ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ EPA - R03 - OAR - 2009 - 0804 ; FRL - ] Approval and Promulgation of Air Quality Implementation Plans; Delaware ; Amendment

to Electric Generating Unit Multi - Pollutant Regulation AGENCY : Environmental P rotection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State I mple mentation Plan (SI P) revision submitted by

the State of Delaware. The revision is an amendment to the Electric Generating Unit Multi
- Pollutant Regulation of Delaware’s Administrative Code , and it modifies the sulfur dioxide (SO 2 ) mass emissions limit associated with Conectiv Edge Moor Unit 5 beginning in calendar y ear 2009. This action is being taken under the Clean Air Act (CAA or the Act). DATES: Writte n comments must be received on or before [ insert date 30 day s from date of publication ]. ADDRESSES: Submit y our comments, identified by Docket I D Number EPA - R03 - OAR 2009 - 0804 by

one of the following methods: A. www.regulations.gov
. Follow the on
- line instructions for submitting comments. B. E
- mail: fernandez.cristina@epa.gov C. Mail: EPA - R03 - OAR - 2009 - 0804 , Cristina Fernandez, Office of Air Program Planni ng, Mailcode 3AP30 , U.S. Environmental Protection Agency , Region I II, 1650 Arch Street, Philadelphia, Pennsy lvania 19103. D. Hand Delivery : At the previously
- listed EPA Region I II address. Such deliveries are only2

accepted during the Docket ’ s normal hour s of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct y our comments to Docket I D No. EPA - R03 - OAR - 2009 - 0804 . EPA's policy is that all comments received will be included in the public docket wit hout change, and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business In formation (CBI ) or other information whose disclosure is restri cted by statute. Do not submit information that y ou consider to be CBIor otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov website is an “ anony mous access ” sy stem, which means EPA will not know y our identity or contact in formation unless y ou provide it in the body of y our comment. I f y ou send an e
- mail comment directl y to EPA without going through www.regulations.gov , y our e - mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. I f y ou submit an electronic comment, EPA recommends that y ou include y our name and other contact information in the body

of y our comment and with any disk or CD
- ROM y ou submit. I f EPA cannot read y our comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider y our comment. Electronic files should avoid the use of special characters, any

form of encry

ption, and be free of any

defects or viruses. Do cket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI

or other information whose disclosure is restricted by statute. Certain other ma terial, such as copy righted3

material, is not placed on the Internet and will be publicly available only

in hard copy

form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy

during normal busines s hours at the Air Protection Division, U.S. Environmental Protection Agency , Region I II, 1650 Arch Street, Philadelphia, Pennsy lvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources & Environmental Contro l, 89 Kings Highway , P.O. Box 1401, Dover, Delaware 19901. FOR FURTHER INFORMATION CONTACT : Irene Shandruk, (215) 814
- 2166, or by e mail at shandruk.irene@epa.gov
. SUPPLEMENTARY INFORMATION: On October 7, 2009, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SI P for an amendment to Regulation No. 1146

– Electric Generating Unit Multi
- Pollutant Regulation.

I. Background On November 16, 2006, DNR EC submitted a revision to the Delaware SI P. This SI P revision pertained to a new regulation, Regulation No. 1146

– Electric Generating Unit (EGU) Multi
Pollutant Regulation. The regulation was adopted in order to impose lower emissions limits of nitroge n oxides (NOx), SO 2 and mercury in order to help Delaware attain and maintain the national ambient air quality standards (NAAQS) for ozone and fine particulate matter (PM 2.5 ), as well as to assist Delaware in achieving the emissions reductions needed to su pport the State’s 8
- hour ozone reasonable further progress plan (RFP). EPA approved the SI P revision on August 28, 2008 (73 FR 50723).4

II. Summary of SIP Revision On October 7, 2009, EPA received a SI P revision to amend to Regulation No. 1146
. This SI P revision was the result of a settlement agreement between Conectiv Delmarva Generating, Inc. and DNREC in December 2008. Conectiv had filed an appeal challenging the regulation for their Edge Moor 5 facility . The emissions limit of 2,427 tons per y ear limited the facility from operating in extreme circumstances in the event that failure at other production units would require them to exceed that limit in order to supply the needed electricity . The limit of 4,600 tons per y ear was determined to be an ad equate limit after an analy sis of the facility ’s history of operation and the estimate of future operations using the low sulfur (0.5%) residual fuel to generate electricity

at the 446 megawatt oil
- fired steam generating unit. Currently , the facility oper ates at a 10% capacity factor. I f so required, the new emissions limit would allow the facility to operate at a 45% capacity factor. This amendment to Regulation No. 1146 is a reasonable compromise between Conectiv and DNREC, which prevented a potentia l overturning of the regulation. Analy sis supports that the increase in the SO 2 emissions limit for the Edg e Moor 5 facility will not lead to increased SO 2 emissions on an annual basis , but will enable the facility to operate at a higher capacity if in th e unusual circumstance it should be needed. Given that an increase in SO 2 emissions is not expected from what they

currently are at the facility , this revision will continue to help Delaware attain and maintain NAAQS fo r PM 2.5 .5

III. Proposed Action EP A is proposing to approve the Delaware SI P revision for the amendment to Regulation No. 1146

– Electric Generating Unit Multi
- Pollutant Regulation submitted on October 7, 2009. This revision pertains to a modification of the SO 2 emissions limit for the Con ectiv Edge Moor Unit 5 from 2,427 tons per y ear to 4,600 tons per y ear . EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
IV. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SI P submission that complies with the provisions of the Act and applicable Federal r egulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, i n reviewing SI P submissions, EPA’s role is to approve state choices, provided that they

meet the criteria of the Clean Air Act. Accordingly , this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements bey ond those imposed by state l aw. For that reason, this proposed action:

 is not a "significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) ;
 does not impose an information collection burden und er the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq . );

 is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq .) ;6

 does not contain an y unfunded mandate or significantly or uniquely

affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public L aw 104
- 4) ;
 d oes not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999 );

 is not an economically significant regulatory

action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

 is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

 i s not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

 does not provide EPA with the d iscretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).7

Inaddition, this proposed rul e , pertaining to Delaware’s amendment to Regulation 1146, the Electric Generating Unit Multi
- Pollutant Regulation, does not have tribal implications as specified by

Executive Order 13175 (65 FR 67249, November 9, 2000), because the SI P is not approved to a

pply in I ndian country

located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxid e, Ozone, Particulate matter, Sulfur oxides
. Authority: 42 U.S.C. 7401 et seq . December 17, 2009 /s/

___________________________ ____________________________ Dated: Shawn M. Garvin , Regional Administrator, Region I II.