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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/m3based on a 3-year average of the 98th percentile of 24-hour 

concentrations.
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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) 
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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.

C. 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 
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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. 
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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).

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.
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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.
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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.
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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.
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In accordance with the above cited guidance, the requirement for a State to submit an emergency

episode plan is based on a priority region classification. States with a 24-hour PM2.5 

concentration above 140.4 μg/m3using 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 
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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 
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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 baseyear inventory and an attainment demonstration for the Delaware portion of the PhiladelphiaWilmington, 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 theMidAtlantic/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 
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(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) 

Delaware 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 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.