section 265.230 Special requirements for incompatible wastes.

Section 265.231 Air emission standards.

Section 265.250 Applicability.

Section 265.251 Protection from wind.

Section 265.252 Waste analysis.

Section 265.253 Containment.

(a) (1) The pile must be placed on an impermeable base that is compatible with the waste under the conditions of treatment or storage;
(2) The owner or operator must design, construct, operate, and maintain a run‑on control system capable of preventing flow onto the active portion of the pile during peak discharge from at least a 25‑year storm;
(3) The owner or operator must design, construct, operate, and maintain a run‑off management system to collect and control at least the water volume resulting from a 24‑hour, 25‑year storm; and
(4) Collection and holding facilities (e.g., tanks or basins) associated with run‑on and run‑off control systems must be emptied or otherwise managed expeditiously to maintain design capacity of the system; or
(b) (1) The pile must be protected from precipitation and run‑on by some other means; and
(2) No liquids or wastes containing free liquids may be placed in the pile.

Section 265.254 Design and operating requirements.

Section 265.255 Action leakage rates.

Section 265.256 Special requirements for ignitable or reactive waste.

(1) Addition of the waste to an existing pile (i) results in the waste or mixture no longer meeting the definition of ignitable or reactive waste under §§ 261.21 or 261.23 of these regulations, and (ii) complies with §265.17(b); or
(2) The waste is managed in such a way that it is protected from any material or conditions which may cause it to ignite or react.

Section 265.257 Special requirements for incompatible wastes.

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

Section 265.258 Closure and post‑closure care.

Section 265.259 Response actions.

(1) (i) Assess the source of liquids and amounts of liquids by source,
(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 265.260 Monitoring and inspection.

Section 265.270 Applicability.

Section 265.271 [Reserved]

Section 265.272 General operating requirements.

Section 265.273 Waste analysis

(Comment: Part 261 of these regulations specifies the substance for which a waste listed as a hazardous waste. As required by §265.13, the waste analysis plan must include analyses needed to comply with §§ 265.281 and 265.282. As required by §265.73, the owner or operator must place the results from each waste analysis, or the documented information, in the operating record of the facility.)

Section 265.274 ‑ 265.275 [Reserved]

Section 265.276 Food chain crops.

(b) (1) Food chain crops must not be grown on the treated area of a hazardous waste land treatment facility unless the owner or operator can demonstrate, based on field testing, that any arsenic, lead, mercury, or other constituents identified under §265.273(b):
(i) Will not be transferred to the food portion 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 concentrations in the crops grown on the land treatment facility than in the same crops grown on untreated soils under similar conditions in the same region.
(i) Be based on tests for the specific waste and application rates being used at the facility; and
(ii) Include descriptions of crop and soil characteristics, sample selection criteria, sample size determination, analytical methods, and statistical procedures.
(1) (i) The pH of the waste and soil mixture is 6.5 or greater at the time of each waste application, except for waste containing cadmium at concentrations of 2 mg/kg (dry weight) or less;
(ii) The annual application of cadmium from waste does not exceed 0.5 kilograms per hectare (kg/ha) on land used for production of tobacco, leafy vegetables, or root crops grown for human consumption for other food chain crops, the annual cadmium application rate does not exceed:
Present to June 30, 1984                      2.00
Beginning Jan. 1, 1987                        0.50
(iii) The cumulative application of cadmium from waste does not exceed the levels in either paragraph (c)(1)(iii)(A) of this section or paragraph (c)(1)(iii)(B) of this section.
(A)
(B) For soils with a background pH of less than 6.5, the cumulative cadmium application rate does not exceed the levels below: Provided, that the pH of the waste and soil mixture is adjusted to and maintained at 6.5 or greater whenever food chain crops are grown.
(2) (i) The only food chain crop produced is animal feed.
(ii) The pH of the waste and soil mixture is 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 is maintained whenever food chain crops are grown.
(iii) There is a facility operating plan which demonstrates how the animal feed will be distributed to preclude ingestion by humans. The facility operating plan describes the measures to be taken to safeguard against possible health hazards from cadmium centering the food chain, which may result from alternative land uses.
(iv) Future property owners are 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 (c)(2) of this section.

Section 265.277 [Reserved]

Section 265.278 Unsaturated zone (zone of aeration) monitoring.

(i) The hazardous waste constituents (as identified in §265.273(a) and (b) in the waste and in the soil; and

Section 265.279 Recordkeeping.

Section 265.280 Closure and post‑closure.

(1) Control of the migration of hazardous waste and hazardous waste constituents from the treated area into the ground water;
(2) Control of the release of contaminated run‑off from the facility into surface water;
(3) Control of the release of airborne particulate contaminants caused by wind erosion; and
(4) Compliance with §265.276 concerning the growth of food‑chain crops.
(1) Type and amount of hazardous waste and hazardous waste constituents applied to the land treatment facility;
(2) The mobility and the expected rate of migration of the hazardous waste and hazardous waste constituents;
(3) Site location, topography, and surrounding land use, with respect to the potential effects of pollutant migration (e.g., proximity to groundwater, surface water and drinking water sources);
(4) Climate, including amount, frequency, and pH of precipitation;
(5) Geological and soil profiles and surface and subsurface hydrology of the site, and soil characteristics, including cation exchange capacity, total organic carbon, and pH;
(6) Unsaturated zone monitoring information obtained under §265.278; and
(7) Type, concentration, and depth of migration of hazardous waste constituents in the soil as compared to their background concentrations.
(1) Removal of contaminated soils;
(2) Placement of a final cover, considering:
(i) Functions of the cover (e.g., infiltration control, erosion and run‑off control, and wind erosion control); and
(ii) Characteristics of the cover, including material, final surface contours, thickness, porosity and permeability, slope, length of run of slope, and type of vegetation on the cover; and
(3) Monitoring of groundwater.
(1) Continue unsaturated zone monitoring in a manner and frequency specified in the closure plan, except that soil pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone;
(2) Maintain the run‑on control system required under §265.272(b);
(4) Control wind dispersal of particulate matter which may be subject to wind dispersal.
(1) Continue soil‑core monitoring by collecting and analyzing samples in a manner and frequency specified in the post‑closure plan:
(2) Restrict access to the unit as appropriate for its post‑closure use;
(4) Control wind dispersal of hazardous waste.
22 DE Reg. 678 (02/01/19)

Section 265.281 Special requirements for ignitable or reactive waste.

(1) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under §§ 261.21 or 262.23 of these regulations, and

Section 265.282 Special requirements for incompatible wastes.

Section 265.300 Applicability.

Section 265.301 Design and operating requirements.

(2) (i) (A) The monofill has at least one liner for which there is no evidence that such liner is leaking;
(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 these regulations); 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 265.302 Action leakage rate.

Section 265.303 Response actions.

(1) (i) Assess the source of liquids and amounts of liquids by source,
(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 265.304 Monitoring and inspection.

Sections 265.305 ‑ 265.308 [Reserved]

Section 265.309 Surveying and recordkeeping.

Section 265.310 Closure and post‑closure care.

Section 265.311 [Reserved]

Section 265.312 Special requirements for ignitable or reactive waste.

(1) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under §261.21 or §281.23 of these regulations, and
(2) Section 265.17(b) is complied with.

Section 265.313 Special requirements for incompatible wastes.

Section 265.314 Special requirements for liquid bulk and containerized liquids.

(i) has been removed by decanting, or other methods;
(ii) has been mixed with sorbent or solidified so that free-standing liquid is no longer observed; or
(iii) had been otherwise eliminated; or
(i) Inorganic minerals, other inorganic materials, and elemental carbon (e.g., aluminosilicates, clays, smectites, Fuller's earth, bentonite, calcium bentonite, montmorillonite, calcined montmorillonite, kaolinite, micas (illite), vermiculites, zeolites; calcium carbonate (organic free limestone); oxides/hydroxides, alumina, lime, silica (sand), diatomaceous earth; perlite (volcanic glass); expanded volcanic rock; volcanic ash; cement kiln dust; fly ash; rice hull ash; activated charcoal/activated carbon); or
(ii) High molecular weight synthetic polymers (e.g., polyethylene, high density polyethylene (HDPE), polypropylene, polystyrene, polyurethane, polyacrylate, polynorborene, polyisobutylene, ground synthetic rubber, cross-linked allylstyrene and tertiary butyl copolymers). This does not include polymers derived from biological material or polymers specifically designed to be degradable; or
(iii) Mixtures of these nonbiodegradable materials.
(i) The sorbent material is determined to be nonbiodegradable under ASTM Method G21-70 (1984a)-Standard Practice for Determining Resistance of Synthetic Polymer Materials to Fungi; or
(ii) The sorbent material is determined to be nonbiodegradable under ASTM Method G22-76
(iii) The sorbent material is determined to be non-biodegradable under OECD test 301B: [CO2 Evolution (Modified Sturm Test)].
22 DE Reg. 678 (02/01/19)

Section 265.315 Special requirements for containers.

(a) At least 90 percent full when placed in the landfill; or

Section 265.316 Disposal of small containers of hazardous waste in overpacked drums (lab packs).

(Amended June 19, 1992, August 1, 1995)
15 DE Reg. 862 (12/01/11)
(1) Except as provided by paragraph (b)(2) of this section, the standards of this part no longer apply when an owner or operator demonstrates compliance with the maximum achievable control technology (MACT) requirements of 40 CFR Part 63, Subpart EEE, by conducting a comprehensive performance test and submitting to the EPA Administrator with a copy to the DNREC Solid and Hazardous Waste Management Section, a Notification of Compliance under 40 CFR §§ 63.1207(j) and 63.1210(d) documenting compliance with the requirements of 40 CFR Part 63, Subpart EEE.

Section 265.341 Waste analysis.

Section 265.342 ‑ 265.344 [Reserved]

Section 265.345 General operating requirements.

Section 265.346 [Reserved]

Section 265.347 Monitoring and inspections.

Sections 265.348 ‑ 265.350 [Reserved]

Section 265.351 Closure.

Section 265.352 Interim status incinerators burning particular hazardous wastes.

(3) After the close of the public comment period, the Secretary will issue a decision whether or not to certify the incinerator.

Sections 265.353 ‑ 265.369 [Reserved]

Section 265.370 Other thermal treatment.

Sections 265.371 ‑ 265.372 [Reserved]

Section 265.373 General operating requirements.

Before adding hazardous waste, the owner or operator must bring his thermal treatment process to steady state (normal) conditions of operation‑including steady state operating temperature‑using auxiliary fuel or other means, unless the process is a non‑continuous (batch) thermal treatment process which requires a complete thermal cycle to treat a discrete quantity of hazardous waste.

Section 265.374 [Reserved]

Section 265.375 Waste analysis.

Section 265.376 [Reserved]

Section 265.377 Monitoring and inspections.

Sections 265.378 ‑ 265.380 [Reserved]

Section 265.381 Closure.

Section 265.382 Open burning; waste explosives.

Section 265.383 Interim status thermal treatment devices burning particular hazardous wastes.

Section 265.400 Applicability.

Section 265.401 General operating requirements.

Section 265.402 Waste analysis and trial tests.

(i) Conduct waste analyses and trial treatment tests (e.g., bench scale or pilot plant scale test); or
(ii) Obtain written, documented information on similar treatment of similar waste under similar operating conditions; to show that this proposed treatment will meet all applicable requirements of §265.401 (a) and (b).

Section 265.403 Inspections.

Section 265.404 Closure.

Section 265.405 Special requirements for ignitable or reactive waste.

(i) The resulting waste, mixture, or dissolution of material no longer meets the definition of ignitable or reactive waste under §§ 261.21 or 261.23 of these regulations, and
(ii) Section 265.17(b) is compiled with; or

Section 265.406 Special requirements for incompatible wastes.

Section 265.440 Applicability.

(i) Clean up the drippage;
(ii) Document the cleanup of the drippage;
(iii) Retain documents regarding cleanup for three years; and
(iv) Manage the contaminated media in a manner consistent with these regulations.

Section 265.441 Assessment of existing drip pad integrity.

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

Section 265.442 Design and installation of new drip pads.

Section 265.443 Design and operating requirements.

(4)(i) Have a hydraulic conductivity of less than or equal to 1 x 10-7 centimeters per second, e.g., existing concrete drip pads must be sealed, coated, or covered with a surface material with a hydraulic conductivity of less than or equal to 1 x 10-7 centimeters per second such that the entire surface where drippage occurs or may run across is capable of containing such drippage and mixtures of drippage and precipitation, materials, or other wastes while being routed to an associated collection system. This surface material must be maintained free of cracks and gaps that could adversely affect its hydraulic conductivity, and the material must be chemically compatible with the preservatives that contact the drip pad. The requirements of this provision apply only to existing drip pads and those drip pads for which the owner or operator elects to comply with §265.442(b) instead of §265.442(a).
(ii) The owner or operator must obtain and keep on file at the facility a written assessment of the drip pad, reviewed and certified by a qualified Professional Engineer that attests to the results of the evaluation. The assessment must be reviewed, updated and recertified annually. The evaluation must document the extent to which the drip pad meets the design and operating standards of this section, except for paragraph (b) of this section.
(1) A synthetic liner installed below the drip pad that is designed, constructed, and installed to prevent leakage from the drip pad into the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the drip pad. The liner must be constructed of materials that will prevent waste from being absorbed into the liner and prevent releases into the adjacent subsurface soil or ground water or surface water during the active life of the facility. The liner must be:
(i) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or drip pad leakage to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation (including stresses from vehicular traffic on the drip pad);
(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 that could come in contact with the waste or leakage; and
(i) Constructed of materials that are:
(A) Chemically resistant to the waste managed in the drip pad and the leakage that might be generated; and
(B) Of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying materials and by any equipment used at the drip pad; and
(ii) Designed and operated to function without clogging through the scheduled closure of the drip pad.
(iii) Designed so that it will detect the failure of the drip pad or the presence of a release of hazardous waste or accumulated liquid at the earliest practicable time.
(i) Enter a record of the discovery in the facility operating log;
(ii) Immediately remove the portion of the drip pad affected by the condition from service;
(iii) Determine what steps must be taken to repair the drip pad, remove any leakage from below the drip pad, and establish a schedule for accomplishing the clean up and repairs;
(iv) Within 24 hours after discovery of the condition, notify the Secretary of the condition and, within 10 working days, provide a written notice to the Secretary with a description of the steps that will be taken to repair the drip pad, and clean up any leakage, and the schedule for accomplishing this work.
22 DE Reg. 678 (02/01/19)

Section 265.444 Inspections.

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

Section 265.445 Closure.

(c) (1) The owner or operator of an existing drip pad, as defined in §265.440 of this subpart, that does not comply with the liner requirements of §265.443(b)(1) must:

Section 265.1030 Applicability.

(c) [Reserved]
24 DE Reg. 711 (01/01/21)

Section 265.1031 Definitions.

Section 265.1032 Standards: Process vents.

Section 265.1033 Standards: Closed-vent systems and control devices.

(a) (1) Owners or operators of closed-vent systems and control devices used to comply with provisions of this part shall comply with the provisions of this section.
(2) (i) The owner or operator of an existing facility who cannot install a closed-vent system and control device to comply with the provisions of this subpart on the effective date that the facility becomes subject to the requirements of this subpart must prepare an implementation schedule that includes dates by which the closed-vent system and control device will be installed and in operation. The controls must be installed as soon as possible, but the implementation schedule may allow up to 30 months after the effective date that the facility becomes subject to this subpart for installation and startup.
(ii) Any unit that begins operation after December 21, 1990, and is subject to the requirements of this subpart when operation begins, must comply with the rules immediately (i.e., must have control devices installed and operating on startup of the affected unit); the 30-month implementation schedule does not apply.
(d) (1) A flare shall be designed for and operated with no visible emissions as determined by the methods specified in paragraph (e)(1) of this section, except for periods not to exceed a total of 5 minutes during any 2 consecutive hours.
(ii) A steam-assisted or nonassisted flare designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, equal to or greater than 18.3 m/s (60 ft/s) but less than 122 m/s (400 ft/s) is allowed if the net heating value of the gas being combusted is greater than 37.3 MJ/scm (1,000 Btu/scf).
(iii) A steam-assisted or nonassisted flare designed for and operated with an exit velocity, as determined by the methods specified in paragraph (e)(3) of this section, less than the velocity, , as determined by the method specified in paragraph (e)(4) of this section, and less than 122 m/s (400 ft/s) is allowed.
(5) An air-assisted flare shall be designed and operated with an exit velocity less than the velocity, , as determined by the method specified in paragraph (e)(5) of this section.
(e) (1) Reference Method 22 in 40 CFR Part 60 shall be used to determine the compliance of a flare with the visible emission provisions of this subpart. The observation period is 2 hours and shall be used according to Method 22.
= Net heating value of the sample, MJ/scm; where the net enthalpy per mole of offgas is based on combustion at 25oC and 760 mm Hg, but the standard temperature for determining the volume corresponding to 1 mol is 20oC;
= Constant, 1.74 x 10-7 (1/ppm) (g mol/scm) (MJ/kcal) where standard temperature for (g mol/scm) is 20oC;
= Concentration of sample component in ppm on a wet basis, as measured for organics by Reference Method 18 in 40 CFR Part 60 and measured for hydrogen and carbon monoxide by ASTM D 1946-82 (incorporated by reference as specified in §260.11); and
= Net heat of combustion of sample component , kcal/g mol at 25oC and 760 mm Hg. The heats of combustion may be determined using ASTM D 2382-83 (incorporated by reference as specified in §260.11) if published values are not available or cannot be calculated.
(4) The maximum allowed velocity in m/s, , for a flare complying with paragraph (d)(4)(iii) of this section shall be determined by the following equation:
= The net heating value as determined in paragraph (e)(2) of this section.
= Constant,
= Constant.
(5) The maximum allowed velocity in m/s, , for an air-assisted flare shall be determined by the following equation:
=
= Constant.
= Constant.
= The net heating value as determined in paragraph (e)(2) of this section.
(i) For a thermal vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5oC, whichever is greater. The temperature sensor shall be installed at a location in the combustion chamber downstream of the combustion zone.
(ii) For a catalytic vapor incinerator, a temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature at two locations and have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5oC, whichever is greater. One temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed inlet and a second temperature sensor shall be installed in the vent stream at the nearest feasible point to the catalyst bed outlet.
(iii) For a flare, a heat sensing monitoring device equipped with a continuous recorder that indicates the continuous ignition of the pilot flame.
(iv) For a boiler or process heater having a design heat input capacity less than 44 MW, a temperature monitoring device equipped with a continuous recorder. The device shall have an accuracy of ±1 percent of the temperature being monitored in oC or ±0.5oC, whichever is greater. The temperature sensor shall be installed at a location in the furnace downstream of the combustion zone.
(v) For a boiler or process heater having a design heat input capacity greater than or equal to 44 MW, a monitoring device equipped with a continuous recorder to measure a parameter(s) that indicates good combustion operating practices are being used.
(vi) For a condenser, either:
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the condenser; or
(B) A temperature monitoring device equipped with a continuous recorder. The device shall be capable of monitoring temperature with an accuracy of +1 percent of the temperature being monitored in (oC) or +0.5oC, whichever is greater. The temperature sensor shall be installed at a location in the exhaust vent stream from the condenser exit (i.e., product side).
(vii) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly in the control device, either:
(A) A monitoring device equipped with a continuous recorder to measure the concentration level of the organic compounds in the exhaust vent stream from the carbon bed, or
(B) A monitoring device equipped with a continuous recorder to measure a parameter that indicates the carbon bed is regenerated on a regular, predetermined time cycle.
(i) An initial leak detection monitoring of the closed-vent system shall be conducted by the owner or operator on or before the date that the system becomes subject to this section. The owner or operator shall monitor the closed-vent system components and connections using the procedures specified in §265.1034(b) of this subpart to demonstrate that the closed-vent system operates with no detectable emissions, as indicated by an instrument reading of less than 500 ppmv above background.
(ii) After initial leak detection monitoring required in paragraph (k)(1)(i) of this section, the owner or operator shall inspect and monitor the closed-vent system as follows:
(A) Closed-vent system joints, seams, or other connections that are permanently or semi-permanently sealed (e.g., a welded joint between two sections of hard piping or a bolted and gasketed ducting flange) shall be visually inspected at least once per year to check for defects that could result in air pollutant emissions. The owner or operator shall monitor a component or connection using the procedures specified in §265.1034(b) of this subpart to demonstrate that it operates with no detectable emissions following any time the component is repaired or replaced (e.g., a section of damaged hard piping is replaced with new hard piping) or the connection is unsealed (e.g., a flange is unbolted).
(B) Closed-vent system components or connections other than those specified in paragraph (k)(1)(ii)(A) of this section shall be monitored annually and at other times as requested by the Regional Administrator, except as provided for in paragraph (n) of this section, using the procedures specified in §265.1034(b) of this subpart to demonstrate that the components or connections operate with no detectable emissions.
(iii) In the event that a defect or leak is detected, the owner or operator shall repair the defect or leak in accordance with the requirements of paragraph (k)(3) of this section.
(iv) The owner or operator shall maintain a record of the inspection and monitoring in accordance with the requirements specified in §265.1035 of this subpart.
(i) The closed-vent system shall be visually inspected by the owner or operator to check for defects that could result in air pollutant emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in ductwork or piping or loose connections.
(ii) The owner or operator shall perform an initial inspection of the closed-vent system on or before the date that the system becomes subject to this section. Thereafter, the owner or operator shall perform the inspections at least once every year.
(iii) In the event that a defect or leak is detected, the owner or operator shall repair the defect in accordance with the requirements of paragraph (k)(3) of this section.
(iv) The owner or operator shall maintain a record of the inspection and monitoring in accordance with the requirements specified in §265.1035 of this subpart.
(i) Detectable emissions, as indicated by visual inspection, or by an instrument reading greater than 500 ppmv above background, shall be controlled as soon as practicable, but not later than 15 calendar days after the emission is detected, except as provided for in paragraph (k)(3)(iii) of this section.
(ii) A first attempt at repair shall be made within one calendar day after the emission is detected.
(iii) Delay of repair of a closed-vent system for which leaks have been detected is allowed if the repair is technically infeasible without a process unit shutdown, or if the owner or operator determines that emissions resulting from immediate repair would be greater than the fugitive emissions likely to result from delay of repair. Repair of such equipment shall be completed by the end of the next process unit shutdown.
(iv) The owner or operator shall maintain a record of the defect repair in accordance with the requirements specified in §265.1035 of this subpart.
(i) The owner or operator of the unit has been issued a final permit under Part 122 which implements the requirements of Part 264, Subpart X; or
(ii) The unit is equipped with and operating air emission controls in accordance with the applicable requirements of Subparts AA and CC of either this part or of Part 264; or
(iii) The unit is equipped with and operating air emission controls in accordance with a national emission standard for hazardous air pollutants under 40 CFR Part 61 or 40 CFR Part 63.
(i) Has been issued a final permit under Part 122 which implements the requirements of Part 264, Subpart O; or
(ii) Has designed and operates the incinerator in accordance with the interim status requirements of Subpart O of this part.
(i) Has been issued a final permit under Part 122 which implements the requirements of Part 266, Subpart H; or
(ii) Has designed and operates the boiler or industrial furnace in accordance with the interim status requirements of Part 266, Subpart H.

Section 265.1034 Test methods and procedures.

(i) Method 2 in 40 CFR Part 60 for velocity and volumetric flow rate.
(A) For sources utilizing Method 18.
http://regulations.delaware.gov/AdminCode/graphics/title7graphics/1000/1300/1302/264-49.gif
= Total organic mass flow rate, kg/;
Q2sd = Volumetric flow rate of gases entering or exiting control device, as determined by Method 2, dscm/h;
= Number of organic compounds in the vent gas;
= Organic concentration in ppm, dry basis, of compound in the vent gas, as determined by Method 18;
= Molecular weight of organic compound in the vent gas, kg/kg-mol;
= Conversion factor for molar volume, kg-mol/m3 (@ 293 K and 760 mm Hg);
= Conversion from ppm.
Eh = (Q)(C)(MW)(0.0416)(10-6)
Eh = Total organic mass flow rate, kg/h;
Q = Volumetric flow rate of gases entering or exiting control device, as determined by Method 2, dscm/h
C = Organic concentration in ppm, dry basis; as determined by Method 25A
MW = Molecular weight of propane, 44;
0.0416 = Conversion factor for molar volume, kg-mol/m3 (@ 293 K and 760 mm Hg);
10-6 = conversion from ppm.
(v) The annual total organic emission rate shall be determined by the following equation:
=
= Total organic mass emission rate, kg/y;
= Total organic mass flow rate for the process vent, kg/;
= Total annual hours of operations for the affected unit, .
(vi) Total organic emissions from all affected process vents at the facility shall be determined by summing the hourly total organic mass emission rates (, as determined in paragraph (c)(1)(iv) of this section) and by summing the annual total organic mass emission rates (, as determined in paragraph (c)(1)(v) of this section) for all affected process vents at the facility.
(iv) The arithmetic mean of the results of the analyses of the four samples shall apply for each waste stream managed in the unit in determining the time-weighted, annual average total organic concentration of the waste. The time-weighted average is to be calculated using the annual quantity of each waste stream processed and the mean organic concentration of each waste stream managed in the unit.
22 DE Reg. 678 (02/01/19)

Section 265.1035 Recordkeeping requirements.

(i) Information and data identifying all affected process vents, annual throughput and operating hours of each affected unit, estimated emission rates for each affected vent and for the overall facility (i.e., the total emissions for all affected vents at the facility), and the approximate location within the facility of each affected unit (e.g., identify the hazardous waste management units on a facility plot plan); and
(ii) Information and data supporting determinations of vent emissions and emission reductions achieved by add-on control devices based on engineering calculations or source tests. For the purpose of determining compliance, determinations of vent emissions and emission reductions must be made using operating parameter values (e.g., temperatures, flow rates or vent stream organic compounds and concentrations) that represent the conditions that result in maximum organic emissions, such as when the waste management unit is operating at the highest load or capacity level reasonably expected to occur. If the owner or operator takes any action (e.g., managing a waste of different composition or increasing operating hours of affected waste management units) that would result in an increase in total organic emissions from affected process vents at the facility, then a new determination is required.
(i) A description of how it is determined that the planned test is going to be conducted when the hazardous waste management unit is operating at the highest load or capacity level reasonably expected to occur. This shall include the estimated or design flow rate and organic content of each vent stream and define the acceptable operating ranges of key process and control device parameters during the test program.
(ii) A detailed engineering description of the closed-vent system and control device including:
(A) Manufacturer's name and model number of control device.
(B) Type of control device.
(C) Dimensions of the control device.
(D) Capacity.
(E) Construction materials.
(iii) A detailed description of sampling and monitoring procedures, including sampling and monitoring locations in the system, the equipment to be used, sampling and monitoring frequency, and planned analytical procedures for sample analysis.
(i) A list of all information references and sources used in preparing the documentation.
(ii) Records, including the dates, of each compliance test required by §265.1033(j).
(iii) If engineering calculations are used, a design analysis, specifications, drawings, schematics, and piping and instrumentation diagrams based on the appropriate sections of "APTI Course 415: Control of Gaseous Emissions" (incorporated by reference as specified in §260.11) or other engineering texts acceptable to the Secretary that present basic control device design information. Documentation provided by the control device manufacturer or vendor that describes the control device design in accordance with paragraphs (b)(4)(iii)(A) through (b)(4)(iii)(G) of this section may be used to comply with this requirement. The design analysis shall address the vent stream characteristics and control device operation parameters as specified below.
(A) For a thermal vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperature in the combustion zone and the combustion zone residence time.
(B) For a catalytic vapor incinerator, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average temperatures across the catalyst bed inlet and outlet.
(C) For a boiler or process heater, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also establish the design minimum and average flame zone temperatures, combustion zone residence time, and description of method and location where the vent stream is introduced into the combustion zone.
(D) For a flare, the design analysis shall consider the vent stream composition, constituent concentrations, and flow rate. The design analysis shall also consider the requirements specified in §265.1033(d).
(E) For a condenser, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic compound concentration level, design average temperature of the condenser exhaust vent stream, and design average temperatures of the coolant fluid at the condenser inlet and outlet.
(F) For a carbon adsorption system such as a fixed-bed adsorber that regenerates the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design exhaust vent stream organic compound concentration level, number and capacity of carbon beds, type and working capacity of activated carbon used for carbon beds, design total steam flow over the period of each complete carbon bed regeneration cycle, duration of the carbon bed steaming and cooling/drying cycles, design carbon bed temperature after regeneration, design carbon bed regeneration time, and design service life of carbon.
(G) For a carbon adsorption system such as a carbon canister that does not regenerate the carbon bed directly onsite in the control device, the design analysis shall consider the vent stream composition, constituent concentrations, flow rate, relative humidity, and temperature. The design analysis shall also establish the design outlet organic concentration level, capacity of carbon bed, type and working capacity of activated carbon used for carbon bed, and design carbon replacement interval based on the total carbon working capacity of the control device and source operating schedule.
(i) For a thermal vapor incinerator designed to operate with a minimum residence time of 0.50 seconds at a minimum temperature of 760oC, period when the combustion temperature is below 760oC.
(ii) For a thermal vapor incinerator designed to operate with an organic emission reduction efficiency of 95 percent or greater, period when the combustion zone temperature is more than 28oC below the design average combustion zone temperature established as a requirement of paragraph (b)(4)(iii)(A) of this section.
(iii) For a catalytic vapor incinerator, period when:
(A) Temperature of the vent stream at the catalyst bed inlet is more than 28oC below the average temperature of the inlet vent stream established as a requirement of paragraph (b)(4)(iii)(B) of this section; or
(B) Temperature difference across the catalyst bed is less than 80 percent of the design average temperature difference established as a requirement of paragraph (b)(4)(iii)(B) of this section.
(iv) For a boiler or process heater, period when:
(A) Flame zone temperature is more than 28oC below the design average flame zone temperature established as a requirement of paragraph (b)(4)(iii)(C) of this section; or
(B) Position changes where the vent stream is introduced to the combustion zone from the location established as a requirement of paragraph (b)(4)(iii)(C) of this section.
(v) For a flare, period when the pilot flame is not ignited.
(vi) For a condenser that complies with §265.1033(f)(2)(vi)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the condenser are more than 20 percent greater than the design outlet organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(vii) For a condenser that complies with §265.1033(f)(2)(vi)(B), period when:
(A) Temperature of the exhaust vent stream from the condenser is more than 6oC above the design average exhaust vent stream temperature established as a requirement of paragraph (b)(4)(iii)(E) of this section; or
(B) Temperature of the coolant fluid exiting the condenser is more than 6oC above the design average coolant fluid temperature at the condenser outlet established as a requirement of paragraph (b)(4)(iii)(E) of this section.
(viii) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly onsite in the control device and complies with §265.1033(f)(2)(vii)(A), period when the organic compound concentration level or readings of organic compounds in the exhaust vent stream from the carbon bed are more than 20 percent greater than the design exhaust vent stream organic compound concentration level established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(ix) For a carbon adsorption system such as a fixed-bed carbon adsorber that regenerates the carbon bed directly onsite in the control device and complies with §265.1033(f)(2)(vii)(B), period when the vent stream continues to flow through the control device beyond the predetermined carbon bed regeneration time established as a requirement of paragraph (b)(4)(iii)(F) of this section.
(i) Date and time when control device is monitored for carbon breakthrough and the monitoring device reading.
(ii) Date when existing carbon in the control device is replaced with fresh carbon.
(i) The instrument identification number, the closed-vent system component identification number, and the operator name, initials, or identification number.
(ii) The date the leak was detected and the date of first attempt to repair the leak.
(iii) The date of successful repair of the leak.
(iv) Maximum instrument reading measured by Method 21 of 40 CFR Part 60, Appendix A after it is successfully repaired or determined to be nonrepairable.
(v) "Repair delayed" and the reason for the delay if a leak is not repaired within 15 calendar days after discovery of the leak.
(A) The owner or operator may develop a written procedure that identifies the conditions that justify a delay of repair. In such cases, reasons for delay of repair may be documented by citing the relevant sections of the written procedure.
(B) If delay of repair was caused by depletion of stocked parts, there must be documentation that the spare parts were sufficiently stocked on-site before depletion and the reason for depletion.

Sections 265.1036 -- 265.1049 [Reserved]

Section 265.1050 Applicability.

(f) [Reserved]
Note: The requirements of §§ 265.1052 through 265.1064 apply to equipment associated with hazardous waste recycling units previously exempt under paragraph 261.6(c)(1). Other exemptions under §§ 261.4, and 265.1(c) are not affected by these requirements.

Section 265.1051 Definitions.

Section 265.1052 Standards: Pumps in light liquid service.

(i) Operated with the barrier fluid at a pressure that is at all times greater than the pump stuffing box pressure, or
(ii) Equipped with a barrier fluid degassing reservoir that is connected by a closed-vent system to a control device that complies with the requirements of §265.1060, or
(iii) Equipped with a system that purges the barrier fluid into a hazardous waste stream with no detectable emissions to the atmosphere.
(5) (i) Each sensor as described in paragraph (d)(3) of this section must be checked daily or be equipped with an audible alarm that must be checked monthly to ensure that it is functioning properly.
(ii) The owner or operator must determine, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(6) (i) If there are indications of liquids dripping from the pump seal or the sensor indicates failure of the seal system, the barrier fluid system, or both based on the criterion determined in paragraph (d)(5)(ii) of this section, a leak is detected.
(ii) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in §265.1059.
(iii) A first attempt at repair (e.g., relapping the seal) shall be made within one calendar day after each leak is detected.

Section 265.1053 Standards: Compressors.

Section 265.1054 Standards: Pressure relief devices in gas/vapor service.

Section 265.1055 Standards: Sampling connecting systems.

Section 265.1056 Standards: Open-ended valves or lines.

Section 265.1057 Standards: Valves in gas/vapor service or in light liquid service.

Section 265.1058 Standards: Pumps and valves in heavy liquid service, pressure relief devices in light liquid or heavy liquid service, and flanges and other connectors.

Section 265.1059 Standards: Delay of repair.

Section 265.1060 Standards: Closed-vent systems and control devices.

Section 265.1061 Alternative standards for valves in gas/vapor service or in light liquid service: percentage of valves allowed to leak.

Section 265.1062 Alternative standards for valves in gas/vapor service or in light liquid service: skip period leak detection and repair.

Section 265.1063 Test methods and procedures.

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

Section 265.1064 Recordkeeping requirements.

(i) Equipment identification number and hazardous waste management unit identification.
(ii) Approximate locations within the facility (e.g., identify the hazardous waste management unit on a facility plot plan).
(iii) Type of equipment (e.g., a pump or pipeline valve).
(iv) Percent-by-weight total organics in the hazardous waste stream at the equipment.
(v) Hazardous waste state at the equipment (e.g., gas/vapor or liquid).
(vi) Method of compliance with the standard (e.g., "monthly leak detection and repair" or "equipped with dual mechanical seals").
(ii) The designation of this equipment as subject to the requirements of §§ 265.1052(e), 265.1053(i), or 265.1057(f) shall be signed by the owner or operator.
(4) (i) The dates of each compliance test required in §§ 265.1052(e), 265.1053(i), 265.1054, and 265.1057(f).
(ii) The background level measured during each compliance test.
(iii) The maximum instrument reading measured at the equipment during each compliance test.
(i) The following information shall be recorded in the facility operating record for valves complying with §265.1062:
(1) A schedule of monitoring.
(2) The percent of valves found leaking during each monitoring period.

Sections 265.1065 -- 265.1079 [Reserved]

Section 265.1080 Applicability.

Section 265.1081 Definitions.

“In light material service” means the container is used to manage a material for which both of the following conditions apply: The vapor pressure of one or more of the organic constituents in the material is greater than 0.3 kilopascals (kPa) at 20o C; and the total concentration of the pure organic constituents having a vapor pressure greater than 0.3 kPa at 20o C is equal to or greater than 20 percent by weight.
22 DE Reg. 678 (02/01/19)

Section 265.1082 Schedule for implementation of air emission standards.

(i) Install and begin operation of the control equipment and waste management units, and complete modifications of production or treatment processes as soon as possible but no later than December 8, 1997.
(ii) Prepare an implementation schedule that includes the following information: specific calendar dates for award of contracts or issuance of purchase orders for control equipment, waste management units, and production or treatment process modifications; initiation of onsite installation of control equipment or waste management units, and modifications of production or treatment processes; completion of control equipment or waste management unit installation, and production or treatment process modifications; and performance of testing to demonstrate that the installed equipment or waste management units, and modified production or treatment processes meet the applicable standards of this subpart.
(iii) For facilities subject to the recordkeeping requirements of §265.73 of this part, the owner or operator shall enter the implementation schedule specified in paragraph (a)(2)(ii) of this section in the operating record no later than December 6, 1996.
(iv) For facilities not subject to §265.73 of this part, the owner or operator shall enter the implementation schedule specified in paragraph (a)(2)(ii) of this section in a permanent, readily available file located at the facility no later than December 6, 1996.

Section 265.1083 Standards: General.

(i) A process that removes or destroys the organics contained in the hazardous waste to a level such that the average VO concentration of the hazardous waste at the point of waste treatment is less than the exit concentration limit (Ct) established for the process. The average VO concentration of the hazardous waste at the point of waste treatment and the exit concentration limit for the process shall be determined using the procedures specified in §265.1084(b) of this subpart.
(A) The organic reduction efficiency (R) for the process is equal to or greater than 95 percent, and the organic biodegradation efficiency (Rbio) for the process is equal to or greater than 95 percent. The organic reduction efficiency and the organic biodegradation efficiency for the process shall be determined using the procedures specified in §265.1084(b) of this subpart.
(B) The total actual organic mass biodegradation rate (MRbio) for all hazardous waste treated by the process is equal to or greater than the required organic mass removal rate (RMR). The required organic mass removal rate and the actual organic mass biodegradation rate for the process shall be determined using the procedures specified in §265.1084(b) of this subpart.
(v) A process that removes or destroys the organics contained in the hazardous waste and meets all of the following conditions:
(A) From the point of waste origination through the point where the hazardous waste enters the treatment process, the hazardous waste is managed continuously in waste management units which use air emission controls in accordance with the standards specified in §265.1085 through §265.1088 of this subpart, as applicable to the waste management unit.
(B) From the point of waste origination through the point where the hazardous waste enters the treatment process, any transfer of the hazardous waste is accomplished through continuous hard-piping or other closed system transfer that does not allow exposure of the waste to the atmosphere. The DNREC considers a drain system that meets the requirements of 40 CFR Part 63, Subpart RR--National Emission Standards for Individual Drain Systems to be a closed system.
(C) The average VO concentration of the hazardous waste at the point of waste treatment is less than the lowest average VO concentration at the point of waste origination determined for each of the individual waste streams entering the process or 500 ppmw, whichever value is lower. The average VO concentration of each individual waste stream at the point of waste origination shall be determined using the procedures specified in §265.1084(a) of this subpart. The average VO concentration of the hazardous waste at the point of waste treatment shall be determined using the procedures specified in §265.1084(b) of this subpart.
(A) If Method 25D in 40 CFR Part 60, Appendix A is used for the analysis, one-half the blank value determined in the method at Section 4.4 of Method 25D in 40 CFR Part 60, Appendix A, or a value of 25 ppmw, whichever is less.
(B) If any other analytical method is used, one-half the sum of the limits of detection established for each organic constituent in the waste that has a Henry's law constant value at least 0.1 mole‑fraction‑in‑the‑gas‑phase/mole‑fraction‑in‑the‑liquid‑phase (0.1 Y/X) [which can also be expressed as 1.8 x 10‑6 atmospheres/gram‑mole/m3] at 25oC.
(i) Meets the numerical concentration limits for organic hazardous constituents, applicable to the hazardous waste, as specified in Part 268--Land Disposal Restrictions under Table "Treatment Standards for Hazardous Waste" in §268.40; or
(ii) The organic hazardous constituents in the waste have been treated by the treatment technology established by EPA for the waste in §268.42(a), or have been removed or destroyed by an equivalent method of treatment approved by EPA pursuant to §268.42(b).
(i) The tank is located inside an enclosure vented to a control device that is designed and operated in accordance with all applicable requirements specified under 40 CFR Part 61, Subpart FF--National Emission Standards for Benzene Waste Operations for a facility at which the total annual benzene quantity from the facility waste is equal to or greater than 10 megagrams per year;
(ii) The enclosure and control device serving the tank were installed and began operation prior to November 25, 1996; and
(iii) The enclosure is designed and operated in accordance with the criteria for a permanent total enclosure as specified in "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" under 40 CFR 52.741, Appendix B. The enclosure may have permanent or temporary openings to allow worker access; passage of material into or out of the enclosure by conveyor, vehicles, or other mechanical or electrical equipment; or to direct air flow into the enclosure. The owner or operator shall perform the verification procedure for the enclosure as specified in Section 5.0 to "Procedure T--Criteria for and Verification of a Permanent or Temporary Total Enclosure" annually.
(i) In accordance with the method used by the owner or operator to perform the waste analysis, except in the case specified in paragraph (d)(2)(ii) of this section.
(ii) If the Secretary determines that the method used by the owner or operator was not appropriate for the hazardous waste managed in the tank, surface impoundment, or container, then the Secretary may choose an appropriate method.
(i) The average VO concentration of the hazardous waste at the point of waste origination shall be determined by direct measurement in accordance with the requirements of §265.1084(a) of this subpart.
(ii) Results of the waste determination performed or requested by the Secretary showing that the average VO concentration of the hazardous waste at the point of waste origination is equal to or greater than 500 ppmw shall constitute noncompliance with this subpart except in a case as provided for in paragraph (d)(5)(iii) of this section.
(iii) For the case when the average VO concentration of the hazardous waste at the point of waste origination previously has been determined by the owner or operator using an averaging period greater than 1 hour to be less than 500 ppmw but because of normal operating process variations the VO concentration of the hazardous waste determined by direct measurement for any given 1-hour period may be equal to or greater than 500 ppmw, information that was used by the owner or operator to determine the average VO concentration of the hazardous waste (e.g., test results, measurements, calculations, and other documentation) and recorded in the facility records in accordance with the requirements of §265.1084(a) and §265.1090 of this subpart shall be considered by the Secretary together with the results of the waste determination performed or requested by the Secretary in establishing compliance with this subpart.

Section 265.1084 Waste determination procedures.

(iii) Analysis. Each collected sample shall be prepared and analyzed in accordance with Method 25D in 40 CFR Part 60, Appendix A for the total concentration of volatile organic constituents, or using one or more methods when the individual organic compound concentrations are identified and summed and the summed waste concentration accounts for and reflects all organic compounds in the waste with Henry’s law constant values at least 0.1 mole-fraction-in-the-gas-phase/mole-franction-in-the-liquid-phase (0.1 Y/X) [which can also be expressed as 1.8 x 10-6 atmospheres/gram-mole/m3] at 25 degrees Celsius. At the owner or operator’s discretion, the owner or operator may adjust test data obtained by any appropriate method to discount any contribution to the total volatile organic concentration that is a result of including a compound with a Henry’s law constant value of less than 0.1 Y/X at 25 degrees Celsius. To adjust these data, the measured concentration of each individual chemical constituent contained in the waste is multiplied by the appropriate constituent-specific adjustment factor (fm25D). If the owner or operator elects to adjust test data, the adjustment must be made to all individual chemical constituents with a Henry’s law constant value greater than or equal to 0.1 Y/X at 25 degrees Celsius contained in the waste. Constituent specific adjustment factors (fm25D) can be obtained by contacting the Waste and Chemical Processes Group, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711. Other test methods may be used if they meet the requirements in paragraph (a)(3)(iii)(A) or (B) of this section and provided the requirement to reflect all organic compounds in the waste with Henry’s law constant values greater than or equal to 0.1 Y/X [which can also be expressed as 1.8 x 10-6 atmospheres/gram-mole/m3] at 25 degrees Celsius, is met.
(A) The average VO concentration () on a mass-weighted basis shall be calculated by using the results for all waste determinations conducted in accordance with paragraphs (a)(3)(ii) and (iii) of this section and the following equation:
= Average VO concentration of the hazardous waste at the point of waste origination on a mass‑weighted basis, ppmw.
Qi = Mass quantity of hazardous waste stream represented by Ci, kg/hr.
QT = Total mass quantity of hazardous waste during the averaging period, kg/hr.
Ci = Measured VO concentration of waste determination “i” as determined in accordance with the requirements of paragraph (a)(3)(iii) of this section (i.e., the average of the four or more samples specified in paragraph (a)(3)(ii)(B) of this section), ppmw.
(B) For the purpose of determining Ci, for individual waste samples analyzed in accordance with paragraph (a)(3)(iii) of this section, the owner or operator shall account for VO concentrations determined to be below the limit of detection of the analytical method by using the following VO concentration:
(1) If Method 25D in 40 CFR Part 60, Appendix A is used for the analysis, one-half the blank value determined in the method at Section 4.4 of Method 25D in 40 CFR Part 60, Appendix A.
(2) If any other analytical method is used, one-half the sum of the limits of detection established for each organic constituent in the waste that has a Henry's law constant values at least 0.1 mole‑fraction‑in‑the‑gas‑phase/mole‑fraction‑in‑the‑liquid‑phase (0.1 Y/X) [which can also be expressed as 1.8 x 10‑6 atmospheres/gram‑mole/m3] at 25oC.
(iii) Analysis. Each collected sample shall be prepared and analyzed in accordance with Method 25D in 40 CFR Part 60, Appendix A for the total concentration of volatile organic constituents, or using one or more methods when the individual organic compound concentrations are identified and summed and the summed waste concentration accounts for and reflects all organic compounds in the waste with Henry’s law constant values at least 0.1 mole-fraction-in-the-gas-phase/mole-franction-in-the-liquid-phase (0.1 Y/X) [which can also be expressed as 1.8 x 10-6 atmospheres/gram-mole/m3] at 25 degrees Celsius. At the owner or operator’s discretion, the owner or operator may adjust test data obtained by any appropriate method to discount any contribution to the total volatile organic concentration that is a result of including a compound with a Henry’s law constant value of less than 0.1 Y/X at 25 degrees Celsius. To adjust these data, the measured concentration of each individual chemical constituent contained in the waste is multiplied by the appropriate constituent-specific adjustment factor (fm25D). If the owner or operator elects to adjust test data, the adjustment must be made to all individual chemical constituents with a Henry’s law constant value greater than or equal to 0.1 Y/X at 25 degrees Celsius contained in the waste. Constituent specific adjustment factors (fm25D) can be obtained by contacting the Waste and Chemical Processes Group, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711. Other test methods may be used if they meet the requirements in paragraph (a)(3)(iii)(A) or (B) of this section and provided the requirement to reflect all organic compounds in the waste with Henry’s law constant values greater than or equal to 0.1 Y/X [which can also be expressed as 1.8 x 10-6 atmospheres/gram-mole/m3] at 25 degrees Celsius, is met.
(iv) Calculations. The average VO concentration on a mass-weighted basis shall be calculated by using the results for all waste determinations conducted in accordance with paragraphs (b)(3)(ii) and (iii) of this section and the following equation:
= Average VO concentration of the hazardous waste at the point of waste treatment on a mass-weighted basis, ppmw.
Qi=Mass quantity of hazardous waste stream represented by Ci, kg/hr.
QT=Total mass quantity of hazardous waste during the averaging period, kg/hr.
Ci=Measured VO concentration of waste determination “i” as determined in accordance with the requirements of paragraph (b)(3)(iii) of this section (i.e., the average of the four or more samples specified in paragraph (b)(3)(ii)(B) of this section), ppmw.
Ct = Exit concentration limit for treated hazardous waste, ppmw.
Qx = Annual mass quantity of hazardous waste stream "x," kg/yr.
Qy = Annual mass quantity of hazardous waste stream "y," kg/yr.
x = Average VO concentration of hazardous waste stream "x" at the point of waste origination as determined in accordance with the requirements of §265.1084(a) of this subpart, ppmw.
(A) The mass quantity of each hazardous waste stream entering the process (Qb) and the mass quantity of each hazardous waste stream exiting the process (Qa) shall be determined.
(B) The average VO concentration at the point of waste origination of each hazardous waste stream entering the process (b) during the run shall be determined in accordance with the requirements of paragraph (a)(3) of this section. The average VO concentration at the point of waste treatment of each waste stream exiting the process (a) during the run shall be determined in accordance with the requirements of paragraph (b)(3) of this section.
(iv) The waste volatile organic mass flow entering the process (Eb) and the waste volatile organic mass flow exiting the process (Ea) shall be calculated by using the results determined in accordance with paragraph (b)(5)(iii) of this section and the following equations:
Ea = Waste volatile organic mass flow exiting process, kg/hr.
Eb = Waste volatile organic mass flow entering process, kg/hr.
Qb = Mass quantity of hazardous waste entering process during run "j," kg/hr.
Qa = Average mass quantity of hazardous waste exiting process during run "j," kg/hr.
a = Average VO concentration of hazardous waste exiting process during run "j" as determined in accordance with the requirements of §265.1084(b)(3) of this subpart, ppmw.
b = Average VO concentration of hazardous waste entering process during run "j" as determined in accordance with the requirements of §265.1084(a)(3) of this subpart, ppmw.
Eb = Waste volatile organic mass flow entering process as determined in accordance with the requirements of paragraph (b)(5)(iv) of this section, kg/hr.
Ea = Waste volatile organic mass flow exiting process as determined in accordance with the requirements of paragraph (b)(5)(iv) of this section, kg/hr.
(i) The fraction of organics biodegraded (Fbio) shall be determined using the procedure specified in 40 CFR Part 63, Appendix C.
(ii) The Rbio shall be calculated by using the following equation:
Rbio = Organic biodegradation efficiency, percent.
Fbio