	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0804; FRL-        ] 

Approval and Promulgation of Air Quality Implementation Plans; Delaware;
Amendment to Electric Generating Unit Multi-Pollutant Regulation

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Delaware.  The revision is an amendment to the
Electric Generating Unit Multi-Pollutant Regulation of Delaware’s
Administrative Code, and it modifies the sulfur dioxide (SO2) mass
emissions limit associated with Conectiv Edge Moor Unit 5 beginning in
calendar year 2009.  This action is being taken under the Clean Air Act
(CAA or the Act).

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2009-0804.  All documents in the docket are listed in
the www.regulations.gov website.   Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute.  Certain other material, such as copyrighted
material, is not placed on the Internet and 

by statute.  Certain other material, such as copyrighted material, is
not placed on the Internet and

will be publicly available only in hard copy form.  Publicly available
docket materials are available either electronically through
www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at the
Delaware Department of Natural Resources & Environmental Control, 89
Kings Highway, P.O. Box 1401, Dover, Delaware 19901.

 

FOR FURTHER INFORMATION CONTACT:  Irene Shandruk, (215) 814-2166, or by
e-mail at   HYPERLINK "mailto:shandruk.irene@epa.gov" 
shandruk.irene@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.  Background

	

On January 5, 2010 (75 FR 2), EPA published a notice of proposed
rulemaking (NPR) for the State of Delaware.  The NPR proposed approval
of Delaware’s SIP revision pertaining to Regulation No. 1146 –
Electric Generating Unit (EGU) Multi-Pollutant Regulation.  The
regulation was adopted in order to impose lower emissions limits of
nitrogen oxides (NOx) and SO2 in order to help Delaware attain and
maintain the national ambient air quality standards (NAAQS) for ozone
and fine particulate matter (PM2.5), as well as to assist Delaware in
achieving the emissions reductions needed to support the State’s
8-hour ozone reasonable further progress plan (RFP).  The formal SIP
revision was submitted by the Delaware Department of Natural Resources
and Environmental Control (DNREC) November 16, 2006.  No comments were
received on the NPR.

II.  Summary of SIP Revision

On October 7, 2009, EPA received a SIP revision to amend Regulation No.
1146.  This SIP revision was the result of a settlement agreement
between Conectiv Delmarva Generating, Inc. and DNREC in December 2008. 
Conectiv had filed an appeal challenging the regulation for their Edge
Moor 5 facility.  The emissions limit of 2,427 tons per year limited the
facility from operating in extreme circumstances in the event that
failure at other production units would require them to exceed that
limit in order to supply the needed electricity.  The limit of 4,600
tons per year was determined to be an adequate limit after an analysis
of the facility’s history of operation and the estimate of future
operations using the low sulfur (0.5%) residual fuel to generate
electricity at the 446 megawatt oil-fired steam generating unit. 
Currently, the facility operates at a 10% capacity factor.  If so
required, the new emissions limit would allow the facility to operate at
a 45% capacity factor.  

The Delaware Department of Natural Resources and Environmental Control
requested that a revision to the State’s SIP concerning amendment,
which modifies the SO2 mass emissions limit associated with Conectiv
Edge Moor Unit 5, be approved.  

III.  Final Action

Delaware has met the requirements concerning an amendment to the
Electric Generating Unit Multi-Pollutant Regulation of Delaware’s
Administrative Code, which modifies the SO2 mass emissions limit
associated with Conectiv Edge Moor Unit 5.  The purpose of this revision
is to assist Delaware in achieving the emissions reductions needed to
support the State’s 8-hour ozone RFP, and therefore, EPA is approving
it. 

IV.   Statutory and Executive Order Reviews 

A.   General Requirements 

Under the Clean Air Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations.  42 U.S.C. 7410(k); 40 CFR 52.02(a).  Thus, in
reviewing SIP submissions, EPA’s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  Accordingly,
this action merely approves state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law.  For that reason, this action:

is not a "significant regulatory action” subject to review by the
Office of Management and Budget under Executive Order 12866 (58 FR
51735, October 4, 1993);  

does not impose an information collection burden under the provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);  

does not contain any unfunded mandate or significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Public Law 104-4);

does not have Federalism implications as specified in Executive Order
13132 (64 FR 43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, May 22, 2001); 

is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with the
Clean Air Act; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

B.   Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action is not a “major rule” as defined by 5 U.S.C. 804(2). 

 C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [Insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action.  This action approving Delaware’s SIP revision
pertaining to an amendment to the Electric Generating Unit
Multi-Pollutant Regulation of Delaware’s Administrative Code, which 
modifies the SO2 mass emissions limit associated with Conectiv Edge Moor
Unit 5, may not be challenged later in proceedings to enforce its
requirements.  (See section 307(b)(2).)

List of Subjects in 40 CFR part 52  

Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Particulate matter, and Sulfur oxides. 

                                                                        
           W. C. Early, Acting

                                                                        
            Regional Administrator                    

__February 25, 2010____________			__________________________

Dated:                            				Shawn M. Garvin,

                                                                 	
Regional Administrator,

                                                                 	
Region III.

40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for part 52 continues to read as follows: 

               Authority:  42 U.S.C. 7401 et seq.

Subpart I( Delaware

2.  In ' 52.420, the table in paragraph (c) is amended by renaming the
entry for Table II in  Regulation No. 1146 as Table 5-1 and revising the
entry to read as follows:

( 52.420  		Identification of plan.

*		*		*		*		*

(c) *  *  *

EPA-APPROVED REGULATIONS IN THE DELAWARE SIP

State citation

	Title/subject	State effective date	EPA approval date	Additional
explanation

         *            *               *              *              *   
             *             * 

Regulation No. 1146 	Electric Generating Unit (EGU) Multi-Pollutant
Regulation

         *            *               *              *              *   
             *             *

Table 5-1 (Formerly Table II)	Annual SO2 Mass Emissions Limit	9/11/08

10/10/09	[Insert Federal Register publication date] [Insert page number
where the document begins]	Modified emissions limit for Conectiv Edge
Moor Unit 5

 *             *               *                *                *      
        *           * 



*	*	*	*	*

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