UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:            August 12, 2013	

SUBJECT:	Technical Support Document for the Delaware State
Implementation Plan for the Infrastructure Requirements for the 2008
Ozone National Ambient Air Quality Standards

			/s/

FROM:	Rose Quinto, Environmental Engineer

Office of Air Program Planning

TO:		File

			/s/

THRU: 	Cristina Fernandez, Associate Director

Office of Air Program Planning 

A.  INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on a
submittal made by the State of Delaware to meet the Clean Air Act (CAA)
section 110(a)(2) infrastructure requirements for the 2008 8-hour ozone
national ambient air quality standards (NAAQS).

B.  BACKGROUND

On March 27, 2008 (73 FR 16436), EPA promulgated a revised NAAQS for
ozone based on 

8-hour average concentrations.  EPA revised the level of the 8-hour
ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm.  

Pursuant to section 110(a) of the CAA, states are required to submit
state implementation plans (SIPs) that provide for the implementation,
maintenance, and enforcement of new or revised NAAQS within three years
following the promulgation of such NAAQS.  Section 110(a) of the CAA
imposes the obligation upon states to make a SIP submission to EPA for a
new or revised NAAQS.  For the 2008 8-hour ozone NAAQS, states typically
have met many of the basic program elements required in section
110(a)(2) of the CAA through earlier SIP submissions in connection with
previous ozone standards.  Section 110(a)(2) of the CAA lists specific
elements that states must meet or continue to meet in these SIP
submissions.  The requirements include SIP infrastructure elements such
as requirements for modeling, monitoring, and emissions inventories that
are designed to assure attainment and maintenance of the NAAQS.  

C.  EPA REQUIREMENTS

As discussed above, for the  2008 8-hour ozone NAAQS, states must
provide SIP submissions, or provide certification that the existing SIP
contains provisions addressing relevant infrastructure SIP elements from
sections 110(a)(2)(A) through (M) of the CAA.  

D.  STATE’S SUBMITTAL

On March 27, 2013, Delaware provided a submittal to satisfy the
requirements of section 110(a)(2) of the CAA for the 2008 8-hour ozone
NAAQS.  This submittal addressed the following infrastructure elements
that EPA is proposing to approve:  Section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the
CAA. 

E.  EVALUATION OF STATE SUBMITTAL

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

EPA has determined that Delaware has established laws and regulations
applicable to the 2008 8-hour ozone NAAQS 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.  The following enforceable emission
limitations and schedules are contained in Delaware’s approved SIP:  7
DE Admin. Codes 1113, 1124, 1141, 1144, 1145, 1146, and 1148.  These
regulations are identified as part of the Delaware SIP at 40 CFR
52.420(c).  Those enforceable emission limitations and schedules are
also contained in Delaware’s submitted Reasonable Further Progress
(RFP) and attainment demonstration SIPs that were approved on April 8,
2010 (75 FR 17863) and October 5, 2012 (77 FR 60914), respectively.

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 Delaware Department of Natural Resources and
Environmental Control (DNREC) the authority to promulgate regulations is
codified at 7 Del. C., Chapter 60.  This authority is applicable to the
2008 8-hour ozone NAAQS.

In this action, EPA is not proposing to approve or disapprove any
existing Delaware provisions with regard to excess emissions during
startup, shutdown, and malfunction (SSM) of operations at a facility. 
EPA believes that a number of states have SSM provisions which are
contrary to the CAA and existing EPA guidance (August 11, 1999 Steven
Herman and Robert Perciasepe Guidance Memorandum, “State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown”), and EPA plans to address such
state regulations in a separate rulemaking action.  In the meantime, EPA
encourages any state having a deficient SSM provision to take steps to
correct it as soon as possible. 

Also in this action, EPA is not proposing to approve or disapprove any
existing Delaware rules with regard to director’s discretion or
variance provisions.  EPA believes that a number of states have such
provisions which are contrary to the CAA and existing EPA guidance (see
52 FR 45109, November 1987), and EPA plans to take separate rulemaking
action to address such state regulations.  In the meantime, EPA
encourages any state having director’s discretion or variance
provisions which are contrary to the CAA and EPA guidance to take steps
to correct the deficiency as soon as possible.

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(A). 

2.  Section 110(a)(2)(B) 

7 DE Admin. Code 1103 – “Ambient Air Quality Standards” and 7 DE
Admin. Code 1117 – “Source Monitoring, Record Keeping and
Reporting” provide for the establishment and operation of procedures
necessary to monitor, compile, and analyze data related to ambient air
quality.  These regulations are included in Delaware’s approved SIP
listed in 40 CFR 52.420(c) which applies to the 2008 8-hour ozone NAAQS.

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 (April – October) ozone monitoring is currently
performed at various locations throughout Delaware.

All data is measured using 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 40
CFR part 58, Appendix E.  The data is submitted to EPA’s Air Quality
System (AQS) in a timely manner in accordance with the schedule
prescribed by 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 (Annual Monitoring Network Plan and Periodic Network
Assessment).  EPA approved Delaware’s 2012 Annual Air Quality
Monitoring Network Design Plan on February 21, 2013.  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.  

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(B). 

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. Aspects of Delaware’s
program for enforcement are found in those SIP-approved provisions of 

7 DE Admin. Codes 1102 and 1125.  

At present, Delaware as part of its Division of Air Quality 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 7 DE Admin. Codes 1102 and 1125.  These existing
permitting programs which are part of the federally-approved SIP ensure
that the construction and modification of both major and minor
stationary sources do not cause or contribute to a violation of the
ozone NAAQS.

SIP approved 7 DE Admin. Code 1102 provides for the evaluation and
necessary regulation of any stationary source that emits equal to or
greater than 0.2 pounds of any air contaminant, including ozone, in any
one day.

SIP approved 7 DE Admin. Code 1125 governs preconstruction review and
permitting of any new or modified major stationary sources of air
pollutants as required in Part C of Title I of the CAA.  

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(C). 

  

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

Section 110(a)(2)(D)(i)(I)

In accordance with the decision of the U.S. Court of Appeals for the
District of Columbia (D.C. Circuit Court), EPA at this time is not
treating the 110(a)(2)(D)(i)(I) SIP submission from Delaware as a
required SIP submission.  See EME Homer City Generation, LP v. EPA, 696
F.3d 7 (D.C. Cir. 2012), cert granted, 2013 U.S. App. LEXIS 48101
(2013).  On June 24, 2013, the Supreme Court granted the petitions of
the United States and others and agreed to review this D.C. Circuit
Court decision.  However, at this time the D.C. Circuit Court decision
remains in place and unless it is reversed or otherwise modified by the
Supreme Court, states are not required to submit 110(a)(2)(D)(i)(I) SIP
revisions until EPA has quantified their obligations under that section.
Delaware’s March 27, 2013 infrastructure SIP submission for the 2008
8-hour ozone NAAQS included information related to section
110(a)(2)(D)(i)(I). EPA will address this element in a separate action.

Section 110(a)(2)(D)(i)(II)

For all areas of Delaware, a SIP- approved PSD program (7 DE Admin. Code
1125) is in place.  See 40 CFR 52.420(c).  See additional discussion
under 110(a)(2)(C).  Based upon EPA’s review of the submittal, EPA is
proposing to determine that Delaware has met its obligations pursuant to
110(a)(2)(D)(i)(II) for the part C permit program.  

Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include
provisions prohibiting any source or other type of emissions activity in
one state from interfering with measures to protect visibility required
to be included in another state’s SIP.  Delaware’s regional haze SIP
was approved on July 19, 2011 (76 FR 42557) and prohibits emission
sources in Delaware from emitting air pollutants which would interfere
with measures which protect visibility.  

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(D)(i)(II). 

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

Neither Delaware nor any facility in Delaware is subject to a section
126 rule.  Delaware has no currently pending obligations pursuant to CAA
126(b) or (c).  In Delaware’s March 27, 2013 submittal, Delaware
demonstrated that it has adequate provisions insuring future compliance
with the requirements of sections 126 and 115 of the CAA.  Based upon
EPA’s review of the submittal, EPA is proposing to determine that the
State has met its obligations pursuant to 110(a)(2)(D)(ii). 

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

For section 110(a)(2)(E)(i), Delaware has adequate authority under state
law pursuant to

7 Del. C. Chapter 60 to carry out its SIP obligations with respect to
the 2008 8-hour ozone NAAQS.  DNREC will continue to have, through the
State of Delaware General Fund and through the Title V fee program,
funding to carry out its SIP obligations.  Furthermore, Delaware’s
funding sources are sufficient to provide adequate personnel for those
purposes.  

At present, Delaware states it 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 under 7 Del. C. Chapter 60.  The
Division of Air Quality is responsible for developing, implementing and
enforcing the SIP.  

Delaware complies with the requirements of section 110(a)(2)(E)(ii)
through compliance with the applicable requirements of 29 Del C.,
Chapter 58, “Laws Regulating the Conduct of Officers and Employees of
the State,” which EPA approved as a SIP revision on April 17, 2013 (78
FR 22785).

The requirements of section 110(a)(2)(E)(iii) are not applicable to
Delaware because Delaware does not rely on localities for specific SIP
implementation.  Based upon EPA’s review of the submittal, EPA is
proposing to determine that Delaware has met its obligations pursuant to
110(a)(2)(E). 

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

Specific monitoring and emissions reporting requirements are found
throughout the State of Delaware’s regulations governing the control
of air pollution, including 7 DE Admin. Codes 1103 and 1117.  These
regulations are included in Delaware’s approved SIP and are listed in
40 CFR 52.420(c) and also apply to the 2008 8-hour ozone NAAQS.

Delaware’s SIP requires that owners or operators of stationary sources
monitor and submit periodic reports on the nature and amounts of ozone
emissions and emissions related-data 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 has stated it 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 DNREC 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 7 DE Admin. Codes 1112, 1123,
1124, 1126, 1131, 1137, 1139, 1140, 1141, 1142 and others in the
approved Delaware SIP, which is identified at 40 CFR 52.420(c).  

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(F). 

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

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

At present, 7 Del. C. section 6003(a)(1) requires a permit from the
Secretary prior to discharging any air contaminant.  7 Del. C. section
6002(2) defines air contaminant essentially as any substance other than
uncombined water.  7 Del. C. section 6005 allows the Secretary to seek a
preliminary or permanent injunction or temporary restraining order for
discharge of an air contaminant without a permit, and to issue a cease
and desist order for violations (7 Del. C. section 6018).  Therefore, if
any discharge of an air contaminant, including ozone, would cause
imminent and substantial endangerment to the health, safety and welfare
of the people of the State of Delaware or the environment, the Secretary
may seek an injunction or temporary restraining order to halt the
violation.

Delaware’s SIP contains an emergency episode plan found in 7 DE Admin.
Code 1115, Air Pollution Alert and Emergency Plan, that is currently
approved in the SIP and identified at 40 CFR 52.420(c).  

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(G). 

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

Through its SIP submission, Delaware has demonstrated that it has
adequate authority under the Delaware Code, Chapter 60, Title 7
“Conservation” to revise the SIP.  This submission also provides 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 standards 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.

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(H). 

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

EPA does not expect infrastructure SIP submissions to address this
element.  Nonattainment area plans required under part D of Title I of
the CAA are required on a different schedule from section 110(a)(2)
infrastructure elements of the CAA and thus, will be reviewed and acted
upon through a separate process. 

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

	

Section 121 (relating to 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:  WILMAPCO, Kent County MPO,
and the Salisbury-Wicomoco MPO.  Regional planning organizations provide
the forum for inter-state consultations.  7 DE Admin. Code 1132 is
included in the Delaware SIP.  Additionally, consultations with Federal
Land Managers are always ongoing in accordance with EPA rules (such as
in the Regional Haze regulations).  

Section 127 (relating to public notification).  All SIP revisions and
new/amended regulations undergo public notice and hearing, pursuant to 7
Del. C. Chapters 29 and 60, which provides for  publication in the
newspapers and in the Delaware Register, and for comment by both the
public and local political subdivisions.  The public notice and hearing
processes also fulfill the section 121 consultation process.  Approved
regulations in the Delaware SIP specify the organizations responsible
for implementing and enforcing the plans.  In addition, DNREC makes real
time and historical air quality information available on its web site.  

PSD requirements necessary to implement the 2008 8-hour ozone NAAQS are
SIP approved and implemented through the requirements of 7 DE Admin.
Code 1125, Preconstruction Review.  The latest Delaware PSD SIP was
approved on October 2, 2012 (77 FR 60053).

With regard to visibility protection, there are no new applicable
visibility protection obligations under section 110(a)(2)(J) as a result
of the 2008 8-hour ozone NAAQS.  Delaware is complying with, and will
continue to comply with the visibility protection and regional haze
program requirements under part C of the CAA.  EPA approved the Delaware
regional haze SIP on July 19, 2011 (76 FR 42557).

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(J). 

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

Delaware has the authority and technical capability to conduct air
quality modeling in order to assess the effect on ambient air quality
relevant pollutant emissions and will continue to perform modeling. 
Delaware will continue to submit to EPA the air quality modeling data as
part of Delaware’s relevant SIP submissions, permit actions, and
through Federal grant commitments or in other ways that EPA may request.

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(K). 

12.  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
the CAA, 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 also 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.

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(L). 

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

In the March 27, 2013 SIP submittal, Delaware stated it will continue to
provide for consultation and participation by local political
subdivisions affected by the SIP pursuant to the public notice laws
found in 7 Del. C., sections 6006 and 6010, and 29 Del. C. Chapters
10003, 10004, and 10115, as applicable.  Furthermore, Delaware stated
all Delaware SIP revisions undergo public notice and hearing which have
allowed for comment by the public which includes local political
subdivisions.  The public notice and hearing processes fulfill the
requirements for consultation with local political subdivisions affected
by the SIP.

Based upon EPA’s review of the submittal, EPA is proposing to
determine that the State has met its obligations pursuant to
110(a)(2)(M). 

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of Delaware’s infrastructure submittal for the 2008
8-hour ozone NAAQS concludes that Delaware’s submittal meets the
requirements of section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, as identified
above.  It is recommended that a notice of proposed rulemaking be
prepared approving Delaware’s infrastructure submittal for the 2008
8-hour ozone NAAQS. 

 PAGE   

 PAGE  10 

