7 Del. Admin. Code § 1302-122-A-122.1

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1302-122-A-122.1 - Purpose and scope of Part 122

(a) Coverage.

(1) These permit regulations establish provisions for Delaware's Hazardous Waste Permit Program.

(2) The regulations in this part cover basic DNREC permitting requirements, such as application requirements, standard permit conditions, and monitoring and reporting requirements.

(3)Technical regulations. The RCRA (state hazardous waste) permit program has separate additional regulations that contain technical requirements. These separate regulations are used by DNREC to determine what requirements must be placed in permits if they are issued. These separate regulations are located in Parts 264, 266, and 268 of these regulations.

(b) [Reserved]

(c) Scope of the hazardous waste permit requirement. DNREC requires a permit for the "treatment", "storage", and "disposal" of any "hazardous waste" as identified or listed in Part 261. The terms "treatment", "storage", "disposal", and "hazardous waste" are defined in Section 122.2. Owners and operators of hazardous waste management units must have permits during the active life (including the closure period) of the unit. Owners or operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure (according to Section 265.115) after January 26, 1983, must have post-closure permits, unless they demonstrate closure by removal or decontamination as provided under Section 122.1(c)(5) and (6), or obtain an enforceable document in lieu of a post-closure permit, as required under (c)(7) of this section. If a post-closure permit is required, the permit must address applicable Part 264 groundwater monitoring, unsaturated zone monitoring, corrective action, and post-closure care requirements of these regulations. The denial of a permit for the active life of a hazardous waste management facility or unit does not affect the requirement to obtain a post-closure permit under this section.

(1) Specific inclusions. Owners and operators of certain facilities require hazardous waste permits as well as permits under other programs for certain aspects of the facility operation. Hazardous waste permits are required for:

(i) [Reserved]

(ii) Treatment, storage, or disposal of hazardous waste at facilities requiring an NPDES permit. However, the owner and operator of a publicly owned treatment works receiving hazardous waste will be deemed to have a hazardous waste permit for that waste if they comply with the requirements of Section 122.60(c) (permit-by-rule for POTWs).

(iii) Barges or vessels that dispose of hazardous waste by ocean disposal and onshore hazardous waste treatment or storage facilities associated with an ocean disposal operation. However, the owner and operator will be deemed to have a State permit for ocean disposal from the barge or vessel itself if they comply with the requirements of Section 122.60(a) (permit-by-rule for ocean disposal barges and vessels).

(2) Specific exclusions and exemptions. The following persons are among those who are not required to obtain a State hazardous waste permit:

(i) Generators who accumulate hazardous waste on-site in compliance with all of the conditions for exemption provided in Sections 262.14, 262.15, 262.16, and 262.17 of these regulations.

(ii) Farmers who dispose of hazardous waste pesticides from their own use as provided in Section 262.70 of these regulations;

(iii) Persons who own or operate facilities solely for the treatment, storage or disposal of hazardous waste excluded from regulations under this part by Sections 261.4 or 262.14 (very small quantity generator exemption).

(iv) Owners or operators of totally enclosed treatment facilities as defined in Section 260.10.

(v) Owners and operators of elementary neutralization units or wastewater treatment units as defined in Section 260.10.

(vi) Transporters storing manifested shipments of hazardous waste in containers meeting the requirements of Section 262.30 at a transfer facility for a period of ten days or less. See also Section 263.12.

(vii) Persons adding absorbent material to waste in a container (as defined in Section 260.10 of these regulations) and persons adding waste to absorbent material in a container, provided that these actions occur at the time waste is first placed in the container; and Sections 264.17(b), 264.171, and 264.172 of these regulations are complied with.

(viii) Universal waste handlers and universal waste transporters (as defined in Section 260.10) managing the wastes listed below. These handlers are subject to regulation under Part 273.

(A) Batteries as described in Section 273.2 of these regulations;

(B) Pesticides as described in Section 273.3 of these regulations;

(C) Mercury-containing equipment as described in Section 273.4 of these regulations;

(D) Lamps as described in Section 273.5 of these regulations; and

(E) Aerosol cans as described in Section 273.6 of these regulations.

(ix) [Reserved]

(x) Reverse distributors accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in § 266.500. Reverse distributors are subject to regulation under 40 CFR part 266 subpart P for the accumulation of potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals.

(3) Further exclusions.

(i) A person is not required to obtain a permit for treatment or containment activities taken during immediate response to any of the following situations:

(A) A discharge of a hazardous waste;

(B) An imminent and substantial threat of a discharge of hazardous waste;

(C) A discharge of a material which, when discharged, becomes a hazardous waste.

(D) An immediate threat to human health, public safety, property, or the environment from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in Section 260.10.

(ii) Any person who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this part for those activities.

(iii) In the case of emergency responses involving military munitions, the responding military emergency response specialist's organizational unit must retain records for three years identifying the dates of the response, the responsible persons responding, the type and description of material addressed, and its disposition.

(4) Permits for less than an entire facility. DNREC may issue or deny a permit for one or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility. The interim status of any unit for which a permit has not been issued or denied is not affected by the issuance or denial of a permit to any other unit at the facility.

(5) Closure by removal. Owners/operators of surface impoundments, land treatment units, and waste piles closing by removal or decontamination under Part 265 standards must obtain a post-closure permit unless they can demonstrate to the Secretary that the closure met the standards for closure by removal or decontamination in Sections 264.228, 264.280(e), or 264.258, respectively. The demonstration may be made in the following ways:

(i) If the owner/operator has submitted a Part B application for a post-closure permit, the owner/operator may request a determination, based on information contained in the application, that Part 264 closure by removal standards were met. If the Secretary believes that Part 264 standards were met, he/she will notify the public of this proposed decision, allow for public comment, and reach a final determination according to the procedures in paragraph (c)(6) of this section.

(ii) If the owner/operator has not submitted a Part B application for a post-closure permit, the owner/operator may petition the Secretary for a determination that a post-closure permit is not required because the closure met the applicable Part 264 closure standards.

(A) The petition must include data demonstrating that closure by removal or decontamination standards were met, or it must demonstrate that the unit closed under State requirements that met or exceeded the applicable 264 closure-by-removal standard.

(B) The Secretary shall approve or deny the petition according to the procedures outlined in paragraph (c)(6) of this section.

(6) Procedures for closure equivalency determination.

(i) If a facility owner/operator seeks an equivalency demonstration under Section 122.1(c)(5), the Secretary will provide the public, through a newspaper notice, the opportunity to submit written comments on the information submitted by the owner/operator within 30 days from the date of the notice. The Secretary will also, in response to a request or at his/her own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning the equivalence of the Part 265 closure to a Part 264 closure. The Secretary will give public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.)

(ii) The Secretary will determine whether the Part 265 closure met 264 closure by removal or decontamination requirements within 90 days of its receipt. If the Secretary finds that the closure did not meet the applicable Part 264 standards, he/she will provide the owner/operator with a written statement of the reasons why the closure failed to meet Part 264 standards. The owner/operator may submit additional information in support of an equivalency demonstration within 30 days after receiving such written statement. The Secretary will review any additional information submitted and make a final determination within 60 days.

(iii) If the Secretary determines that the facility did not close in accordance with Part 264 closure by removal standards, the facility is subject to post-closure permitting requirements.

(7) Enforceable documents for post-closure care. At the discretion of the Secretary, an owner or operator may obtain, in lieu of a post-closure permit, an enforceable document imposing the requirements of Section 265.121. "Enforceable document" means an order, a plan, or other document issued by EPA or by an authorized State under an authority that meets the requirements of 40 CFR, 271.16(e) including, but not limited to, a corrective action order issued by EPA under Section 3008(h) or DNREC under 7 Del.C., Chapter 63, a CERCLA remedial action, or a closure or post-closure plan.

(d) Transporters of listed or characteristic hazardous waste identified in Part 261 of these regulations, or used or waste oil as identified in Parts 263 or 279 of these regulations are required to obtain a transporters permit.

(Amended August 29, 1988; August 10, 1990; June 19, 1992, August 23, 1996, January 1, 1999, July 11, 2002, August 21, 2006)

7 Del. Admin. Code § 1302-122-A-122.1

22 DE Reg. 678 (2/1/2019)
24 DE Reg. 711 (1/1/2021)(final)