DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Public Health

Statutory Authority: 16 Delaware Code,Section 122(1) & (3)d & j (16 Del.C. §122(1) & (3)d & j )

FINAL

Public Pools, Regulations Governing

Nature Of The Proceedings:

Delaware Health and Social Services (“DHSS”) initiated proceedings to adopt State of Delaware Regulations Governing Public Pools. The DHSS proceedings to adopt regulations were initiated pursuant to 29 Delaware Code Chapter 101 and authority as prescribed by 16 Delaware Code, Chapter 100.

On March 1, 2003 (Volume 6, Issue 9), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Delaware Code Section 10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by March 31, 2003, or be presented at a public hearing on March 28, 2003, after which time DHSS would review information, factual evidence and public comment to the said proposed regulations.

Verbal and written comments were received during the public comment period and evaluated. The results of that evaluation are summarized in the accompanying “Summary of Evidence.”

Findings Of Fact:

The Department finds that the proposed regulations, as set forth in the attached copy should be adopted in the best interest of the general public of the State of Delaware.

The proposed regulations include modifications from those published in the March 1, 2003, Register of Regulations, based on comments received during the public comment period. These modifications are deemed not to be substantive in nature.

THEREFORE, IT IS ORDERED, that the proposed State of Delaware Regulations Governing Public Pools are adopted and shall become effective June 10, 2003, after publication of the final regulation in the Delaware Register of Regulations.

Vincent P. Meconi, Secretary, May 15, 2003

Summary Of Evidence

A public hearing was held on March 28, 2003 at 1:30 p.m., in the 3rd Floor Conference Room of the Jesse Cooper Building, located on Federal and Water Streets, Dover, Delaware before David P. Walton, Hearing Officer, to discuss the proposed Department of Health and Social Services (DHSS) Regulations Governing Public Pools. Announcements regarding the public hearing were published in the Delaware State News, The News Journal and the Delaware Register of Regulations in accordance with Delaware Law. Mike Joyce from the Health Systems Protection (HSP) Section of the Division of Public Health (DPH) made the agency’s presentation. Attendees were allowed and encouraged to discuss and ask questions regarding all sections of the proposed regulations. Testimony was given at the public hearing and three letters were received commenting on the proposed regulations during the public comment period (March 1, 2003 through March 31, 2003). Organizations that commented on the proposed regulations included:

• American Red Cross of the Delmarva Peninsula

• Governor’s Advisory Council for Exceptional Citizens

• State Council for Persons with Disabilities

All public comments and the DHSS (Agency) responses are as follows:

• It was strongly recommended that certified lifeguards be required to oversee the public pool activities at any time it is in operation and open to the public, regardless of the depth of the water. Reasons offered for this position included:

1) Aquatic injuries can happen any time or any place for a number of reasons. Because drowning and serious injuries, such as near drowning and injuries to the head, neck and back, occur, it is essential that those that oversee the activities at aquatic facilities are properly trained.

2) Lifeguards are trained to recognize situations to prevent injury. They supervise swimmers, minimize dangers, educate facility users about safety, enforce rules and regulations, and if necessary, respond to emergencies and provide emergency care.

3) The majority of spinal cord injuries occur in water that is 5 feet deep or less. A trained lifeguard needs to be available not only to respond if this type of incident occurs, but more importantly, to prevent these incidents from occurring.

4) The Consumer Product Safety Commission states that drowning happens quickly and without warning, there is not a cry for help. This emphasizes the need for trained lifeguard--professional that is trained to recognize behaviors and someone who is drowning or who needs help--to be present.

Agency Response: In accordance with 16 Del.C. Section 122(3)(d), lifeguards are not required for any pool of any motel, hotel or private campground in Delaware. All other public pools in Delaware greater than four feet in depth require a lifeguard to be on duty. Additionally, the Department is requiring any public pool that is four feet or less in depth have a trained pool attendant on duty. To address water safety concerns, in addition to CPR and first aid training, the Department amended the pool attendant training requirements in Section 26.707 of the Regulations to include certification in the American Red Cross Basic Water Rescue course within three years of the effective date of these regulations.

• The Regulations use outdated language (e.g. handicap) in multiple sections (e.g. §§26.203, 26.317, and 26.703).

Agency Response: Based on this comment the Regulation was updated throughout utilizing updated language.

• Some exclusions from employment and pool use may be overbroad. Section 26.705 recites as follows:

2.705 Employee/Bather Health - No person with evidence of a communicable or contagious disease shall be employed at a pool. No person with evidence of a communicable disease, cough, cold, open sore or bandaged wound shall be allowed to enter the pool water except where certified by a physician not to have a disease in the communicable stage.

Under this regulation, a person with AIDS could not collect trash at a pool or clean the restroom. Similarly, anyone with a cough (which could simply be asthma or allergy related) could be barred from a pool.

Agency Response: Based on this comment and after careful review of the Regulation, Section 26.705 was amended utilizing more specific language.

• The general "handicapped access" section is ostensibly underinclusive:

26.317 Handicapped Access - Steps, ramps, handrails, lifts, or other appurtennaces designed to accommodate handicapped individuals will be approved within the limits of sound engineering practice and nationally recognized standards. Lifts shall be mounted into the pools deck and shall have a minimum deck width of four (4) feet behind the lift mount.

This section omits references to other barrier contexts, including telephones (§26.715); drinking fountains (§26.313); sanitary and bathhouse facilities (§26.312); and food and beverage facilities (§26.314). Under general principles of regulatory interpretation [inclusio unius, exclusio alterius], the omission of these contexts from the "handicapped access" section implies that accessible design is not required in them.

Agency Response: Based on this comment and after careful review of the Regulation, Section 26.317 was amended utilizing more inclusive language.

• There was concern expressed that pool attendants defined in the regulations for pools under four feet deep need some form pool safety awareness and emergency training. Standing techniques and recognizing signs of distress are two types of training that lifeguards receive that would be beneficial to pool attendants.

Agency Response: Based on this comment and after consulting with the American Red Cross, training requirements for pool attendants in Section 26.707 were amended to require pool attendants to be certified in American Red Cross Basic Water Rescue within three years of the effective date of these Regulations.

The public comment period was open from March 1, 2003 to March 31, 2003.

Verifying documents are attached to the Hearing Officer’s record. The Regulations have been approved by the Delaware Attorney General’s office and the Cabinet Secretary of DHSS.

State Of Delaware

Regulations

Governing Public Pools

ADOPTED May 22, 1958, Amended May 26, 1960,

June 21, 1962, February 15, 1983, April 15, 1990,

April 15, 1993

BY THE DELAWARE STATE BOARD OF HEALTH

and

Amended April 22, 1997 and BY THE SECRETARY

DELAWARE HEALTH AND SOCIAL SERVICES

Under Authority Of 16 Delaware Code Section 122(1) And (3)(D) And (J).

SECTION 26.1 DEFINITIONS

26.101 "Approved" means acceptable to the Division, unless stated otherwise, based on its determination as to conformance with appropriate standards and good public health practices.

26.102 "Approved Pool Operator" means a person who is at least eighteen (18) years of age and has successfully completed a pool operator-training course that is approved by the Division.

26.103 "Attendant" means a person who meets the training requirements of the Division specified in Section 26.707.

26.104 "Attendant on Duty" means an attendant who is either at poolside or in the pool (special situations), visually guarding the life of the bathers. An attendant on duty shall not be assigned other duties that will distract his/her attention from proper observation of the bathers, or prevent the rendering of immediate assistance to someone in distress. All attendants on duty should be identified by emblems or distinguishing apparel. In facilities with a spa pool(s) (SpP) only it means an attendant who is on the premises and can be easily located and summoned to render assistance to someone in distress. If the attendant is not in direct view of the spa pool when it is open, he/she shall be located such that the poolside alarm required by Section 26.719 can be easily heard.

26.105 "Beneficial Owner" means an ownership interest in the entity owning the pool through direct ownership of the real property where the pool is located, direct ownership of stock in a stock corporation owning the real property where the stock represents an equity interest in the corporation, or direct ownership through being a member in a limited liability company (L.L.C.) or a partner in a partnership owning the real property upon which the pool is placed.

26.106 "Competitive Diving" means either the training of divers or an actual diving competition among trained divers, which is sanctioned by the Federation Internationale de Natation Amateur (FINA), the National Collegiate Athletic Association (NCAA), the National Federation of State High School Associations (NFSHSA) or United States Diving Inc. (USD). The institution which is sponsoring the diving training or diving competition shall be responsible for the hiring of a qualified person(s) who is competent and knowledgeable in the areas of diving mechanics and safety. This person(s) shall be present at every practice session and competition in order to ensure proper training, supervision and safety.

26.107 "Cyanuric Acid" means a chemical added to pool water intended to counter-act degradation of the chlorine residual by ultraviolet light.

26.108 "Director" means the Director of the Division of Public Health or an authorized agent.

26.109 "Diving" means a head first entry into a body of water.

26.110 "Diving Board Water Entry Area" means a water surface area of three hundred twenty (320), three hundred sixty (360) or four hundred (400) square feet (see Section 26.320) immediately in front of a diving board.

26.110 "Division" means the Division of Public Health of the Department of Health and Social Services, or anyone authorized by the Division as its designated representative, in conformance with Title 29 Delaware Code, Section 7904.

26.111 "Fence" means a continuous vertical barrier, either solid, or with openings, holes or gaps not exceeding four (4) inches in diameter or width, completely enclosing the pool area which will prevent the entry of small children and minimize the entry of unauthorized or unwary persons. Chain link may be used provided that the openings are not greater than 2 and 3/8 inches measured horizontally.

26.112 "Fixture Set" means one (1) lavatory, two (2) water closets* and one (1) shower for each sex. *In the male facilities, up to fifty (50) percent may be substituted with urinals, and if more than one (1) fixture set is required based on water surface area, this is reduced to one (1) water closet (male and female) for the subsequent fixture sets.

26.113 "Flume" means an inclined channel or tube which may receive a constant supply of flowing water and which is designed to provide a safe transit path for conveying sliders to a run-out slide, a splash pool or a designated area of a swimming pool (SwP) of a water slide flume.

26.114 “Halogen” means one of the chemical elements chlorine, bromine, or iodine.

26.115 "Inactive Pool" means a pool, which has been closed, for twelve (12) or more continuous months.

26.116 "Lifeguard" means a person who meets the training requirements of the Division specified in Section 26.706.

26.117 "Lifeguard on Duty" means a lifeguard who is either at poolside or in the pool (special situations), visually guarding the life of the bathers. A lifeguard on duty shall not be assigned other duties that will distract his/her attention from proper observation of the bathers, or prevent the rendering of immediate assistance to someone in distress. All lifeguards on duty should be identified by emblems or distinguishing apparel.

26.118 "Maximum Bathing Load" means the maximum number of persons allowed in a pool at the same time

26.118 "NTU" means Nephelometric Turbidity Unit, which is a means of measuring the water turbidity.

26.119 "ORP" means oxidation-reduction potential, which is an electrical measurement in millivolts (mV) of the strength of the disinfectant (oxidizer). A higher ORP means a higher disinfecting potential. Pools should maintain a minimum ORP of 650 mV.

26.120 "Person" means any corporation, company, association, firm, partnership, society, joint stock company or individual.

26.121 “Person In Charge” means the/an owner of the pool. This individual shall represent the pool at any hearing scheduled pursuant to Section 26.12. Every pool shall, upon request, provide the Division with the name of the person(s) in charge and how they can be contacted. An operator, hired by the/an owner, cannot be the person in charge.

26.122 "Private Pool" means any indoor or outdoor artificial basin containing a body of water which is used for swimming, wading, diving, recreative bathing, or other aquatic purposes and is not open to the general public, or a limited section of the public, but is intended strictly for the use of the beneficial owner(s) and his/her/their family and/or their guests in either of the following situations:

a. Individual beneficial owner or

b. Multiple beneficial owners where all of the following can be demonstrated to the Division:

1. The pool is owned by a legal entity which is in turn owned by the beneficial owners.

2. Pool ownership is part of the ownership of real property by the beneficial owners.

3. The beneficial owners are able to assert ultimate dominion and control over access to and maintenance of the pool.

4. No pool memberships are available to non-beneficial owners.

If it can be demonstrated that a pool meets all of the above criteria and if the owners want the pool to be approved as private, they shall contact the Division for the required procedure. Any multiple beneficial ownership pool that is approved private shall remain so until the owners notify the Division that the pool no longer meets all of the above criteria. These Regulations shall not apply to private pools. Multiple ownership private pools, however, should go through the plan review/approval process outlined in Section 26.202 so the pool will be in compliance with the design and construction requirements of these Regulations in the event that, at some future time, the pool no longer meets all of the criteria for remaining private.

26.123 "Public Pool" means any indoor or outdoor artificial basin constructed of concrete, metal, fiberglass or any other nontoxic, impervious, and structurally rigid approved materials, which contains a body of continuously recirculated and filtered water with automatic disinfection which is used for swimming, wading, diving, recreative bathing, or other aquatic purposes and is open to either the general public, or a limited section of the public, with or without a fee. These Regulations shall not apply to pools that are used by one (1) patron at a time and whose water is completely changed after each patron. A public pool may hereafter be referred to as a pool, a swimming pool, a wading pool, a spa pool, a water slide, or a special purpose pool in these Regulations. Based on the design, size, usage, or other factors, public pools shall be categorized as follows:

"SwP" means a swimming pool, which is open to either the general public, or a limited section of the general public based on residency, membership, or some other specific criteria.

"WP" means a wading pool, which is open to either the general public, or a limited section of the general public based on residency, membership, or some other specific criteria.

"SpP" means a spa pool, which is open to either the general public, or a limited section of the general public based on residency, membership, or some other specific criteria.

"WSF" means a water slide flume which is open to either the general public, or a limited section of the general public based on residency, membership, or some other specific criteria.

"SpPP" means a special purpose pool, which is open to either the general public, or a limited section of the general public based on residency, membership, or some other specific criteria.

26.124 "Run-Out Slide" means a flume where the bathers stop in the flume and then exit to the pool deck/walkway.

26.125 "Sanitary Survey" means a comprehensive on-site review of the facilities, operation and management of a pool for the purpose of determining whether a safe environment and bathing water of acceptable quality are being provid ed.

26.126 "Secretary, Delaware Health and Social Services" means the Administrator of the Department of Health and Social Services (DHSS) of the State of Delaware, who shall hereafter in this document be referred to as the Secretary, DHSS in conformance with 29 Delaware Code Section 7904.

26.127 “Slip Resistant" means a textured surface that is neither conducive to slipping when wet nor abrasive to bare feet and has a minimum static coefficient of friction of 0.6 (measured by an approved method).

26.128 "Spa Pool" means a pool containing water greater than ninety five (95) degrees Fahrenheit (°F) which is not emptied after each use, which has a maximum depth of four (4) feet, a maximum water surface area of two-hundred fifty (250) square feet, is large enough for the immersion of at least one person, and may have a high velocity air and/or water jet system.

26.129 “Special Purpose Pool” means a pool which is used for a specific supervised purpose, and which does not fall into any of the first four (4) categories listed in Section 26.124 (SwP, WP, SpP or WSF).

26.130 "Splash Pool" means the body of water located at the end of a flume from which bathers exit to the deck.

26.131 "Superchlorinate" means the addition to the pool water of an amount of chlorine sufficient to produce a free chlorine residual which is at least ten (10) times the amount of the combined chlorine residual plus the required minimum free chlorine residual, in order to oxidize any ammonia or other nitrogenous materials which may be present in the pool water.

26.132 “Swimming Pool Slide" means a commercially manufactured water entry device consisting of an inclined plane (either straight or curved) with a small raised edge (a few inches like a playground slide) which may receive a constant supply of flowing water, is securely attached to the pool deck and is designed to provide a safe transit path for conveying sliders to a pool (water slide flumes are not included in this definition).

26.135 "Swimming Pool Slide Water Entry Area" means a water surface area of two hundred fifty-six (256) square feet (16'x 16') immediately in front of a swimming pool slide.

26.133 "Turbidity" means a measure of the clarity or cloudiness of water.

26.134 "Turnover" means the circulation, through the recirculation system, of a quantity of water equal to the pool volume.

26.135 "Wading Pool" means a familiarization pool for small children that may range in water depth from zero (0) to a maximum of two (2) feet. with a maximum wall height (distance from rim to bottom) of nine (9) inches at the pool edge and a maximum depth of eighteen (18) inches.

26.136 "Water Slide Flume" means a water entry device consisting of one or more flumes that discharge into a with a run-out slide, a splash pool or a designated area of a swimming pool (SwP) (swimming pool slides are not included in this definition).

26.137 "Wet Deck/Walkway Area" means any deck/walkway area that may become wet from splash or from bather traffic, the pump/filter room floor and the floors of all sanitary and bathhouse facilities.

SECTION 26.2 GENERAL PROVISIONS

26.201 Scope and Purpose - The provisions of these Regulations shall apply to all public pools in the State of Delaware. The purpose of these Regulations is to provide minimum standards for design, construction, maintenance and operation of public pools in the State of Delaware, and to assure a clean, healthful, and safe environment for all bathers using these pools. These Regulations in no way preclude a facility from establishing additional rules and operating procedures as long as they do not contradict those established herein.

26.202 Plans and Specifications - No person shall construct, install, alter or replace a pool, auxiliary pool structure, or pool equipment, and no person shall convert a private pool to a public pool until three (3) copies of plans and specifications have been submitted to the Division, and a Certificate of Approval has been issued. Whenever it is discovered that any of the above have occurred or are occurring without such approval, the Director shall order the owner, operator or contractor to immediately close the pool if it is open or stop the work or conversion, and to submit plans and specifications to the Division. Any part of the unapproved work or pool that is not in compliance with these Regulations shall be removed, replaced or reconstructed in order to achieve compliance. Plans and specifications shall be legible and on paper no larger than 30" x 42" and shall include, but are not limited to the following information:

a. The facility name and the name and telephone number of a contact person at or near the site.

b. The name, mailing address and telephone number of the owner.

c. The name, mailing address and telephone number of the builder/contractor/engineer.

d. A map of the area (city, town, rural area, etc.) showing the project location and a scaled drawing of the site showing the pool location.

e. A scaled drawing showing an overhead view of the pool which includes the location of but is not limited to: all recirculation system fittings and piping, depth markings, steps/ladders, diving board, lifeguard stand, fillspout, safety line/bottom marking, lights (underwater and overhead), deck/walkway, fence, pump/filter room*, bathhouse facilities, food/beverage service facilities and any other pools (e.g. wading pool, spa pool). This drawing shall also specify the materials of construction for the pool and deck, and the color of the pool walls and floor. If wood is planned for the wet deck/walkway area the manufacturer of the wood shall be specified, and if the wood has been treated by the manufacturer or will be treated by the installer, any preservatives, coatings, paints, etc. shall be specified.

*Either on this drawing on a separate sheet, a blown up scaled drawing of the pump/filter room showing all piping, equipment, fittings, and the flow pattern shall be provided.

f. A scaled drawing showing a profile view(s) of the pool, the pool depths and the relative elevation of the pump and filter. If a diving board is planned, an end view showing the required dimensions shall also be provided.

g. The following pool information: volume, water surface area, perimeter filter type, filter surface area, design flow rate, recirculation pump cacacity, total dynamic head (TDH) in feet (if not provided a minimum of sixty (60) TDH will be used), pool turnover time, and the size and type of all piping (i.e., ductile iron, copper, plastic).

h. Specifications for and drawings or pictures of all recirculation system components, including but not limited to: skimmers* or gutters; drains, inlets; recirculation pump with pump curve; rate of flow indicator with manufacturer's installation instructions; the type, brand and surface area in square feet of the filter(s)*; multiport valve*; the type, brand and capacity of automatic disinfection equipment*; heater (including proof of AGA or UL approval); portable vacuum equipment; and the chemical name of the disinfectant to be used. All specifications shall include the manufacturer's name and model #.

*Specifications shall include proof of NSF International listing, or approved equivalent. In the remainder of these Regulations, wherever there is a referral to NSF, it means NSF International or approved equivalent.

i. The source of potable water (i.e. their own on-site well or the name of the water supplier if the water comes from off-site), and the location and methods of disposal for sanitary waste, filter backwash water and pool water pumped to waste.

j. For new pools, the following signed statement from the owner in all three (3) sets of plans and specifications: "I hereby acknowledge that all items either listed or shown in these plans and specifications as not in contract (NIC), by others, or equivalent, are my responsibility. I also realize that this entire project must be completed in accordance with the approved plans and specifications, and all conditions listed in the Certificate of Approval, prior to the issuance of an operating permit by the Division." This statement with signature may appear directly on the plan drawings.

k. For changes to existing pools, the following signed statement from the owner in all three (3) sets of plans and specifications: "I hereby acknowledge that all items either listed or shown in these plans and specifications as not in contract (NIC), by others, or equivalent, are my responsibility. I also realize that this entire project must be completed in accordance with the approved plans and specifications, and all conditions listed in the Certificate of Approval, prior to this pool receiving permission from the Division to reopen." This statement with signature may appear directly on the plan drawings.

Upon receipt of plans and specifications, the Division shall determine if the project is approved or disapproved and notify the responsible person within thirty (30) days. If disapproved, the reasons shall be specified. If approved, a Certificate of Approval shall be issued which shall be valid for one (1) year. All construction shall be in accordance with the approved plans and specifications, and all conditions listed in the Certificate of Approval. Prior to opening, the owner or operator of a new pool shall contact the Division for a pre-opening sanitary survey in order to receive an operating permit. The Division reserves the right to reject plans and specifications from a pool builder/pool service company based upon evidence of malfeasance or non-feasance related to a previous Certificate of Approval.

The Division may establish a fee for plan review/approval. Public notice and opportunity for a public hearing will be provided prior to the implementation of such a fee.

26.203 Site Inspection - Prior to the issuance of a Certificate of Approval for the construction of a new outdoor pool, a site inspection shall be made by a representative of the Division in order to confirm that the pool location meets the requirements of Section 26.301. After a specific site is approved, any change of location shall require another site inspection.

26.204 Operating Permit - No person shall operate a pool without a valid permit from the Division and operating permits shall expire annually. The operating permit is not transferable if either the pool name or ownership changes. For new pools, the operating permit application should be submitted at least thirty (30) days prior to the planned opening date. The operating permit shall be available for viewing by any patron or representative of the Division upon request and should be conspicuously posted. The Division may establish an annual fee for the operating permit. Public notice and opportunity for a public hearing will be provided prior to the implementation of such a fee.

26.205 Pool Builder/Pool Service Company - No person or company shall install, construct or sell a public pool that does not conform to these Regulations. All pools should be built/serviced by a qualified person or company. The Division may establish certification and licensing requirements for pool builders/service companies along with a fee for such license. At such time, the Division shall require that all pools be built/serviced by a certified and licensed person. Public notice and opportunity for a public hearing will be provided prior to the implementation of certification and licensing requirements and/or a license fee. This section is in no way meant to preclude the owner of a pool or the owner's employees from performing work on their own pool.

26.205 Pool Operator - The operation of every pool shall be monitored by an approved pool operator. This person may be part of the pool staff or from a private company and shall monitor the pool as often as necessary to maintain compliance with these Regulations. The approved pool operator’s certificate issued by the Division, or a copy, shall be available for viewing by any patron or representative of the Division upon request and should be conspicuously posted. The Division reserves the right to revoke the approval of any operator based upon evidence of malfeasance or non-feasance.

26.206 Right of Entry and Sanitary Surveys - Representatives of the Division shall have the right of immediate entry any time a pool is open, and in special situations, at any reasonable time, in order to perform a sanitary survey to determine compliance with these Regulations. A sanitary survey shall be conducted at least once per year at every active pool. These surveys may include any room or area associated with the pool operation. In addition, the representatives shall be permitted to examine any pertinent records.

26.207 Inactive Pools - Any pool which closes for thirty (30) continuous days or more, should contact the Division for a sanitary survey prior to re-opening. Any pool which closes for twelve (12) or more continuous months shall: be classified as inactive; contact the Division for a sanitary survey prior to re-opening; and make whatever changes are deemed necessary to achieve compliance with the current Regulations. If the inactive pool does not have its own recirculation/filtration/disinfection system, this shall be provided prior to receiving approval to reopen. If there is no intention of reopening an inactive pool, it should shall be properly abandoned (removed or filled with dirt to ground level). Outdoor inactive pools shall be equipped with a tightly fitting cover during mosquito breeding season (normally May through September).

26.208 Variance Standards - The Division may allow for some deviation from these Regulations on a temporary trial basis, in order to allow the pool owner or operator to demonstrate that some alternate procedure or innovation in design, construction or operation should be approved. Such permission shall only be granted if the Division is convinced that the health, safety and well-being of the pool patrons will not be jeopardized. If the procedure or innovation in design, construction or operation is approved, the Regulations shall be amended accordingly, if necessary.

SECTION 26.3 LOCATION, DESIGN AND CONSTRUCTION

26.301 Location - Pools shall not be located in areas which are subject to contamination from dust, soot, flyash, smoke, improper drainage, a high water table, or other undesirable substances. For outdoor pools, any overhead wiring not inside an electrical conduit shall not pass over any part of the deck or an area within twenty (20) feet of the nearest edge of the pool. If the edge of a pool, extended upward vertically, is located within fifteen (15) feet of a building, roof or balcony, a protective barrier may be required (discretion of the Division) to prevent diving from the building, roof or balcony.

26.302 Design - No limits are specified for the shape of pools, however, consideration shall be given to shape from the standpoint of safety and proper water circulation. Pools shall be designed such that: there is even and complete water circulation throughout; safe, sanitary conditions can be maintained at all times; and all bathers can be effectively monitored; and all bather entry points to the pool deck are at the shallow end of the pool if any part of the pool is greater than five (5) feet deep. When the bather entrance gate cannot be located at the shallow end, an interior fence at least four (4) feet high shall be provided, which will create a corridor to the shallow end. There shall be no protrusions, extensions, means of entanglement, or other obstructions in the pool which can cause entrapment or injury. Underwater or overhead projections or obstructions except for handholds, steps, ladders, [handicapped access] facilities [for persons with disabilities] or recirculation system fittings shall be prohibited, unless such construction can be justified by engineering design. Underwater seat benches may be permitted in areas where the water depth is five (5) feet or less provided that: the maximum water depth over the seat bench is twenty-four (24) inches; the seat bench is completely recessed; the outer edge of the seat bench shall be outlined in contrasting color by a solid marking line at least one (1) inch wide; and the seat bench surface is slip resistant.

26.303 Construction - Pool walls and bottoms shall be constructed of concrete, fiberglass, metal or other nontoxic, impervious and structurally rigid materials approved by the Division, which will provide a watertight basin, smooth, easily cleanable surfaces and a finish without cracks. Sand, earth or wood construction shall be prohibited. The walls and bottom shall be white or light in color for the purpose of insuring contrast to identify objects. Corners formed by the intersections of walls or walls and floors shall be curved (radiused). Surfaces within the pool intended to provide footing for patrons shall be designed to be slip resistant. Offset or safety ledges shall be prohibited.

26.304 Hydrostatic Relief Valve - All below ground pools, with the exception of indoor crib bed pools, should have a hydrostatic relief valve, which will relieve ground water pressure and prevent the shell from being lifted upward.

26.304 Walls - All SwP and WSF splash pool walls shall be vertical for a minimum depth of two (2) feet six (6) inches in areas less than five (5) feet deep. Exceptions may be made for irregularly shaped pools (e.g. zero depth entry, T, L or Z shapes) in the recessed areas out of the main swimming area.

26.305 Floor/Slope - All pool floors shall be sloped toward the outlet/drain and all slopes shall be constant. The slope shall not exceed one (1) foot in twelve (12) feet (1':12') where the water depth is five (5) feet or less, shall not exceed one (1) foot in (3) feet (1':3') where the depth is greater than five (5) feet. Any pool having a transition from the slope in the shallow end to the deep end shall do so through a slope break starting at a depth not less than three and one half feet (3-1/2) feet and not greater than five (5) feet. At least one (1) foot and not more than two (2) feet on the shallow side of the slope break directly under the safety line, the floor shall be marked with a line of contrasting color that is either: solid and at least two (2) inches wide or intermittent with sections that are at least four (4) inches by four (4) inches and not more than one (1) foot apart on centers.

26.306 Shallow End Minimum/Maximum Depth - With the exception of diving pools, all SwP pools shall have a minimum depth in the shallow area of three (3) feet and a maximum depth of four (4) feet. Exceptions may be made for irregularly shaped SwP pools (e.g. zero depth entry, T, L or Z shapes) with recessed areas out of the main swimming area.

26.307 Ladders and Steps - With the exception of WP, SpP and WSF splash pools, all pools shall have at least two entry/exit points (ladders or steps), one (1) for each end. Any pool with water deeper than five (5) feet shall have at least two (2) ladders in the deep end. In addition to the above, any pool with a perimeter greater than two hundred twenty-five (225) feet shall have one (1) additional ladder or set of steps for each additional seventy-five (75) feet of perimeter or fraction thereof.

Ladders shall be constructed of corrosion resistant materials and shall be securely anchored into the pool deck or built into the pool wall. All ladders shall have two (2) handrails and at least two (2) slip resistant treads which are at least one and one half (1-1/2) inches deep, with a uniform length of at least twelve (12) inches and a uniform spacing of at least seven (7) inches and not more than twelve inches. The clearance between any ladder and the pool wall shall be at least three (3) inches and not more than six (6) inches. Recessed ladders (built into the wall) shall have two (2) handrails and shall have a tread at least five (5) inches in depth, at least twelve (12) inches in width and the uppermost tread shall be within twelve inches of the pool coping top edge or the deck surface. All treads shall slope toward the pool.

Where steps are provided, they shall either be recessed or located in a corner. All steps shall have a minimum tread length of twenty-four (24) inches, a tread depth of at least ten (10) inches and a uniform height of not more than twelve (12) inches, with the exception of either the top or bottom tread which may vary +/- -two (2) inches. The top surface edge of each step shall be outlined in contrasting color by a line (painted, tile, etc.) at least one (1) inch wide. Each set of steps shall have at least one (1) handrail per seven (7) feet of tread length. If the steps are less than four (4) feet wide the handrail shall be located at the side and if the steps are four (4) feet or wider, the handrail shall be located in the center. The tread surface shall be slip resistant.

26.308 Decks and Walkways - Every pool shall have a continuous unobstructed deck at rim level around the entire perimeter. The deck shall be no less than four (4) feet wide at any point, measured from the pool edge. For outdoor pools, the area of the deck shall be at least equal to the area of the pool water surface, and for indoor pools, the area of the deck shall be at least equal to two thirds (2/3) of the pool water surface. A minimum width of four (4) feet shall be provided behind lifeguard stands and the ladders/steps of all diving boards. Walkways shall be provided from the deck to all pool sanitary and bathhouse facilities. In computing the minimum deck area for adjacent pools, no area of the deck shall be considered as serving both pools.

In order to prevent standing water, decks and walkways shall have a uniform slope of not less than one quarter (1/4) inch per foot and not more than one half (1/2) inch per foot, away from the pool and toward deck drains or areas where the water will have a free unobstructed flow to points of disposal. The edge of the pool deck at its junction with the pool wall shall be constructed of bullnose coping, or some other acceptable material, which will provide an adequate hand hold around the entire pool perimeter and which is not more than twelve (12) inches above the normal water level.

Wet deck/walkway areas shall be constructed of concrete or other approved material which has an impervious slip resistant surface, can be easily cleaned and is installed such that there are no hazards to patrons or their bare feet (e.g. tripping, abrasions, splinters, etc.). If expansion joints are provided, the joint shall be filled with a non-rigid material such as mastic which shall not protrude above the deck. Exposed wooden expansion joints shall be prohibited. Carpeting shall be prohibited in wet deck/walkway areas. Wood may be used in wet deck/walkway areas if all of the following conditions are met (the following conditions apply only to the wood that forms the wet deck/walkway surface and not to support structures below):

a. The wood shall not be treated with creosote, pentachlorophenol, inorganic arsenicals or any other substance which has been shown to have either an acute or a chronic health effect. Any substance that has been applied to the wood by the manufacturer and any substance that will be applied to the wood by the installer shall be approved prior to installation.

b. Spacing between boards not to exceed one quarter (1/4) inch shall be provided.

c. The area below the wooden deck or walkway shall properly drain to points of disposal.

d. All wood fasteners shall be corrosion resistant.

26.309 Electrical and Lighting Requirements - All electrical wiring and equipment associated with the pool shall be in compliance with all appropriate state and local codes and the current edition of the National Electric Code. For indoor pools and all bathhouse facilities, all overhead wiring which is not behind the wall or ceiling shall be inside an electrical conduit.

Artificial lighting shall be provided at all pools which do not have adequate natural lighting or which are to be used for evening/night swimming. The artificial lighting shall meet all of the following conditions:

a. Lighting shall be sufficient such that all areas of the pool, and either of the following are clearly visible without glare from the deck: the main drain(s) and all bottom markings; or a black disk six (6) inches in diameter superimposed upon a white field and placed on the bottom of the deepest point.

b. Outdoor pools shall provide at least thirty (30) footcandles and indoor pools shall provide at least fifty (50) footcandles of illumination at the water surface from natural and/or artificial lighting.

c. All overhead lights shall be covered with adequate shatter resistant shields and equipped with shatter resistant bulbs.

26.310 Hose Bibbs - A sufficient number of hose bibbs shall be provided and located such that all parts of the deck area, the pump/filter room and the bathhouse facilities are easily reachable with a fifty (50) foot hose, without the hose passing over or through the pool water. Hose bibbs shall be located at the edge of the deck such that they do not constitute a tripping hazard and shall be equipped with vacuum breakers or other approved backflow prevention devices.

26.311 Trees, Sand Areas and Planted Areas - Trees at the pool site prior to construction shall not be permitted inside the pool fence and should be removed if they will be within fifty (50) feet of the pool edge. Sand areas and other nongrass/unsodded areas designed for bather access shall not be permitted inside the pool fence or room. Provisions shall be made so that bathers returning to the pool deck from these areas are routed past a foot rinse shower. Flower beds, shrubs and other similar planted areas may be permitted inside the pool fence or room if all of the following conditions are satisfied:

a. There shall be a separation distance of at least ten (10) feet between the edge of the pool and the edge of the planted area.

b. The planted area shall be designed such that regular maintenance can be easily accomplished.

c. All planted area drainage shall be conducted away from the pool in a manner that will not create muddy, hazardous, or objectionable conditions.

d. The planted area shall be designed to discourage patron entry.

26.312 Sanitary/Bathhouse Facilities - All pools shall have at least one (1) permanent water closet with lavatory for the lifeguard/attendant, which is accessible when the pool is open and is located contiguous to the pool deck or pool room. Furthermore, all pools, with the exception of those where all patrons' sanitary/bathhouse facilities are within one thousand (1000) feet, shall provide the following permanent sanitary/bathhouse facilities located contiguous to the pool deck or pool room:

Number of Fixture Sets *Pool(s) Water Surface Area

For Each Sex (Square Feet)

One (1) Up to 2000

Two (2) 2001 to 4000

Three (3) 4001 to 6000

Four (4) 6001 to 8000

*For pools greater than eight thousand (8000) square feet, one additional fixture set for each sex shall be provided for each additional four thousand (4000) square feet, or fraction thereof.

All sanitary and bathhouse facilities shall be indoors, enclosed to provide privacy, finished in light colors, well ventilated, in good working order and designed such that good sanitation can be maintained throughout at all times. Floors shall be constructed of concrete or other approved material, shall have a smooth slip resistant finish and shall be sloped to floor drains or points of drainage. Carpeting shall be prohibited in all wet deck/walkway areas. Floor and wall junctions shall be curved (radiused) for easy cleaning. Lighting shall provide at least thirty (30) footcandles of illumination at floor level. All lavatories and showers shall have hot and cold water and shall be equipped with tempering valves which provide water at a temperature not exceeding 120°F. All bathhouses shall have soap (liquid recommended), single service towels or hot air dryers, toilet tissue, and waste baskets. All plumbing shall be in compliance with the "State of Delaware Regulations Governing a Detailed Plumbing Code" and new installations shall be inspected and approved by the appropriate authority prior to use. Floors shall have a slip resistant finish, and carpeting and duckboard shall be prohibited. All bathhouse facilities shall be at the same elevation as the pool deck or at an elevation that is accessible with a ramp having a slope that shall not exceed one (1) inch per foot and should not exceed one (1) inch per twenty (20) inches. The pool operator should require all bathers to take a shower prior to entering the pool.

All outdoor pools, except those where bathers must go through the bathhouse in order to reach the deck, shall have a foot rinse shower at each patron entry point. Any indoor pool with direct bather access to an outdoor sand beach or other unsodded area shall also have a foot rinse shower at the access point. The foot rinse shower shall be located such that bathers must walk past the deck discharge area. In order to prevent standing water, the deck discharge area shall slope toward a drain or an area where the water will have a free unobstructed flow to points of disposal. The foot rinse shower shall should: be a shower head; be approximately twelve (12) to twenty-four (24) inches above the deck; have an automatic shut off valve when released; and point toward the deck at approximately a forty-five (45) degree angle. Foot baths (standing water in which patrons rinse their feet) shall be prohibited.

26.313 Drinking Fountain - At least one (1) sanitary type (guarded angle jet) drinking fountain in good working order shall be provided. The fountain shall be easily accessible and located inside the pool fence or room at the shallow end. Common drinking cups shall be prohibited.

26.314 Food and Beverage Facilities - Food and beverage service facilities that are inside the pool fence or room shall not be located within twenty (20) feet of the pool edge. If licensing is required, all such facilities shall be licensed by the Division or the appropriate authority.

26.315 Starting Blocks - If starting blocks for competitive swimming events are installed, the water depth under the blocks shall be greater than five (5) feet.

26.316 Escutcheon Plates - All anchor bolts shall be covered by escutcheon plates.

26.317 [Handicapped] Access [for Persons with Disabilities] - [Steps, ramps, handrails, lifts, or other appurtenances] [Facilities] designed to accommodate [persons with disabilities] [handicapped individuals] will be approved within the limits of sound engineering practice and nationally recognized standards. Lifts shall be mounted into the pool deck and shall have a minimum deck width of four (4) feet behind the lift mount.

26.318 Swimming Pool Slides - The installation of swimming pool slides shall be prohibited. All swimming pool slides that are in existence on the effective date of these Regulations (April 15, 1990) should be removed.

26.319 Diving Area/Diving Pool and Diving Board - The dimensions of the diving area/diving pool and the diving board shall be in accordance with the following:

Minimum (*) and Maximum (**) Dimensions for Pools with Diving Boards

>greater than

Minimum (*) and Maximum (**) Dimensions for Pools with Diving Boards

>greater than

Pools with diving boards higher than three (3) meters, and/or pools with diving platforms shall be constructed in accordance with the standards of the FINA, NCAA and USD and these devices shall be labeled "COMPETITIVE DIVING ONLY."

Diving boards shall have guardrails on both sides which are at least thirty (30) inches high and extend from the back end of the board to at least one (1) foot past the pool edge. Diving boards that are greater than one (1) meter high shall have handrails on both sides of the ladder/steps and the guardrails should be completely closed but in no case shall the spacing between them exceed twelve (12) inches.

All diving boards shall be level and shall have slip resistant surfaces. All supports, steps, and railings shall be made of material which is of sufficient strength to handle the anticipated load. Trampoline type diving facilities and rope drops shall be prohibited. With the exception of competitive diving, any adjustable fulcrum diving board shall have the fulcrum locked in the maximum forward position.

Any diving board in existence on the effective date of these Regulations (April 15, 1990) that cannot comply with the requirements of this Section by being shortened and/or lowered, should be removed. Also, In order for the replacement of any diving board stand, or the replacement of any diving board stand and diving board to be approved, the pool shall be in compliance with the requirements of this Section.

SECTION 26.4 RECIRCULATION SYSTEM

26.401 General Requirements - Each pool shall have its own recirculation system. The recirculation system shall consist of, but is not limited to: a pump, a flow measuring device, a removable strainer with spare basket (not required on vacuum filters), a filter with at least one (1) pressure gauge, an automatic disinfectant feeder, piping, deep end floor outlets/drains, a perimeter overflow gutter or surface skinners, return inlets, valves and other necessary equipment. The recirculation system shall be designed to provide a minimum of four (4) turnovers of the pool volume per day [one (1) every six (6) hours] against the maximum head. In the pump/filter area, each suction and discharge line shall have a manual control valve capable of regulating flow or shutting off flow completely. If the required flow rate is provided collectively by multiple pumps, all of these pumps shall operate by a single control switch. The difference between the minimum required flow rate in gallons per minute (gpm) (based on the type of pool) and the maximum allowable flow rate in gpm (based on the type of filtration) shall be at least ten (10) gpm. Water velocities through piping should not exceed the following: three (3) feet per second in gravity pipe; five (5) feet per second in suction pipe and ten (10) feet per second in pressure pipe.

26.402 Recirculation Pump - All recirculation pumps shall be of adequate capacity to provide the required turnover rate, a sufficient backwash rate and sufficient suction for any vacuum fittings. If the pump or any suction side piping is located above the pool water level, the pump shall be self-priming. All recirculation pumps shall be equipped with the necessary piping, valves, etc. such that pool water can be pumped directly to waste. This line shall terminate above any drain entry point by a distance of at least twice its diameter. For the purpose of confirming or determining the flow rate, all recirculation pumps shall be equipped with pressure gauges on both the suction and pressure side the pump and the pump curve should be conspicuously posted nearby.

26.403 Rate of Flow Indicator - At least one (1) rate of flow indicator reading in gpm shall be installed after filtration on the pool return line. The indicator shall be easily accessible for viewing, in proper working condition when the pool is open, sized such that the design flow rate is in the mid range of the indicator, and capable of measuring at least fifty (50) percent more than the design flow rate. The clearance upstream and downstream from the indicator shall comply with the manufacturer's specifications. In lieu of the above, a pre-set flow control valve with a direct mounted meter kit and conversion chart may be used.

26.404 Floor Outlets/Drains - All pools shall be provided with at least two (2) floor outlets/drains at the deepest point which: are connected to the recirculation system through the same line; are at least six (6) feet apart on centers (for special designs, as far apart as possible or on different planes); are not more than fifteen (15) feet from the side wall; are equipped with a flow control valve(s) near the recirculation pump; have an antivortex cover or a twelve inch by twelve inch (12" x 12") grate or larger; and can completely drain the pool. The velocity of the water entering the outlet/drain should not exceed one and one half (1-1/2) feet per second. All drain outlet pipes shall be recessed within the fitting or in a pit and equipped with a cover which can only be removed with a Phillips screwdriver or a special tool. The width and length of slot openings in the cover shall not exceed one half (1/2) inch and one (1) inch respectively.

26.405 Perimeter Overflow Gutters and Surface Skimmers - All pools shall have either perimeter overflow gutters or surface skimmers (not recommended for pools with a water surface area greater than 2500 square feet) which: are capable of conducting one hundred (100) percent of the required flow rate; are connected to the recirculation system; have flow control valves near the recirculation pump; and effectively remove any floating material. If perimeter overflow gutters are used, they shall be continuous around the pool with a uniform level rim which is not more than twelve (12) inches below the deck and which will provide a suitable handhold. Gutters shall be designed so that the channel is easily accessible for cleaning and presents no entanglement hazard to bathers. If the gutters are recessed, the access opening shall be at least four (4) inches. Gutter drains shall be provided at uniform intervals not to exceed fifteen (15) feet and the gutter shall slope sufficiently to these drains. The design shall ensure that the recirculation pump receive a continuous supply of water at all times either by adequate surge capacity within the gutters or a surge/balancing tank. Any perimeter overflow gutter with a submerged protruding edge, shall have a solid marking line of contrasting color which is at least one (1) inch wide on the top surface edge of the gutter. Under normal operating conditions the flow rate through the gutter should be one hundred (100) percent of the design flow rate.

If surface skimmers are used, they shall be NSF listed and at least two (2) shall be provided. For pools that are greater than one thousand (1000) square feet of water surface, one (1) additional skimmer shall be provided for each additional (500) square feet of pool water surface or fraction thereof. Skimmers shall be optimally located around the pool perimeter and the recirculation system shall be designed such that the flow through each skimmer is at least twenty (20) gpm. All skimmers shall have individual flow controls devices, an equalizer line (except WP pools), an easily removable, cleanable basket or screen and a cover. Under normal operating conditions the total flow rate through the skimmers should be at least eighty (80) percent of the design flow rate.

26.406 Inlets - With the exception of WP and SpP pools, All pools shall have at least four (4) inlets, either on the side walls or on the floor, which are connected to the recirculation system. Side wall inlets, with the exception of those built into a gutter, shall discharge at a depth of at least twelve (12) inches below the normal water level. The distance between side wall or bottom inlets, measured along the wall or floor surface, shall not exceed twenty (20) feet and the spacing between any floor inlet and the side wall, measure along the surface, shall not exceed ten (10) feet. When wall inlets are used, an inlet shall be provided within five (5) feet of each corner and one (1) in each recessed step area. The inlets, either by adjustability or by design, shall provide the necessary flow to maintain the required disinfectant residual and chemical quality evenly throughout the pool.

26.407 Vacuuming - All pools shall have the capability of vacuuming the bottom either through a skimmer, a separate vacuum fitting or a portable vacuum system. If a portable vacuum system must be used, it shall be stored on-site when the pool is open. Vacuuming through a portable vacuum system that is connected to the potable water supply shall be prohibited. In line and portable vacuum pumps shall be equipped with a removable strainer with a spare basket.

26.408 Piping - Recirculation system piping shall be made of non-toxic material and should be sized such that: head losses do not exceed one (1) foot per hundred (100) feet on suction lines and three (3) feet per hundred (100) feet on discharge lines; and flow velocities do not exceed three (3) feet per second in gravity, six (6) feet per second under suction, and ten (10) feet per second under pressure. All plastic piping shall: be labeled with the manufacturer's name and the NSF logo for potable water; appear in the current NSF Listing "Plumbing and Related Products”, or approved equivalent; and be used/installed in accordance with the manufacturer's specifications.

26.409 Multiport Valves - All multiport valves shall be NSF listed.

26.410 Pool Water Heaters - All gas heaters shall be design-certified by the American Gas Association (AGA) and shall display a rating data plate and the AGA seal. All electric heaters shall be Underwriters Laboratories (UL) approved and shall display the UL seal. All heaters shall have sufficient piping and valves to permit isolation and removal of the heater from the system.

26.411 Equipment Access, Freezing Protection and Drainage - Easy access shall be provided to all parts of the recirculation system that must be inspected or serviced. All piping and equipment that is subject to freezing shall be provided with an adequate means of draining. At least thirty (30) foot candles of illumination shall be provided around all equipment. In order to prevent standing water, all equipment rooms shall be adequately graded toward floor drains or areas where the water will have a free unobstructed flow to points of disposal.

SECTION 26.5 FILTRATION SYSTEM

26.501 General Requirements - Each pool shall have its own filtration system. All filters shall bear the manufacturer's name, the model #, the surface area and the filter shall be NSF listed. All filtration systems shall be sized such that the maximum allowable filtration rates are not exceeded and shall be operated such that the passage of unfiltered water will be prevented. The filter effluent water shall have a turbidity of five tenths (.5) NTU or less. All filters shall be capable of being totally drained through a manual valve or by disconnecting a union, and all filtration surfaces shall be accessible for inspection, maintenance or replacement. Filters that require backwashing shall have a pressure gauge(s) for determining the time to backwash, and a site glass for observing the backwash water clarity. The backwash discharge line shall terminate above the drain entry point by a distance of at least twice its diameter. All pressure filters shall be equipped with manual or automatic air release valves, or shall be self-purging. If a manual air release valve is present, specific instructions explaining its use shall be provided and shall be conspicuously posted on or near the filter. In multiple filter installations filter piping shall be valved such that each filter can be isolated for repairs, while other filters remain in service.

26.502 Rapid Sand Filters - All media shall meet all of the specifications of the filter manufacturer. In multiple filter installations filter piping shall be valved such that each filter can be individually backwashed. The filtration rate for rapid sand filters shall not exceed three (3) gpm per square foot of filter area, or the NSF listed flow rate, whichever is less.

26.503 High Rate Sand Filters - All media shall meet all of the specifications of the filter manufacturer. The filtration rate for high rate sand filters shall not exceed twenty (20) gpm per square foot of filter area, or the NSF listed flow rate, whichever is less.

26.504 Diatomaceous Earth Filters - If diatomaceous earth filters are equipped with a pressure type separation tank, there shall be no manual valves on the effluent line, and the following statement or equivalent shall be conspicuously posted on the top of the separation tank and at the pump control switch "Do not start the pump without opening the manual air release on the separation tank and checking to make sure that the top of the separation tank is securely attached." Also, any manufacturer's instructions for the proper use of this separation tank shall be displayed either on the top of the separation tank or on the wall nearby. The filtration rate for diatomaceous earth filters shall not exceed two (2) gpm per square foot of filter area, or the NSF listed flow rate, whichever is less. Diatomaceous earth filters that have an NSF listing for slurry feed shall not exceed a filtration rate of 2.5 gpm per square foot of filter area. All diatomaceous earth filters that are backwashed to waste should have a settling tank/chamber for capturing the earth.

26.505 Cartridge Filters - All pools with cartridge filtration systems shall have at least one (1) spare cartridge for each cartridge in use, which is clean and ready for installation, along with at least one (1) vat which is capable of submerging all of the cartridges from one filter vessel. Pools with modular media cartridge filtration shall have at least one (1) spare cartridge for each type of cartridge in use, which is clean and ready for installation. When cartridges become clogged to the extent that cleaning does not restore them, or they become damaged, they shall be discarded. The filtration rate for cartridge filters shall not exceed three hundred seventy-five one thousandths (.375) gpm per square foot of filter area, or the NSF listed flow rate, whichever is less.

SECTION 26.6 POTABLE WATER SUPPLY, POOL WATER QUALITY/TESTING, CHEMICALS AND WASTEWATER

26.601 Potable Water Supply - All pools shall have a water supply which: is approved by the Division; is in compliance with the requirements of the "State of Delaware Regulations Governing Public Drinking Water Systems;" and is of adequate capacity to meet peak demands while maintaining at least twenty five (25) pounds per square inch (psi) and not more than one hundred (100) psi at all points in the system. All drinking fountains shall be in good working order. Cross connections between the potable water supply and the pool water shall be prohibited. Hose bibbs shall be located such that they do not constitute a tripping hazard and shall be equipped with vacuum breakers or other backflow prevention devices approved by the Division.

26.602 Fillspout - All pools shall have a permanent fillspout that shall be air gapped at least two (2) pipe diameters above the pool rim, or the rim of any vessel or pipe that connects to the pool. In order to minimize the possibility of creating a tripping hazard, all fillspouts that are on the deck shall be located immediately next to one of the pool ladders, or another approved location. The portion of the water line passing through a concrete deck shall either be non-plastic piping or shall be inside a metal sleeve. All pools that are in existence on the effective date of these Regulations and do not have a permanent fillspout, or have a fillspout that is a potential tripping hazard should shall take whatever steps are appropriate to install the fillspout or eliminate the potential tripping hazard. All fillspouts located on the pool deck should be braced.

26.603 Clarity - The water is all pools shall be sufficiently clear and the lighting shall be sufficient such that all areas of the pool, and either of the following are clearly visible from the deck: the main drain(s) and all bottom markings; or a black disk six (6) inches in diameter superimposed upon a white field and placed on the bottom at the deepest point. The turbidity of the pool water shall be five tenths (.5) NTU or less.

26.604 Bacteriological Quality - If samples are taken for the heterotrophic plate count test [standard plate count (SPC)], the result shall be less than (<) two hundred (200) colonies per milliliter. If samples are taken for the total coliform test, when the membrane filtration (MF) technique is used, the result shall be less than (<) one (1) colony per one hundred (100) milliliters of sample, when the multiple tube fermentation or most probable number (MPN) method is used, none of the conformed portions shall show the presence of the coliform group [result reported as less than (<) 2.2] and when the presence/absence test is used, the result shall be absent.

Samples shall be taken by, or required by the Division whenever it is deemed necessary. For the purpose of determining compliance with this Section, samples may be considered only if they have been analyzed by the Division or by another approved laboratory.

26.605 Chemical Quality -The chemical quality of pool water shall not cause any irritation to the eyes or skin of bathers and shall be in compliance with the requirements of the "State of Delaware Regulations Governing Public Drinking Water Systems." The pH shall not be less than 7.2 or greater than 7.8. All pool water should be balanced (pH, calcium hardness, alkalinity, and temperature) and maintained in accordance with either Langelier Index/Water Balance method shown in Appendices A and B, or an approved equivalent, and the total dissolved solids (TDS) level should not exceed one thousand five hundred (1500) parts per million (ppm). Any chemical added directly or indirectly to a pool shall be approved by the Division, registered with the U.S. Environmental Protection Agency, used strictly in accordance with the manufacturer's directions and properly labeled in accordance with the Hazardous Chemical Information Act 16 Del. C. Chapter 24 (Right to Know). The Material Safety Data Sheet (MSDS) for each chemical should be kept at the pool.

All pools should have an automatic pH adjustment chemical feeder. Any pool using gas chlorine, and any pool with a documented history of pH level violations shall have an automatic pH adjustment chemical feeder that: is NSF listed; is approved by the Division; has approved anti-siphon protection; and is wired such that it feeds only when the recirculation pump runs (shall be done on all pools which are in existence on the effective date of these Regulations when either the chemical feeder or recirculation pump are replaced). The manual addition of approved non-disinfectant chemicals shall be permitted only in special situations (e.g. trying to achieve water balance), which require that the pool shall remain closed for at least one (1) turnover and until such time as the chemical is thoroughly and evenly dispersed throughout the pool.

26.606 Disinfection - All pools shall be disinfected with an approved halogen that imparts an easily measured residual and is fed through an automatic feeder that: is NSF listed (with the exception of gas feeders); is approved by the Division; has approved anti-siphon protection; is capable of providing a dosage of at least ten (10) ppm for outdoor pools and a dosage of five (5) ppm for indoor pools (shall be done on an existing pool when the disinfectant feeder is replaced); and is wired such that it feeds only when the recirculation pump runs (shall be done on all pools which are in existence on the effective date of these Regulations when either the disinfectant feeder or recirculation pump are replaced). A flow-through (erosion) feeder shall feed only the disinfectant(s) specified by the manufacturer. All shall add the disinfectant downstream from the filter and heater. All pool disinfectants shall be registered with the U.S. Environmental Protection Agency and approved by the Division. Manual addition of an approved halogen disinfectant shall be permitted only in special situations (e.g. superchlorination), which require that the pool be closed. After this manual addition has been completed, the pool shall remain closed: for at least one (1) turnover and until such time as the chemical is thoroughly and evenly dispersed throughout the pool; and the automatic feeder is operating properly if it was not at the time of manual addition. Use of gas chlorine shall be prohibited. Use of stabilized chlorine (cyanuric acid) in indoor pools shall be prohibited. In order for any non-halogen to be approved as a stand alone disinfectant, satisfactory performance shall be demonstrated during an NSF evaluation.

Pools using gaseous type chlorination shall comply with the following requirements:

a. All gas chlorine shall be fed by use of a vacuum injector system. Direct cylinder feed shall be prohibited.

b. All chlorine gas feed and storage shall be located at or above ground level in a separate room used for nothing else; and all openings from this room to any other rooms shall be sealed.

c. The chlorine room shall be provided with a light and a positive ventilation fan with a floor level discharge to the outdoors that provides one complete air change per minute and operates continuously while the pool is open.

d. The chlorine room shall have a shatter resistant inspection window and a door that opens outward to the building exterior.

e. Light and fan switches shall be located outside the chlorine room.

f. All chlorine cylinders shall be securely fastened or restrained against falling and all chlorine cylinders in use (connected to the feeder) shall be mounted on scales or equipped with an automatic switchover device. All cylinders should be stored in the chlorine room.

g. The chlorinator shall be vented outdoors above grade and the vent shall be screened.

h. If floor drains must be installed, they shall discharge outside of the building and shall not be connected to any other drains.

i. The chlorine room temperature shall be at least 60°F at all times and shall be protected against excessive heat.

j. A self contained breathing apparatus, and a bottle of ammonia for leak detection, shall be kept readily accessible at a location outside the chlorine room.

k. A gas chlorine warning sign shall be posted outside the room.

l. A new seal shall be installed each time a cylinder is changed.

m. A chlorine leak detection device with audible and visual alarm should be provided.

All pools shall/should be disinfected in accordance with the following requirements/ recommendations:

	REQUIRED		RECOMMENDED
	Minimum	RECOMMENDED	Maximum
	Level	Level	Level
Free Chlorine	0.5 ppm	1.0-3.0 ppm	5.0 ppm
Free Chlorine (Spa Pool)	1.0 ppm	2.0-5.0 ppm	10.0 ppm
Free Chlorine with Cyanuric Acid	1.5 ppm	1.5-3.0 ppm	5.0 ppm
Free Chlorine with Cyanuric Acid (Spa Pool)	2.0 ppm	2.0-5.0 ppm	10.0 ppm
Bromine	1.0 ppm	2.0-4.0 ppm	6.0 ppm
Bromine (Spa Pool)	2.0 ppm	3.0-6.0 ppm	10.0 ppm
Cyanuric Acid	None	30-50 ppm	*100 ppm
Combined Chlorine	None	0.0 ppm	0.2 ppm
ORP**	**650 mV	**700-750mV

*required **(recommended)

NOTE - Pools using bromine should use ozone as a supplementary disinfectant/oxidizer.

26.607 Water Testing Equipment and Sampling Frequency - All pools shall have approved testing equipment for pH, disinfectant residual, alkalinity, and calcium hardness. For disinfectant residual, the DPD (Diethyl-p-Phenylene Diamine) method, or any other method in the current edition of Standard Methods for the Examination of Water and Wastewater, shall be used. If the disinfectant is chlorine, the test kit shall be capable of measuring both free and total chlorine residual. For pH, the phenol red colorimetric method, or any other method in the current edition of Standard Methods for the Examination of Water and Wastewater, shall be used and the test kit shall have a range of at least 6.8-8.2. In addition to these parameters, pools that use a stabilized halogen shall have approved cyanuric acid testing equipment.

All chemical test kit reagents shall be dated when received, and shall be replaced just prior to the start of each outdoor pool season, and at least yearly for indoor pools, with the exception of phenol red which shall be replaced at least every six (6) months.

pH and disinfectant residual shall be measured daily, prior to the pool opening, and as often as necessary while the pool is open (recommended every one (1) to two (2) hours) in order to ensure the proper levels.

Alkalinity, calcium hardness and cyanuric acid (if applicable) shall be measured after each addition of make up water and at least weekly. All sample results shall be recorded along with the date, time and sample location (area of the pool). Records of sample results shall be kept at the pool for at least one (1) year, shall be available for viewing by any representative of the Division during a sanitary survey and shall be submitted to the Division upon request. If any other substance is added to the pool on a regular basis (e.g., copper/silver from a supplemental disinfection system), the Division may require testing to ensure that the concentrations do not exceed acceptable levels.

26.608 Pool Water Level and Recirculation System -When the pool is open, the water level shall be maintained at an elevation suitable for continuous flow into the perimeter overflow gutter or surface skimmers or intermittent flow into the gutter as bathers enter. The recirculation system shall operate continuously (24 hours per day), with the exception of the automatic disinfectant feeder when the disinfectant level approaches or exceeds the upper recommended level. Within three (3) years of the effective date of these Regulations (2003) each pool shall have its own recirculation, filtration and disinfection system. All pools shall have the capability of pumping water to waste either directly or via filter backwash. A dye test should be performed at least annually on every pool. The Division may require a dye test to ensure that the recirculation system is providing even and complete recirculation throughout the pool.

26.609 Chemical Storage - All chemicals, including test kits, shall be stored in accordance with the storage recommendations on the manufacturer's label and the MSDS, and they shall be stored in areas that are not easily accessible to bathers or other unauthorized personnel. All pools shall keep adequate quantities of chemicals on hand such that shortages are not experienced. "NO SMOKING" signs shall be conspicuously posted in all chemical storage areas.

26.610 Wastewater Disposal - Cross connections between the pool recirculation system and any wastewater system, including the filter backwash drain, shall be prohibited. The backwash discharge line shall terminate above the drain entry point by a distance of at least twice its diameter. All wastewater, including filter backwash water, should discharge into facilities that are in compliance with all appropriate state and local codes.

26.611Ozone - All ozone systems should be NSF listed.

SECTION 26.7 OPERATION, MAINTENANCE, GENERAL SANITATION PERSONNEL, SUPERVISIOIN AND SAFETY

26.701 Operation and Maintenance - All pools, their premises, and appurtenances, shall be operated and maintained at all times with regard to the safety of bathers and employees. All plumbing shall be properly installed and maintained. During an electrical storm, use of any pool (indoor or outdoor) shall be prohibited. Alcoholic beverages shall be prohibited in the pool and on the pool deck (area required by Section 26.308). Food and beverages shall be prohibited in the pool and within four (4) feet of the pool edge. Glass or other breakable containers, utensils, etc., shall be prohibited within the pool fence, pool room or bathhouse facilities. Pool walls and floors shall be refinished when safe sanitary conditions cannot be maintained. Any deck/walkway areas that are hazardous to patrons or their bare feet (e.g., tripping, abrasions, splinters, etc.) or do not properly drain, shall be repaired or replaced such that the hazard or drainage problem is eliminated. Any electrical hazard shall be eliminated. All pools that have a slope break, shall install a line of contrasting color one (1) to two (2) feet on the shallow side of the break directly under the safety line that is either: solid and at least two (2) inches wide or intermittent with sections that are at least four (4) inches by four (4) inches and not more than one (1) foot apart on centers. All pools which have steps or benches, shall install a solid marking line of contrasting color which is at least one (1) inch wide on the top surface edge of each pool step or bench. All pools which have any type of overflow gutter or a safety ledge with a submerged protruding edge, shall install a solid marking line of contrasting color which is at least one (1) inch wide on the top surface edge of the gutter.

26.702 General Sanitation and Sanitary Facilities - All pools and related facilities shall be maintained in a clean sanitary condition. The pool floor, walls, deck, walkways and bathhouse facilities shall be cleaned and disinfected with an approved disinfectant as often as necessary in order to maintain an environment which is free of sediment, dirt, algae, grass/weeds and foreign objects. All garbage shall be stored in containers which are sufficient in number and properly covered so as not to attract vermin. Effective control measures shall be utilized to minimize or eliminate the presence of rodents, flies, roaches or other vermin. All pools shall have at least one (1) permanent or portable water closet for the lifeguard/attendant, which is accessible when the pool is open and is located such that the path of travel from the nearest pool entrance/exit does not exceed five hundred (500) feet. If a portable water closet is provided, it shall be properly vented, designed to exclude flies, equipped with a self-closing door, provided with toilet tissue, and maintained in a clean sanitary condition and. This water closet should be located contiguous to the pool deck or pool room.

26.703 Animals - With the exception of guide animals for [persons with disabilities], animals shall be prohibited within the pool fence, pool room or bathhouse facilities.

26.704 Bathing Suits – It is recommended that all bathers should wear bathing suits. A bathing suit is should be a garment designed for that purpose which covers the buttocks (male and female) and breasts (female). If anyone who is not toilet trained is going to use a pool, the operator shall should take whatever steps are necessary to ensure that fecal material does not enter the water (e.g. requiring the use of a swimsuit diaper). Should fecal material enter any pool, the pool shall be closed immediately and the operator shall follow Division procedures for reopening.

26.705 [Employee/] Bather Health - [No person with evidence of a communicable or contagious disease shall be employed at a pool. No person with evidence of a communicable disease, cough, cold, open sore or bandaged wound shall be allowed to enter the pool water except where certified by a physician not to have a disease in the communicable stage. Any person with evidence of an open sore, a bandaged wound or diarrhea shall be prohibited from entering the pool water.] Any person suspected of being under the influence of alcohol or drugs shall be prohibited from entering the pool.

26.706 Lifeguard - Unless exempted by 16 Delaware Code, each pool that is greater than 250 square feet (water surface) or greater than four (4) feet deep (any portion) shall have a lifeguard on duty when the pool is open. It is recommended that there be a minimum of two (2) lifeguards on duty when the pool is open and further recommended that there be one (1) lifeguard per either: fifty (50) bathers; or two thousand (2000) square feet of pool water surface; or fractions thereof. If a lifeguard who is working alone must leave poolside, for whatever reason, he/she shall take whatever steps are necessary to ensure that no one remains in or enters the water in his/her absence. Copies of training/certification documentation for all lifeguards currently employed by the pool’s management shall be present at the pool when it is open and should be available for viewing by patrons. No person shall serve as a lifeguard unless he or she meets all of the following training requirements and can produce the appropriate documentation upon request of the Division:

a. Current certification in National YMCA Lifeguarding, or American Red Cross Basic Lifeguarding, Ellis & Associates National Pool & Waterpark Lifeguard Training, Aquatic Resource Service Associates Aquatic Rescue Training or approved equivalent.

b. Current certification in American Red Cross, American Heart Association or National Safety Council (NSC) Cardiopulmonary Resuscitation (CPR), or approved equivalent, that includes training in: one (1) person adult CPR, child CPR and infant CPR.

c. Current certification in American Red Cross Standard First Aid, or approved equivalent, that includes training in: obstructed airway, artificial breathing, control of bleeding and treatment of shock.

26.707 Attendant – If none of the pools at a facility require a lifeguard based on surface area or depth, each pool, with the exception of those exempted by Title 16 Delaware Code, shall have an at least one (1) attendant with approved training on duty when the pool is open. If an attendant who is working alone must leave poolside, for whatever reason, he/she shall take whatever steps are necessary to ensure that no one remains in or enters the water in his/her absence. In facilities with a spa pool(s) (SpP) only, if the attendant is not in direct view of the pool, he/she shall be located such that the poolside alarm required by Section 26.720 can be easily heard. Copies of training/certification documentation for all attendants currently employed by the pool's management shall be present at the pool when it is open and should be available for viewing by patrons. No person shall serve as an attendant unless he or she meets all of the following training requirements and can produce the appropriate documentation upon request of the Division:

a. Current certification in American Red Cross, American Heart Association or NSC Cardiopulmonary Resuscitation (CPR), or approved equivalent that includes training in: one person adult CPR, child CPR and infant CPR.

b. Current certification in American Red Cross Standard First Aid, or approved equivalent, that includes training in: obstructed airway, artificial breathing, control of bleeding, and treatment of shock.

[c. Within three (3) years of the effective date of these Regulations (June 10, 2003) current certification in American Red Cross Basic Water Rescue, or approved equivalent.]

26.708 Lifeguard Warning Sign - Any exempted pool or any pool with a maximum depth of four (4) feet that does not have a lifeguard or attendant on duty shall conspicuously post the following sign at the pool entrance(s) and at least one (1) other location inside the pool room/fence: "WARNING NO LIFEGUARD ON DUTY" in letters at least four (4) inches high along with "CHILDREN UNDER THE AGE OF SIXTEEN (16) SHOULD BE ACCOMPANIED BY A PARENT OR GUARDIAN" in letters at least one (1) inch high. (NOTE - A guardian is an adult designated by a parent who is responsible for the children and their behavior).

26.709 Lifeguard Stand - All pools with a water surface area greater than two thousand (2000) square feet shall have at least one (1) lifeguard stand and additional stands should be provided based on each additional two thousand (2000) square feet or fraction thereof. The lifeguard stand shall be at poolside, however, no part of the stand shall extend past the edge of the pool. The lifeguard stand seat should be four (4) to six (6) feet above the pool deck.

26.710 Unsupervised Solo Bathing - Unsupervised solo bathing shall be prohibited at all pools with the exception of those exempted by 16 Delaware Code.

Maximum Bathing Load - In SwP pools, the maximum bathing load shall be based on one (1) bather per twenty-five (25) square feet of pool water surface. If a diving board is present and in use, the three hundred twenty (320), three hundred sixty (360) or four hundred (400) square feet of diving board water entry area per device (Sections 26.110 and 26.320) shall not be included in computing the maximum bathing load. If a swimming pool slide is present and in use, the two hundred fifty-six (256) square feet of swimming pool slide water entry area (Section 26.135) shall not be included in computing the maximum bathing load.

26.711 Injury, Resuscitation or Death - The Division shall be notified within twenty-four (24) hours of any incident at a pool which: requires referral to a hospital, doctor or other facility for medical attention; requires resuscitation; or results in death. The notification shall be followed up by a written report within thirty (30) days which contains all pertinent details of the incident.

26.712 Pool Security - All entrances to indoor pools shall be equipped with locks and each entrance shall be

locked when the pool is closed. All outdoor pools shall be enclosed by a fence which provides a barrier that is at least four (4) feet high everywhere [six (6) feet recommended], measured from ground level outside the fence. All pool fences shall be equipped with a locking gate which shall be locked when the pool is closed.

26.713 Depth Markings - With the exception of wading pools and spa pools, the water depth of all pools, in

feet to the nearest one half (1/2) foot, shall be plainly marked at or above the water surface on the vertical pool wall, and on the coping or deck within eighteen (18) inches of the pool edge. For pools with open gutters, the depth marking required on the vertical pool wall may be located on the wall of the room for indoor pools, and on the fence for outdoor pools. These pairs of depth markings shall be located at the points of minimum depth, maximum depth, intermediate depths at no more than two (2) foot depth increments with one (1) foot increments recommended, breaks in slope and on each end of the pool. All depth markings shall be at least four (4) inches high, of a contrasting color and spaced no more than twenty-five (25) feet apart on the pool perimeters. Markings on the pool walls shall be positioned to be read from the water. Markings on the deck shall be positioned to be read while standing on the deck and facing the pool and shall be slip resistant.

26.714 Safety Line - Whenever non-swimmers are in the water, all pools that have a slope break shall have a safety line located at least one (1) foot and not more than two (2) feet on the shallow side of the slope break, directly above the line on the bottom required by Section 26.701. The safety line shall have clearly visible colored floats spaced not more than five (5) feet apart. The safety line shall be of sufficient size and strength to provide a handhold which will support any bather who is in need of help and the connections to the pool wall shall be recessed.

26.715 Safety Equipment - All pools shall have the following safety equipment which shall be easily accessible:

a. A telephone, within or immediately adjacent to the pool fence or room, with appropriate emergency numbers posted nearby. Pay telephones are acceptable if they do not require coins in an emergency. In lieu of a telephone, a manually activated emergency alarm system that alerts someone else to dial the telephone is acceptable. All of the above must be able to send and receive calls.

b. Two blankets.

c. A first aid kit with the current edition of the American Red Cross standard first aid book or equivalent. The kit should include at least the following: soap, ice packs, bandaids, compresses (2"x2" and 4"x4"), gauze roller bandages, two (2) triangle bandages, surgical gloves and a mouth to mouth mask.

In addition to the above, all SwP pools without a lifeguard on duty (those exempted by 16 Delaware Code) shall also be equipped with the following safety equipment which shall be easily accessible:

d. One (1) or more lightweight poles at least twelve (12) and not more than fifteen (15) feet long, and equipped with a shepherd's hook.

e. One ring buoy at least eighteen (18) to twenty-four (24) inches in diameter attached to at least fifty (50) feet of rope.

In addition to the above, all SwP pools with a lifeguard on duty shall also be equipped with the following safety equipment that shall be easily accessible:

f. One rigid backboard (long board) with at least three (3) attached ties/straps which is compatible for transport in the Delaware State Police MED-E-VAC helicopter, meets the design requirements of Emergency Medical Services, and is approved by the Division. Six (6) attached ties/straps are recommended. If a pool, because of size, will not accommodate a long board being placed under a bather, a reduced backboard (short board) with at least one (1) tie/strap may be substituted. Current specification requirements for backboards are available upon request from the Division. (NOTE - This is not required for exempted pools that operate without a lifeguard).

g. In place of the ring buoy, at least one (1) rescue tube for each lifeguard on duty. (NOTE - This is not required for exempted pools that operate without a lifeguard).

26.716 Diving - With the exception of official competition or when there is qualified instruction, diving shall be prohibited into water that is five (5) feet deep or less. At SwP and WSF splash pools, all areas where the water is five (5) feet deep or less shall be clearly labeled "No Diving" on the coping (edge of the deck). For indoor pools, the "No Diving" markings may be approved on the walls of the room if it can be demonstrated that it is not feasible to provide them on the edge of deck. The "No Diving" markings shall be: of a contrasting color; easily readable; slip resistant and at least four (4) inches high consisting of the words "No Diving," the words "No Diving" in combination with the picture (international) sign (diver inside a red circle with a red line across), or other approved markings. The number of markings shall be at least equal to the number of depth markings within the "No Diving area" and shall be spaced no more than twenty-five (25) feet apart on the perimeter of the "No Diving" area.

26.717 Shallow End Starting Blocks - Shallow end starting blocks (water depth that is five (5) feet or less) shall be removed when there is no official competition, instruction or practice. Shallow end starting blocks that are not removable shall be labeled "starting blocks shall be used only during official competition or when there is qualified instruction."

26.718 Wading Pool Supervision – It is recommended that all children using a wading pool should be supervised by a responsible person who is at least sixteen (16) years of age.

26.719 Attendant Alarm - Any SpP pool, with the exception of those at facilities exempted by Title 16 Delaware Code, which is located such that it is not in direct view of the attendant shall have, in the immediate vicinity of the pool, a clearly labeled alarm device that can be activated when a bather is in trouble and is easily heard throughout the area or building. This alarm shall product a distinctly different sound than that of the high temperature alarm.

26.720 Spa Pool Warning Sign - A clearly visible sign shall be mounted at the entrance of each SpP pool

facility or adjacent to each SpP pool and shall include, but is not limited to, the following:

a. All bathers should take a shower prior to entering.

b. Enter and exit slowly and cautiously.

c. Unsupervised solo bathing is prohibited.

d. Use by anyone under sixteen (16) years of age is prohibited unless there is documented written permission from his or her physician.

e. Elderly persons and anyone with heart disease, diabetes, high or low blood pressure, or anyone under a physician's care should not enter without consulting with their physician.

f. Pregnant women should not enter unless the temperature is less than 102°F.

g. Hot water immersion while under the influence of alcohol, anticoagulants, antihistamines, vasoconstrictors, vasodilators, stimulants, hypnotics, narcotics or tranquilizers may be hazardous to your health and is prohibited.

h. Observe a fifteen (15) minute time limit, then shower, cool down and return if your wish. Longer exposures to this water may result in nausea, dizziness or fainting.

i. Do not submerge to the bottom of the pool, hair may become entangled in bottom outlet. Long hair should be tied in a knot or a bun in order to keep it out of the water.

j. No body lotions or oils are permitted.

26.721 Spa Pool Timer Switch - All SpP pools shall have a clearly labeled reversible aeration/jetting system timer switch with a fifteen (15) minute time limit located in the pool area but such that it cannot be reset from within the pool.

26.722 Spa Pool Temperature/High Temperature Prevention System - The water temperature in SpP pools should not exceed 100°F and shall not exceed 104°F. All spa pools shall have a thermometer that is measuring the current water temperature and the temperature should be checked and recorded at least hourly when the pool is open. If the thermometer is in the pool, it shall be non-glass and tethered. All SpP pools shall be equipped with an approved system that will ensure that the water does not exceed 104°F (e.g. a high temperature alarm, an automatic heater shut off device, etc.). The alarm shall produce a distinctly different sound than that of the attendant alarm. If there is a documented history of high temperature violations, the high temperature prevention system shall be replaced/upgraded. The Division may test the high temperature prevention system to ensure proper operation.

26.723 Spa Pool Clock - A clock that is easily readable from the SpP pool shall be provided.

26.724 Water Slide Flume - Head of the Flume Personnel - At least one person who meets the training requirements of Section 26.707a shall be stationed at the head of the flume to supervise and control the start of each slider, the spacing of sliders and the monitoring of the downward progress of each slider.

26.725 Water Slide Flume - Splash Pool Attendant - At least one attendant shall be stationed near the end of

the flume/run-out slide to supervise and control the sliders as they arrive. Additional attendants shall be required at the discretion of the Division.

26.726 Ventilation - All bathhouse rooms, equipment rooms, chemical storage rooms and indoor pool rooms shall be provided with adequate natural or mechanical ventilation such that satisfactory indoor air quality is maintained.

26.727 Cartridge Filtration - All pools with cartridge filtration systems shall have at least one (1) spare cartridge for each cartridge in use, which is clean and ready for installation, along with at least one (1) vat which is capable of submerging all of the cartridges from one filter vessel. Pools with modular media cartridge filtration shall have at least one (1) spare cartridge for each type of cartridge in use, which is clean and ready for installation. When cartridges become clogged to the extent that cleaning does not restore them or they become damaged, they shall be discarded.

SECTION 26.8 WADING POOLS

26.801 General Requirements - Except as otherwise noted previously and in this Section, WP pools shall comply with all other requirements of these Regulations.

26.802 Location - WP pools which are installed in conjunction with a SwP pool shall be located adjacent to the shallowest area of the SwP pool and shall be at least ten (10) feet away. If any part of the SwP pool is greater than five (5) feet deep the WP pool shall be located at least twenty (20) feet away.

26.803 Floor/Slope - The slope of a WP pool floor shall not exceed six (6) inches in ten (10) feet (6"/10') and the floor shall be slip resistant.

26.804 Fencing - All WP pools which are indoors or within the confines of another pool fence shall be surrounded by a fence which is at least three (3) feet high and is equipped with a gate.

26.805 Recirculation System - The WP pool recirculation system shall be capable of providing a minimum of twenty-four (24) turnovers of the pool volume per day [one (1) every hour] against the maximum lead.

26.806 Floor Outlets/Drains - All WP pools shall be provided with at least one (1) of the following connected to the recirculation system and capable of draining the pool: two (2) antivortex floor outlets/drains as far apart as possible on the same line with a flow control valve; one (1) antivortex floor outlet/drain connected to the skimmer line with no individual flow control valves prior to the pump; or another approved fitting. The velocity of the water entering the outlet/drain should never exceed one and one half (1-1/2) feet per second.

26.806 Perimeter Overflow Gutters and Surface Skimmers - All WP pools shall be equipped with either a perimeter overflow gutter or at least one skimmer which is connected to the recirculation system and effectively remove any floating material. For WP pools that are greater than five hundred (500) square feet of water surface, one (1) additional skimmer shall be provided for each additional (500) square feet of pool water surface or fraction thereof. Under normal operating conditions the total flow rate through the skimmers should be one hundred (100) percent of the design flow rate.

26.807 Inlets - All WP pools shall have at least two (2) inlets and in WP pools where only one (1) skimmer is required, the inlets shall be located such that they direct water toward the skimmer.

26.808 Water Replacement - The entire WP pool water volume should be replaced on at least a weekly basis either by normal backwashing or by pumping directly to waste.

SECTION 26.9 SPA POOLS

26.901 General Requirements - Except as otherwise noted previously and in this Section, SpP pools shall comply with all other requirements of these Regulations.

26.902 Location - A SpP pool shall be at least eight (8) feet away from any other pool.

26.903 Decks and Walkways - A deck at least four (4) feet wide shall be provided around at least fifty (50) percent of the perimeter of a SpP pool. If the SpP pool is free standing and not higher than thirty six (36) inches, the deck may be at floor level.

26.904 Steps and Benches - SpP pools which are greater than twenty-four (24) inches deep shall have at least one (1) step with at least one (1) handrail (two (2) are recommended) and all steps shall be located at a point where the deck is at least four (4) feet wide. The step tread shall be at least ten (10) inches deep and at least twelve (12) inches wide, and the step riser shall be at least seven (7) inches and not be more than twelve (12) inches high. When the bottom tread also serves as the bench, the height above the pool floor shall not exceed fourteen (14) inches. The first and last risers need not be uniform. Intermediate risers, however, shall be uniform in height. Benches that are installed in SpP pools shall be permanent and the depth of water over the bench shall not exceed twenty-four (24) inches. The top surface edge of all benches and steps shall be outlined in contrasting color by a marking line at least one (1) inch wide.

26.905 Fencing - SpP pools that are installed inside the confines of another pool fence are not required to be fenced.

26.905 Recirculation System - The SpP pool recirculation system shall be completely separate from the air/water jet system and shall be capable of providing a minimum of ninety-six (96) turnovers of the pool volume per day [one (1) every fifteen (15) minutes] against the maximum head.

26.906 Floor Outlets/Drains - All SpP pools shall be provided with at least one (1) of the following connected to the recirculation system and capable of draining the pool: two (2) floor outlets/drains as far apart as possible on the same line with a flow control valve; one (1) floor outlet/drain connected to the skimmer line with no individual flow control valves prior to the pump; or another approved fitting. The velocity of the water entering the outlet/drain should never exceed one and one half (1-1/2) feet per second.

26.906 Perimeter Overflow Gutters and Surface Skimmers - All SpP pools shall be equipped with either a perimeter overflow gutter or at least one skimmer which is connected to the recirculation system and effectively removes any floating material. If the second option in 26.907 is chosen, any approved through the wall skimmer with a weir may be used.

26.907 Inlets - All SpP pools shall have at least two (2) inlets which are connected to the recirculation system and in SpP pools where only one (1) skimmer is required, the inlets shall be located such that they direct water toward the skimmer.

26.908 Air Jetting System - All air jetting (blower) systems shall have a raised loop or some other approved method to prevent water backup that could cause electrical shock hazards.

26.909 Water Replacement - The entire SpP pool water volume should be replaced on at least a weekly basis either by normal backwashing or by pumping directly to waste.

SECTION 26.10 WATER SLIDE FLUMES

26.1001 General Requirements - Except as otherwise noted previously and in this Section, WSFs shall comply with all other requirements of these Regulations.

26.1002 Splash Pool Design and Depth - In order to facilitate prompt, safe exiting by bathers, all splash pools shall have either a set of steps along the entire length of the exit side (side opposite the flume terminus), or a floor that slopes upward to meet the water surface. The steps or upward sloping floor shall have one (1) handrail per flume or one (1) handrail every seven (7) feet, whichever is greater. Ladders shall be prohibited. The depth of the splash pool at the flume end shall be at least three (3) feet and not more than four (4) feet, and this depth shall be maintained for at least twenty (20) feet in front of the flume end. The floor slope shall not exceed one (1) foot in seven (7) feet and all slopes shall be constant.

26.1003 Flume End - Flumes shall terminate either at a depth of at least six (6) inches below the splash pool operating water level, or not more than two (2) inches above the splash pool operating water level, provided the flume is level for at least the last ten (10) feet. The distance between the side of any flume end and the side of the splash pool shall be at least five (5) feet. The distance between the sides of adjacent flumes shall be at least six (6) feet and adjacent flumes utilizing the same splash pool shall be parallel at the ends.

26.1004 Decks and Walkways - A deck at least ten (10) feet in width shall be provided along the entire exit side of the splash pool. All walks and steps from the exit side to the top of the flume shall be: at least four (4) feet wide; constructed of concrete or other slip resistant material approved by the Division; smooth, easily cleanable and properly maintained; and separated from any flume by a physical barrier such that people on the walks or steps cannot reach the flumes.

26.1005 Recirculation System - The WSF recirculation system shall be capable of providing a minimum of twenty-four (24) turnovers of the splash pool and pump reservoir volume per day [one (1) every hour] against the maximum head.

26.1006 Pump Reservoirs - Pump reservoirs shall be separate from the splash pool, shall be made of concrete or other impervious material with a smooth slip-resistant finish, and shall be connected to the splash pool by a weir. The minimum pump reservoir volume shall be equal to five (5) minutes of the combined flow rate in gpm of all water slide flume pumps. Pump reservoirs shall be accessible only to authorized individuals. Access decks shall be provided. The pump intake(s) shall be located in the pump reservoir and shall be designed to allow cleaning without danger of operator entrapment. The pump intake(s) shall be located in the pump reservoir and shall be designed to allow cleaning without danger of operator entrapment. The pump reservoir shall have a minimum of one (1) main drain with separate piping and valve to the filtration system. Pumps shall have check valves on all discharge lines.

26.1007 Perimeter Overflow Gutters and Surface Skimmers - All splash pools and pump reservoirs shall have either perimeter overflow gutters or surface skimmers which effectively remove any floating material and are connected to the recirculation system. Where perimeter overflow gutters are used, they are not required along the weirs or under the flume end. Where surface skimmers are used, one (1) shall be in the splash pool and one (1) shall be in the pump reservoir. Where an odd number of surface skimmers are required they shall be positioned appropriately based on the size of the splash pool and pump reservoir.

26.1008 Disinfection - WSF pools may be permitted to manually add a halogen disinfectant, in addition to the automatic feeder, if it can be done somewhere other than the flume or splash pool.

SECTION 26.11 SPECIAL PURPOSE POOLS

26.1101 General Requirements - Child care facility pools and other pools that do not fit into the categories SwP, WP, SpP, or WSF, of Section 26.123 because of the design, size, usage, or other factors, shall be classified as SpPP by the Division, provided that the design is within the limits of sound engineering practice. The Division shall require compliance with any Sections of these Regulations which are deemed necessary, to assure the health and safety of SpPP pool bathers.

SECTION 26.12 PROCEDURE FOR ADMINISTRATIVE ACTION

26.1201 Operating Without a Permit - If a pool is found operating without a valid permit, as required by Section 26.204, the Division Director shall issue a written notice for order immediate closure. This notice shall be delivered to either the lifeguard/operator or the person in charge. This closure shall be effective upon delivery receipt of the a written notice by the person in charge of the pool. and a closure notice statement on the sanitary survey report constitutes a written notice. A sign stating that the pool is closed may be posted at the bather entry point(s) and this sign shall be removed only by, or with the consent of the Director. Within five (5) days of receipt of this closure notice, The person in charge may request a hearing before the Director. If a hearing is requested, it shall be scheduled within ten (10) days. At least five (5) days prior to hearing, the person in charge shall be notified of the date, time and place. The pool shall remain closed until submission, review and approval of plans, followed by a sanitary survey confirming compliance with these Regulations and issuance of an operating permit. A conspicuous, colored placard shall be prominently displayed at all entrances of the pool which has failed to obtain a valid permit. If plans and specifications for the pool have been previously approved by the Division, the pool may reopen when approval of the Director has been granted and a permit has been issued. If there is not record of a Certificate of Approval, plans and specification shall be submitted in accordance with Section 26.202.

26.1202 Suspension of a Permit - If some conditions exist at a pool that represent an immediate imminent health hazard to the public, the Director Division may suspend the operating permit and order immediate closure and issue a written notice for immediate closure, without a hearing upon written notice for a period not to exceed ten (10) fifteen (15) days. This notice shall be delivered to either the lifeguard/operator or the person in charge. The suspension shall be effective upon delivery receipt of written the notice by the person in charge and a closure notice suspension statement on the sanitary survey report constitutes a written notice. The person in charge shall yield the permit to the Division. This written notice shall state the reason(s) for the suspension/closure and the person in charge shall be requested to yield the permit to the Director. A sign stating that the pool is closed may be posted at the bather entry point(s) and this sign shall be removed only by, or with the consent of the Director. A suspension/closure notice shall be issued for any of the following conditions:*

a. The clarity of the water is not in compliance with the provisions of Section 26.603.

b. The bacteriological quality of the pool water is not in compliance with the provisions of Section 26.604.

c. The pH of the pool water is less than 7.2 or greater than 7.8.

d. The automatic disinfection system is not functioning properly, or, there is no automatic disinfection system or disinfectant present.

e. The free chlorine residual is less than the level specified in Section 26.606.

f. The bromine residual is less than the level specified in Section 26.606.

g. The cyanuric acid level is greater than one hundred (100) ppm.

h. The recirculation pump is not operating or not present.

i. The filter is not operating or not present.

j. There is no qualified lifeguard or attendant on duty (unless exempted by 16 Delaware Code).

k. The water temperature exceeds 104°F in a spa pool.

l. There is a bare electrical wire or other obvious electrical hazard present.

m. The lighting is not in compliance with the provisions of Section 26.310 and because of this, the following are not clearly visible without glare from the deck: the main drain(s) and all bottom markings; or a black disk six (6) inches in diameter superimposed upon a white field and placed on the bottom at the deepest point.

n. A bottom drain cover/grate is missing, broken, or not properly secured.

o. An authorized representative of the Division is denied immediate access to the pool pursuant to Section 26.207.

p. Fecal material is discharged into the pool water. (NOTE-Contact the Division for the current procedure for handling fecal contamination).

q. The facility fails to provide an approved pool operator pursuant to Section 26.205.

r. There is any other condition, or combination of conditions which may endanger the health, safety, or welfare of the bathers.

*If the person in charge, the pool operator or the lifeguard/attendant determines that any of the above conditions exist, they shall immediately close the pool. The Division shall be notified of the closure and the pool shall remain closed until the condition is satisfactorily corrected.

Within five (5) days of receipt of a suspension notice, The person in charge of the pool may request in writing, to the Division at any time during the suspension, a sanitary survey for the purpose of showing that the imminent health hazard no longer exists. The person in charge of the pool may also request, in writing, to the Division at any time during the suspension, an administrative hearing to challenge the findings of the sanitary survey that resulted in the pool closure. When the Division determines that the imminent health hazard no longer exists, the suspension shall be terminated and the permit returned. If the Division determines that the imminent health hazard has not been corrected and that the hazard still exists, the suspension remains in force pending a hearing and the Division may recommend that the permit be revoked. a hearing before the Director for the purpose of demonstrating that the imminent public health hazard no longer exists. If a hearing is requested, it shall be scheduled within ten (10) days. At least five (5) days prior to the hearing, the person in charge shall be notified of the date, time and place. After the hearing, if the Director determines that the public health hazard no longer exists, the suspension shall be immediately lifted. If, however, the Director determines that the public health hazard still exists, the suspension shall continue, and the Director may recommend that the permit be revoked. The person in charge may appeal the decision of the Director to the Secretary, DHSS. However, any such appeal does not stay the decision. This appeal must be in writing and must be filed with the offices of the Secretary, DHSS, in Dover, Delaware within ten (10) days of the Director's decision. The Secretary, DHSS, shall hear this appeal at the earliest opportunity.

26.1203 Administrative Hearings for Serious Violations and Repeat Violations - If any condition listed in Section 26.1202 is not corrected within fifteen (15) days or if there are repeated violations of any provision of these Regulations, the person in charge of the pool requests a hearing pursuant to 26.1202, the Division Director shall schedule an administrative hearing within ten (10) days of the request of such a determination. The purpose of the hearing is to determine if the suspension should be lifted. At least five (5) days prior to the hearing, the person in charge of the pool shall be notified of the date, time, place, and the specific reason(s) for the hearing. After this hearing the Director may establish a compliance schedule, suspend the permit for a period not to exceed ninety (90) days or may recommend revocation of the permit. Failure of the person in charge to be present for an administrative hearing shall result in automatic suspension of the permit and recommendation for revocation to the Secretary, DHSS. The person in charge may appeal the decision of the Director to the Secretary, DHSS. However, any such appeal does not stay the decision. This appeal must be in writing and must be filed with the office of the Secretary, DHSS in Dover, Delaware within ten (10) days of the Director's decision. The Secretary, DHSS shall hear this appeal at the earliest opportunity.

26.1204 Serious Violations, Repeat Violations and General Unsanitary Conditions – If serious violations, repeat violations, or general unsanitary conditions exist, the Division may issue and properly serve due notice, by certified mail or by hand delivery, of the intention of the Division to suspend or revoke the permit of a pool. The Division shall, not suspend or revoke a permit of a pool for serious or repeated violations that do not present an imminent health hazard, without having first issued and properly served such notice of intent to suspend or revoke. Within thirty (30) days of the date of such notice of intent to suspend or revoke, the permit holder may submit to the Division a written request for an administrative hearing. The suspension or revocation shall commence upon expiration of the notice of intent, unless within thirty (30) days of the date of such notice, the Division receives from the permit holder a written request for an administrative hearing. If the permit holder makes a timely request for an administrative hearing, the suspension or revocation shall be stayed pending the results of the hearing. A conspicuous, colored placard shall be prominently displayed at all entrances of a pool whose permit stands suspended or revoked.

26.1205 Pool Permit Holder Right to an Administrative Hearing – Upon due notice that the Division intends to suspend or revoke the permit of a pool as indicated in 26.1204, or for other reasons to protect public health, the permit holder may submit to the Division, within thirty (30) days of the date of such notice of intent, a written request for an administrative hearing. When an administrative hearing is scheduled, the permit holder of the pool shall be informed at least five (5) days prior to the hearing of the place, time and date of the hearing and the specific charges against the pool. Notification of the hearing shall be by certified mail or by hand delivery. Failure of the permit holder to be present for an administrative hearing shall result in automatic suspension of the permit and recommendation for revocation.

26.1206 Records of Administrative Hearings - Records shall be made of all hearing proceedings and shall become documents of record. A written report of the hearing decision shall be furnished by the Division to the permit holder of the pool to the Secretary, DHSS, the Office of Health Systems Protection and the person in charge of the pool within ten (10) days following the hearing.

26.1207 Reapplication After Revocation - The person in charge of a pool may make written application for a new permit ninety (90) days after the revocation of a permit has become final.

SECTION 26.13 ENFORCEMENT AND INTERPRETATION

No provisions of Sections 26.3, 26.4, 26.5, 26.8, 26.9, 26.10 of these Regulations shall be applied retroactively, or interpreted to require reconstruction, alteration or replacement of a pool, or any part of a pool, which has been approved by the Division and which has been installed or is under construction. If, however, a pool or any part of a pool is reconstructed, altered or replaced, or if a private pool is converted to a public pool after the effective date of these Regulations, this conversion, reconstruction, alteration or replacement shall meet all of the provisions of these Regulations.

SECTION 26.14 PENALTY

Any person who neglects or fails to comply with the requirements of these Regulations shall be subject to the provisions of penalty as provided in 16 Delaware Code Section 107, and shall be fined not less than $100 and not more than $1000, together with the costs, unless otherwise provided by law.

SECTION 26.15 REPEAL, DATE OF EFFECT AND AMENDMENTS

All regulations or parts of Regulations in conflict with these Regulations are hereby repealed, and these Regulations shall be in full force and effect on the date of adoption by the Secretary, DHSS. The Secretary, DHSS, may propose changes to the Regulations herein established and shall hold at least one public hearing on the proposed changes. At least thirty (30) days in advance of the public hearing, notice of proposed changes shall be published in at least two newspapers of general circulation in the State. Notice shall include a brief synopsis of the changes to be made, information on when and where the proposed changes may be reviewed by the public, the procedure for submitting comments, and the time, date and location of the public hearing. A hearing officer shall be appointed by the Secretary, DHSS, and a record shall be kept of the hearing.

SECTION 26.16 SEPARABILITY

If any provision of these Regulations should be declared invalid for any reason, the decision shall not affect the remaining provisions, which shall remain in full force and effect, and to this end, the provisions of the Regulations are hereby declared separable.

APPENDIX A

All chemicals in pool water affect the tendency of the water to be corrosive or to deposit a calcium carbonate scale. It is possible to control these two (2) conditions through the use of the Langelier Index (L.I). The index was developed in 1936 by Professor W. F. Langelier at the University of California (Berkeley). It expresses the relationship between pH, alkalinity, calcium hardness and temperature. The resulting number (formula method - below) or position on the nomograph (nomograph method - Appendix B) indicates whether the pool water is chemically "balanced." In theory, pool water that is "balanced" will neither corrode nor deposit a scale.

LANGELIER INDEX/WATER BALANCE

FORMULA METHOD

"Balanced" pool water has an L.I. between -0.3 and +0.3. An L.I. that is greater negatively than -0.3 indicates a corrosive water and an L.I. greater than +0.3 indicates a water that will deposit scale. After determining the pool water pH, alkalinity, calcium hardness and temperature, find the alkalinity factor (AF), calcium hardness factor (CHF) and temperature factor (TF) using the table below. Use the pH and these three (3) factors in the following equation:

L.I. = pH + AF+ CHF + TF - 12.1

FACTORS NECESSARY TO CALCULATE THE L.I.

Alkalinity Factor Calcium		Hardness Factor		Temp. (°F) Factor
5 ppm	0.7	5 ppm	0.3	32	0.1
25 ppm	1.4	25 ppm	1.0	37	0.1
50 ppm	1.7	50 ppm	1.3	46	0.2
75 ppm	1.9	75 ppm	1.5	53	0.3
100 ppm	2.0	100 ppm	1.6	60	0.4
150 ppm	2.2	150 ppm	1.8	66	0.5
200 ppm	2.3	200 ppm	1.9	76	0.6
300 ppm	2.5	300 ppm	2.1	84	0.7
400 ppm	2.6	400 ppm	2.2	94	0.8
800 ppm	2.9	800 ppm	2.5	104	0.9

SAMPLE PROBLEM

A pool water has the following characteristics: pH-7.4; alkalinity-50; calcium hardness-50 ppm; temperature-78°F. Using the tables above, the factors are 1.7 for alkalinity, 1.3 for calcium hardness; and 0.6 for temperature. Using the formula:

L.I. - 7.4 + 1.7 + 1.3 = 0.6 - 12.1 + -1.1

This pool water is not balanced and is corrosive. The pH is within the required range and almost ideal, however, the alkalinity and calcium hardness should be much higher (see Appendix B). Alkalinity can be raised by adding sodium bicarbonate (baking soda) and lowered by adding muriatic acid or sodium bisulfate (dry acid). Calcium hardness can be raised by adding calcium chloride but can only be lowered by replacing part or all of the pool water with lower calcium hardness water.

APPENDIX B

LANGELIER INDEX/WATER BALANCE

NOMOGRAPH METHOD

Measure the pool water pH, alkalinity and calcium hardness. The pH must be 7.2 - 7.8 pH can be raised by adding sodium carbonate (soda ash) and can be lowered by adding carbon dioxide (CO₂), muriatic acid or sodium bisulfate (dry acid). Using the 104°F pH scale for spa pools and the 76°F pH scale for other pools, use a straight edge to line up the pH and alkalinity readings. The point where this extended line intersects the calcium hardness line is the level of calcium hardness needed for the water to be balanced. Do the same for pH and calcium hardness to get the alkalinity level needed for balance. The alkalinity and calcium hardness levels needed should be within the recommended ranges. Alkalinity can be raised by adding sodium bicarbonate (baking soda) and lowered by adding muriatic acid or sodium bisulfate (dry acid). Calcium hardness can be raised by adding calcium chloride but can only be lowered by replacing part or all of the pool water with lower calcium hardness water.

DEPARTMENT OF INSURANCE

18 DE Admin. Code 906

Statutory Authority: 18 Delaware Code,

Sections 311, 2501, 2304(15)(c), and 2312 (18 Del. C. §§ 311, 2501, 2304(15)(c), and 2312 )

ORDER

Public hearings were held on January 13, 17, 24 and 29 and April 22, 2003 to receive comments on proposed Regulation 906 (formerly numbered as Regulation 87) relating to the use of credit scoring or personal credit information by insurers selling personal lines of automobile and homeowners insurance in the State of Delaware. By my order of January 8, 2003, F.L. Peter Stone, Deputy Insurance Commissioner, was appointed hearing officer to receive comments and testimony on the proposed regulation. Public notice of the hearings and publication of proposed Regulation 906 in the Register of Regulations and two newspapers of general circulation was in conformity with Delaware law.

Summary Of The Evidence And The Information Submitted

The summary of the evidence and the information submitted as set forth in the FINAL REPORT AND RECOMMENDATION OF THE HEARING OFFICER dated May 14, 2003 is incorporated into this Order. Michael J. Rich, Deputy Attorney General, acted as counsel for the Delaware Insurance Department. Thirty-one documents were admitted into evidence as exhibits over the course of five separate hearing days. At least eighty persons attended the hearings (some attending more than once). The people in attendance represented a cross-section of insurance company representatives, insurance trade representatives, agents, and consumers. The persons testifying and the documents submitted on behalf of the insurance industry were generally supportive of the regulation and the need for regulatory standards. Most consumers opposed the use of credit scoring by insurance companies. However, given the widespread use of credit scoring in all other states and the District of Columbia except for Maryland and Hawaii, most consumers argued alternatively for control over the use of credit scoring. From the time the proposed regulation was first published on November 1, 2002 for public comment, there has been a significant amount of written comment received by the Department. Most of the comment has been favorable for regulatory control generally and in support of the proposed regulation in particular.

Findings Of Fact With Respect To The Evidence And Information

I find that the hearing officer’s FINDINGS OF FACT are well grounded in the record and are incorporated into this order. I further find that his proposed changes to the regulation as published on April 1, 2003 are technical and non-substantive. The proposed changes are designed to improve the clarity of the regulation and promote uniform interpretation of its terms and are such that re-publication is not required under 29 Del. C. § 10113(b)(4).

With respect to the specific changes proposed by the hearing officer I find as follows:

1. The change to Section 4.1.6 clarifies the regulation’s definition of adverse action and provides that a negative change to a person’s premium is not an adverse action if it is unrelated to that person’s credit history. Likewise, it is not an adverse action if there is a renewal with no change in tier, no change in premium or no re-scoring of the consumer report.

2. Section 5.1 has been modified by substituting the word “disability” for the word “handicap” to reflect terminology preferred by the various State councils and offices that represent the interests of Delaware’s disabled citizens.

3. The change to Section 5.1 clarifies the terms under which an insurer must apply the two year limit on the use of credit information. The regulation does not require the insurer to obtain credit reports subsequent to the date of first use if, as a matter of policy, practice or underwriting, the insurer determines that subsequent to the first use of a credit report, consumer reports or credit score information will not be utilized in any decisions to renew or cancel the policy in the future.

4. The use of credit scores for persons other than the named insured is a matter of significant concern. The concept contained in Section 5.4 has been part of the proposed regulation from the first date of publication. The revision to that section clarifies, with respect to homeowners insurance, that a spouse who has no title or ownership interest in the property to be insured and is not a named policyholder or applicant, should not subject the owner of the property to a higher premium or less preferential tier merely because of the non-owner’s credit score.

5. The changes to Section 7.3 clarify the manner in which an insurer is required to extraordinary personal circumstances justifying relief from the possible harsh effects of credit scoring and to allow the insurer to further define other situations as extraordinary personal circumstances. It also requires the consumer to request such treatment in writing. The section is also further clarified by not binding the insurer to review repeated requests or events previously determined either to be or not to be extraordinary personal circumstance. Section 7.3.4 has been added to provide that an insurer will not be out of compliance with any law or rule relating to underwriting, rating or rate filing if it grants an exception to the use of its policy of credit scoring under Section 7.3.

6. The change to Section 9 to add confidentiality to a third party in addition to the insurer with respect to information submitted to the Commissioner clarifies the intent to provide full confidentiality for proprietary and trade secret information for the insurer and any vendor under contract with an insurer. For non-regulated entities that provide credit scoring related services to an insurer, the protection of their proprietary and trade secret rights was never intended to be abrogated by the proposed regulation. The addition of the term “third parties” to the confidentiality provisions does not constitute a substantive change to the regulation.

Decision And Effective Date

I hereby adopt Regulation 906 as modified by the changes approved above and as incorporated in the copy of the proposed attached hereto to be effective on September 1, 2003.

Text And Citation

The text of proposed Regulation 906 appears in the Register of Regulations Vol. 6, Issue 10, pages 1309 et seq., April 1, 2003 subject to the modifications approved hereby.

DATED: May 13, 2003 Donna Lee H. Williams

Insurance Commissioner

Regulation No. 87 906

Use Of Credit Information

1.0 Authority

1.1 This regulation is adopted by the Commissioner pursuant to the authority granted by 18 Del. C. §§ 311, 2501, 2304(15)(c), and 2312, and promulgated in accordance with the Delaware Administrative Procedures Act, Title 29 Del. C. Chapter 101.

2.0 Scope

2.1 This regulation shall apply to all insurers offering automobile, property, surety and/or casualty insurance motorcycle, boat and personal watercraft, snowmobiles and other recreational vehicles, homeowners, mobile-homeowners and non-commercial dwelling fire insurance policies for personal or family protection. This regulation shall not apply to any line of commercial insurance.

3.0 Purpose

The purposes of this regulation are:

3.1 To prohibit insurers from engaging in unfair discrimination in the offering or granting of insurance due to the grouping of risks based on criteria which are not actuarially supported and shown to be relevant to risk.

3.2 To prohibit insurers from engaging in unfair discrimination in the cancellation or non-renewal of insurance coverage based on criteria which are not actuarially supported and shown to be relevant to risk or experience.

3.3 To assure that consumers, whether on initial application or renewal, are given notice when credit consumer reports will be requested and reviewed in connection with a consumer’s eligibility for and/or the continuance of insurance coverage and/or a consumer’s tier or level of premium payment.

3.4 To prohibit the practice of assigning a consumer to a premium level based solely on the consumer’s credit rating or credit score.

3.5 To assure that, if used, credit information obtained by the insurer shall be utilized consistently within the insurer’s book of business even though one or more affiliated companies may decline to use credit information or to utilize credit scoring as a factor in its rate making.

3.6 To assure that the consumer has adequate relief from any adverse action taken by an insurer through the use of credit scoring.

4.0 Definitions

4.1 “Adverse action” has the meaning given that term in the Fair Credit Reporting Act, 15 U.S.C. sec. 1681 et seq. (referred to in this regulation as “the FCRA”). An adverse action includes but is not limited to the following:

4.1.1 Cancellation, denial or nonrenewal of insurance coverage;

4.1.2 Charging a higher insurance premium than would have been offered if the credit history or insurance score had been more favorable in the absence of a rate change occasioned by other applicable underwriting factors independent of credit related information, whether the charge is by:

4.1.2.1 application of a rating rule;

4.1.2.2 assignment to a rating category within a single insurer, into which insureds with substantially like insuring, risk or exposure factors and expense elements are placed for purposes of determining rate or premium, that does not have the lowest available rates; or

4.1.2.3 placement with an affiliate insurer that does not offer the lowest rates available to the consumer within the affiliate group of insurers; or

4.1.3 A reduction or an adverse or unfavorable change in the terms of coverage or amount of insurance owing to a consumer’s credit history or insurance score. A reduction or an adverse or unfavorable change in the terms of coverage occurs when:

4.1.3.1 coverage provided to the consumer is not as broad in scope as coverage requested by the consumer but available to other insureds of the insurer or any affiliate; or

4.1.3.2 the consumer is not eligible for benefits such as dividends that are available through affiliate insurers.

4.14 The placement of the consumer with an affiliated company shall not be considered an adverse action under this regulation.

4.1.45 Notwithstanding the foregoing, a decision to reject an insurance application, to deny renewal or to condition renewal, to assign an application or renewal to a tier, class or group, or to issue the policy based on or with restrictions that would not apply but for the consideration of the credit consumer report.

[4.1.6 Notwithstanding the foregoing, if a consumer, upon renewal, is not assigned to a less favorable tier or if there is a change in premium not resulting from any use of credit information, such event shall not be deemed an adverse action.]

4.2 “Commissioner” shall mean the Insurance Commissioner of the State of Delaware, or any person designated by the Commissioner to enforce the provisions of this regulation or any related statute or regulation.

4.3 “Credit Consumer report” means any written, oral, or other communication of any information by a consumer reporting agency (as defined in the Federal Fair Credit Reporting Act [FCRA]) bearing on a consumer's credit worthiness, credit standing, or credit capacity, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for personal lines automobile or homeowner insurance to be used primarily for person, family, or household purposes. Consumer report shall not include motor vehicle reports or claims history reports or any other report that is not credit related.

4.4 “Credit score” means any alpha, numeric and/or alpha-numeric rating or classification of any person based on information contained in said person’s credit consumer report created by an insurer or any person, firm or entity for use by an insurer.

4.5 “Document” or “public record” shall have the same meaning as described in 29 Del. C. § 10002(d) and 18 Del. C. §§ 320, 321.

4.6 “Insurance score” shall have the same meaning as “credit score.”

4.7 “Insured,” “policyholder” or “consumer” shall mean the applicant(s) for coverage or named policyholder who shall have an insurable interest in the property to be covered as defined by 18 Del. C.§ 2706.

Drafting Note: A spouse of an insured who has no title interest and/or who has not co-signed a note and/or mortgage for the real property to be insured does not have an insurable interest in the real property to be [insured.] person or persons insured under a policy of insurance but shall not include persons receiving a quote for premium that would be due under a policy of insurance, provided however, that such insurance is not ultimately applied for and that the process for making and delivering such quotes is not used as a means for denying coverage on the basis of a credit score in violation of this regulation.

5.0 Prohibited Practices

5.1 No individual credit consumer report or credit score shall be valid or if the age of the report is greater than two years from the date of its first use for an individual application or renewal of coverage utilized if it is based or utilizes in any manner, factors which include any or all of race, color, creed, sex, religion, national origin, place of residency, marital status, nature of employment, physical [handicap disability], or any similar category prohibited by federal or state law.

5.2 Each insurer proposing to use an insurance score as part of its rating or underwriting criteria shall file with the Commissioner, as part of its rate filings required pursuant to 18 Del. C. Chapter 25, No insurer shall utilize a credit report or score as part of its rating or underwriting criteria unless it shall have first obtained authority to do so as part of its rate filing and shall have filed such supporting models, algorithms, actuarial and statistical data and reports sufficient, in the discretion of the Commissioner, to permit the Commissioner to determine that the use of such credit report or score shall not:

5.2.1 u Unfairly discriminate or assign a consumer to a class or tier based on criteria which are not actuarially supported and shown to be relevant to risk or experience, or

5.2.2 b Be the sole basis upon which the insurer denies coverage, assigns the consumer to a more expensive premium class or tier and/or refuses to renew consumer’s insurance coverage or upon which the insurer cancels, refuses to renew or sets a premium or rate for insurance coverage without consideration of other underwriting or rating factors.

5.3 No insurer shall be permitted to use the services of a third party to develop a credit consumer report or credit score unless the third party shall, without qualification, consent to provide any information, documents, reports (except for consumer reports which may not be disclosed), actuarial and/or statistical bases or models, or other such information required by the Commissioner as part of the insurer’s rate approval process.

5.4 In rating a policy or assigning a consumer to a premium level or tier, no insurer shall be permitted to consider the credit consumer report or score of any person other than the named policyholder or person(s) who have an insurable interest to be covered under the policy. In the case of homeowner’s coverage, no insurer shall be permitted to deny, penalize, impose a higher rate or take any action adverse or detrimental to a current or prospective policyholder based solely on the credit score of a spouse who has no title or ownership interest in the property to be insured and is not a named policyholder or applicant.

5.5 No insurer, or entity from which the insurer may obtain credit scoring information, shall use credit or consumer reports in any manner prohibited by law be permitted to obtain credit information about any current or prospective policyholder except as may be expressly permitted by the laws of the United States or the State of Delaware.

5.6 No insurer shall be permitted to use obsolete information which shall be defined as follows:

5.6.1 Bankruptcies which, from date of the adjudication of the most recent bankruptcy, antedate the report by more than 140 years;

5.6.2 Suits and judgments which, from date of entry, antedate the report by more than 7 years or until the governing statute of limitations has expired, whichever is the longer period;

5.6.3 Paid tax liens which, from date of payment, antedate the report by more than 7 years;

5.6.4 Accounts placed for collection or charged to profit and loss which antedate the report by more than 7 years;

5.6.5 Records of arrest, indictment, or conviction of crime which, from date of disposition, release, or parole, antedate the report by more than 7 years; and

5.6.6 Any other adverse item of information which antedates the report by more than 7 years.

5.7 No insurer shall be permitted to penalize, impose a higher rate or take any action adverse or detrimental to a current or prospective policyholder because such person shall or may have refused to authorize the release of credit information or may have an unacceptable number of credit inquiries. The following factors shall not be used by an insurer or by any entity retained by the insurer for the purposes of generating a credit score for underwriting, tier placement or rating purposes:

5.7.1 Information that is disputed by the consumer and has been identified by the consumer reporting agency and coded as such, if the use of such disputed information would result in an adverse action;

5.7.2 Information that has been identified by the consumer reporting agency as related to insurance inquiries and/or non-consumer initiated inquiries and coded as such;

5.7.3 Information that has been identified by the consumer reporting agency as related to collection accounts with a medical industry code;

5.7.4 Information that includes multiple lender inquiries, if coded by the consumer reporting agency as being from the home mortgage industry and made within 30 days of one another, unless only one inquiry is considered.

5.7.5 Information that includes multiple lender inquires, if coded by the consumer reporting agency as being from the automobile lending industry and made within 30 days of one another, unless only one inquiry is considered.

5.7.6 The total available line of credit, however, an insurer may consider the total amount of outstanding debt in relation to the total available line of credit.

5.8 If a consumer has no available credit history or has insufficient credit history to develop a credit score, the consumer must be underwritten and rated in accordance with the remaining actuarial principles and standards of practice set forth in the appropriate rate filing that are exclusive of the credit score. However, an insurer may consider insufficient credit history or no available credit history in setting a premium or rate, or underwriting an insurance policy, to the extent such use is actuarially justified and consistent with the rate filing in the office of the Commissioner. No insurer shall be permitted to penalize, impose a higher rate or take any action adverse or detrimental to a current or prospective policyholder because such person shall have no credit history or a credit history that has insufficient activity upon which to calculate a credit score.

5.9 No insurer shall, by underwriting standards or practices, use a consumer’s credit score inconsistent with or in violation of this regulation.

6.0 Written Notice to Consumers

6.1 No denial of an application or refusal to issue insurance based on credit scoring or information contained in a consumer’s credit report shall be valid unless, in addition to any other requirements that may apply, the insurer includes on the face of the application the following statement or a statement substantially similar to it in boldface type in a font no smaller than the regular text of the notice: "This application may be denied based on information contained in a credit report relating to you and/or someone else who resides in your household."

6.2 No refusal to renew or cancellation of insurance based on credit scoring or information contained in an insured’s credit report shall be valid unless, in addition to any other requirements that may apply, the insurer includes in the notice of intent not to renew the following statement or a statement substantially similar to it in boldface type in a font no smaller than the regular text of the notice: "This (nonrenewal)(cancellation) is based on information contained in a credit report relating to you and/or someone else who resides in your household." If an insurer uses credit information in underwriting or rating a consumer, the insurer or its agent shall disclose, either on the insurance application or at the time the insurance application is taken, that it may obtain credit information on the consumer, other persons residing in the consumer’s home, or other persons whose credit information may affect the underwriting or rating of the policy in connection with such application. Such disclosure shall be either written or provided to an applicant in the same medium as the application for insurance. The insurer need not provide the disclosure statement required under this section to any insured on a renewal policy if such consumer has previously been provided a disclosure statement. The use of the following example disclosure statement constitutes compliance with this section: “In connection with this application for insurance, we may review your credit report or obtain or use a credit based (credit)(insurance) score based on the information contained in that credit report. We may use a third party in connection with the development of your (credit)(insurance) score.”

6.2 A notice denying an application for insurance or a notice refusing to renew or cancel insurance shall, to the extent that the insurer’s action is based on information contained in a consumer report relating to the applicant, insured and/or other named person, contain the following:

6.2.1 The name, address and toll free number of the institutional source from whom the insurer obtained the credit information;

6.2.2 A summary of the most significant reasons for the adverse action that relate to the consumer’s credit history or to the credit factors of the credit score. The reasons need not exceed four, shall be in the order of decreasing importance, shall be specific and shall identify the information associated with each reason. The notice shall be sufficiently clear and specific that a consumer of reasonable intelligence can identify the basis for the insurer’s decision without making further inquiry. For the purpose of the summary, the use of a generalized term such as “poor credit history,” “poor credit rating,” or “poor credit score” does not meet the requirement of a sufficiently clear and specific summary, however standardized credit explanations provided by consumer reporting agencies or other third party vendors that satisfy the requirements of this section are deemed to comply with this section.

6.2.3 A statement advising the applicant or insured that, if the insured wishes to inquire further about the credit information on which the refusal, denial or nonrenewal is based and obtain a free copy of the "consumer report," the insured may do so by mailing a written request to the insurer, or such other party as the insurer shall identify in the notice, no more than ten thirty days after the date on which the notice of refusal, denial or nonrenewal was mailed to the insured.

6.2.4 A statement that the consumer reporting agency that provided the information upon which the credit score was based did not make the decision to take the adverse action and is unable to provide the applicant or insured the specific reasons why the adverse action was taken.

6.3 If the applicant or insured submits such the written notification required under section 6.2.3, the refusal, denial or nonrenewal shall not become effective until thirty days after the accuracy of the credit information, which the applicant or insured has questioned and on which the refusal, denial or nonrenewal was based, has been verified and communicated to the applicant or insured. Such verification shall be deemed to have been made upon completion of the investigation of the credit information which the applicant or insured has questioned and on which the refusal, denial or nonrenewal was based. The applicant or insured must cooperate in the investigation of the credit information, including responding to any communication submitted by, or on behalf of, the insurer or credit reporting agency no more than ten days after the date on which such communication subsequent to the notice required under section 6.2.3 was mailed to the applicant or insured. If the applicant or insured fails to cooperate in the investigation of the credit information, the insurer may, after providing a minimum of fifteen days' written notice to the applicant or insured, terminate such investigation and may refuse, to insure the applicant or cancel deny or nonrenew the policy.

6.5 6.4 If the applicant or insured, after receipt of a notice under this section, and pursuant to procedures established under the FCRA, obtains changes, modifications or corrections to his/her credit information maintained by one or more credit reporting agencies, the insured shall notify the insurer who shall recalculate or obtain an new credit score. In that case, the provisions of section 7.2 shall apply to any adjustments to be made to the insured’s premium.

7.0 Corrections or Changes to a Consumer’s Credit Score

7.1 When an insurer uses credit histories or credit scores for the purpose of rating, if the insurer receives notice of corrected information affecting the credit history or the credit factors of the credit score of a consumer from the consumer reporting agency of the insurer, the insurer shall correct the consumer’s credit score or obtain a corrected credit score or credit history, as appropriate, based on the corrected information.

7.2 When an insurer has taken an adverse action against a consumer on the basis of the consumer’s credit history or the credit factors of the consumer’s credit score, if the insurer subsequently makes or obtains a correction or change under section 6.4 or 7.1, the insurer shall determine the difference between the premium paid by the consumer based on the mistaken prior credit history or credit score and the premium based on the current history or score. If the policy period is 12 months or more, the difference shall be determined for the most recent 12 months. If the policy period is less than 12 months, the difference shall be determined for the current period of the policy. If the difference is in favor of the consumer, the insurer shall credit or refund the difference to the consumer. If the difference is in favor of the insurer, the insurer may charge the difference to the consumer or collect the difference from the consumer.

[7.3 An insured or an applicant for insurance shall have a right to seek review by the insurer of its use of a credit score in the event an insured’s or applicant’s consumer report is adversely affected by extraordinary personal circumstances. Such extraordinary personal circumstances may include by way of example and not of limitation, serious illness, involuntary unemployment, divorce, identity theft, and involuntary interruption of alimony or support payments. An insurer may require that an insured or applicant provide sufficient documentation to establish the existence and duration of such extraordinary personal circumstance. An insurer may elect to eliminate the credit score from consideration in such instance and rely its other underwriting and rating guidelines or may elect to establish such procedural guidelines as will allow the insurer to consider such requests in a consistent manner.

7.3 An insured or an applicant for insurance, upon written request to an insurer, shall have a right to seek review by the insurer of its use of a credit score in the event an insured’s or applicant’s consumer report is adversely affected by extraordinary personal circumstances.

7.3.1 Extraordinary personal circumstance is defined as serious illness or injury, involuntary unemployment, divorce, identity theft, and involuntary interruption of alimony or support payments. An insurer may elect to extend this definition to consider an extraordinary personal circumstance not listed in this section. In no event is an insurer required to review repeated events or events the insurer reviewed previously as an extraordinary personal circumstance.

7.3.2 An insurer may require that an insured or applicant provide sufficient documentation to establish the existence and duration of such extraordinary personal circumstance.

7.3.3 An insurer may elect to eliminate the credit score from consideration in such instance and rely its other underwriting and rating guidelines, may assign a neutral credit score or may elect to establish such procedural guidelines as will allow the insurer to consider such requests in a consistent manner.

7.3.4 An insurer will not be considered out of compliance with any law or rule relating to underwriting, rating or rate filing as a result of granting an exception under this section.]

8.0 General Business Practices

8.1 Any insurer that elects to use credit scoring to determine, in whole or in part, the premium to be paid by the insured or the tier or class of risk to which the insured shall be assigned, shall be deemed to have done so under the provisions of 18 Del. C. Chapter 25.

8.2 No insurer shall implement credit scoring for rate making or underwriting purposes without first having obtained the approval of the Commissioner as part of a rate filing under 18 Del. C. Chapter 25. Policies and renewal notices issued on or before the effective date of this regulation in which credit information was used in the underwriting or rating of the policy shall be deemed valid for the term thereof but not for any renewal thereunder in the absence of compliance with this regulation.

8.3 No insurer shall alter or modify the approved tier or classification structure or change the premiums applicable to any such tier or classification system without having first obtained the Commissioner’s approval to do so under 18 Del. C. Chapter 25.

8.4 Affiliated companies may make independent decisions with respect to the use of credit information or credit scores, but any insurer or insurance company, or affiliate thereof, having elected to use such information shall apply the information uniformly and consistently within the company’s book of business. When an insurer denies or fails to renew a policy, evidence of the notice of denial or nonrenewal shall be retained by the insurer and a record of the insurance score, related notice and correspondence with the insured shall be maintained by the insurer and/or by the appropriate vendor (source of the credit score) pursuant to the insurer’s agreement with such vendor for a minimum of three years from the date of notice to the insured.

8.5 Any insurer that requests or utilizes credit reports in consideration of an application for personal lines automobile or homeowners insurance shall maintain evidence of its compliance in its regular business files at its principal place of business. Such evidence need not be in any particular form, so long as it is sufficient to reasonably demonstrate compliance. Such evidence shall be made available for review and examination by the Commissioner. When an insurer denies or fails to renew a policy, evidence of the notice of denial or nonrenewal shall be retained by the insurer, and a record of the contents of the credit report shall be maintained by the insurer or pursuant to the insurer's agreement with the consumer reporting agency for a sufficient time to be available during the next market conduct examination by the Commissioner. An insurer shall indemnify, defend, and hold agents harmless from and against all liability, fees, and costs arising out of or relating to the actions, errors, or omissions of an insurer who obtains or uses credit information and/or credit scores from an independent source, provided that the agent follows the instructions of or procedures established by the insurer and complies with any applicable law or regulation. Nothing in this section shall be construed to provide a consumer or other insured with a cause of action that does not exist in the absence of this section.

9.0 Confidentiality

[9.1] Any document, report, model or other supporting information filed with the Commissioner, irrespective of the format or media in which it is contained, shall be considered proprietary or trade secret a public document and subject to the confidentiality provisions of 18 Del. C. § 321(g) and/or, upon the request of the insurer or owner of the document, 29 Del. C. § 10002(d)(2). Where an insurer [or third party] is required to file proprietary or trade secret insurance scoring algorithms, models, documents or supporting information as part of its filed rates, the insurer [or third party] may elect to segregate such materials from the remainder of its rate filing by filing such materials separately in a sealed envelope or container. Materials filed in this manner shall remain segregated from the publicly accessible portions of the rate filing for so long as these materials are on file with the Department, or until the insurer [or third party] notifies the Department that such materials are no longer proprietary or trade secret. In the event there is a dispute with respect to the confidentiality of a document, the Commissioner shall make the final determination of whether any part or the whole of a disputed document shall be given confidential treatment.

10.0 Severability

10.1 If any provision of this Regulation or the application of any such provision to and person or circumstance shall be held invalid the remainder of such provisions, and the application of such provision to any person or circumstance other than those as to which it is held invalid, shall not be affected.

11.0 Causes of Action and Defenses

11.1 This regulation shall not create a cause of action for any person or entity, other than the Delaware Insurance Commissioner, against an insurer or its representative based upon a violation of 18 Del. C. § 2304(15)(c). In the same manner, nothing in this regulation shall establish a defense for any party to any cause of action based upon a violation of 18 Del. C. § 2304(15)(c).

12.0 Effective Date

12.1 This regulation shall become effective on September 1, 2003 30 days after publication in the Delaware Register of Regulations.

ADOPTED AND SIGNED BY THE COMMISSIONER

Donna Lee H. Williams

May 13, 2003

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air and Waste Management

Air Quality Management Section

Statutory Authority: 7 Delaware Code, Chapter 60

(7 Del.C. Ch. 60)

Secretary’s Order No.: 2003-A-0029

Proposed Adoption of Subpart B

into Regulation No. 38,

“Emission Standards for Hazardous Air Pollutants

for Source Categories”

Date of Issuance: May 15, 2003

Effective Date of the Amendment: June 11, 2003

I. Background

On March 24, 2003 a public hearing was held in the DNREC Auditorium in Dover to receive comment on the proposed adoption of Subpart B into Regulation No. 38 in order to address upcoming changes to the Federal requirements that implement Section 112(j) of the Clean Air Act. Delaware is proposing the adoption of Subpart B into the aforementioned Regulation as part of its requirements to maintain equivalency with its program authorization and equivalency with EPA’s air toxics program.

Prior to this public hearing, the proposed changes to Regulation 38 were formally proposed in the Delaware Register of Regulations on March 1, 2003, and were also discussed in two public workshops, held on March 5, 2003 and March 7, 2003. Following the March 5, 2003 public workshop, several changes were suggested to the draft language of this proposed amendment. While the changes are not substantive in nature, the Department does agree that they provide greater clarity and consistency, and therefore said changes have now been reflected in the proposed regulatory amendment regarding the proposed adoption of Subpart B.

It was also noted by the Department at the public hearing that on April 25, 2002 the Sierra Club took exception with some of these proposed changes to the Federal requirements under Section 112 (j), and filed suit against the U.S. E.P.A. in the U.S. Court of Appeals for the District of Columbia. The highlights of this legal action taken by the Sierra Club against the U.S. E.P.A. concerning these Federal requirements, and the impact of the eventual settlement agreement concerning that lawsuit upon Delaware’s air regulations, were discussed at greater length in the Hearing Officer’s Memorandum, which is expressly incorporated herein by reference. Proper notice of the hearing was provided as required by law.

After the hearing, the Department performed an evaluation of the evidence entered into the record in this matter. Thereafter, the Hearing Officer prepared his report and recommendation in the form of a Hearing Officer’s Memorandum to the Secretary dated May 5, 2003. Again, that memorandum is expressly incorporated herein by reference.

II. Findings and Conclusions

All of the findings and conclusions contained in the Hearing Officer’s Memorandum dated May 5, 2003 are expressly incorporated herein and explicitly adopted as the findings and conclusions of the Secretary.

III. Order

In view of the above, I hereby order that Subpart “B” of the State of Delaware’s Regulation No. 38 be adopted in the manner and form provided for by law pursuant to the changes proposed prior to the hearing and as recommended in the Hearing Officer’s memorandum.

IV. Reasons

Adopting the proposed amendments to Subpart “B” of Delaware’s Regulation No. 38 will further the policies and purposes of 7 Del. C. Chapter 60. Furthermore, this rulemaking will also permit the State of Delaware to be in compliance with the EPA’s Federal Regulations with respect to Section 112(j) of the Clean Air Act, and will thereby help Delaware to maintain equivalency with its program authorization and equivalency with EPA’s air toxics program.

John A. Hughes, Secretary

Final Proposed Amendment to Subpart B

under SAN 2003-01

REGULATION NO. 38

EMISSION STANDARDS FOR HAZARDOUS

AIR POLLUTANTS FOR SOURCE CATEGORIES

[5 6/11/023]

Subpart B Requirements for Case-By-Case Control Technology Determinations for Major Sources

5/11/02

OVERVIEW OF SUBPART B

Subpart B of Regulation No. 38 consists of two separate sets of requirements. One set of requirements, which are included in Sections 63.40 through 44, implement the section 112(g)(2)(B) provisions of the Clean Air Act. These requirements apply to owners or operators who construct or reconstruct a major source of hazardous air pollutants after June 29, 1998. The Department adopted these requirements into Regulation No. 38 in Apr. 1998.

The other set of requirements, which are included Sections 63.50 through 56, implement the section 112(j) provisions of the Clean Air Act. These requirements apply to owners or operators of any collection of equipment defined in a section 112(c) source category for which the Administrator has failed to promulgate an emission standard by the section 112(j) deadline and the collection of equipment is located at a source that is subject to Regulation 30.

Sections 63.45 through 49 of this subpart have been reserved.

[4/22/98 6/11/03]

Section 112(g)(2)(B) Requirements

The provisions of Sections 63.40 through 63.44 in Subpart B, of Title 40, Part 63 of the Code of Federal Regulations, dated July 1, 1997 are hereby adopted by reference with the following changes:

(a) “Regulation 30” shall replace “title V” wherever it appears.

(b) Paragraph 63.40(b) shall be replaced with the following language: “The requirements of Secs. 63.40 through 63.44 of this subpart apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after June 29, 1998 unless the major source in question has been specifically regulated or exempted from regulation under a standard issued pursuant to section 112(d), section 112(h), or section 112(j) and incorporated in another subpart of part 63, or the owner or operator of such major source has received all necessary air quality permits for such construction or reconstruction project before June 29, 1998.

(c) The opening sentence of Section 63.41 shall be replaced with the following language: “Terms used in Secs. 63.40 through 63.44 that are not defined in this section have the meaning given to them in the Act and in subpart A of this regulation.

(d) The opening of the definition of Available information found in Section 63.41 shall be replaced with the following language: “Available information means, for purposes of identifying control technology options for the affected source, information contained in the following information sources as of the date of issuance of the construction permit which incorporates the final and effective case-by-case MACT determination:”.

(e) The following errata found in Section 63.41 as published in the Federal Register and Code of Federal Regulations shall be corrected as follows:

(i) “for” in definition (3) of Available information shall be replaced with “from”;

(ii) HAP’s” in definition of Construct a major source shall be replaced with “HAP”;

(iii) “suite” in definition of Greenfield suite shall be replaced with “site”;

(iv) deduction” in definition of Maximum achievable control technology (MACT) emission limitation for new sources shall be replaced with “reduction”; and

(v) “that potential” in definition of Reconstruct a major source shall be replaced with “the potential”.

(f) “Administrator” in the definition of Available information found in Section 63.41 shall be replaced with “Administrator or Department.”

(g) Paragraph (2)(ii)(A) in the definition of Construct a major source found in Section 63.41 shall be replaced with the following language: “The permitting authority has determined within a period of 5 years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT) or lowest achievable emission rate (LAER) under Regulation 25 of the State of Delaware “Regulations Governing the Control of Air Pollution” for those HAP to be emitted by the process or production unit; or”.

(h) Paragraph (2)(ii)(B) in the definition of Construct a major source found in Section 63.41 shall be replaced with the following language: “The permitting authority determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other well-controlled similar sources (i.e., equivalent to the level of control that would be provided by a current BACT or LAER determination);”.

(i) Paragraph (2)(iv) in the definition of Construct a major source found in Section 63.41 shall be replaced with the following language: “The permitting authority has provided notice and an opportunity for public comment concerning its determination that criteria in paragraphs (2)(i), (2)(ii), and (2)(iii) of this definition apply and concerning the continued adequacy of any prior LAER or BACT determination;”.

(j) Paragraph (2)(v) in the definition of Construct a major source found in Section 63.41 shall be replaced with the following language: “If any commenter has asserted that a prior LAER or BACT determination is no longer adequate, the permitting authority has determined that the level of control required by that prior determination remains adequate; and ”.

(k) Paragraph (2)(vi) in the definition of Construct a major source found in Section 63.41 shall be replaced with the following language: “Any emission limitations, work practice requirements, or other terms and conditions upon which the above determinations are made by the permitting authority are applicable requirements under section 504(a) of the Act and under Section 6 of Regulation 30 of the State of Delaware “Regulations Governing the Control of Air Pollution” and either have been incorporated into any existing Regulation 30 permit for the affected facility or will be incorporated into such permit upon issuance or revision.”

(l) The definition of Construction permit is added to the list of definitions found in Section 63.41 with the following language: “Construction permit means a construction permit issued pursuant to Regulation 2 and/or 25 of the State of Delaware “Regulations Governing the Control of Air Pollution.”

(m) The opening of the definition of Control technology found in Section 63.41 shall be replaced with the following language: “Control technology means measures, processes, methods, systems, or techniques to limit the emission of hazardous air pollutants in a way that would --”.

(n) The definition of Effective date of section 112(g)(2)(B) in a State or local jurisdiction found in Section 63.41 shall be deleted.

(o) The definition of Electric utility steam generating unit found in Section 63.41 shall be replaced with the following language: “Electric utility steam generating unit means any fossil fuel fired combustion unit that serves a generator with a nameplate capacity of more than 25 megawatts that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one-third of its nameplate electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale shall be considered an electric utility steam generating unit.”

(p) The definition of HAP is added to the list of definitions found in Section 63.41 with the following language: “HAP means a hazardous air pollutant (i.e., any chemical listed in or pursuant to section 112(b) of the Act).”

(q) The definition of Notice of MACT Approval found in Section 63.41 shall be deleted.

(r) The definition of Permitting authority found in Section 63.41 shall be replaced with the following language: “Permitting authority means the Department of Natural Resources and Environmental Control as defined in Title 29, Delaware Code, Chapter 80, as amended.”

(s) The entire content of Paragraph 63.42(a) as promulgated shall be deleted and its heading shall be replaced with the following language: “(a) [Reserved].”

(t) The entire content of Paragraph 63.42(b) as promulgated shall be deleted and its heading shall be replaced with the following language: “(b) [Reserved].”

(u) Paragraph 63.42(c) shall be replaced with the following language: “After June 29, 1998, no person may begin actual construction or reconstruction of a major source of HAP unless: ”.

(v) The following errata published in the Federal Register and Code of Federal Regulations shall be corrected as follows:

(i) “owner and operator” in paragraph 63.42(c)(1) shall be replaced with “owner or operator”;

(ii) “63” in paragraph 63.42(c)(1) shall be deleted; and

(iii) “the anticipated” in paragraph 63.43(e)(2)(v) shall be replaced with “The anticipated”.

(w) Paragraph 63.42(c)(2) shall be replaced with the following language: “The permitting authority has issued a construction permit which incorporates a final and effective case-by-case determination pursuant to the provisions of Sec. 63.43; requiring the emissions from the constructed or reconstructed major source to be controlled to a level no less stringent than the maximum achievable control technology emission limitation for new sources.”

(x) Paragraph 63.43(b) shall be replaced with the following language: “When a case-by-case determination of MACT is required by Sec. 63.42(c), the owner [and or] operator shall obtain from the permitting authority an approved MACT determination pursuant to paragraph (c) of this section.”

(y) Paragraph 63.43(c)(1) shall be replaced with the following language: “[Reserved].”

(z) Paragraph 63.43(c)(2) shall be replaced with the following language: “The owner or operator shall follow all procedures in Regulation 2 and/or 25, except that --”.

(aa) Paragraph 63.43(c)(2)(i) shall be replaced with the following language: “the provisions of Section 2.2 of Regulation 2 do not apply to any owner or operator that is subject to the requirements of Secs. 63.40 through 63.44 and”.

(bb) Paragraph 63.43(c)(2)(ii) shall be replaced with the following language: “in addition to the provisions of Section 11.10 of Regulation 2, the final MACT determination and the construction permit shall expire if construction or reconstruction has not commenced within 18 months of permit issuance. The owner or operator may request and the permitting authority may grant an extension which shall not exceed an additional 12 months.”

(cc) Paragraph 63.43(c)(3) shall be replaced with the following language: “When desiring alternative operating scenarios, an owner or operator may request approval of case-by-case MACT determinations for each alternative operating scenario. Approval of such determinations satisfies the requirements of section 112(g) for each such scenario.”

(dd) Paragraph 63.43(c)(4) shall be replaced with the following language: “The MACT emission limitation and requirements established in the approved construction permit shall be effective as required by paragraph (j) of this section, consistent with the principles established in paragraph (d) of this section, and supported by the information listed in paragraph (e) of this section. The owner or operator shall comply with the requirements in paragraphs (k) and (l) of this section, and with all applicable requirements in subpart A of this regulation.”

(ee) The opening to Paragraph 63.43(d) shall be replaced with the following language: “The following general principles shall govern preparation by the owner or operator of each construction permit application requesting a case-by-case MACT determination concerning construction or reconstruction of a major source, and all subsequent review of and actions taken concerning such an application by the permitting authority:”.

(ff) Paragraph 63.43(e)(1) shall be replaced with the following language: “An application for a MACT determination shall be submitted at the same time as the construction permit application and shall specify a control technology selected by the owner or operator that, if properly operated and maintained, will meet the MACT emission limitation or standard as determined according to the principles set forth in paragraph (d) of this section. At the time of submittal, the owner or operator shall request that the permit application be processed pursuant to Section 11.2 (i) or 11.2 (j) of Regulation 2, whichever is appropriate.”

(gg) The opening to Paragraph 63.43(e)(2) shall be replaced with the following language: “In each instance where a constructed or reconstructed major source would require additional control technology or a change in control technology, the application for a MACT determination shall contain, independent of the permit application, the following information:”.

(hh) Paragraph 63.43(e)(2)(xiii) shall be replaced with the following language: “Any other relevant information required pursuant to subpart A of this regulation.”

(ii) The opening to Paragraph 63.43(e)(3) shall be replaced with the following language: “In each instance where the owner or operator contends that a constructed or reconstructed major source will be in compliance, upon startup, with case-by-case MACT under this subpart without a change in control technology, the application for a MACT determination shall contain, independent of the permit application, the following information:”.

(jj) The entire content of Paragraph 63.43(f) as promulgated shall be deleted and its heading shall be replaced with the following language: “(f) [Reserved].”

(kk) The entire content of Paragraph 63.43(g) as promulgated shall be deleted and its heading shall be replaced with the following language: “(g) [Reserved].”

(ll) The entire content of Paragraph 63.43(h) as promulgated shall be deleted and its heading shall be replaced with the following language: “(h) [Reserved].”

(mm) Paragraph 63.43(i) shall be replaced with the following language: “The permitting authority shall send notice of any approvals pursuant to paragraph (c)(2) of this section to the Administrator through the appropriate Regional Office, and to all other State and local air pollution control agencies having jurisdiction in affected States.”

(nn) Paragraph 63.43(j) shall be replaced with the following language: “The effective date of a MACT determination shall be the date the permitting authority issues the construction permit which incorporates the final and effective MACT determination.”

(oo) Paragraph 63.43(l)(1) shall be replaced with the following language: “An owner or operator of a constructed or reconstructed major source that is subject to a MACT determination shall comply with all requirements in the issued construction permit, including but not limited to any MACT emission limitation or MACT work practice standard, and any notification, operation and maintenance, performance testing, monitoring, reporting, and record keeping requirements.”

(pp) Paragraph 63.43(l)(2) shall be replaced with the following language: “An owner or operator of a constructed or reconstructed major source which has obtained a MACT determination shall be deemed to be in compliance with section 112(g)(2)(B) of the Act only to the extent that the constructed or reconstructed major source is in compliance with all requirements set forth in the issued construction permit. Any violation of such requirements by the owner or operator shall be deemed by the permitting authority and by EPA to be a violation of the prohibition on construction or reconstruction in section 112(g)(2)(B) for whatever period the owner or operator is determined to be in violation of such requirements, and shall subject the owner or operator to appropriate enforcement action under the Act.”

(qq) Paragraph 63.43(m) shall be replaced with the following language: “Within 60 days of the issuance of a construction permit, the permitting authority shall provide a copy of such permit to the Administrator, and shall provide a summary in a compatible electronic format for inclusion in the MACT data base.”

(rr) The phrase “under any of the review options available” in paragraph 63.44(a) shall be deleted.

(ss) The phrase “40 CFR part 70 or part 71, whichever is relevant,” in 63.44(b) shall be replaced with the following language: “Regulation 30.”

Secs. 63.45 through 49 [Reserved].

[5 6]/11/023

Section 112(j) Provisions

Sec. 63.50 Applicability.

(a) General applicability.

(1) The requirements of Secs. 63.50 through 56 of this subpart implement section 112(j) of the Act.

(2) The requirements of Secs. 63.50 through 56 of this subpart apply to owners or operators of affected 112(j) sources that are located at a major source that is subject to Regulation 30 of the State of Delaware “Regulations Governing the Control of Air Pollution.”

(3) The requirements of Secs. 63.50 through 56 of this subpart do not apply to research or laboratory activities as defined in Sec. 63.51 of this subpart.

(b) Relationship to other State and Federal requirements.

The requirements of Secs. 63.50 through 56 of this subpart are additional to all other applicable State and Federal requirements.

Sec. 63.51 Definitions.

Terms used in Secs. 63.50 through 56 of this subpart that are not defined in this section have the meaning given to them in the Act or in subpart A of this regulation.

Affected 112(j) source means the collection of equipment, activities or both within a single contiguous area and under common control that is in a section 112(c) source category for which the Administrator has failed to promulgate an emission standard by the section 112(j) deadline.

Available information means, for purposes of conducting a MACT floor finding and identifying control technology options under Secs. 63.50 through 56 of this subpart, any information contained in the following information sources as of issuance of a final and legally effective case-by-case MACT determination according to paragraph 63.55(a) of this subpart:

(1) A relevant proposed regulation, including all supporting information.

(2) Relevant background information documents for a draft or proposed regulation.

(3) Any relevant regulation, information or guidance collected by the Administrator establishing a MACT floor finding and/or MACT determination.

(4) Relevant data and information available from the Clean Air Technology Center developed according to section 112(l)(3) of the Act.

(5) Relevant data and information contained in the Aerometric Information Retrieval System (AIRS) including information in the MACT database.

(6) Any additional information that can be expeditiously provided by the Administrator or Department.

(7) Any information provided by applicants in a Part 3 MACT application, an application for a permit, permit modification or administrative amendment according to the requirements of Secs. 63.50 through 56 of this subpart.

(8) Any additional relevant information provided by the applicant or others prior to or during the public comment period for a final and legally effective case-by-case MACT determination for an affected or a new affected 112(j) source.

Control technology means measures, processes, methods, systems or techniques to limit the emission of hazardous air pollutants which:

(1) Reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications;

(2) Enclose systems or processes to eliminate emissions;

(3) Collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point;

(4) Are design, equipment, work practice or operational standards; or

(5) Are a combination of paragraphs (1) through (4) of this definition.

Equivalent emission limitation means an emission limitation, established under this subpart, which is equivalent to the MACT standard that the EPA would have promulgated under section 112(d) or (h) of the Act, had they done so by the section 112(j) deadline.

Existing source maximum achievable control technology (MACT) requirements means the requirements, which include, where feasible, an equivalent emission limitation, reflecting the maximum degree of reduction in emissions of hazardous air pollutants that the Department, taking into consideration the cost of achieving such emission reductions and any non-air quality health and environmental impacts and energy requirements, determines is achievable by sources in the category to which such MACT standard applies. These requirements shall be based upon available information and shall not be less stringent than the MACT floor.

Maximum achievable control technology (MACT) floor means:

(1) For existing sources:

(i) The average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Department and/or Administrator has emissions information), excluding those sources that have, within 18 months before the Department issues a final and legally effective MACT determination under this subpart, within 18 months before the emission standard is proposed or within 30 months before such standard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined in section 171 of the Act) applicable to the source category and prevailing at the time, in the category, for categories of stationary sources with 30 or more sources, or

(ii) The average emission limitation achieved by the best performing five sources (for which the Department and/or Administrator has emissions information) in the category, for categories with fewer than 30 sources.

(2) For new sources, the emission limitation achieved in practice by the best controlled source in the section 112(c) source category, where such source is equipment or collection of equipment that, by virtue of its structure, operability, type of emissions and volume and concentration of emissions, is substantially equivalent to the new affected 112(j) source and employs control technology for control of emissions of hazardous air pollutants that is practical for use on the new affected 112(j) source.

New affected 112(j) source means the collection of equipment, activities or both, that if constructed after the issuance of a final and legally effective case-by-case MACT determination according to paragraph 63.55(a) of this subpart, is subject to the applicable new source MACT requirements. According to paragraph 63.52(f)(3)(i) of this subpart, each permit shall define the term “new affected 112(j) source,” which will be the same as the “affected 112(j) source” unless a different collection is warranted based on consideration of factors including:

(1) Emission reduction impacts of controlling individual sources versus groups of sources;

(2) Cost effectiveness of controlling individual equipment;

(3) Flexibility to accommodate common control strategies;

(4) Cost/benefits of emissions averaging;

(5) Incentives for pollution prevention;

(6) Feasibility and cost of controlling processes that share common equipment (e.g., product recovery devices);

(7) Feasibility and cost of monitoring; and

(8) Other relevant factors.

New source maximum achievable control technology (MACT) requirements means the requirements, which include, where feasible, an equivalent emission limitation, which shall be based upon available information and shall not be less stringent than the MACT floor and which reflects the maximum degree of reduction in emissions of hazardous air pollutants that the Department, taking into consideration the cost of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements, determines is achievable by sources in the category to which such MACT standard applies.

Research or laboratory activities means activities whose primary purpose is to conduct research and development into new processes and products; where such activities are operated under the close supervision of technically trained personnel and are not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner and where the source is not in a source category, specifically addressing research or laboratory activities, that is listed according to section 112(c)(7) of the Act.

Section 112(j) deadline means the date 18 months after the date for which a relevant standard is scheduled to be promulgated under 40 CFR part 63, except that for all major sources listed in those source categories scheduled to be promulgated by November 15, 1994, the section 112(j) deadline is November 15, 1996 and for all major sources listed in those source categories scheduled to be promulgated by November 15, 1997, the section 112(j) deadline is December 15, 1999.

Sec. 63.52 Approval process for new and existing affected 112(j) sources.

(a) Sources that are major affected 112(j) sources on the section 112(j) deadline.

(1) Except as provided for in paragraph 63.52(a)(2) of this section, the owner or operator of any source that is an major affected 112(j) source on the section 112(j) deadline shall comply with the following.

(i) Submit to the Department by the section 112(j) deadline:

(A) A Part 1 MACT application according to paragraph 63.53(a) of this subpart or

(B) If desired, a request for an applicability determination by the Department of whether a source is an major affected 112(j) source.

(ii) An owner or operator that submitted a timely request for an applicability determination in accordance [to with] paragraph (a)(1)(i)(B) of this section that did not receive[d a determination a response from the Department] by May 11, 2003 shall submit the following:

(A) A Part 2 MACT application in accordance with paragraph (a)(1)(iii) of this section or

(B) If needed, a new request for an applicability determination not later than July 11, 2003. [The Any such]new request shall include the following:

(I) [Identification of tT]he affected 112(j) source category for which the request is being made;

(II) [Description of tT]he specific emission source(s) of concern;

(III) The specific language in the EPA proposed standard associated with each specified concern identified in paragraph (a)(1)(ii)(B)(II) of this section; and

(IV) Any additional information, as appropriate, that illustrates why a determination of applicability is still required.

(ii iii) Submit to the Department a Part 2 MACT application according to paragraph 63.53(b) of this subpart not later than 24 months following: the applicable “Part 2 Due Date” listed in Table 52-1 of this section, unless the Administrator has promulgated the final rule for the applicable source category or subcategory on or before the applicable “Part 2 Due Date”.

(A) The submittal of the Part 1 MACT application or

(B) The receipt of the Department’s positive applicability determination according to paragraph (d)(1) of this section.

(iii iv) If desired, include with the Part 2 MACT application submitted according to paragraph (a)(1)(ii iii) of this section, a Part 3 MACT application according to paragraph 63.53(c) of this subpart.

(2) The owner or operator of any source that has received a final and legally effective case-by-case MACT determination under Ssection 112(g) according to Sec. 63.43 of this subpart on or before the section 112(j) deadline shall submit a Part 1 MACT application to the Department by the section 112(j) deadline.

(b) Sources that become major affected 112(j) sources after the section 112(j) deadline and that do not have a permit addressing the section 112(j) requirements.

(1) The owner or operator of any source shall comply with the paragraphs (b)(2) and (3) of this section, when section 112(g) requirements are not invoked and when that source would become an major affected 112(j) source due to:

(i) Construction, reconstruction or modification;

(ii) Relaxation of any state or federally enforceable permit limitation; or

(iii) The Department, under subpart A of this regulation, or the Administrator, under section 112(a)(1) of the Act, establishes a lesser quantity emission threshold that results in an area affected 112(j) source becoming an major affected 112(j) source.

(2) The owner or operator of any source identified in paragraph (b)(1) or (c)(2)(i) of this section shall submit the following to the Department:

(i) Part 1, Part 2 and Part 3 MACT applications according to paragraphs 63.53(a) through (c) of this subpart.

(ii) One of the following requests, as appropriate.

(A) A request that any associated Regulation 2 construction permit be processed according to paragraph 11.2(j) of Regulation 2.

(B) A request that the relaxation of any existing permit limitation specified in a Regulation 30 permit be processed as a significant permit modification.

(C) A request that the relaxation of any existing permit limitation specified in a Regulation 2 operating permit, where there is an associated pending initial Regulation 30 permit, be processed according to paragraph 11.2(j) of Regulation 2.

(3) Where the relaxation of any existing permit limitation specified in a Regulation 2 operating permit is requested, and there is not an associated Regulation 30 or pending initial Regulation 30 permit, operation as an major affected 112(j) source shall not commence until a Regulation 30 permit that addresses the section 112(j) requirements is issued by the Department.

(4) The owner or operator of any source that would become an major affected 112(j) source due to construction or reconstruction and section 112(g) requirements are invoked shall apply for and obtain a final and legally effective case-by-case MACT determination according to Sec. 63.43 of this subpart.

Table 52-1 of Subpart B - Part 2 MACT Application Due Date for Applicable 112(j) Source Categories

Affected 112(j) Source Category	Subpart	Part 2 Due Date
Flexible Polyurethane Foam Fabrication Operations	MMMMM	[MayJune 15, 2003]
Coke Ovens: Pushing, Quenching, and Battery Stacks	CCCCC	[MayJune 15, 2003]
Reinforced Plastic Composites Production	WWWW	[MayJune 15, 2003]
Semiconductor Manufacturing	BBBBB	[MayJune 15, 2003]
Refractory Products Manufacturing (1)	SSSSS	[MayJune 15, 2003]
Brick and Structural Clay Products Manufacturing	JJJJJ	[MayJune 15, 2003]
Clay Ceramics Manufacturing (2)	KKKKK	[MayJune 15, 2003]
Asphalt Processing and Asphalt Roofing Manufacturing (3)	LLLLL	[MayJune 15, 2003]
Integrated Iron and Steel Manufacturing	FFFFF	[MayJune 15, 2003]
Hydrochloric Acid Production (Included Fume Silica Facilities) (4)	NNNNN	[MayJune 15, 2003]
Engine Test Cells/Stands (3)	PPPPP	[MayJune 15, 2003]
Surface Coating of Metal Furniture	RRRR	[MayJune 15, 2003]
Printing, Coating, and Dyeing of Fabrics and Other Textiles	OOOO	[MayJune 15, 2003]
Surface Coating of Wood Building Products	QQQQ	[MayJune 15, 2003]
Stationary Combustion Turbines	YYYY	Oct. 30, 2003
Lime Manufacturing Plants	AAAAA	Oct. 30, 2003
Site Remediation	GGGGG	Oct. 30, 2003
Iron and Steel Foundries	EEEEE	Oct. 30, 2003
Taconite Iron Ore Processing	RRRRR	Oct. 30, 2003
Miscellaneous Organic Chemical Manufacturing & Miscellaneous Coating Manufacturing (5)	FFFF & HHHHH	Oct. 30, 2003
Organic Liquids Distribution (Non-Gasoline)	EEEE	Oct. 30, 2003
Primary Magnesium Refining	TTTTT	Oct. 30, 2003
Surface Coating of Metal Cans	KKKK	Oct. 30, 2003
Surface Coating of Plastic Parts and Products	PPPP	Oct. 30, 2003
Mercury Cell Chlor-Alkali Plants (Chlorine Production)	IIIII	Oct. 30, 2003
Surface Coating of Miscellaneous Metal Parts and Products (includes Asphalt/Coal Tar Coating of Metal Pipes) (3)	MMMM	Oct. 30, 2003
Industrial/Commercial/Institutional Boilers and Process Heaters (6)	DDDDD	Apr. 28, 2004
Plywood and Composite Wood Products	DDDD	Apr. 28, 2004
Stationary Reciprocating Internal Combustion Engines	ZZZZ	Apr. 28, 2004
Surface Coating of Automobiles and Light-Duty Trucks	IIII	Apr. 28, 2004
Industrial/Commercial/Institutional Boilers and Process Heaters (7)		Aug. 13, 2005
Hydrochloric Acid Production (8)		Aug. 13, 2005

Notes

(1) Includes Chromium Refractories Production.

(2) Two subcategories of Clay Products Manufacturing.

(3) Two source categories.

(4) Includes all sources within the Hydrochloric Acid Production standard that burn no hazardous waste and all acid production sources at fume silica facilities.

(5) Covers the 23 source categories listed in Table 52-2.

(6) Includes all sources in the Industrial/Commercial/Institutional Boilers and Process Heaters standard that burn no hazardous waste.

(7) Includes all sources in the Industrial/Commercial/Institutional Boilers and Process Heaters standard that burn hazardous waste.

(8) Includes furnaces that produce acid from hazardous waste at sources in the category Hydrochloric Acid Production.

Table 52-2 of Subpart B - Applicable 112(j) Subcategories under the Miscellaneous Organic Chemical Manufacturing & Miscellaneous Coating Manufacturing MACTs

Subcategories
Manufacture of Paints, Coatings, and Adhesives
Alkyd Resins Production
Maleic Anhydride Copolymers Production
Polyester Resins Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Ammonium Sulfate Production--Caprolactam By-Product Plants
Quaternary Ammonium Compounds Production
Benzyltrimethylammonium Chloride Production
Carbonyl Sulfide Production
Chelating Agents Production
Chlorinated Paraffins Production
Ethylidene Norbornene Production
Explosives Production
Hydrazine Production
OBPA/1,3-Diisocyanate Production
Photographic Chemicals Production
Phthalate Plasticizers Production
Rubber Chemicals Manufacturing
Symmetrical Tetrachloropyridine Production

(c) Sources that have a permit addressing the section 112(j) requirements.

The requirements of paragraphs (c)(1) and (2) of this section apply to major affected 112(j) sources that have a permit addressing the section 112(j) requirements according to Secs. 63.50 through 56 of this subpart, but where changes to equipment, activities or both, subsequently, occur at the source.

(1) If the existing permit already provides the appropriate requirements that address the subsequent changes that are to occur under paragraph (c) of this section, then that source shall comply with the applicable new source MACT requirements, and the section 112(j) requirements are thus satisfied.

(2) If the existing permit does not provide the appropriate requirements that address the subsequent changes that are to occur under paragraph (c) of this section, the owner or operator shall comply with paragraph (c)(2)(i) or (ii) of this section, whichever appropriate.

(i) If section 112(g) requirements are not invoked, the owner or operator of that source shall comply with the provisions of paragraph (b)(2) of this section.

(ii) If section 112(g) requirements are invoked, the owner or operator of that source shall apply for and obtain a final and legally effective case-by-case MACT determination according to Sec. 63.43 of this subpart.

(d) Applicability and equivalency determinations.

(1) Applicability Determinations.

(i) The Department shall review any request for an applicability determination when requested to do so according to paragraph (a)(1)(i)(B) of this section. If the Department’s applicability determination is positive, the owner or operator shall comply with paragraphs (a)(1)(ii iii) and (iii iv) of this section. If the Department’s applicability determination is negative, no further action by the owner or operator is necessary.

(ii) The Department shall review any request for an applicability determination resubmitted in accordance with paragraph (a)(1)(ii)(B) of this section not later than September 10, 2003. If the Department’s applicability determination is negative, no further action by the owner or operator is necessary. If the Department’s applicability determination is positive, the owner or operator shall comply with paragraphs (a)(1)(iii) and (iv) of this section.

(2) For any Part 1 application received pursuant to paragraph (a)(2) of this section, the Department shall review the final and legally effective case-by-case MACT determination approved according to Sec. 63.43 of this subpart. If the Department determines that the emission limitations in that final and legally effective case-by-case MACT determination are substantially as effective as the emission limitations which the Department would otherwise adopt to effectuate section 112(j) for that source, then the Department shall retain the existing emission limitations in the permit as the emission limitations to effectuate section 112(j) by reopening the Regulation 30 permit for cause or amending the Regulation 2 permit following the procedures in paragraphs 12.4 through 12.6 of Regulation 2, as applicable. If the Department determines that the emission limitations in that final and legally effective case-by-case MACT determination are not substantially as effective as the emission limitations which the Department would otherwise adopt to effectuate section 112(j) for that source, then the Department shall impose the requirements specified in paragraph (f)(3) of this section by reopening the Regulation 30 permit for cause or amending the Regulation 2 permit following the procedures in paragraphs 12.4 through 12.6 of Regulation 2, as applicable.

(3) In issuing any final and legally effective case-by-case MACT determination according to Sec. 63.43 of this subpart after the section 112(j) deadline (i.e., according to paragraph (b)(4) or (c)(2)(ii) of this section), the Department shall specify in that determination that the associated emission limitations effectuate both section 112(g) and section 112(j) requirements.

(e) Completion determination and application shield.

(1) Within 60 days of the receipt of the Part 2 and/or Part 3 MACT application(s), the Department shall notify the owner or operator in writing whether the application is complete or incomplete. The Part 2 and/or Part 3 MACT application(s) shall be deemed complete unless the Department notifies the owner or operator in writing within 60 days of the submittal that the application is incomplete.

(2) Following submittal of any application, the Department may request additional information from the owner or operator. The owner or operator shall respond to such requests in a timely manner.

(3) If the owner or operator has submitted timely and complete application(s) as required by this section, any failure to have a Regulation 30 permit addressing the section 112(j) requirements shall not be a violation of section 112(j), unless the delay in final action is due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application. Once complete application(s) are submitted, the owner or operator shall not be in violation of the requirement to have a Regulation 30 permit addressing the section 112(j) requirements.

(f) Permit issuance and content.

(1) For each Part 2 application received according to paragraph (a) of this section, the Department shall reopen the source’s Regulation 30 permit for cause according to the requirements of Regulation 30 and shall impose the requirements in paragraph (f)(3) of this section, as appropriate, through the Regulation 30 permit. If the Department has not yet issued a Regulation 30 permit, the Department shall revise the applicable Regulation 2 operating permit(s) using the procedures in paragraphs 12.4 through 12.6 of Regulation 2.

(2) For each Part 2 application received according to paragraph (b) or (c) of this section, the Department shall issue a Regulation 2 construction or operating permit using the procedures of paragraph 11.2(j) of Regulation 2, shall reopen the source’s Regulation 30 permit for cause, shall revise the source’s Regulation 30 permit as a significant permit revision or shall issue a Regulation 30 permit, as applicable, to impose the requirements in paragraph (f)(3) of this section, as appropriate.

(3) Permit requirements for affected 112(j) sources.

(i) Identification of the affected 112(j) source and the new affected 112(j) source.

(ii) An equivalent emission limitation established by the Department that reflects existing source MACT requirements, for the equipment and activities within the affected 112(j) source, based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained and operated properly.

(iii) An equivalent emission limitation established by the Department that reflects new source MACT requirements for the equipment and activities within the affected 112(j) source, based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained and operated properly.

(iv) In lieu of paragraphs (f)(ii) and (f)(iii) of this section, any specific design, equipment, work practice or operational standard or combination thereof, when the Administrator or Department determines that hazardous air pollutants cannot be emitted through a conveyance designed and constructed to capture such pollutants, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State or local law, or the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.

(v) The appropriate provisions of subpart A of this regulation and the information specified in paragraphs (f)(3)(v)(A) through (C) of this section.

(A) Any additional emission limits, production limits, operational limits or other terms and conditions necessary to ensure practicable enforceability of the MACT emission limitation.

(B) Compliance certifications, testing, monitoring, reporting and record keeping requirements that are consistent with requirements established according to Regulation 30.

(C) Compliance dates by which the owner or operator shall be in compliance with the MACT emission limitation and all other applicable terms and conditions of the permit.

(I) The owner or operator of an major affected 112(j) source subject to paragraphs (a), (b) or (c)(2) of this section shall comply with existing source MACT requirements by the date established in the source’s Regulation 30 or Regulation 2 permit, as applicable. The compliance date shall not be later than 3 years after the issuance of the permit for that source, except where the Department issues a permit that grants an additional year to comply in accordance with section 112(i)(3)(B) of the Act or unless otherwise specified in section 112(i).

(II) The owner or operator of a new affected 112(j) source subject to paragraph (c)(1) of this section shall comply with new source MACT requirements immediately upon startup of the new affected 112(j) source.

(g) Permit issuance dates.

The Department shall issue all permits that address the requirements of this subpart in accordance with the requirements of Regulation 2, 25, and/or 30 of the State of Delaware “Regulations Governing the Control of Air Pollution”, as is applicable.

(h) MACT emission limitations.

(1) Owners or operators of affected 112(j) sources subject to paragraph (a), (b) or (c)(2) of this section shall comply with all requirements of Secs. 63.50 through 56 of this subpart that are applicable to affected 112(j) sources, including the compliance date for affected 112(j) sources established in paragraph (f)(3)(v)(C)(I) of this section.

(2) Owners or operators of new affected 112(j) sources subject to paragraph (c)(1) of this section shall comply with all requirements of Secs. 63.50 through 56 of this subpart that are applicable to new affected 112(j) sources, including the compliance date for new affected 112(j) sources established in paragraph (f)(3)(v)(C)(II) of this section.

Sec. 63.53 Application content for case-by-case MACT determinations.

(a) Part 1 MACT Application.

The Part 1 application for a MACT determination shall contain the information in paragraphs (a)(1) through (4) of this section.

(1) The name and address (physical location) of the major source.

(2) A brief description of the major source and an identification of the relevant source category.

(3) An identification of the types of sources belonging to the relevant source category.

(4) An identification of any affected 112(j) sources for which an application has been made for a final and legally effective case-by-case MACT determination under section 112(g) according to Secs. 63.40 through 44 of this subpart.

(b) Part 2 MACT Application.

The Part 2 application for a MACT determination shall contain the information in paragraphs (b)(1) through (5 6) of this section.

(1) For an affected 112(j) source subject to construction, reconstruction or modification, the expected commencement date of installation, the expected completion date of installation and the anticipated date of startup of the affected 112(j) source.

(2) The hazardous air pollutants emitted by each affected 112(j) source in the relevant source category and an estimated total uncontrolled and controlled emission rate for hazardous air pollutants from the affected 112(j) source.

(3) Any existing Federal, State or local limitations or requirements applicable to the affected 112(j) source.

(4) For each piece of equipment, activity or source, an identification of control technology in place.

(5) Information relevant to establishing the MACT floors.

(6) [The cC]ertification by a responsible official of truth, accuracy, and completeness. This certification shall be signed by a responsible official and shall contain the following language: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

(c) Part 3 MACT Application.

The Part 3 application for a MACT determination shall contain the information in paragraphs (c)(1) through (3 4) of this section.

(1) Recommended MACT floors, an emission standard or emission limitation that is equivalent to existing source MACT requirements and an emission standard or emission limitation that is equivalent to new source MACT requirements for the affected 112(j) source, and supporting information consistent with paragraph 63.52(f) of this subpart. The owner or operator may recommend a specific design, equipment, work practice, operational standard or combination thereof, as an emission limitation.

(2) Proposed control technology that, if properly operated and maintained, will meet, at minimum, the existing source and new source MACT requirements, including identification of the affected 112(j) sources to which the control technology shall be applied.

(3) Relevant parameters to be monitored and frequency of monitoring to demonstrate continuous compliance with the MACT emission limitation over the applicable reporting period.

(4) [The cC]ertification by a responsible official of truth, accuracy, and completeness. This certification shall be signed by a responsible official and shall contain the following language: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

Sec. 63.54 Pre-construction review procedures for affected 112(j) sources.

The owner or operator who constructs, reconstructs or modifies an affected 112(j) source after the section 112(j) deadline shall follow the procedures established under Regulations 2, 25 and/or 30 before commencing construction, reconstruction, or modification of the affected 112(j) source.

Sec. 63.55 Maximum achievable control technology (MACT) determinations for affected 112(j) sources subject to case-by-case determination of equivalent emission limitations.

(a) Determination of case-by-case MACT requirements. The Department shall issue final and legally effective case-by-case MACT determinations for affected 112(j) and new affected 112(j) sources that are consistent with the existing source MACT and the new source MACT requirements, as defined in Sec. 63.51 of this subpart.

(b) Reporting to the Administrator.

The owner or operator shall submit copies of the Part 1, Part 2 and Part 3 MACT applications to the Administrator at the same time these applications are submitted to the Department.

Sec. 63.56 Requirements for case-by-case determination of equivalent emission limitations after promulgation of subsequent MACT standard.

(a) If the Administrator promulgates a relevant emission standard that is applicable to one or more affected 112(j) sources that are located at a major source before the date that the Department has issued a final and legally effective case-by-case MACT determinations according to paragraph 63.55(a) of this subpart, the Regulation 30 permit shall contain the promulgated standard rather than the emission limitation determined under Sec. 63.52 of this subpart, and the owner or operator shall comply with the promulgated standard by the compliance date in the promulgated standard.

(b) If the Administrator promulgates a relevant emission standard that is applicable to one or more affected 112(j) sources that are located at a major source on or after the date that the Department has issued a final and legally effective case-by-case MACT determinations according to paragraph 63.55(a) of this subpart, the Department shall incorporate requirements of that standard in the Regulation 30 permit upon its next renewal. The Department shall establish a compliance date in the revised permit that assures that the owner or operator shall comply with the promulgated standard within a reasonable time, but not longer than 8 years after such standard is promulgated or 8 years after the issuance of the final and legally effective case-by-case MACT determinations according to paragraph 63.55(a) of this subpart, whichever is earlier. However, in no event shall the period for compliance for existing sources be shorter than that provided for existing sources in the promulgated standard.

(c) Notwithstanding the requirements of paragraph (a) or (b) of this section, the requirements of paragraphs (c)(1) and (2) of this section shall apply.

(1) If the Administrator promulgates an emission standard under section 112(d) or (h) of the Act that is applicable to an affected 112(j) source after the date a final and legally effective case-by-case MACT determination is issued according to paragraph 63.55(a) of this subpart, the Department is not required to change the emission limitation in the permit to reflect the promulgated standard if the Department determines that the level of control required in that prior case-by-case MACT determinations is substantially as effective as that required by the promulgated standard according to Sec. 63.1(e) of subpart A of this regulation.

(2) If the Administrator promulgates an emission standard under section 112(d) or (h) of the Act that is applicable to an affected 112(j) source after the date a final and legally effective case-by-case MACT determination[s] is issued according to paragraph 63.55(a) of this subpart and the level of control required by the promulgated emission standard is less stringent than the level of control required by that prior case-by-case MACT determination, the Department may, but is not required to incorporate any less stringent emission limitation of the promulgated standard in the Regulation 30 permit applicable to such source(s) and shall consider any more stringent provisions of that prior case-by-case MACT determination to be applicable legal requirements when issuing or revising such a Regulation 30 permit.

Division of Air and Waste Management

Air Quality Management Section

Statutory Authority: 7 Delaware Code, Chapter 60

(7 Del.C. Ch. 60)

Secretary’s Order No.: 2003-A-0022

Proposed Adoption of Subpart RRR into Regulation No. 38: Emission Standards for Hazardous Air Pollutants for Secondary Aluminum Production

ORDER

I. Background

On March 27, 2003 a public hearing was held in the DNREC Auditorium in Dover to receive comment on the proposed adoption of Subpart RRR into Regulation No. 38 concerning emission standards for hazardous air pollutants for secondary aluminum production. Delaware is proposing the adoption of Subpart RRR into the aforementioned Regulation as part of its requirements to maintain equivalency with its program authorization and equivalency with EPA’s air toxics program.

This proposed amendment to Regulation 38 is for the adoption of the Federal standard that applies to secondary aluminum production facilities which perform one or more of the following processes: scrap shredding, scrap drying/delacquering/decoating, thermal chip drying, furnace operations, recovering aluminum from dross, inline fluxing, or dross cooling.

Prior to this public hearing, a public workshop was held on February 19, 2003 regarding the proposed adoption of Subpart RRR, however, no one from the public attended the workshop. It should be noted, however, that the same presentation prepared by the Department for this workshop was given privately to Mr. Jack Fitzgerald of Fitzgerald’s Auto Salvage in Lincoln, Delaware, on March 5, 2003, due to Mr. Fitzgerald’s facility being the only known source currently planning to operate a sweat furnace under the requirements of Subpart RRR. No member of the public attended the hearing on March 27, 2003. Proper notice of the hearing was provided as required by law.

After the hearing, the Department performed an evaluation of the evidence entered into the record in this matter. Thereafter, the Hearing Officer prepared his report and recommendation in the form of a memorandum to the Secretary dated April 14, 2003, and that memorandum is expressly incorporated herein by reference.

II. Findings and Conclusions

All of the findings and conclusions contained in the Hearing Officer’s Memorandum dated April 14, 2003 are expressly incorporated herein and explicitly adopted as the findings and conclusions of the Secretary.

III. Order

In view of the above, I hereby order that the proposed adoption of Subpart RRR into Regulation No. 38 be promulgated and implemented in the manner and form provided for by law, as recommended in the Hearing Officer’s memorandum.

IV. Reasons

Adopting Subpart RRR into Regulation No. 38 will be beneficial to the State of Delaware, in that it will enable the State of Delaware to improve and/or enhance the overall performance of the Department’s Division of Air Quality Management program. Furthermore, the adoption of Subpart RRR will permit the State of Delaware to remain main current with the Federal standard that applies to secondary aluminum production facilities, and will also help the Department to protect the public health, safety and welfare, in furtherance of the policy and purposes of 7 Del. C., Ch. 60.

John A. Hughes, Secretary

The Department is amending Regulation 38 by adding Subpart RRR, which follows. Subpart RRR does not change any of the existing subparts of Regulation 38 and shall be placed following Subpart T.

[5/11/2003 6/11/2003]

Subpart RRR Emission Standards for Hazardous Air

Pollutants for Secondary Aluminum

Production

The provisions of Subpart RRR - National Emission Standards for Secondary Aluminum Production, of Title 40, Part 63 of the Code of Federal Regulations, dated July 1, 2002 and as amended on Sept. 24, 2002 and Dec. 30, 2002, are hereby adopted by reference with the following changes:

(a) “Department” shall replace all instances of “permitting authority”, “permitting agency”, “responsible permitting authority”, and “applicable permitting agency”.

(b) Paragraph 63.1500(e) shall be replaced with the following language: “The owner or operator of a secondary aluminum production facility subject to the provisions of this subpart, is subject to the title V permitting requirements under Regulation 30. The Department defers the affected facility from the title V permitting requirements until December 9, 2004, if the secondary aluminum production facility is not a major source and is not located at a major source as defined in subpart A of this regulation, and is not otherwise required to obtain a title V permit. All sources receiving a deferral under this section shall submit a title V permit application by December 9, 2005. The affected facility shall comply with the provisions of this subpart applicable to area sources if a deferral from title V permitting requirements has been granted to the facility by the Department.”

(c) Add the following language after Section 63.1500: “[65 FR 15710, March 23, 2000; as amended at 67 FR 79815, Dec. 30, 2002]”.

(d) Except in paragraph 63.1502(a), the following dates shall be replaced by the date [May June] 11, 2003:

(i) March 23, 2000;

(ii) March 24, 2003.

(e) Add the following language after Section 63.1501: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002]”.

(f) The entire paragraph 63.1502(a) shall be replaced with the following language: “The following material is incorporated by reference in the corresponding sections noted. This material is incorporated as it exists on March 23, 2000:

(1) Chapters 3 and 5 of “Industrial Ventilation: A Manual of Recommended Practice,” American Conference of Governmental Industrial Hygienists, (23rd edition, 1998), IBR approved for Sec. 63.1506(c);

(2) “Interim Procedures for Estimating Risks Associated with Exposures to Mixtures of Chlorinated Dibenzo-p-Dioxins and -Dibenzofurans (CDDs and CDFs) and 1989 Update” (EPA/625/3-89/016); and

(3) “Fabric Filter Bag Leak Detection Guidance,” (September 1997).”

(g) Paragraph 63.1502(b)(1) shall be replaced with the following language: “Customer Service Department, American Conference of Governmental Industrial Hygienists (ACGIH), 1330 Kemper Meadow Drive, Cincinnati, OH 45240-1634, telephone number (513) 742-2020;”.

(h) Paragraph 63.1502(b)(2) shall be replaced with the following language: “The National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA, NTIS no. PB 90-145756; and”.

(i) Paragraph 63.1502(b)(3) shall be added with the following language: “U.S. Environmental Protection Agency; Office of Air Quality Planning and Standards; Emissions, Monitoring and Analysis Division; Emission Measurement Center (MD-19), Research Triangle Park, NC 27711.”

(j) The opening sentence of Section 63.1503 shall be replaced with the following language: “Unless defined below, all terms in this subpart have the meanings given them in the Act or in subpart A of this regulation:”.

(k) The definition of Cover flux in Section 63.1503 shall be replaced with the following language: “Cover flux means salt(s) added to the surface of molten aluminum in a group 1 or group 2 furnace, without agitation of the molten aluminum, for the purpose of preventing oxidation.”

(l) The definition of HCl in Section 63.1503 shall be replaced with the following language: “HCl means, for the purposes of this subpart, emissions of hydrogen chloride that serve as a surrogate measure of the total emissions of hydrogen chloride, hydrogen fluoride, and chlorine.”

(m) The definition of Sweat furnace in Section 63.1503 shall be replaced with the following language: “Sweat furnace means a furnace used exclusively to reclaim aluminum from scrap that contains substantial quantities of metal by using heat to separate the low-melting point aluminum from the scrap while the higher melting-point metal remains in solid form. These units are also commonly known as dry hearth furnaces.”

(n) The definition of TEQ in Section 63.1503 shall be replaced with the following language: “TEQ means the international method of expressing toxicity equivalents for dioxins and furans as defined in “Interim Procedures for Estimating Risks Associated with Exposures to Mixtures of Chlorinated Dibenzo-p-Dioxins and -Dibenzofurans (CDDs and CDFs) and 1989 Update” (EPA-625/3-89-016).”

(o) Add the following language after Section 63.1503: “[65 FR 15710, March 23, 2000; as amended at 67 FR 79815, Dec. 30, 2002]”.

(p) Paragraph 63.1505(a) shall be replaced with the following language: “Summary. The owner or operator of a new or existing affected source must comply with each applicable limit in this section. Table 1505-1 of this subpart summarizes the emission standards for each type of source.”

(q) Paragraph 63.1505(e) shall be replaced with the following language: “Scrap dryer/delacquering kiln/decoating kiln: alternative limits. The owner or operator of a scrap dryer/delacquering kiln/decoating kiln may choose to comply with the emission limits in this paragraph (e) as an alternative to the limits in paragraph (d) of this section if the scrap dryer/delacquering kiln/decoating kiln is equipped with an afterburner having a design residence time of at least 1 second and the afterburner is operated at a temperature of at least 760 deg.C (1400 deg.F) at all times. On and after the compliance date established by Sec. 63.1501:”.

(r) Paragraph 63.1505(f)(1) shall be replaced with the following language: “The owner or operator is not required to conduct a performance test to demonstrate compliance with the emission standard of paragraph (f)(2) of this section, provided that, on and after the compliance date of this rule, the owner or operator operates and maintains an afterburner with a design residence time of 0.8 seconds or greater and an operating temperature of 872 deg.C (1600 deg.F) or greater.”

(s) Paragraph 63.1505(j)(1) shall be replaced with the following language: “0.02 kg of HCl per Mg (0.04 lb. of HCl per ton) of feed/charge, and”.

(t) Replace the definition of Tti in paragraph 63.1505(k)(1) with the following language: “Tti = The feed/charge rate, for an operating cycle, for individual emission unit i; and”.

(u) Replace the definition of Lti_HCl in paragraph 63.1505(k)(2) with the following language: “Lti_HCl = The HCl emission limit for individual emission unit i in paragraph (i)(4) of this section for a group 1 furnace or in paragraph (j)(1) of this section for an in-line fluxer and”.

(v) Paragraph 63.1505(k)(6) shall be replaced with the following language: “With the prior approval of the Department, an owner or operator may redesignate any existing group 1 furnace or in-line fluxer at a secondary aluminum production facility as a new emission unit. Any emission unit so redesignated may thereafter be included in a new SAPU at that facility. Any such redesignation will be solely for the purpose of this regulation and will be irreversible.”

(w) Add the following language after Section 63.1505: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002; 67 FR 79815, Dec. 30, 2002]”.

(x) Paragraph 63.1506(a)(4) shall be replaced with the following language: “Operating requirements are summarized in Table 1506-1 of this subpart.”

(y) Paragraph 63.1506(b) shall be replaced with the following language: “Labeling. The owner or operator must provide and maintain easily visible labels posted at each sweat furnace, group 1 furnace, group 2 furnace, in-line fluxer and scrap dryer/delacquering kiln/decoating kiln that identifies the applicable emission limits and means of compliance, including:”.

(z) Paragraph 63.1506(b)(1) shall be replaced with the following language: “The type of affected source or emission unit (e.g., scrap dryer/delacquering kiln/decoating kiln, sweat furnace, group 1 furnace, group 2 furnace, in-line fluxer).”

(aa) Paragraph 63.1506(b)(3) shall be replaced with the following language: “The afterburner operating temperature and design residence time for a scrap dryer/delacquering kiln/decoating kiln or sweat furnace.”

(bb) Paragraph 63.1506(d)(1) shall be replaced with the following language: “Except as provided in paragraph (d)(3) of this section, install and operate a device that measures and records or otherwise determines the weight of feed/charge (or throughput) for each operating cycle or time period used in the performance test.”

(cc) Paragraph 63.1506(e)(3) shall be replaced with the following language: “If visible emission observations are used to meet the monitoring requirements in Sec. 63.1510, the owner or operator must initiate corrective action within 1-hour of any observation of visible emissions in excess of 10 percent opacity during a daily visible emissions test and complete the corrective action procedures in accordance with the OM&M plan.”

(dd) Paragraph 63.1506(h)(1)(ii) shall be replaced with the following language: “872 deg.C (1600 deg.F) if a performance test was not conducted, and the afterburner meets the specifications of Sec. 63.1505(f)(1).”

(ee) Add the following language after Section 63.1506: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002; 67 FR 79815, Dec. 30, 2002]”.

(ff) Paragraph 63.1510(a) shall be replaced with the following language: “Summary. On and after the compliance date established by Sec. 63.1501, the owner or operator of a new or existing affected source or emission unit must monitor all control equipment and processes according to the requirements in this section. Monitoring requirements for each type of affected source and emission unit are summarized in Table 1510-1 of this subpart.”

(gg) Paragraph 63.1510(b) shall be replaced with the following language: “Operation, maintenance, and monitoring (OM&M) plan. The owner or operator must prepare and implement for each new or existing affected source and emission unit, a written OM&M plan. The owner or operator of an existing affected source must submit the OM&M plan to the Department no later than the compliance date established by Sec. 63.1501(a). The owner or operator of any new affected source must submit the OM&M plan to the Department within 90 days after a successful initial performance test under Sec. 63.1511(b), or within 90 days after the compliance date established by Sec. 63.1501(b) if no initial performance test is required. The plan must be accompanied by a written certification by the owner or operator that the OM&M plan satisfies all requirements of this section and is otherwise consistent with the requirements of this subpart. The owner or operator must comply with all of the provisions of the OM&M plan as submitted to the Department, unless and until the plan is revised in accordance with the following procedures. If the Department determines at any time after receipt of the OM&M plan that any revisions of the plan are necessary to satisfy the requirements of this section or this subpart, the owner or operator must promptly make all necessary revisions and resubmit the revised plan. If the owner or operator determines that any other revisions of the OM&M plan are necessary, such revisions will not become effective until the owner or operator submits a description of the changes and a revised plan incorporating them to the Department. Each plan must contain the following information:”.

(hh) Paragraph 63.1510(b)(4)(ii) shall be replaced with the following language: “Procedures for the quality control and quality assurance of continuous emission or opacity monitoring systems as required by the general provisions in subpart A of this regulation.”

(ii) Paragraph 63.1510(b)(6)(i) shall be replaced with the following language: “Procedures to determine and record the cause of a deviation or excursion, and the time the deviation or excursion began and ended; and”

(jj) Paragraph 63.1510(c) shall be replaced with the following language: “Labeling. The owner or operator must inspect the labels for each group 1 furnace, group 2 furnace, in-line fluxer, sweat furnace, and scrap dryer/delacquering kiln/decoating kiln at least once per calendar month to confirm that posted labels as required by the operational standard in Sec. 63.1506(b) are intact and legible.”

(kk) Paragraphs 63.1510(e)(2) and 63.1510(j)(1)(iii) shall be replaced with the following language: “The owner or operator must verify the calibration of the weight measurement device in accordance with the schedule specified by the manufacturer, which shall not exceed 6 months, or if no calibration schedule is specified, at least once every 6 months.

(ll) Paragraph 63.1510(f)(1)(ii) shall be replaced with the following language: “Each triboelectric bag leak detection system must be installed, calibrated, operated, and maintained according to the “Fabric Filter Bag Leak Detection Guidance,” (September 1997). Other bag leak detection systems must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations.”

(mm) Paragraph 63.1510(g)(1) shall be replaced with the following language: “The owner or operator must install, calibrate, maintain, and operate a device to continuously monitor and record the operating temperature of the afterburner consistent with the requirements for continuous monitoring systems in subpart A of this regulation.”

(nn) Paragraph 63.1510(h)(1) shall be replaced with the following language: “The owner or operator must install, calibrate, maintain, and operate a device to continuously monitor and record the temperature of the fabric filter inlet gases consistent with the requirements for continuous monitoring systems in subpart A of this regulation.”

(oo) Paragraph 63.1510(i)(1)(ii) shall be replaced with the following language: “Subject to the approval of the Department, installing, operating and maintaining a load cell, carrier gas/lime flow indicator, carrier gas pressure drop measurement system or other system to confirm that lime is free-flowing. If lime is found not to be free-flowing, the owner or operator must promptly initiate and complete corrective action; or”.

(pp) Paragraph 63.1510(j)(5) shall be replaced with the following language: “The owner or operator of a group 1 furnace or in-line fluxer performing reactive fluxing may apply to the Administrator for approval of an alternative method for monitoring and recording the total reactive flux addition rate based on monitoring the weight or quantity of reactive flux per ton of feed/charge for each operating cycle or time period used in the performance test [The Administrator will not approve the alternative monitoring method unless the owner or operator provides assurance through data and information that the affected source will meet the relevant emission standards on a continuous basis. in accordance with 40 CFR 63.1510(j)(5) (July 1, 2002 edition)]”

(qq) Paragraph 63.1510(n)(2) shall be replaced with the following language: “Submit a certification of compliance with the operational standards in Sec. 63.1506(m)(6) for each 6-month reporting period. Each certification must contain the information in Sec. 63.1516(b)(2)(iii).”

(rr) Paragraph 63.1510(o)(1)(i) shall be replaced with the following language: “The owner or operator of an existing affected source must submit the site-specific monitoring plan to the Department for review at least 6 months prior to the compliance date, but no earlier than May 11, 2003.”

(ss) Paragraph 63.1510(o)(5) shall be replaced with the following language: “If a continuous emission monitoring system is included in a site-specific monitoring plan, the plan must include provisions for the installation, operation, and maintenance of the system to provide quality-assured measurements in accordance with all applicable requirements of the general provisions in subpart A of this regulation.”

(tt) Paragraph 63.1510(s)(1)(iv) shall be replaced with the following language: “Information and data demonstrating compliance for each emission unit with all applicable design, equipment, work practice, or operational standards of this subpart; and”.

(uu) Paragraph 63.1510(s)(2)(i) shall be replaced with the following language: “Any averaging among emissions of differing pollutants;”.

(vv) Replace the definition of n in paragraph 63.1510(t)(4) with the following language: “n = The number of emission units in the secondary aluminum processing unit.”

(ww) Paragraph 63.1510(v) shall be replaced with the following language: “Alternative monitoring method for lime addition. The owner or operator of a lime-coated fabric filter that employs intermittent or noncontinuous lime addition may apply to the Administrator for approval of an alternative method for monitoring the lime addition schedule and rate based on monitoring the weight of lime added per ton of feed/charge for each operating cycle or time period used in the performance test [ The Administrator will not approve the alternative monitoring method unless the owner or operator provides assurance through data and information that the affected source will meet the relevant emission standards on a continuous basis. in accordance with 40 CFR 63.1510(v) (July 1, 2002 edition) ].”

(xx) Paragraph 63.1510(w) shall be replaced with the following language: “Alternative monitoring methods. If an owner or operator wishes to use an alternative monitoring method to demonstrate compliance with any emission standard in this subpart, other than those alternative monitoring methods which may be authorized pursuant to Sec. 63.1510(j)(5) and Sec. 63.1510(v), the owner or operator may submit an application to the Administrator (with a copy sent to the Department) [Any such application will be processed according to the criteria and procedures set forth in paragraphs (w)(1) through (6) of this section. in accordance with 40 CFR 63.1510(w) (July 1, 2002 edition). The owner or operator must continue to use the original monitoring requirement until approval is received from the Administrator to use another monitoring procedure, and the Department has been provided a copy of such approval by the owner or operator.]”

(yy) Paragraph 63.1510(w)[(2)] (1) through (6) shall be deleted. [shall be replaced with the following language: “The owner or operator must continue to use the original monitoring requirement until necessary data are submitted, approval is received from the Administrator to use another monitoring procedure, and the Department has been provided a copy of such approval by the owner or operator.”]

(zz) Paragraph 63.1510(w)(4)(i) shall be replaced with the following language: “Notice of the information and findings upon which the intended disapproval is based and”.

(aaa) Add the following language after Section 63.1510: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002; 67 FR 79815, Dec. 30, 2002]”.

(bbb) Paragraph 63.1511(b) shall be replaced with the following language: “Initial performance test. Following approval of the site-specific test plan, the owner or operator must demonstrate initial compliance with each applicable emission, equipment, work practice, or operational standard for each affected source and emission unit, and report the results in the notification of compliance status report as described in Sec. 63.1515(b). The owner or operator of any existing affected source for which an initial performance test is required to demonstrate compliance must conduct this initial performance test no later than the date for compliance established by Sec. 63.1501(a). The owner or operator of any new affected source for which an initial performance test is required must conduct this initial performance test within 90 days after the date for compliance established by Sec. 63.1501(b). Except for the date by which the performance test must be conducted, the owner or operator must conduct each performance test in accordance with the requirements and procedures set forth in Sec. 63.7(e). Owners or operators of affected sources located at facilities which are area sources are subject only to those performance testing requirements pertaining to D/ F. Owners or operators of sweat furnaces meeting the specifications of Sec. 63.1505(f)(1) are not required to conduct a performance test.”

(ccc) Add the following language after Section 63.1511: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002; 67 FR 79815, Dec. 30, 2002]”.

(ddd) Paragraph 63.1512(e) shall be replaced with the following language: “Group 1 furnace (including melting/holding furnaces) without add-on air pollution control devices. In the site-specific monitoring plan required by Sec. 63.1510(o), the owner or operator of a group 1 furnace (including melting/holding furnaces) without add-on air pollution control devices must include data and information demonstrating compliance with the applicable emission limits.”

(eee) Paragraph 63.1512(m)(1) shall be replaced with the following language: “Prior to the initial performance test, the owner or operator must conduct a performance evaluation for the temperature monitoring device according to the requirements of Sec. 63.8 of this regulation.”

(fff) Replace the definition of W₁ in paragraph 63.1512(o)(3) with the following language: “W₁ = Weight of reactive flux gas or liquid injected;”.

(ggg) Replace the definition of F₂ in paragraph 63.1512(o)(3) with the following language: “F₂ = Fraction of solid reactive chloride flux that is chlorine (e.g., F = 0.75 for magnesium chloride); and”.

(hhh) Paragraph 63.1512(o)(5) shall be replaced with the following language: “If a solid reactive flux other than magnesium chloride is used, the owner or operator must derive the appropriate proportion factor (F₁ or F₂) subject to approval by the Department.”

(iii) Paragraph 63.1512(r) shall be replaced with the following language: “Labeling. The owner or operator of each scrap dryer/delacquering kiln/decoating kiln, group 1 furnace, group 2 furnace, sweat furnace, and in-line fluxer must submit the information described in Sec. 63.1515(b)(3) as part of the notification of compliance status report to document conformance with the operational standard in Sec. 63.1506(b).”

(jjj) Paragraph 63.1512(s) shall be replaced with the following language: “Capture/collection system. The owner or operator of a new or existing affected source or emission unit with an add-on control device must submit the information described in Sec. 63.1515(b)(5) as part of the notification of compliance status report to document conformance with the operational standard in Sec. 63.1506(c).”

(kkk) Add the following language after Section 63.1512: “[65 FR 15710, March 23, 2000; as amended at 67 FR 79815, Dec. 30, 2002]”.

(lll) Paragraph 63.1513(d) shall be replaced with the following language: “Conversion of D/F measurements to TEQ units. To convert D/F measurements to TEQ units, the owner or operator must use the procedures and equations in “Interim Procedures for Estimating Risks Associated with Exposures to Mixtures of Chlorinated Dibenzo-p-Dioxins and -Dibenzofurans (CDDs and CDFs) and 1989 Update” (EPA-625/3-89-016).”

(mmm) The opening of Paragraph 63.1513(e)(3) shall be replaced with the following language: “Use Equation 11 to compute the aluminum mass-weighted D/F emissions for the secondary aluminum processing unit. Compliance is achieved if the mass-weighted emissions for the secondary aluminum processing unit (Ec_D/F) is less than or equal to the emission limit for the secondary aluminum processing unit (Lc_D/F) calculated using Equation 3 in Sec. 63.1505(k).”

(nnn) Paragraph 63.1515(a)(3) shall be replaced with the following language: “As required by Sec. 63.9(b)(4), the owner or operator of a new or reconstructed major affected source or of a source that has been reconstructed such that the source becomes a major affected source, that has an initial startup after the effective date of this subpart and for which an application for approval of construction or reconstruction is required by Sec. 63.5(d) must provide the following notifications:”.

(ooo) Paragraph 63.1515(a)(3)(i) shall be replaced with the following language: “Intention to construct a new major affected source, reconstruct a major source, or reconstruct a source such that the source becomes a major affected source;”.

(ppp) Paragraph 63.1515(a)(4)(i) shall be replaced with the following language: “[Reserved].”

(qqq) Paragraph 63.1515(a)(4)(ii) shall be replaced with the following language: “[Reserved].”

(rrr) Paragraph 63.1515(a)(6) shall be replaced with the following language: “As required by Sec. 63.9(e) and (f), the owner or operator must provide notification of the anticipated date for conducting performance tests and visible emission observations. The owner or operator must notify the Department of the intent to conduct a performance test at least 60 days before the performance test is scheduled; notification of opacity or visible emission observations for a performance test must be provided at least 30 days before the observations are scheduled to take place.”

(sss) Paragraph 63.1515(b) shall be replaced with the following language: “Notification of compliance status report. Each owner or operator of an existing affected source must submit a notification of compliance status report within 60 days after the compliance dates specified in Sec. 63.1501(a). Each owner or operator of a new affected source must submit a notification of compliance status report within 90 days after conducting the initial performance test required by Sec. 63.1511(b), or within 90 days after the compliance date established by Sec. 63.1501(b) if no initial performance test is required. The notification must be signed by the responsible official who must certify its accuracy. A complete notification of compliance status report must include the information specified in paragraphs (b)(1) through (10) of this section and shall be submitted to the Department (with a copy sent to the Administrator). The required information may be submitted in an operating permit application, in an amendment to an operating permit application, in a separate submittal, or in any combination. If an owner or operator submits the information specified in this section at different times or in different submittals, later submittals may refer to earlier submittals instead of duplicating and resubmitting the information previously submitted. A complete notification of compliance status report must include:”

(ttt) Paragraph 63.1515(b)(8) shall be replaced with the following language: “Manufacturer's specification or analysis documenting the design residence time of no less than 0.8 seconds and design operating temperature of no less than 872 deg.C (1600 deg.F) for each afterburner used to control emissions from a sweat furnace that is not subject to a performance test.”

(uuu) Paragraph 63.1515(b)(10) shall be replaced with the following language: “Startup, shutdown, and malfunction (SSM) plan, with revisions.”

(vvv) Add the following language after Section 63.1511: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002; 67 FR 79815, Dec. 30, 2002]”.

(www) Paragraph 63.1516(a) shall be replaced with the following language: “Startup, shutdown, and malfunction plan/reports. The owner or operator must develop and implement a written plan as described in Sec. 63.6(e)(3) that contains specific procedures to be followed for operating and maintaining the source during periods of startup, shutdown, and malfunction, and a program of corrective action for malfunctioning process and air pollution control equipment used to comply with the standard. The owner or operator shall also keep records of each event as required by Sec. 63.10(b) and record and report if an action taken during a startup, shutdown, or malfunction is not consistent with the procedures in the plan as described in Sec. 63.6(e)(3) and Sec. 63.10(d)(5). In addition to the information required in Sec. 63.6(e)(3), the plan must include:”.

(xxx) Paragraph 63.1516(b)(1)(v) shall be replaced with the following language: “An action taken during a startup, shutdown, or malfunction was not consistent with the procedures in the SSM plan as described in Sec. 63.6(e)(3).”

(yyy) Paragraph 63.1516(b)(2)(vi) shall be replaced with the following language: “For each in-line fluxer using no reactive flux: “Only nonreactive, non-HAP-containing/non-HAP-generating flux gases, agents, or materials were used at any time during this reporting period.””

(zzz) Paragraph 63.1516(c) shall be replaced with the following language: “Annual compliance certifications. For the purpose of annual certifications of compliance required by Regulation 30, the owner or operator must certify continuing compliance based upon, but not limited to, the following conditions:”.

(aaaa) Paragraph 63.1516(d) shall be added with the following language: “Submittals. The owner or operator shall submit all reports, notifications, and/or certifications required by this subpart to the Department[, (with a copy sent to the EPA Region 3 office, to the attention of Judithy Katz (3AP00), Director, Air Protection Division, US EPA Region III, 1650 Arch Street, Philadelphia, PA 19103) with a copy sent to the Director of the Air Protection Division at the EPA Region 3 office].”

(bbbb) Paragraph 63.1517(a) shall be replaced with the following language: “As required by Sec. 63.10(b), the owner or operator shall maintain files of all information (including all reports and notifications) required by Sec. 63.10 and this subpart.”

(cccc) Paragraph 63.1517(a)(2) shall be replaced with the following language: “The owner or operator may retain records on microfilm, computer disks, magnetic tape, or microfiche.”

(dddd) Paragraph 63.1517(b)(4)(i) shall be replaced with the following language: “Records of inspections at least once every 8-hour period verifying that lime is present in the feeder hopper or silo and flowing, including any inspection where blockage is found, with a brief explanation of the cause of the blockage and the corrective action taken, and records of inspections at least once every 4-hour period for the subsequent 3 days. If flow monitors, pressure drop sensors or load cells are used to verify that lime is present in the hopper and flowing, records of all monitor or sensor output including any event where blockage was found, with a brief explanation of the cause of the blockage and the corrective action taken.”

(eeee) Add the following language after Section 63.1511: “[65 FR 15710, March 23, 2000; as amended at 67 FR 79815, Dec. 30, 2002]”.

(ffff) Section 63.1518 shall be replaced with the following language: “Owners or operators of affected sources subject to the provisions of this subpart must also comply with the requirements of subpart A of this regulation, according to the applicability of subpart A of this regulation to such sources as identified in Table 1 of this subpart.”

(gggg) Section 63.1519 shall be renamed with the following language: “[Reserved]”.

(hhhh) The entire content of Paragraph 63.1519(a) as promulgated shall be deleted and its heading shall be replaced with the following language: “(a) [Reserved].”

(iiii) The entire content of Paragraph 63.1519(b) as promulgated shall be deleted and its heading shall be replaced with the following language: “(b) [Reserved].”

(jjjj) Replace the title of Table 1 following Section 63.1520 with the following title: “Table 1505-1 of Subpart RRR – Emission Standards for New and Existing Affected Sources”.

(kkkk) Replace the definition of Lti_D/F in Table 1505-1 of Subpart RRR with the following language: “Lti_D/F = the D/F emission limit for individual emission unit i in the secondary aluminum processing unit [µg TEQ/Mg (gr TEQ/ton) of feed];”.

(llll) Replace the title of Table 2 following Section 63.1520 with the following title: “Table 1506-1 of Subpart RRR.—Summary of Operating Requirements for New and Existing Affected Sources and Emission Units”.

(mmmm) In Table 1506-1 of Subpart RRR, the third entry in the “Affected source/emission unit” column is replaced with the following language: “Group 1 furnace, group 2 furnace, in-line fluxer, sweat furnace, and scrap dryer/delacquering kiln/decoating kiln.”

(nnnn) In Table 1506-1 of Subpart RRR, the third entry in the “Operating requirements” column is replaced with the following language: “Identification, operating parameter ranges and operating requirements posted at affected sources and emission units; control device temperature and residence time requirements posted at scrap dryer/delacquering kiln/decoating kiln or sweat furnace.

(oooo) Replace the title of Table 3 following Section 63.1520 with the following title: “Table 1510-1 of Subpart RRR.—Summary of Monitoring Requirements for New and Existing Affected Sources and Emission Units”.

(pppp) In Table 1510-1 of Subpart RRR, the third entry in the “Affected source/Emission unit” column is replaced with the following language: “Group 1 furnace, group 2 furnace, in-line fluxer, sweat furnace, and scrap dryer/delacquering kiln/decoating kiln.”

(qqqq) In Table 1510-1 of Subpart RRR, all entries in the “Monitoring requirements” column of “40 CFR part 63” are replaced with “this regulation”.

(rrrr) In Table 1510-1 of Subpart RRR, the fourteenth entry in the “Monitoring requirements” column is replaced with the following language: “For continuous injection systems, inspect each feed hopper or silo every 8 hrs to verify that lime is free-flowing; record results of each inspection. If blockage occurs, inspect every 4 hrs for 3 days; return to 8-hr inspections if corrective action results in no further blockage during 3-day period; record feeder setting daily.”

(ssss) In Table 1510-1 of Subpart RRR, the thirty-seventh entry in the “Monitoring requirements” column is replaced with the following language: “Record type of permissible feed/charge material; certify charge materials every 6 months.”

(tttt) Replace the title of Appendix A following Section 63.1520 with the following title: “Table 1 of Subpart RRR of Regulation 38—Subpart A (General Provisions) Applicability to Subpart RRR”.

(uuuu) In Table 1 of Subpart RRR, the comment for Section 63.1(c)(2) under “Citation” shall be replaced with the following language: “States have option to defer area sources from title V permit program.”

(vvvv) In Table 1 of Subpart RRR, Section 63.7(a)-(h) under “Citation” shall be replaced with the following language: “63.7(a)”.

(wwww) In Table 1 of Subpart RRR, Section 63.10(c)(15) shall be added under “Citation”, next to which shall be added “Yes.” under “Applies to RRR.”

(xxxx) Add the following language after Table 1 of Subpart RRR: “[65 FR 15710, March 23, 2000; as amended at 67 FR 59791, Sept. 24, 2002]”.

[(yyyy) The definition of Secondary aluminum production facility in Section 63.1503 shall be replaced with the following language: “Secondary aluminum production facility means any establishment using clean charge, aluminum scrap, or dross from aluminum production, as the raw material and performing one or more of the following processes: scrap shredding, scrap drying/delacquering/decoating, thermal chip drying, furnace operations (i.e., melting, holding, sweating, refining, fluxing, or alloying), recovery of aluminum from dross, inline fluxing, or dross cooling. A secondary aluminum production facility may be independent or part of a primary aluminum production facility. For purposes of this subpart, aluminum die casting facilities, aluminum foundries, and aluminum extrusion facilities are not considered to be secondary aluminum production facilities if the only materials they melt are clean charge, customer returns, or internal scrap, and if they do not operate sweat furnaces, thermal chip dryers, or scrap dryers/delacquering kilns/decoating kilns. The determination of whether a facility is a secondary aluminum production facility is only for purposes of this subpart and any regulatory requirements which are derived from the applicability of this subpart, and is separate from any determination which may be made under other environmental laws and regulations, including whether the same facility is a ‘‘secondary metal production facility’’ as that term is used in the Act and Regulation 25 Section 3.0(A)(1)(i) (‘‘prevention of significant deterioration of air quality’’).”

(zzzz) Paragraph 63.1510(f)(2)(ii) shall be replaced with the following language: “Each continuous opacity monitoring system must meet the design and installation requirements of Performance Specification 1 in appendix B to 40 CFR part 60 (July 1, 2002 edition).”

(aaaaa) Paragraph 63.1510(f)(3)(i) shall be replaced with the following language: “Perform a visible emissions test for each aluminum scrap shredder using a certified observer at least once a day according to the requirements of Method 9 in appendix A to 40 CFR part 60 (July 1, 2002 edition). Each Method 9 test must consist of five 6-minute observations in a 30-minute period; and”.

(bbbbb) Paragraph 63.1511(c) shall be replaced with the following language: “Test methods. The owner or operator must use the following methods in appendix A to 40 CFR part 60 (July 1, 2002 edition) to determine compliance with the applicable emission limits or standards:”.

(ccccc) Paragraph 63.1512(a) shall be replaced with the following language: “Aluminum scrap shredder. The owner or operator must conduct performance tests to measure PM emissions at the outlet of the control system. If visible emission observations is the selected monitoring option, the owner or operator must record visible emission observations from each exhaust stack for all consecutive 6-minute periods during the PM emission test according to the requirements of Method 9 in appendix A to 40 CFR part 60 (July 1, 2002 edition).”

(ddddd) Paragraph 63.1512(l) shall be replaced with the following language: “Continuous opacity monitoring system. The owner or operator of an affected source or emission unit using a continuous opacity monitoring system must conduct a performance evaluation to demonstrate compliance with Performance Specification 1 in appendix B to 40 CFR part 60 (July 1, 2002 edition). Following the performance evaluation, the owner or operator must measure and record the opacity of emissions from each exhaust stack for all consecutive 6-minute periods during the PM emission test.”]

6 DE Reg. 1682 (06/01/03) (Final)