UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:	 April 4, 2011

SUBJECT:	Revised Technical Support Document (TSD) for the State of
Delaware State Implementation Plan for Section (110)(a)(2)
Infrastructure Requirements for the 1997 Ozone and the 1997 and 2006
Fine Particulate Matter National Ambient Air Quality Standards 

FROM:	Ellen Wentworth  /s/

TO:		File

THRU:	Cristina Fernandez,   /s/

		Associate Director, Office of Air Quality Planning 

A.  INTRODUCTION 

The Environmental Protection Agency (EPA) is taking action on certain
submittals made by the State of Delaware to meet the Clean Air Act (CAA)
section 110(a)(2) requirements relating to the revised 1997 8-hour ozone
national ambient air quality standards (NAAQS), the 1997 fine
particulate (PM2.5), and the revised 2006 PM2.5 NAAQS.  As discussed in
greater detail in section

E, below, in comparison to EPA’s technical support document (TSD)
dated April 29, 2010, this TSD revises EPA’s analysis of the
submissions with respect to section 110(a)(2)(D)(ii).

B.  BACKGROUND

1997 8-Hour Ozone and PM2.5 NAAQS

On July 18, 1997, EPA promulgated a revised NAAQS for ozone (62 FR
38856), and a new  NAAQS for PM2.5 (62 FR 38652).  The revised ozone
NAAQS was based on 8-hour average concentrations.  The 8-hour averaging
period replaced the previous 1-hour averaging period, and the level of
the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. 
The new PM2.5 NAAQS was established on health-based annual standards for
PM2.5 15.0 micrograms per cubic meter (µg/m3) based on a 3-year average
of annual mean PM2.5 concentrations, and a 24- hour standard of 65µg/m3
based on a 3-year average of the 98th percentile of 24-hour
concentrations.

Whenever a new or revised NAAQS is promulgated, section 110(a) of the
CAA imposes obligations upon States to submit State Implementation Plan
(SIP) revisions that provide for the implementation, maintenance, and
enforcement of the new or revised NAAQS within three years following the
promulgation of such NAAQS.  Although States typically have met many of
the basic program elements required in section 110(a)(2) through earlier
SIP submissions in connection with previous ozone and PM standards,
States (including all the Region 3 States) were still required to submit
SIP revisions that address section 110(a)(2) for the 1997 NAAQS.  These
SIP revisions were due in July 2000.  However, intervening litigation
over the 1997 8-hour ozone and PM2.5 NAAQS created uncertainty about how
to proceed and, as of October 2007, States had not submitted SIP
revisions to meet these infrastructure requirements.

In March of 2004, Earthjustice initiated a lawsuit against EPA for
failure to take action against States that had not made SIP submissions
to meet the requirements of sections 110(a)(1) and (2), i.e., failure to
make a “finding of failure to submit the required SIP 110(a) SIP
elements.”  On March 10, 2005, EPA entered into a Consent Decree with
Earthjustice that obligated EPA to make official findings in accordance
with section 110(k)(1) of the CAA, as to whether States have made
complete SIP submissions, pursuant to sections 110(a)(1) and (2), by
December 15, 2007 for the 1997 8-hour ozone NAAQS, and by October 5,
2008 for the PM2.5 NAAQS.  EPA made completeness findings for the 1997
8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22,
2008 (73 FR 62902) for the 1997 PM2.5 NAAQS.  These findings pertained
only to whether the submissions were complete, pursuant to 110(k)(1)(A),
and did not constitute EPA approval or disapproval of such submissions.

Two elements identified in section 110(a)(2) are not governed by the
three year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the time the nonattainment area plan requirements are
due pursuant to section 172.  These elements are:  1) submissions
required by section 110(a)(2)(C) to the extent that subsection pertains
to a permit program in Part D Title I of the CAA; and 2) any submissions
required by section 110(a)(2)(I), which pertain to the nonattainment
planning requirements of Part D Title I of the CAA.  The determinations
required by the March 2005 Consent Decree excluded any determination
regarding such portion of section 110(a)(2)(C) and section 110(a)(2)(I);
therefore, this action does not cover these specific elements for any of
the NAAQS at issue.  This action also does not address the requirements
of 110(a)(2)(D)(i) for any of the NAAQS at issue since the requirements
of 110(a)(2)(D)(i) for each of the NAAQS at issue have been addressed by
separate findings issued by EPA.  See April 25, 2005 (70 FR 21147) and

June 9, 2010 (75 FR 32673).   

With respect to Delaware’s obligations pursuant to CAA sections
110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 NAAQS, except for
the portion of (C) and (J) relating to the Part C permit programs for
the 1997 8-hour ozone and PM2.5 NAAQS, this technical support document
discusses only those elements which were the subject of EPA’s March
27, 2008 completeness finding.  Specifically, EPA found that Delaware
failed to address sections 110(a)(2)(C) and (J) pertaining to changes to
its Part C Prevention of Significant Deterioration (PSD) permit program
required by the November 29, 2005 (70 FR 71612, page 71699) final rule
that made nitrogen oxides (NOx) a precursor for ozone in the Part C
regulations found at 40 CFR 51.166 and in 40 CFR 52.21.

EPA will take separate action on the portions of section 110(a)(2)(C)
and (J) for the 1997 8-hour ozone NAAQS as they relate to Delaware’s
PSD permit program.  With respect to this permit program, on November
29, 2005 (70 FR 71612), EPA promulgated a change that made NOx a
precursor for ozone in the Part C regulations at 40 CFR 51.166 and 40
CFR 52.21.  In the March 27, 2008 completeness findings, it was
determined that while Delaware had an approved PSD program in its SIP
codified at 40 CFR 52.420, Delaware’s Regulation 1125, did not fully
incorporate NOx as a precursor for ozone.  On April 1, 2009, Delaware
submitted revisions to Regulation 1125 to include NOx as a precursor for
ozone.  Action on this PSD SIP revision will be taken at a later time,
and consequently, elements 110(a)(2)(C) and (J) as they pertain to the
PSD permit program for the 1997 8-hour ozone NAAQS will be addressed in
this future action as well.

2006 PM2.5 NAAQS

On October 17, 2006 (71 FR 61144), EPA revised the 24-hour average PM2.5
primary and secondary NAAQS from 65 μg/m3 to 35 μg/m3.  As required by
section 110(a)(1) of the CAA,  the 110(a)(2) submittals were due within
three years after promulgation of the revised standard, with the
exception of 110(a)(2)(C) pertaining to the Part D permit program and
110(a)(2)(I) for the reasons discussed above for the 1997 8-hour ozone
and PM2.5 standards.

EPA REQUIREMENTS

As discussed above, for the 1997 8-hour ozone and PM2.5 NAAQS, States
must provide SIP submissions, or provide certification that address
section 110(a)(2)(A) through (M), with the exception of the portion of
110(a)(2)(C) pertaining to a permit program in Part D Title I of the
CAA, 110(a)(2)(I), and (D)(i).  To help States meet this statutory
requirement, EPA issued guidance on October 2, 2007 entitled,
“Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for
the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality
Standards,” which listed the basic elements that States must include
in their SIPs.

On September 25, 2009, EPA issued an updated guidance document entitled,
“Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS),” which clarifies, in further detail, expectations
for certain elements to meet the requirements of sections 110(a)(1) and
(2) of the CAA for both the 1997 and 2006 PM2.5 NAAQS.  Specifically,
guidance is provided for satisfying the section 110(a)(2)(D)
requirements for the 2006 PM2.5 NAAQS, as well as guidance for
satisfying the section 110(a)(2)(G) requirements that addresses both the
1997 and 2006 PM2.5 NAAQS.  EPA notes, however, that the requirements
under 110(a)(2)(D)(i) are being addressed separately and are not
included in this action.

D.  STATE SUBMITTAL

Delaware provided multiple submittals to satisfy the requirements of
section 110(a)(2) of the CAA for the 1997 8-hour ozone and 1997 PM2.5
NAAQS, and submittals to address the 2006 PM2.5 NAAQS:  submittals dated
December 13, 2007, September 19, 2008, and September 16, 2009 addressed
the 110(a)(2) requirements for the 1997 8-hour ozone NAAQS; submittals
dated December 13, 2007, March 12, 2008, September 16, 2009, and March
10, 2010 addressed the requirements for the 1997 PM2.5 NAAQS; and
submittals dated September 16, 2009 and March 10, 2010 addressed the
110(a)(2) requirements for the 2006 PM2.5 NAAQS.   These submittals
addressed the following infrastructure elements, or portions thereof,
identified in section 110(a)(2) that EPA is proposing to approve in this
action:  section 110(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M).  

Table 1.   110(a)(2) Elements or Portions Thereof, EPA is Proposing to
Approve for the 1997 Ozone and PM2.5 and the 2006 PM2.5 NAAQS

Submittal Date	1997 8-Hour Ozone	1997 PM2.5	2006 PM2.5



December 13, 2007	A, B, C, D(ii), E, F, G, H, J, K, L, M	A, B, C, D(ii),
E, F, G, H, J, K, L, M

	March 12, 2008

C and J

	September 19, 2008	G



September 16, 2009 	A, B, C, D(ii), E, F, G, H, J, K, L, M	A, B, C,
D(ii), E, F, G, H, J, K, L. M	A, B, C, D(ii), E, F, G, H, J, K, L, M

March 10, 2010

G	G



E.  EVALUATION OF STATE SUBMITTAL

As noted above, Delaware provided multiple submittals for the 1997
8-hour ozone and PM2.5 NAAQS, and for the 2006 PM2.5 NAAQS.  However,
the demonstrations submitted by Delaware for how it is meeting many of
the elements are substantively identical for both the ozone and PM2.5
NAAQS; therefore, the following evaluation of each element pertains to
all standards except as otherwise noted.

1.  Section 110(a)(2)(A) 

Delaware has established laws and regulations that include enforceable
emissions limitations and other control measures, means or techniques,
as well as schedules and timetables for compliance to meet the
applicable requirements of the CAA.  These regulations are codified at
40 CFR 52.420(c).  At present, statutory authority is set out in Title 7
“Conservation” of the Delaware Code, Chapter 60—Delaware’s
comprehensive water and air resources conservation law.  Legislative
authority giving the Secretary of the DNREC the authority to promulgate
regulations is codified at 7 Del. C., Chapter 60.  

EPA does not consider SIP requirements triggered by the nonattainment
area mandates in part D of Title I of the CAA to be governed by the
submission deadline of section 110(a)(1).  Nevertheless, Delaware may
have included some previously EPA-approved SIP provisions originally
submitted in response to part D in its submission documenting its
compliance with the requirements of sections 110(a)(1) and (2) of the
CAA.  For the purposes of this action, EPA has reviewed certain Delaware
110(a)(2) submittals, including any rules originally submitted in
response to part D, or references thereto, solely for the purposes of
determining whether such submittals support a finding that the state has
met the basic infrastructure requirements under section 110(a)(2).

 Section 110(a)(2)(B) 

Delaware’s SIP-approved Regulation 17, Source Monitoring, Record
Keeping And Reporting and Regulation No. 3, Ambient Air Quality
Standards, of the State of Delaware Regulations Governing the Control of
Air Pollution, provides for the establishment and operation of
procedures necessary to monitor, compile, and analyze data related to
ambient air quality.

Delaware has established and currently operates appropriate devices,
methods, systems, and procedures necessary to monitor, compile, and
analyze data on ambient air quality, and upon request, makes such data
available to the Administrator.  

Delaware maintains and operates a multi-station network of ambient
monitors throughout the State to measure ambient air quality levels
within Delaware for comparison to each NAAQS as required by 40 CFR part
58.  Seasonal ozone, and daily PM2.5 monitoring is currently performed
at various locations throughout Delaware.

All data is measured using U.S. EPA approved methods as either Reference
or Equivalent monitors.  All monitors are subjected to the quality
assurance requirements of 40 CFR part 58, Appendix A, and all samplers
are located at sites that have met the minimum siting requirements of
part 58, Appendix E.  The data is submitted to EPA’s Air Quality
System (AQS) system, in a timely manner in accordance to the scheduled
prescribed by the U.S. EPA in 40 CFR part 58.

In order to keep EPA informed of changes to the sampling network, DNREC
provides EPA Region III with prior notification of any planned changes
to the network.  As needed, details of these changes and anticipated
approvals of the changes are communicated to EPA.  On an annual basis,
Delaware sends EPA a monitoring network plan as required by 40 CFR part
58, section 10. This plan contains all required information including
site and monitor description, analysis methods, operating schedule,
monitoring objectives and scale of representativeness, as well as
information on any planned changes.  DNREC submits data to the AQS
system, in a timely manner, pursuant to the schedule prescribed by the
EPA in 40 CFR part 58.

Delaware has and will continue to submit data to EPA’s AQS in a timely
manner in accordance to the scheduled prescribed by the U.S. EPA in 40
CFR part 58.

3.  Section 110(a)(2)(C) 

Delaware has established and currently operates a program to provide for
the enforcement of the enforceable emission limitations and other
control measures, means, or techniques, as well as schedules and time
tables for the compliance, as may be necessary or appropriate, to meet
the applicable requirements of the CAA, and to regulate modification and
construction of any stationary source within areas covered by its SIP as
necessary to assure the NAAQS are achieved, including permit programs
required in parts C and D.  Aspects of Delaware’s program for
enforcement are found in those provisions of Regulation 25, Regulation
11, and Regulation 17 as well as the source monitoring, source testing
and test methods, and recordkeeping and reporting provisions of
Regulations 12, 23, 24, 26, 31, 37, 39, 40, 42, and others in the
approved Delaware SIP.  At present, Delaware as part of its Air Quality
Management Section function exercises its programmatic authority to
utilize the enforcement powers set out in 7 Del. C, section 6005
entitled, “Enforcement; civil and administrative penalties;
expenses,” 7 Del. C., section 6013 entitled “Criminal penalties,”
and 7 Del. C. section 6018 entitled “Cease and desist order.”  

Delaware implements its Construction and Operation Permit Program
requirements under Regulation Nos. 2 and 25 of the State of Delaware
Regulations Governing the Control of Air Pollution.  Delaware implements
its PSD program requirements and its Emission Offset Provision (EOP)
requirements under Regulation No. 25 of the State of Delaware
Regulations Governing the Control of Air Pollution. 

As discussed above, through its March 27, 2008 completeness findings,
EPA stated that the State of Delaware failed to submit a complete SIP
addressing the portion of (C) and (J) relating to the Part C permit
programs for the 1997 8-hour ozone NAAQS.  

EPA will take separate action on the portion of section 110(a)(2(C) for
the 1997 8-hour ozone NAAQS as it relates to Delaware’s PSD permit
program.  On April 1, 2010, Delaware submitted revisions to its
regulation 1125 to include NOx as a precursor for ozone.  Action on this
PSD SIP revision will be taken at a later time, and consequently,
element 110(a)(2)(C) as it pertains to the PSD permit program for the
1997 8-hour ozone NAAQS will be addressed in this future action as well.

  

The requirements of section 110(a)(2)(C) that pertain to a permit
program in part D Title I of the CAA are outside of the scope of the
110(a)(2) requirements addressed through this action and will be
addressed separately, therefore, this subset of 110(a)(2)(C)
requirements are not included in this action.

4.  Section 110(a)(2)(D)(ii)

The original TSD stated that nothing in Delaware’s statutory or
regulatory authority prohibits or otherwise interferes with Delaware’s
authority to exercise sections 126 and 115 of the CAA.  A clarification
is necessary because although Delaware is subject to section 126, it has
demonstrated that it has met its obligations pursuant to CAA section
126(a) and it has no currently pending obligations pursuant to CAA
126(b).  Delaware has made the necessary submittals to demonstrate that
it has adequate provisions insuring future compliance with the
requirements of sections 126 and 115 of the CAA as may be necessary.  

5.  Section 110(a)(2)(E)

 

Delaware assures EPA that it has adequate authority under state law
pursuant to 7 Del. C. Chapter 60 to carry out its SIP obligations with
respect to both the 8-hour ozone and PM2.5 NAAQS.  DNREC does not
believe that there is any prohibition in any federal or state law that
would prevent it from carrying out its SIP or any portion thereof. 
Further, DNREC assures EPA that it has, through the State of Delaware
General Fund and through the Title V fee program, and will continue to
have, funding to carry out its SIP obligations.  Further, DNREC believes
its funding sources are sufficient to provide adequate personnel for
those purposes.  

At present, Delaware fulfills this obligation by virtue of having
adequate personnel and funding through the CAA section 105 grant process
(federal grant funds), the State of Delaware general fund (state tax
revenues), and appropriated special funds collected by the State of
Delaware from application fees, permit fees, renewal fees, and civil or
administrative penalties or fines.  Delaware does not anticipate the
need for additional resources beyond those to be appropriated in the
above manner to carry out its SIP requirements.

The requirements of section 110(a)(2)(E)(ii) are not applicable to
Delaware because it does not have any board or body which approves air
quality permits or enforcement orders.

The requirements of section 110(a)(2)(E)(iii) are not applicable to
Delaware because it does not rely on localities for specific SIP
implementation.

6.  Section 110(a)(2)(F)

Specific monitoring requirements are found throughout the State of
Delaware Regulations governing the Control of Air Pollution, to include
Regulation No. 17 (Source Monitoring, Record Keeping and Reporting), and
Regulation No. 3 (Ambient Air Quality Standards).  These requirements
are included in Delaware’s SIP, as necessary.

Specific emissions reporting requirements are found throughout the State
of Delaware Regulations Governing the Control of Air Pollution, to
include Regulation No. 17 (Source Monitoring, Record Keeping and
Reporting), and Regulation No. 3 (Ambient Air Quality Standards).  These
requirements are included in Delaware’s SIP, as necessary.

Delaware’s SIP requires that owners or operators of stationary sources
monitor and submit periodic reports on the nature and amounts of
emissions and emissions related-date emissions from the sources.  This
may include the installation, maintenance and replacement of equipment,
where appropriate.  This information submitted to DNREC is available to
the public at reasonable times for public inspection pursuant to
Delaware law.  Delaware will continue to require reporting of emissions.
 

Except as specifically exempted by the Delaware Freedom of Information
Act, 29 Del.C. Chapter 100, Delaware makes all records, reports or
information obtained by the Department or referred to at public hearings
available to the public pursuant to the provisions of the Delaware
Freedom of Information Act, 29 Del. C. Chapter 100.

Other aspects of Delaware’s program for requiring installation and
maintenance of monitoring equipment, and periodic emissions reporting,
are found in the source monitoring, source testing and test methods, and
recordkeeping and reporting provisions of Regulations 12, 23, 24, 26,
31, 37, 39, 40, 41, 42, and others in the approved Delaware SIP,
codified at 40 CFR 52.420(c).

7.  Section 110(a)(2)(G) 

Delaware has authority comparable to that in section 303 and adequate
contingency plans to implement such authority.  

At present, 7 Del C. Chapter 60 provides authority comparable to section
303 in that DE may seek permanent, preliminary injunctions and temporary
restraining orders (7 Del. C, section 6005) and issue cease and desist
orders for violations (7 Del. C., section 6018).  Under 7 Del. C.,
section 6003, any unpermitted emission which may cause imminent or
substantial danger to public health, safety, welfare, or the environment
is a violation of 7 Del. C. Chapter 60.  

Delaware’s SIP contains an emergency episode plan for ozone found in
the State of Delaware Regulations Governing the Control of Air
Pollution, Regulation 15, Air Pollution Alert and Emergency Plan that
are currently approved in the SIP, and found at 40 CFR 52.420(c).  This
was certified in a letter dated September 19, 2008. 

In order to address the 110(a)(2)(G) requirement relating to “adequate
contingency plans,” on 

March 10, 2010, DNREC submitted a certification of classification as a
Priority III emergency episode plan region.  This submission is
consistent with the recommendations set forth in EPA’s September 25,
2009 memorandum issued by William T. Harnett, Director, OAQPS/AQPD,
entitled “Guidance on SIP Elements Required Under sections 110(a)(1)
and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS).”  With respect to the requirement that
states have adequate contingency plans as part of their SIPs, this
guidance recommended that unless the state had monitored ambient values
above a specific level, no contingency plan would be necessary. 

concentration above 140.4 μg/m3 using the most recent three years of
data, are required to develop an emergency episode plan.  States that do
not meet this threshold would be classified as Priority III and would
not be required to adopt an emergency episode plan for PM2.5.  PM2.5
monitors in the State show that PM2.5 concentration levels for the past
three years are below the 140.4 μg/m3 threshold.  (See Table 1). 
Therefore, in accordance with EPA guidance, Delaware has certified
through a SIP revision that is has appropriate general emergency powers
to address PM2.5 –related episodes and that it is not specifically
required to submit an emergency episode plan and contingency measures
for PM2.5 at this time given monitored PM2.5 levels.  In accordance with
the above cited guidance, Delaware has met its statutory obligations to
provide adequate contingency plans to implement the authority that it
has that is comparable to that in CAA section 303 and the State of
Delaware, is not, at this time, required to adopt any additional
emergency episode plan for PM2.5.

Table 1.  PM2.5 Monitoring Date in µg/m3 for the Past Three Years
(98th) Percentile for the Year) for the State of Delaware

  

Monitor	2006	2007	2008

Bellefonte	38	37.8	36.3

MLK	48.2	41.4	39.3

Newark	40.3	35.2	34.3

Lums	37.2	33.3	32.6

Dover	42.8	38.7	30.5

Killens	46.5	38	30.8

Seaford	46.6	44.9	30.8



8.  Section 110(a)(2)(H) 

Through the above cited submissions, Delaware  has demonstrated that it
has adequate authority under the Delaware Code, Chapter 60, Title 7
“Conservation” to revise the SIP.  These submissions also provide
EPA with adequate assurances that Delaware will review and revise its
SIP from time to time as may be necessary to take account of revisions
of such primary or secondary NAAQS or the availability of improved or
more expeditious methods of attaining such standard and, whenever the
Administrator finds, on the basis of information available to the
Administrator, that the plan is substantially inadequate to attain the
NAAQS which it implements, or to otherwise comply with any additional
requirements established under the CAA.

9.  Section 110(a)(2)(J) 

Section 121 Consultation--7 DE Admin Code 1132, Transportation
Conformity of the State of Delaware Governing the Control of Air
Pollution, provides a legal platform for the various consultation
procedures that have been developed between DNREC, the Delaware
Department of Transportation (DELDOT), and the Metropolitan Planning
Organizations (MPOs).  The MPOs provide the forum for consultation with
local governments.  Delaware’s MPOs are:  (1)  WILMAPCO, Kent County
MPO, and the Salisbury-Wicomoco MPO.  Regional planning organizations
provide the forum for inter-state consultations.  Additionally,
consultations with Federal Land Managers are always on going in
accordance with EPA rules.  All SIP revisions undergo public notice and
hearing which have allowed for comment by the public which includes
local political subdivisions.  Delaware believes the public notice and
hearing processes also fulfills the section 121 consultation process. 
Approved regulations in the Delaware SIP specify the organizations
responsible for implementing and enforcing the plans.

DNREC makes real time and historical air quality information available
on its web site.  All relevant SIPs and plans to achieve the NAAQS
contain public notification provisions related to air monitoring levels
such as Ozone Action Days, Air Quality Action Days, and DNREC’s
website.  DNREC provides extended range air quality forecasts, which
give the public advance notice of air quality events.  This advance
notice allows the public to limit their exposure to unhealthy air and
enact a plan to reduce pollution at home and at work.  DNREC forecasts
daily ozone and particle levels and issues e-mails to the public,
businesses and the media via AirAlerts.  AirAlert e-mail forecasts and
notifications are free to the public.

Delaware has established and currently operates a program to provide for
the enforcement of the enforceable emission limitations and other
control measures, means, or techniques, as well as schedules and time
tables for the compliance, as may be necessary or appropriate to meet
the applicable requirements of the CAA and to regulate modification and
construction of any stationary source within areas covered by its SIP as
necessary to assure the NAAQS are achieved, including permit programs
required in parts C and D.  Aspects of Delaware’s program for
enforcement are found in those provisions of Regulation 25, Regulation
11, and Regulation 17 as well as the source monitoring, source testing
and test methods, and recordkeeping and reporting provisions of
Regulations 12, 23, 24, 26, 31, 37, 39, 40, 42, and others in the
approved Delaware SIP.  At present, Delaware as part of its Air Quality
Management Section function exercises its programmatic authority to
utilize the enforcement powers set out in 7 Del. C, section 6005
entitled, “Enforcement; civil and administrative penalties;
expenses,” 7 Del. C., section 6013 entitled “Criminal penalties,”
and 7 Del. C. section 6018 entitled “Cease and desist order.”  

Delaware implements its Construction and Operation Permit Program
requirements under Regulation Nos. 2 and 25 of the State of Delaware
Regulations Governing the Control of Air Pollution.  Delaware implements
its Prevention of Significant Deterioration (PSD) program requirements
and its Emission Offset Provision (EOP) requirements under Regulation
No. 25 of the State of Delaware Regulations Governing the Control of Air
Pollution. 

EPA will take separate action on the portion of section 110(a)(2)(J) for
the 1997 8-hour ozone NAAQS as it relates to Delaware’s PSD permit
program.  On April 1, 2010, Delaware submitted revisions to Regulation
1125 to include NOx as a precursor for ozone.  Action on this PSD SIP
revision will be taken at a later time, and consequently, element
110(a)(2)(J) as it pertains to the PSD permit program for the 1997
8-hour ozone NAAQS will be addressed in this future action as well.   

10.  Section 110(a)(2)(K) 

Through the submissions referenced above, Delaware has demonstrated that
it:  1) has the authority and technical capability to conduct air
quality modeling, or that the State participates with a group of states
to conduct air quality modeling in order to assess the effect on ambient
air quality of relevant pollutant emissions; and 2) can provide relevant
data as part of the permitting and NAAQS implementation processes.

As an example of the exercise of such authority and technical
capability, Delaware submitted SIP revisions on April 3, 2008 for the
Attainment of the 1997 PM 2.5 NAAQS which included a base-year inventory
and an attainment demonstration for the Delaware portion of the
Philadelphia-Wilmington, PA-NJ-DE PM2.5 Nonattainment Area, which
contained the required modeling. 

As an example of Delaware’s participation with a group of states to
conduct air quality modeling, for the 1997 PM 2.5 NAAQS, Delaware’s
air quality modeling was performed as part of the regional SIP planning
process through the Ozone Transport Commission (OTC) and
theMid-Atlantic/Northeast Visibility Union (MANE-VU) Regional Planning
Organization (RPO).  This PM2.5 modeling performed by MANE-VU was
submitted as part of the State of Delaware’s PM2.5 SIP submittal on
April 3, 2008.   

Additionally, through the referenced submissions, Delaware has provided
that relevant to the 2006 PM 2.5 NAAQS, air quality modeling will be
performed as part of the regional SIP planning process through the OTC
and MANE-VU.  Delaware has provided that it will continue to submit
quality modeling data as part of its relevant submissions developed as
part of the regional process through the OTC and MANE-VU or its
successors as required under sub-objective 1.1.1 of Delaware’s 105
grant.  Delaware has also provided adequate assurance that upon request
they will submit current and future data relating to such quality
modeling to the Administrator.

11.  Section 110(a)(2)(L)

Delaware’s submissions adequately address this requirement by
explaining that consistent with Delaware law, Delaware will continue to
require the owner or operator of each major stationary source to pay to
the permitting authority, as a condition of any permit required under
this Act, a fee sufficient to cover (i) the reasonable costs of
reviewing and acting upon any application for such a permit, and (ii) if
the owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any such
permit (not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator’s approval of a fee
program under Title V pursuant to Delaware law.  Delaware currently
fulfills this under the enabling authority of 7 Del.C, sections 6095 to
6099, and fee legislation that currently is renewed every three years. 
Delaware has a fully approved Title V operating permits program.  See
paragraphs (b) and (c) under “Delaware” in Appendix A to 40 CFR part
70—Approval Status of State and Local Operating Permits Programs.

12.  Section 110(a)(2)(M) 

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,.C, sections 6006 and 6010, and 29 Del.C. Chapters 1003, 10004, and
10115, as applicable.  Furthermore, all Delaware SIP revisions undergo
public notice and hearing which have allowed for comment by the public
which includes local political subdivisions.

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of Delaware’s infrastructure submittals for the 1997
8-hour ozone and PM2.5 NAAQS, and the 2006 PM2.5 NAAQS concludes that
Delaware’s submittals meet the requirements of section 110(a)(2)(A),
(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or
portions thereof.  It is recommended that a notice of final rulemaking
be prepared approving Delaware’s infrastructure submittals for the
1997 8-hour ozone and PM2.5 NAAQS, and the 2006 PM2.5 NAAQS.

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