UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:            September 16, 2013	

SUBJECT:	Technical Support Document for the Delaware State
Implementation Plan for the Infrastructure Requirements for the 2010
Sulfur Dioxide 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 2010 sulfur
dioxide (SO2) national ambient air quality standards (NAAQS).

B.  BACKGROUND

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the
1-hour primary SO2 at a level of 75 parts per billion (ppb), based on a
3-year average of the annual 99th percentile of 1-hour daily maximum
concentrations.

Section 110(a) of the CAA requires states 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 2010 SO2 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 SO2
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  2010 SO2 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 May 29, 2013, Delaware provided a submittal to satisfy the
requirements of section 110(a)(2) of the CAA for the 2010 SO2 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.  The
submittal also addressed section 110(a)(2)(D)(i)(I) but EPA will take
separate action on that part of the Delaware submittal.  This submittal
did not include element (I) which pertains to the nonattainment
requirements of part D, Title I of the CAA, since this element is not
required to be submitted by the 3-year submission deadline of CAA
section 110(a)(1), and will be addressed in a separate process.

E.  EVALUATION OF STATE SUBMITTAL

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

EPA has determined that Delaware has established laws and regulations
applicable to the 2010 SO2 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 1101 (Definitions and Administrative Principles), 1108 (SO2
Emissions from Fuel Burning Equipment), 1109 (Emissions of Sulfur
Compounds from Industrial Operations), 1110 (Control of SO2 Emissions-
Kent and Sussex Counties), 1127 (Stack Heights), 1144 (Control of
Stationary Generator Emissions), 1145 (Excessive Idling of Heavy Duty
Vehicles), and 1146 (Electric Generating Unit Multi-Pollutant
Regulation).  These regulations are identified as part of the Delaware
SIP 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 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
2010 SO2 NAAQS.

In this rulemaking 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 is addressing such
state regulations in a separate rulemaking action.  See 78 FR 12460,
February 22, 2013.  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 is taking separate rulemaking
action to address such state regulations.  See 78 FR 12460.  In that
proposed rulemaking, EPA identified specific Delaware regulations in
which state officials are provided unbounded discretion to set
alternative emission limits during periods of start-up and shutdown of
equipment through a permitting process that does not entail subsequent
approval of the alternative emission limits through a SIP revision.  EPA
has proposed to find that this process constitutes an impermissible
director’s discretion provision with the potential to allow
impermissible discretionary exemptions from SIP emission limits. See 78
FR 12495-12496.  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).

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.  Delaware measures and reports SO2 concentrations from monitoring
sites located in Wilmington near MLK Boulevard, Delaware City,
Bellefonte, Summit Bridge, and Lewis.

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 EPA in 40 CFR part 58.  Other requirements of
the 2010 SO2 NAAQS include operational SO2 air quality monitoring
network that was in place on January 1, 2013.  Delaware has the
appropriate number and location of SO2 monitors in New Castle and Sussex
Counties.  All monitors were operational as of January 1, 2013.  

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 (including the measures identified for section
110(a)(2)(A) above), means, or techniques, as well as schedules and time
tables for 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 SO2
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 SO2, in any
one day.

SIP approved 7 DE Admin. Code 1125 governs preconstruction review and
permitting of any new or modified major stationary source 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), cer. 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.
 Regardless of whether a particular SIP submission is considered to be
“required,” section 110(k)(2) of the CAA requires EPA to act on the
submission.  Delaware’s May 29, 2013 infrastructure SIP submission for
the 2010 SO2 NAAQS included information related to section
110(a)(2)(D)(i)(I).  EPA will address this portion of Delaware’s
submittal in a separate action.

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

For all areas of Delaware, a SIP- approved PSD program (Section 3.0 of 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 permit program to
meet Part C of Title I of the CAA.  EPA notes that the Delaware SIP also
includes Delaware’s permit program to meet requirements in Part D of
Title I of the CAA (applicable in nonattainment areas) for construction
or modification of major stationary sources.  See 7 DE Admin. Code 1125,
Section 2.0.  

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 that protect visibility in other states.  

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) 

The Delaware SIP has adequate provisions to insure compliance with
applicable requirements of sections 126 and 115 of the CAA.  Delaware
has a SIP approved PSD program (7 DE Admin Code 1125 – October 2,
2012, 77 FR 60053).  In addition, there are no sources within Delaware
that are subject to a finding under section 126 of the CAA with respect
to the SO2 NAAQS.   Also, there are no findings under section 115 of the
CAA against Delaware with respect to the SO2 NAAQS.  

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 2010 SO2 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 also states that 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.  DNREC’s 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).

Delaware’s SIP requires that owners or operators of stationary sources
monitor and submit periodic reports on the nature and amounts of SO2
emissions and emissions related-data from sources.  The information
submitted to DNREC is available to the public at reasonable times for
public inspection pursuant to Delaware law.  Delaware’s SIP submittal
stated that it will continue to require reporting of emissions. 
Delaware’s regulatory authorities include the ability for Delaware to
require the installation, maintenance and replacement of equipment,
where appropriate.  

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 1108, 1109,
1110, 1127, 1144, 1145, 1146 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 authorization, and to
issue a cease and desist order for violations 

(7 Del. C. section 6018).  Therefore, if any discharge of an air
contaminant, including SO2, 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.  The 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, whenever the
Administrator finds, on the basis of information available to the
Administrator, that the plan is substantially inadequate to attain the
NAAQS which Delaware 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)(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 federal 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 allow for comment by both
the public and local political subdivisions.  The public notice and
hearing process also fulfills 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 2010 SO2 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 2010 SO2 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). 

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

As discussed in Delaware’s May 29, 2013 SIP submittal, 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 has a SIP
approved PSD program (7 DE Admin Code 1125).  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 and the Delaware SIP, EPA is
proposing to determine that the State has met its obligations pursuant
to 110(a)(2)(K).  EPA is proposing to determine that Delaware has the
authority and technical capability to conduct air quality modeling in
order to assess the effect on ambient air quality of relevant pollutant
emissions.

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

Delaware has a fully approved Title V operating permit 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.

Additionally, Delaware’s submission adequately addresses 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.  

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). 

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

In the May 29, 2013 SO2 infrastructure 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 has
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 and the
Delaware SIP for the 2010 SO2 NAAQS concludes that Delaware meets the
requirements of sections 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M) as identified above.  EPA
will take separate action on Delaware’s submittal for section
110(a)(2)(D)(i)(I).  It is recommended that a notice of proposed
rulemaking be prepared approving Delaware’s infrastructure submittal
for the 2010 SO2 NAAQS with the exception of the portion addressing
section 110(a)(2)(D)(i)(I). 

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