1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III 1650 Arch Street Philadelphia, Pennsylvania 19103
DATE: April 4, 2011 SUBJECT: Revised Te chnical Support Document (TSD) for the State of Delaware State

Implementation Plan for Section (110)(a) (2) Infrastructure Requirements for the 1997 O zone and the 1997 and 2006 Fine Particulate Matter National Ambie nt 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 amb ient air quality standards (NAAQS ) , the 1997 fine particulate ( PM 2.5 ), and the revised 2006 PM 2.5 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 analy sis of the submissions with respect to section 110(a)(2)(D)(ii). B . BACKGROUND 1997 8 - Hour Ozone and PM 2.5 NAAQS On July 18, 1997, EPA promulgated a revised NAAQS for ozone (62 FR 38856), and a new NAAQS for PM 2.5 (62 FR 38652). The revised o zone 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 PM 2.5 NAAQS was established on health

- based annual standards for PM 2.5 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3

- ye ar average of annual mean PM 2.5 concentrations, and a 24

- hour standard of 65μg/m 3 based on a 3

- ye ar average of the 98 th percent ile of 24

- hour concentrations.2

Whenever a new or revised NAAQS is promulgated, s e ction 110(a) of the CAA imposes obligations upon States to submit State Implementation Plan ( SI P ) revisions that provide for the implementation, maintenance, and enforcement of the new or revised NAAQS with in three years following the promulgation of such NAAQS. Although States ty pically 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 (includ ing all the Region 3 States) were still required to submit SI P revisions that address section 110(a)(2) for the 1997 NAAQS. These SI P revisions were due in July 2000. However, intervening litigation over the 1997 8

- hour ozone and PM 2.5 NAAQS created unce rtainty about how to proceed and , as of October 2007, States had not submitted SI P revisions to meet these infrastructure requirements. InMarch of 2004, Earth

j ustice initiated a lawsuit against EPA for failure to take action against States that had not m ade SI P 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) SI P elements.” On March 10, 2005, EPA entered into a Consent Decree with Earth j ustice that obligated EPA to make official findings in accordance with section 110(k)(1) of the CAA, as to whether States have made complete SI P 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 PM 2.5 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 PM 2.5 NAAQS. These findings pertained only

to whether the submissions were complete, pursu ant 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 SI Ps incorporating necessary loca l 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 require d 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 Iof the CA A. The determinations required by the March 2005 C onsent D ecree excluded any

determination regarding such portion of section 110(a)(2)(C) and section 110(a)(2)(I ); therefore, this action does no t 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 PM 2.5 NAAQS, except for the portion of (C) and (J) relating to the Part C permit programs for the 1997 8

- hour ozone and PM 2.5 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)3

pertaining to changes to its P art 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 SI P codified at 40 CFR 52.420 , Delaware ’s R egulation 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 PM 2.5 NAAQS On October 17 , 2006 (71 FR 61144), EPA revised the 24

- hour average PM 2.5 primary and secondary NAAQS from 65 μg/m 3 to 35 μg/m 3

. As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals were due within three years after promu lgation of the revised standard, with the exception of 1 10(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 PM 2.5 standards. C. EPA REQUIREMENTS As discussed above, for the 1997 8

- hour ozone and PM 2.5 NAAQS, States must provide SI P 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 PM 2.5 National Ambient Air Quality Standards , ” which listed the basic elements that States must i nclude in their SI Ps. 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 (PM 2.5) 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 PM 2.5 NAAQS. Specifically , guidance is provided for satisfying the section 110(a)(2)(D) requ irements for the 2006 PM 2.5 NAAQS, as well as guidance for satisfying the section 110(a)(2)( G ) requirements that addresses both the 1997 and 2006 PM 2.5 NAAQS. EPA notes, however, that the requirements under 110(a)(2)(D)(i) are being addressed4

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 PM 2.5 NAAQS, and submittal s to address the 2006 PM 2.5 NAAQS: s ub mittals dated December 13, 2007, September 19, 2008 , and September 16, 2009 addressed the 110(a)(2) requirements for the 1997 8

- hour ozone NAAQS; s ubmittals dated Dec ember 13, 2007, March 12, 2008, September 16, 2009, and March 10, 2010 addressed the requi rements for the 1997 PM 2.5 NAAQS ; and submittals dated September 16, 2009 and March 10, 2010 addressed the 110(a)(2) requirements for the 2006 PM 2.5 NAAQS

. The se submittals addressed the fo llowing infrastructure elements, or portions thereof, identified in section 110(a)(2) that EPA is proposing to approve in this action : sec tion 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 P M 2.5 and the 2006 PM 2.5 NAAQS Submittal Date 1997 8 - Hour Ozone 1997 PM 2.5 2006 PM 2.5 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 PM 2.5 NAAQS, and for the 2006 PM 2.5 NAAQS. However, the demonstrations submitted by Delaware for how it is meeting many of the elements are substantively identical for both the ozone and PM 2.5 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 timetabl es 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.5

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 SI P requirements triggered by the nonattainment area mandates i n 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 SI P provisions originally submitted in response to part D in its submission documenting it s 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, so lely 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 SI P

- approved Regulation 17, Source Monitoring, Record K eeping 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 analy ze dat a related to ambient air quality

. Delaware has established and currently operates appropriate devices, methods, sy stems, and procedures necessary

to monitor, compile , and analy ze 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 o zone, and da ily PM 2.5 monitoring is currently performed at various locations throughout Delaware. All data is measured using U.S. EPA approved methods as either R eference or Equivalent monitors. A ll 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 Sy stem (AQS) sy stem, in a timely manner in accordance to the scheduled prescrib ed by the U.S. EPA in 40 CFR part 58. Inorder to keep EPA informed of changes to the sampling network, DNREC provides EPA Region I II with prior notification of any planned changes to the network. As needed, details of these changes and anticipated appro vals 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, analy sis methods, operating schedule, monitoring objectives and scale of representativeness, as well as information on any

planned changes. DNREC submits data to the AQS sy stem, in a timely manner, pursuant to the schedule prescribed by the EPA in 40 CFR part 58.6

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 e nfor cement 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 mo dification and construction of any stationary source within areas covered by its SI P 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 provi sions 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 SI P. 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 “ C riminal penal t ies,” 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 R egulations 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. EP A 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 SI P 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 sectio n 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.7

4. Section 110(a)(2)(D)(i i) 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 clari fication 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 st ate law pursuant to 7 Del. C. Chapter 60 to carry

out its SI P obligations with respect to both the 8

- hour ozone and PM 2.5 NAAQS. DNREC does not believe that there is any prohibition in any

federal or state law that would prevent it from carrying out its S IP 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 SI P obligations. Further, DNREC believes its funding so urces 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 re sources beyond those to be appropriated in the above manner to carry out its SI P requirements. The requirement s 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 enf

orcement 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 Stat e 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 SI P, as n ecessary . Specific emissions reporting requirements are found throughout the State of Delaware Regulations Governing the Control of Air Polluti on, 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 SI P, as necessary

.8

Delaware’s SI P requires that owners or operators of stationary sources monitor and submit periodic reports on the nature and amounts of emissions and emissions rel ated

- 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 Del aware 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 ref

erred 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 SI P, 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 s ubstantial danger to public health, safety , welfare, or the environment is a violation of 7 Del. C. Chapter 60. Delaware’s SI P 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 SI P, and found at 40 CFR 52.420 (c). This was certified in a letter dated September 19, 2008. Inorder to address the 110(a)(2)(G) requirement relating to “adequat e contingency plans,” on March 10, 2010, DNREC submitted a certification of classification as a Priority I I I 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 SI P Elements Required Under sections 110(a)(1) and (2) for the 2006 24

- Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS).” With respect to the requirement that states have adequate contingency plans as part of their SI Ps, this guidance recommended that unless the state had monitored ambient values above a specific level, no contingency

plan would be necessary

.9

Inaccordance with the above cited guidance, the requirement for a State to submit an emergency episode plan is based on a priority region classification

. S tates with a 24

- hour PM 2.5 concentration above 140.4 μg/m 3 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 P riority I II and would not be required to adopt an emergency episod e plan for PM 2.5 . PM 2.5 monitors in the State show that PM 2.5 concentration levels for the past three years are below the 140.4 μg/m 3 threshold. (See Table 1). Therefore, in accordance with EPA guidance, Delaware has certified through a SI P revision that is has appropriate general emergency powers to address PM 2.5 – related episodes and that it is not specifically required to submit an emergency episode plan and contingency

measures for PM 2.5 at this time given monitored PM 2.5 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 ado pt any additional emergency

episode plan for PM 2.5 . Table 1. PM 2.5 Monitoring Date in μg/m 3 for the Past Three Years (98 th ) Percentile for the Year) for the State of Delaware Monitor 2006 2007 2008 Bellefonte 38 37.8 36.3 ML K 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, Cha pter 60, Title 7 “Conservation” to revise the SI P. These submissions also provide EPA with adequate assurances that Delaware will review and revise its SI P from time to time as may be necessary

to take account of revisions of such primary or secondar y NAA QS 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 P ollution, provides a legal platform for the various10

consultation procedures that have been developed between DNREC, the Delaware Department of Transportation (DEL DOT), and the Metropolitan Planning Organizations (MPOs). The MPOs provide the forum for cons ultation with local governments. Delaware’s MPOs are: (1) WI LM A PCO, Kent County MPO, and the Salisbur

y - Wicomoco MPO. Regional planning organizations provide the forum for inter

- state consultations. Additionally , consultations with Federal Land Manager s are alway s on going in accordance with EPA rules. All SI P 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 al so fulfills the section 121 consultation process

. Approved regulations in the Delaware SI P specify the organizations responsible for implementing and enforcing the plans. DNREC makes real time and historical air quality information available on its web s ite. All relevant SI Ps and plans to achieve the NAAQS contain public notification provisions related to air monitoring levels such as Ozone Action Day s, Air Quality Action Day s, and DNREC’s website. DNREC provides extended range air quality forecasts, wh ich 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 reduc e 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 e nforcement 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 SI P 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 SI P. 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 Poll ution. 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 . E PA 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 R egulation 1125 to include NOx as a precursor for ozone. Action on this PSD SI P revision will be taken at a later time, and consequently , element 110(a)(2)(J) as it pertains to the11

PSD permit program for the 1997 8

- hour ozone NAAQS will be addressed in this future action as well. 1 0 . Section 1 10(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. A s an example of the exercise of such authority and technical capability , Delaware subm itted SI P revisions on April 3, 2008 for the Attainment of the 1997 PM 2.5 NAAQS which included a base

ye ar inventory

and an attainment demonstration for the Delaware portion of the Philadelphia

Wilmington, PA

- NJ

- DE PM 2.5 Nonattainment Area, which containe d 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 SI P planning process through the Oz one Transport Commission (OTC) and theMid

Atlantic/Northeast Visibility Union (MANE

- VU) Regional Planning Organization (RPO). This PM 2.5 modeling performed by MANE

- VU was submitted as part of the State of Delaware’s PM 2.5 SI P 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 i t 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 pr ovided 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 c onsistent 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 rev iewing 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 paragraphs12

(b) and (c) under “Delaware” in Appendix A to 40 CFR part 70

— Approval Status of State and Lo cal Operating Permits Programs

. 1 2 . Section 110(a)(2)(M ) Delaware will continue to provide for consultation and participation by local political subdivisions affected by

the SI P pursuant to the public notice laws fo und in 7 Del .C, sections 6006 and 6010, and 29 Del.C. Chapters 1003, 10004, and 10115, as applicable. Furthermore, all Delaware SI P 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 analy sis of Delaware’s infrastructure submittals for the 1997 8

- hour ozone and PM 2.5 NAAQS , and the 2006 PM 2.5 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

. Itis recommended that a notice of final rulemaking be prepared approving Delaware’s infrastructure submittals for the 1997 8

- hour ozone and PM 2

. 5 NAAQS, and the 2006 PM 2

. 5 NAAQS.