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 Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 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 (SO2) mass emissions limit associated with Conectiv Edge Moor Unit 5 beginning in 

calendar year 2009. This action is being taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before [insert date 30 days from date of 

publication]. 

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR2009-0804 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 Planning, 

Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only
2

accepted during the Docket’s normal hours of operation, and special arrangements should be 

made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2009-0804. EPA's 

policy is that all comments received will be included in the public docket without 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 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA 

will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an e-mail comment directly to EPA without going through 

www.regulations.gov, your 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. If you submit 

an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free of any defects or viruses.

Docket: 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 material, such as copyrighted 
3

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 business hours at the Air Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of 

the State submittal are available at the Delaware Department of Natural Resources & 

Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by email 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 SIP for an 

amendment to Regulation No. 1146 – Electric Generating Unit Multi-Pollutant Regulation.

I. Background 

On November 16, 2006, DNREC submitted a revision to the Delaware SIP. This SIP revision 

pertained to a new regulation, Regulation No. 1146 – Electric Generating Unit (EGU) MultiPollutant Regulation. The regulation was adopted in order to impose lower emissions limits of 

nitrogen oxides (NOx), SO2 and mercury in order to help Delaware attain and maintain the 

national ambient air quality standards (NAAQS) for ozone and fine particulate matter (PM2.5), as 

well as to assist Delaware in achieving the emissions reductions needed to support the State’s 8-

hour ozone reasonable further progress plan (RFP). EPA approved the SIP revision on August 

28, 2008 (73 FR 50723).
4

II. Summary of SIP Revision

On October 7, 2009, EPA received a SIP revision to amend to Regulation No. 1146. This SIP 

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 year 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 year was determined to be an adequate limit after an analysis 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

operates at a 10% capacity factor. If 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 potential overturning of the regulation. Analysis supports that the 

increase in the SO2 emissions limit for the Edge Moor 5 facility will not lead to increased SO2

emissions on an annual basis, but will enable the facility to operate at a higher capacity if in the 

unusual circumstance it should be needed. Given that an increase in SO2 emissions is not 

expected from what they currently are at the facility, this revision will continue to help Delaware 

attain and maintain NAAQS for PM2.5.
5

III. Proposed Action

EPA is proposing to approve the Delaware SIP 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 SO2 emissions limit for the Conectiv Edge Moor Unit 5 

from 2,427 tons per year to 4,600 tons per year. 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 SIP submission that 

complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 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 beyond those imposed by state law. 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 under 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 any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 

104-4);

 does 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); 

 is 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 discretionary 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

In addition, this proposed rule, 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 SIP is not 

approved to apply in Indian 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 dioxide, Ozone, Particulate matter, 

Sulfur oxides. 

Authority: 42 U.S.C. 7401 et seq.

December 17, 2009 /s/

___________________________ ____________________________

Dated: Shawn M. Garvin,

 Regional Administrator,

Region III.