STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

OFFICE OF THE 

SECRETARY 

Mr. Shawn M. Garvin (3RAOO) 

Regional Administrator 

U. S. Environmental Protection Agency 

Region III 

1650 Arch Street 

Philadelphia, PA 19103-2029 

Dear~-

89 KINGS HIGHWAY 

DOVER. DELAWARE 19901 

October 12,2011 

PHONE: (302) 739-9000 

FAX: (302) 739-6242 

RECEIVED 

OCT 1 9 2011 

DiviSion Dlrcctor ,3APCrO) 

I am pleased to submit the enclosed revision to the State of Delaware's State Implementation 

Plan (SIP). The revision is to 7 DE Admin. Code 1125 - REQUIREMENTS FOR 

PRECONSTRUCTION REVIEW, Section 3.0 - Prevention of Significant Deterioration of Air 

Quality. The amendments to 1125 require permitting consideration of Greenhouse Gas (GHG) 

emitting sources beginning January 2, 2011, that emit or have the potential to emit 75,000 tons per 

year or 100,000 tons per year ofC02e. This revision is effective December 11,2010. 

The requirements of the CAA Section 11O(a)(2)(A) have been met through the normal 

public hearing process established by the State of Delaware with proper notification (30 days) prior 

to the convening of the public hearing. Attachments A and B are copies of affidavits as proof of 

proper notification. It is the position of the State of Delaware that all minimum requirements set 

forth in the 1990 Clean Air Act Amendments have been met. 

We look forward to continuing the cooperative effort between Delaware and EPA in this 

important work. As always, feel free to contact me or Ali Mirzakhalili, Director, Division of Air 

Quality, (302) 739-9402, if you have any questions concerning the enclosed documents. 

Enclosures 

cc: Aime Howell, wlo encl. 

Diana Esher, EPA wlencl. 

Ali Mirzakhalili 

S~ r 

~~i!(2:J Secretary 
1100 Air Quality Management Section 

1125 Requirements for Preconstruction Review 

12111/10 

1.0 General Provisions 

1.1 

1.2 

1.3 

1.4 

1.5 

1.6 

Requirements of this regulation are in addition to any other requirements of the State of 

Delaware Regulations Governing the Control of Air Pollution. 

Any stationary source which will impact an attainment area or an unclassifiable area as 

designated by. the U.S. Environmental Protection Agency (EPA) pursuant to Section 107 of 

the Clean Air Act Amendments of 1990 (CAA), is subject to the provisions of 3.0 of this 

regulation, Prevention of Significant Deterioration (PSD). 

Any stationary source which will impact a non-attainment area as designated by the EPA 

pursuant to Section 107 of the CAA is subject to 2.0 of this regulation, Emission Offset 

Provisions (EOP). 

A source may be subject to PSD for one pollutant and to EOP for another pollutant, or may 

affect both attainment or unclassifiable areas and a non-attainment area for the same 

pollutant. 

Any emission limitation represented by Lowest Achievable Emission Rate (LAER) may be 

imposed by the Department pursuant to regulations adopted under 2.0 of this regulation 

herein notwithstanding any emission limit specified elsewhere in 7 DE Admin. Code 1100 

Regulations Goveming the Control of Air Pollution. 

Any emission limitation represented by Best Available Control Technology (BACT) may be 

imposed by the Department pursuant to regulations adopted under 3.0 of this regulation 

herein notwithstanding any emission limit specified elsewhere in 7 DE Admin. Code 1100, 

Regulations Goveming the Control of Air Pollution. 

1.7 No stationary source shall be constructed unless the applicant can substantiate to the 

Department that the source will comply with any applicable emission limit or New Source 

Performance Standard or Emission Standard for a Hazardous Air Pollutant as set forth in 7 

.. _. ___ [)E AcI!'Iin.<:qde110QJ~e.9l[lllJions GOILE!llJll19thE! CQn.troLQf Air Pollution. __ 

1.8 Any stationary source that implements, for the purpose of gaining relief from 3.0 of this 

regulation, by any physical or operational limitation on the capacity of the source to emit a 

pollutant, including (but not limited to) air pollution control equipment and restrictions on 

hours of operation or on the type or amount of material combusted, stored, or processed, 

shall be treated as part of its design and the limitation or the effect it would have on 

emissions is enforceable, not Withstanding any emission limit specified elsewhere in 7 DE 

Admin. Code 1100 Regulations Governing the Control of Air Pollution. If a source petitions 

the Department for relief from any resulting limitation described above, the source is subject 

to review under 2.0 and 3.0 of this regulation as though construction had not yet commenced 

on the source or modification. 

1.9 Definitions - For the purposes of this regulation 

"Actual Emissions" means the actual rate of emissions of a pollutant from an emission 

unit, as determined in accordance with the three subparagraphs below. 

In general, actual emissions as of a particular date shall equal the average rate, in 

tons per year, at which the unit actually emitted the pollutant during a two-year period 

which precedes the particular date and which is representative of normal source 

operation. The Department shall allow the use of a .different time period upon a 

determination that it is more representative of normal source operation. Actual 

emissions shall be calculated using the unit's actual operating hours, production 
rates, and types of materials processed, stored, or combusted during the selected 

time period. 

• The Department may presume that source-specific allowable emissions for the unit 

are equivalent to the actual emissions of the unit. 

For any emissions unit, which has not begun normal operations on the particular 

date, actual emissions shall equal the potential to emit of the unit on that date. 

"Allowable Emissions" means the emissions rate of a stationary source calculated 

using the maximum rated capacity of the source (unless the source is subject to 

enforceable limits, which restrict the operating rate, or hours of operation, or both) and 

the most stringent of the following: 

The applicable standards 

as set forth in 7 DE Admin. Code 1120 and 1121; 

Other applicable Delaware State Implementation Plan emissions limitations, 

including those with a future compliance date; or 

The emissions rate specified as an enforceable permit condition, including those 

with a future compliance date. 

"Baseline Area" means any intrastate area (and every part thereof) designated as 

attainment or unclassifiable in which the major source or major modification establishing 

the baseline date would construct or would have an air quality impact equal to or greater 

than one !-Ig/m3 (annual average) of the pollutant for which the baseline date is 

established. 

• Area redesignations cannot intersect or be smaller than the area of impact of any 

major stationary source or major modification which: 

Establishes a baseline date, or 

Is subject to this regulation. 

"Baseline Concentration" means that ambient concentration level which exists in the 

baseline area at the time of the applicable baseline date. A baseline concentration is 

determined for each pollutant for which a baseline date is established and shall include: _ .. -------------- --- ------ - ------------

The actual emissions representative of sources in existence on the applicable 

baseline date, except as listed under Exceptions below. 

The allowable emissions of major stationary sources which commenced construction 

before January 6, 1975, but were not in operation by the applicable baseline date. 

Exceptions: The following will not be included in the baseline concentration and will 

affect the applicable maximum allowable increase or increases: 

• Actual emissions from any major stationary source on which construction 

commenced after January 6, 1975; and 

Actual emissions increases and decreases at any stationary source occurring 

after the baseline date. 

"Baseline Date" 

Baseline Date means the earliest date after August 7, 1977, on which the first 

complete application is submitted by a major stationary source or major 

modification subject to the requirements of 3.0 of this regulation. 

Baseline date means the earliest date after August 7, 1977, but before the 

effective date of this regulation, on which the first complete application by a major 

stationary source or major modification which would have been subject to the 
requirements of 3.0 of this regulation if application were submitted after the 

effective date of this regulation. 

The baseline date is established for each pollutant for which increments or other 

equivalent measures have been established if: 

The area in which the proposed source or modification would construct is 

deSignated as attainment or unclassifiable for the pollutant on the date of its 

complete application under 1.0 of this regulation; and 

• In the case of a major stationary source, the pollutant would be emitted in 

significant amounts, or, in the case of a major modification, there would be a 

significant net emissions increase of the pollutant 

"Begin Actual Construction" means, in general, initiation of physical on-site 

construction activities on an emissions unit which are of a permanent nature. Such 

activities include, but are not limited to, installation of building supports and foundations, 

laying underground pipework and construction of permanent storage structures. With 

respect to a change in method of operations, this term refers to those on-site activities 

other than preparatory activities which mark the initiation of the change. 

"Best Available Control Technology (BACT)" means an emissions limitation (including 

a visible emission standard) based on the maximum degree of reduction for each 

pollutant subject to regulation under CM which would be emitted from any proposed 

major stationary source or major modification which the Department, on a case-by-case 

basis, takes into account energy, environmental, and economic impacts and other costs, 

determines is achievable for such source or modification through application of 

production processes or available methods, systems, and techniques, including fuel 

cleaning or treatment or innovative fuel combustion techniques for control of such 

pollutant In no event shall application of best available control technology result in 

emissions of any pollutant which would exceed the emissions allowed by any applicable 

standard under 7 DE Admin. Code 1120 and 1121. If the Department determines that 

technological or economic limitations on the application of measurement methodology to 

a particular emissions unit would make the imposition of an emiss,ions standard 

infeasible. a design, equipment, work practice, operational standard, or combination 

thereof, may be prescribed instead to satisfy the requirement for the application of best 

available control technology. Such standard shall, to the degree possible, set forth the 

emissions redUction achievable -b}'-lmplehfentaflon of-such deSign, equlpmerit~ w~-­

practice or operation, and shall provide for compliance by means which achieve 

equivalent results. 

"Building, Structure, Facility, or Installation" means all of the pollutant-emitting 

activities which 'belong to the same industrial grouping, are located on one or more 

contiguous or adjacent properties, and are under the control of the same person (or 

persons under common control). Pollutant-emitting activities shall be considered as part 

of the same industrial grouping if they belong to the same 

"Major Group" (i.e., which have the same first two digit code) as described in the 

Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement 

(U.S. Govemment Printing Office stock numbers 4101-0066 and 003-005-00176-0, 

respectively). For purposes of 2.0 of this regulation, this definition shall apply only to the 

"Building, Structure or Facility". 

"Commence" as applied to construction of a major stationary source or major 

modification means that the owner or operator has all necessary preconstruction 

approvals or permits and either has: 

Begun, or caused to begin, a continuous program of actual on-site construction 

of the source, to be completed within a reasonable time; or 
Name 

Entered into binding agreements or contractual obligations, which cannot be 

canceled or modified without substantial loss to the owner or operator, to 

undertake a program of actual construction of the source to be completed within 

a reasonable time. 

"Complete" means, in reference to an application for a permit, that the application 

contains all of the information necessary for processing the application. 

"Construction" means any physical change or change in the method of operation 

(including fabrication, erection, installation, demolition or modification of an emissions 

unit) which would result in a change in actual emissions. 

"Emissions Unit" means any part of a stationary source which emits or would have the 

potential to emit any pollutant subject to regulation under the CM. 

"Enforceable" means any standard, requirement, limitation or condition established by 

an applicable federal or state regulation or specified in a permit issued or order entered 

thereunder, or contained in a SIP approved by the Administrator of the U.S. 

Environmental Protection Agency (EPA), and which can be enforced by the Department 

and the Administrator of the EPA. 

"Fugitive Emissions" means those emissions which could not reasonably pass through 

a stack, chimney, vent, or other functionally equivalent opening. 

"Fixed capital cost" means the capital needed to provide all the depreciable 

components. 

"Greenhouse Gases (GHG)" means an air pollutant composed of an aggregate group of 

six greenhouse gases; carbon dioxide (C02), nitrous oxide (N20), methane (CH.), 

hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF6). For the 

purposes of this regulation, the term C02equivaient emissions (C02e) shall represent an 

amount of GHG emitted, and shall be computed as follows; 

• Multiply the mass amount of emissions (tpy), for each of the six greenhouse 

gases in the pollutant GHG by the gases associated global warming potential as 

shown in Table 1-1 of this regulation. 

Sum the resultant value for each gas to compute a tpy C02e 

Table 1-1 

GLOBAL WARMING POTENTIALS 

CAS No. Chemical formula Global warming potential (100 yr.) 

Carbon dioxide 124-38-9 CO2 1 

Methane 74-82-8 CH. 21 

Nitrous oxide 10024-97-2 N20 310 

HFC-23 75--46-7 CHF3 11,700 

HFC-32 75-10-5 CH2F2 650 

HFC--41 593-53-3 CH3F 150 

HFC-125 354-33-6 C2HF5 2,800 

HFC-134 359-35-3 C2H2F. 1,000 

HFC-134a 811-97-2 CH2FCF3 1,300 

HFC-143 430-86-0 C2H3F3 300 
HFC-143a 

HFC-152 

HFC-152a 

HFC-161 

HFC-227ea 

HFC-236cb 

HFC-236ea 

HFC-236fa 

HFC-245ca 

HFC-245fa 

HFC-365mfc 

HFC-43-10mee 

Sulfur hexafluoride 

PFC-14 

(Perfluoromethane) 

420-46-2 

624-72--6 

75-37--6 

353-36--6 

431-89-0 

677-56-5 

431--63-0 

690-39-1 

679-86-7 

460-73-1 

406-58--6 

138495-42-8 

2551--62-4 

75-73-0 

C2H3F3 

CH2FCH2F 

CH3CHF2 

CH3CH2F 

C3HF7 

CH2FCF2CF3 

CHF2CHFCF3 

C3H2F. 

C3H3FS 

CHF2CH2CF3 

CH3CF2CH2CF3 

CF3CFHCFHCF2CF3 

SF. 

CF4 

PFC-116 76-16-4 C2F. 

(Perfluoroethane) 

PFC-218 76-19-7 C3F8 

(perfluoropropane) 

Perfluorocyclopropane 931-91-9 

PFC-3-1-10 

(Perfluorobutane) 

355-25-9 

Perfluorocyclobutane 115-25-3 

PFC-4-1-12 

(Perfluoropentane) 

PFC--5-1-14 

(Perfluorohexane) 

678-26-2 

355-42-0 

3,800 

53 

140 

12 

2,900 

1,340 

1,370 

6,300 

560 

1,030 

794 

1,300 

23,900 

6,500 

9,200 

7,000 

17,340 

7,000 

8,700 . __ ... -----

7,500 

7,400 

PFC-9-1-18 306-94-5 C10F 18 7,500 

- --- - ----------

"Innovative Control Technology" means any system of air pollution control that has not 

been adequately demonstrated in practice, but would have a substantial likelihood of 

achieving greater continuous emissions reduction than any control system in current 

practice or of achieving at least comparable reductions at lower cost in terms of energy 

economics, or non-air quality environmental impacts. 

"Lowest Achievable Emission Rate" (LAER) means the same as defined in 7 DE 

Admin. Code 1101, "Definitions and Administrative Principles". 

"Major Modification" 

• Major modification means any physical change or change in the method of operation 

of a major stationary source that would result in a significant net emissions increase 

of any pollutant subject to regulation under the CAA. 
Any net emissions increase that is significant for either volatile organic compounds or 

nitrogen oxides shall be considered significant for ozone. 

A physical change or change in the method of operation shall not include: 

Routine maintenance, repair and replacement; 

Use of an alternative fuel or raw material by reason of an order under sections 

2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 

(or any superseding legislation) or by reason of a natural gas curtailment plan 

pursuant to the Federal Power Act; 

Use of an alternative fuel by reason of an order or rule under Section 125 of the 

CAA; 

Use of an alternative fuel at a steam-generating unit to the extent that the fuel is 

generated from municipal solid waste; 

Use of an alternative fuel or raw material by a stationary source which: 

• The source was capable of accommodating before January 6, 1975; unless 

such change would be prohibited under any previously issued permit 

condition which was established after January 6, 1975; 

The source is approved to use under any previously issued PSD permit or 

under 3.0 of this regulation; 

• An increase in the hours of operation or in the production rate, unless such 

change would be prohibited under any previously issued permit condition which 

was established after January 6, 1975; 

Any change in ownership at a stationary source. 

"Major Stationary Source" - See 2.2 and 3.1 of this regulation. 

"Necessary Preconstruction Approvals or Permits" means those permits or 

approvals required under Delaware air quality control laws and regulations. 

"Net Emissions Increase' 

Net emissions increase means the amount by which the sum of the following ~<!xceeds zero: ~ u ~ ~---~ ~ ~---------~-~. 

• Any increase in actual emissions from a particular physical change or change 

in method of operation at a stationary source; and 

Any other increases and decreases in actual emissions at the source that are 

contemporaneous with the particular change and are otherwise creditable. 

An increase or decrease in actual emissions is contemporaneous with the 

increase from the particular change only if it occurs between: 

The date five years before construction on the particular change 

commences; and 

The date that the increase from the particular change occurs. 

An increase or decrease in actual emissions is creditable only if the Department 

has not relied on it in issuing a permit for the source under this regulation, which 

permit is in effect when the increase in actual emissions from the particular 

change occurs. 

An increase or decrease in actual emissions of sulfur dioxide or particulate 

matter which occurs before the applicable baseline date is creditable only if it is 

required to be considered in calculating the amount of maximum allowable 

increases remaining available. 
An increase in actual emissions is creditable only to the extent that the new level 

of actual emissions exceeds the old level. 

A decrease in actual emissions is creditable only to the extent that: 

The old level of actual emissions or the old level of allowable emissions, 

whichever is lower, exceeds the new level of actual emissions; 

• It is enforceable at and after the time that actual construction on the 

particular change begins; and 

It has approximately the same qualitative significance for public health and 

welfare as that attributed to the increase from the particular change. 

It has not been adopted by the Department as a required reduction to be 

made part of the SIP or it is not required by the Department pursuant to an 

existing requirement of the SIP. 

An increase that results from a physical change at a source occurs when the 

emissions unit on which construction occurred becomes operational and begins 

to emit a particular pollutant. Any replacement unit that requires shakedown 

becomes operational only after a reasonable shakedown period, not to exceed 

180 days. 

"Ozone Transport Region" means the region designated by section 184 of the federal 

Clean Air Act and comprised of the states of Connecticut, Delaware, Maine, Maryland, 

Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, 

Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of 

Columbia and northem Virginia. 

"Permanent" (Reductions) means that the actual emission reductions submitted to the 

Department for certification have been incorporated in a permit or a permit condition or, in 

the case of a shutdown, the permit to operate for the emission unit or units has been 

voided. 

"Potential to Emit" means the maximum capacity of a stationary source to emit a 

pollutant under its physical and operational design. Any physical or operational limitation 

on the capacity of the source to emit a pollutant, including air pollution control equipment 

and restrictions on hours of operation or on the type or amount of material combusted, 

·storecCor processoo.shall beTreafedas part of its ~ desigri ifthe limitation or the effect it 

would have on emissions is enforceable. Secondary emissions do not count in 

determining the potential to emit of a stationary source. 

"Quantifiable" (Reductions) means that the amount, rate and characteristics of emission 

reductions can be determined by methods that are considered reliable by the Department 

and the Administrator of the EPA. 

"Real" (Reductions) means reductions in actual emissions released into the atmosphere. 

"Reconstruction" will be presumed to have taken place where the fixed capital cost of 

the new components exceeds 50% of the fixed capital cost of a comparable entirely new 

stationary source. Any final decision as to whether reconstruction has occurred shall be 

made in accordance with the provisions of 40 CFR 60.15(f)(1)~(3). A reconstructed 

stationary source will be treated as a new stationary source for purposes of this 

regulation. In determining lowest achievable emission rate (LAER) for a reconstructed 

stationary source, the provisions of 40 CFR 60.15(f)(4) shall be taken into account in 

assessing whether a new source performance standard is applicable to such stationary 

source. 

"Secondary Emissions" means emissions which would occur as a result of the 

construction or operation of a major stationary source or major modification, but do not 

come from the major stationary source or major modification itself. For the purpose of this 
regulation, secondary emissions must be specific, well defined, quantifiable, and impact 

the same general area as the stationary source or modification which causes the 

secondary emissions. Secondary emissions may include, but are not limited to: 

Emissions from ships, trains, or other vehicles coming to or from the new or 

modified stationary source; and 

Emissions from any offsite support facility or facilities which would not otherwise 

be constructed or increase its emissions as a result of the construction or 

operation of the major stationary source or major modification. 

"Significant" 

(a) "Significant" means, in reference to a net emissions increase or the potential of a 

source to emit any of the following pollutants, a rate of emissions that would equal or 

exceed any of the following rates: 

Pollutant and Emissions Rate 

Carbon monoxide: 100 tons per year (TPY) 

Sulfur dioxide: 40 TPY 

Particulate matter: 25 TPY 

Ozone: 

New Castle and Kent Counties - 25 TPY of either 

volatile organic compounds or nitrogen oxides" 

Sussex County - 40 TPY of either 

volatile organic compounds or nitrogen oxides" 

Lead: 0.6 TPY 

Asbestos: 0.007 TPY 

Beryllium: 0.0004 TPY 

Mercury: 0.1 TPY 

. VfriYlcFilorid"e:·HPY .-

Fluorides: 3 TPY 

Sulfuric acid mist: 7 TPY 

Hydrogen sulfide (H2S): 10 TPY 

Total reduced sulfur (including H2S): 10 TPY 

Reduced sulfur compounds (including H2S): 10 TPY 

PMlO particulate: 15 TPY 

"Note: Increases in net emissions shall not exceed 25 tons per year in New 

Castle and Kent Counties, or 40 tons per year in Sussex, when aggregated with 

all other net increases in emissions from the source over any period of five 

consecutive calendar years which includes the calendar year in which such 

increases occur. No part of the five consecutive years shall extend before 

January 1, 1991. 

(b) "Significant' means, in reference to a net emissions increase or the potential of a source to 

emit a pollutant subject to regulation under the CM that (a) does not list, any emissions 

rate. 
(c) Notwithstanding (a), "significant" means any emissions rate or any net emissions increase 

associated with a major stationary source or major modification, which would construct 

within ten kilometers of a Class I area, and have an impact on such area equal to or 

greater than one !lg/m3, (24-hour average). 

"Stationary Source" means any building, structure, facility or installation which emits or 

may emit any air pollutant subject to regulation under the CAA. 

"Subject to Regulation" means, for any air pollutant, that the pollutant is subject to 

either a provision in the Clean Air Act, or a nationally-applicable regulation codified by 

EPA, that requires actual control of the quantity of emissions of that pollutant, and that 

such a control requirement has taken effect and is operative to control, limit or restrict the 

quantity of emissions of that pollutant released from the regulated activity. Except that 

GHG shall not be subject to regulation except as follows: 

(a) Beginning January 2, 2011, the pollutant GHG shall be subject to regulation 

if: 

The stationary source is a new major stationary source for any pollutant 

subject to regulation under the CAA that is not GHG and also will emit or 

will have the potential to emit 75,000 tpy C02e or more; or 

The stationary source is an existing major stationary source for any 

pollutant subject to regulation under the CAA that is not GHG and also will 

have an emissions increase of that pollutant and an emissions increase of 

75,000 tpy C02e or more: and, in addition, 

(b) Beginning July 1, 2011, the pollutant GHG also shall be subject to 

regulation: 

At a new stationary source that will emit or have the potential to emit 

100,000 tpy C02e: or 

• At an existing stationary source that emits or has the potential to emit 

100,000 tpy C02e when such stationary source undertakes a physical 

change or change in the method of operation that will result in an 

emissions increase of 75,000 tpy C02e or more. 

The term emissions increase, as used above, shall mean that both a significant 

emissions Increase and a slgnfficanfiief emTsSfonslrlcreaseoccuTu

-

"Surplus" (Reductions) means actual emission reductions below the baseline (see 2.5.2 

of this regulation) not required by regulations or proposed regulations, and not used by 

the source to meet any state or federal regulatory requirements. 

14 DE Reg. 579 (12/01/10) 

0811112005 

2.0 Emission Offset Provisions (EOP) 

2.1 Applicability - The provisions of 2.0 of this regulation shall apply to any person responsible for 

any proposed new major stationary source or any proposed major modification. 

2.2 For purposes of 2.0 of this regulation, "major stationary source" means: 

2.2.1 Any stationary source of air pollutants which emits, or has the potential to emit, 100 tons 

per year or more of any pollutant subject to regulation under the Clean Air Act, except for 

either volatile organic compound or nitrogen oxides, or 

2.2.2 Any stationary source of air pollutants which emits, or has the potential to emit either 

volatile organic compounds or nitrogen oxides in the following amounts: 
2.2.2.1 For areas in ozone attainment, ozone marginal, or ozone moderate 

nonattainment areas and located in the ozone transport region - 50 tons per year 

volatile organic compounds or 100 tons per year of oxides of nitrogen, or 

2.2.2.2 For serious ozone nonattainment areas - 50 tons per year of either volatile 

organic compounds or oxides of nitrogen, or 

2.2.2.3 For severe ozone nonattainment areas - 25 tons per year of either volatile 

organic compounds or oxides of nitrogen, or 

2.2.2.4 For extreme ozone nonattainment areas - 10 tons per year of either volatile 

organic compounds or oxides of nitrogen. 

2.2.3 Any physical change that would occur at a stationary source not qualifying under 2.2.1 or 

2.2.2 of this regulation as a major stationary source, if the change would constitute a 

major stationary source by itself, or 

2.2.4 A major stationary source that is major for either volatile organic compounds or nitrogen 

oxides shall be considered major for ozone, and "installation" means an identifiable piece 

of process, combustion or incineration equipment. 

2.3 For the purposes of 2.4 and 2.5 of this regulation, emission units located in areas designated 

as attainment or marginal nonattainment areas that are located within the ozone transport 

region shall be considered located in a moderate ozone nonattainment area. 

2.4 Conditions for Approval - No person subject to the provisions of 2.1 of this regulation shall 

install a major stationary source of volatile organic compounds or of nitrogen oxides, or make 

a major modification to a source which will cause or contribute to any violation of the national 

ambient air quality standards for ozone within an area of non-attainment for that pollutant 

unless the fOllowing conditions are met: 

2.4.1 The new major source or the major modification is controlled by the application of lowest 

achievable emission rate (LAER) control technology. 

2.4.2 All existing sources in the State owned or controlled by the owner of the proposed new or 

modified source are in compliance with the applicable local, State and federal regulations 

or are in compliance with a consent order specifying a schedule and timetable for 

compliance. 

---- -~··~."1j-:3--,trenewllrmudifie"dsource rnustsatisfythe following offset requirements:-

2.4.3.1 The ratio of total actual emissions reductions of volatile organic compounds or 

nitrogen oxides to total allowable increased emissions of volatile organic 

compounds or nitrogen oxides shall be: 

2.4.3.1.1 For moderate ozone nonattainment areas, 1.15 to 1, or 

2.4.3.1.2 For serious ozone nonattainment areas, 1.2 to 1, or 

2.4.3.1.3 For severe ozone nonattainment areas, 1.3 to 1, or 

2.4.3.1.4 For extreme ozone nonattainment areas, 1.5 to 1. 

2.4.3.2 All offsets shall be federally enforceable at the time of application to construct 

and shall be in effect by the time the new or modified source commences 

operation. 

2.4.4 The application for construction permit pursuant to 7 DE Admin. Code 1102 shall include 

an analysis of alternative sites, sizes, production processes and environmental control 

techniques for such proposed source which demonstrates that benefits of the proposed 

source significantly outweigh the environmental and social costs imposed as a result of 

its location, construction, or modification. 
2.4.5 Public participation for the construction permit shall be pursuant to 12.3 or 12.4 and 12.5 

of 7 DE Admin. Code 1102. 

2.5 Criteria for Emission Reductions Used as Offsets 

2.5.1 All emission reductions claimed as offset credits shall be real, surplus, permanent, 

quantifiable, and federally enforceable; 

2.5.2 The baseline for determining credit for emissions reductions shall be the lower of actual 

or allowable emissions. The offset credit shall only be allowed for emission reductions 

made below the baseline; 

2.5.3 Emission reductions claimed as offsets shall have occurred on or after January 1,1991; 

2.5.4 Credit for an emission reduction may be claimed for use as an offset to the extent that the 

Department has not relied on it in issuing any permit under this regulation and has not 

relied on it for demonstration of attainment or reasonable further progress; 

2.5.5 Emission reductions shall not be used as offsets in an area with a higher nonattainment 

classification than the one in which they were generated. 

2.5.6 Emission reductions claimed as offsets by a source must be generated from within the 

same nonattainment area or from any other area that contributes to a violation of the 

ozone National Ambient Air Quality Standard in the non attainment area which the source 

is located. 

2.6 Emission reductions generated in a state other than Delaware and which are placed in the 

emissions bank established pursuant to 7 DE Admin. Code 1134 may be used as offsets 

provided they are federally enforceable and meet, at a minimum, all the provisions of 7 DE 

Admin. Code 1134 and 2.5.5, and 2.5.6 of this regulation. 

08/11/2005 

3.0 Prevention of Significant Deterioration of Air Quality 

3.1 Definitions - For the purposes of 3.0 of this regulation: 

"Major Stationary Source" means: 

Any of tI!e..f9llewiRlrstaoonaF)· sauFOOS of air-pollutants wl1iel1 €mits-or-nas-the poteA 

tial to emit, 100 tons per year or more of any pollutant subject to regulation under the 

CAA: Fossil fuel-fired steam electric plants of more than 250 million British thermal 

units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, 

portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable 

of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid 

plants, petroleum refineries, lime plants, phosphate rock processing plants, coke 

oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary 

lead smelters, fuel conversion plants, sintering plants, secondary metal production 

plants, chemical process plants, fossil fuel boilers (or combinations thereof) totaling 

more than 250 million British thermal units per hour heat input, petroleum storage 

and transfer units with a total storage capacity exceeding 300,000 barrels, taconite 

ore processing plants, glass fiber processing plants, and charcoal production plants; 

• Notwithstanding the stationary source size specified in the above paragraph, any stationary source which emits, or has the potential to emit, 250 tons per year or more of 

any air pollutant subject to regulation under the CAA; or 

• Any physical change that would occur at a stationary source not otherwise qualifying 

under the preceding paragraph as a major stationary source, if the change would 

constitute a major stationary source by itself. 
A major stationary source that is major for volatile organic compounds or nitrogen oxides 

shall be considered major for ozone. 

3.2 Ambient Air Increments. In areas designated as Class I, II or III, increases in pollutant 

concentration over the baseline concentration shall be limited to the following: 

Maximum allowable increase 

(Micrograms per cubic meter) 

Class I 

Pollutant 

Total suspended particulates: 

Annual geometric mean 

24-hour maximum 

Sulfur dioxide: 

Annual arithmetic mean 

24-hour maximum 

Three-hour maximum 

Class" 

Pollutant 

Total suspended particulates: 

Annual geometric mean 

24-hour maximum 

Sulfur dioxide: 

Annual arithmetic mean 

24-hour maximum 

Three-hour maximum 

5 

10 

2 

5 

25 

19 

37 

20 

91 

512 
Class III 

Total suspended particulates: 

Annual geometric mean 37 

24-hour maximum 75 

Sulfur dioxide: 

Annual arithmetic mean 40 

24-hour maximum 182 

Three-hour maximum 700 

For any period other than an annual period, the applicable maximum allowable increase may 

be exceeded during one such period per year at anyone location. 

3.3 Ambient Air Ceilings. No concentration of a pollutant shall exceed: 

3.3.1 The concentration permitted under the national secondary ambient air quality standard, 

or 

3.3.2 The concentration permitted under the national primary ambient air quality standard, 

whichever concentration is lowest for the pollutant for a period of exposure. 

3.4 Restrictions on Area Classification. 

3.4.1 All Areas in the State of Delaware are designated Class II, but may be redesignated as 

provided in 40 CFR 52.51 (g) . ...• ---.. ~-...•. ---~ 

3.4.2 The following areas may be redesignated only as Class I: 

3.4.2.1 Bombay Hook National Wildlife Refuge; and 

3.4.2.2 A national park or national wilderness area established after August 7, 1977 

which exceeds 10,000 acres in size. 

3.5 Exclusions from Increment Consumption 

3.5.1 Upon written request of the governor, made after notice and opportunity for at least one 

public hearing to be held in accordance with procedures established by the State of 

Delaware, the Department shall exclude the following concentrations in determining 

compliance with a maximum allowable increase: 

3.5.1.1 

3.5.1.2 

Concentrations attributable to the increase in emissions from stationary sourees 

which have converted from the use of petroleum products, natural gas, or both by 

reason of an order in effect under sections 2(a) and 2(b) of the Energy Supply 

and Environmental Coordination Act of 1974 (or any superseding legislation) 

over the emissions from such sources before the effective date of such an order; 

Concentrations attributable to the increase in emissions from sources which have 

converted from using natural gas by reason of a natural gas curtailment plan in 

effect pursuant to the Federal Power Act over the emissions from such sources 

before the effective date of such plan; 
• 

3.5.1.3 Concentrations of particulate matter attributable to the increase in emissions from 

construction or other temporary emission-related activities of new or modified 

sources; 

3.5.2 No exclusion of such concentrations shall apply more than five years after the effective 

date of the order to which 3.5.1.1 of this regulation refers or the plan to which 3.5.1.2 of 

this regulation refers, whichever is applicable. If both such order and plan are applicable, 

no such exclusion shall apply more than five years after the later of such effective dates. 

3.6 Stack Heights 

The provisions of 7 DE Admin Code 1127 - STACK HEIGHTS, are applicable to 3.6 of 

this regulation. 

3.7 Review of Major Stationary Sources and Major Modifications - Source Applicability and 

Exemptions. 

3.7.1 No stationary source or modification to which the requirements of 3.8 through 3.15 of this 

regulation apply shall begin actual construction without a permit which states that the 

stationary source or modification would meet those requirements. The Department has 

authority to issue any such permit. 

3.7.2 The requirements of 3.8 through 3.15 of this regulation shall apply to any major stationary 

source and any major modification with respect to each pollutant subject to regulation 

under the CM that it would emit, except as 3.0 of this regulation otherwise provides. 

3.7.3 The requirements of 3.8 through 3.15 of this regulation apply only to any major stationary 

source or major modification that would be constructed in an area designated as 

attainment or unclassifiable. 

3.7.4 The requirements of 3.8 through 3.15 of this regulation shall not apply to a particular 

major stationary source or major modification, if: 

3.7.4.1 The source or modification would be a nonprofit health or nonprofit educational 

institution, or a major modification would occur at such an institution, and the 

governor requests that it be exempt from those requirements; or 

3.7.4.2 The source or modification would be a major stationary source or major 

modification only if fugitive emissions, to the extent quantifiable, are considered 

In calculating the potential to el'i'litOfthe stationary source or modification a'~n"'dHt"'h"'e----­

source does not belong to any of the following categories: 

3.7.4.2.1 Coal cleaning plants (with thermal dryers); 

3.7.4.2.2 

3.7.4.2.3 

3.7.4.2.4 

3.7.4.2.5 

3.7.4.2.6 

3.7.4.2.7 

3.7.4.2.8 

Kraft pulp mills; 

Portland cement plants; 

Primary zinc smelters; 

Iron and steel mills; 

Primary aluminum ore reduction plants; 

Primary copper smelters; 

MuniCipal incinerators capable of charging more than 250 tons of refuse per 

day; 

3.7.4.2.9 Hydrofluoric, sulfuric, or nitric acid plants; 

3.7.4.2.10 Petroleum refineries; 

3.7.4.2.11 Lime plants; 

3.7.4.2.12 Phosphate rock processing plants; 
3.7.4.2.13 Coke oven batteries; 

3.7.4.2.14 Sulfur recovery plants; 

3.7.4.2.15 Carbon black plants (furnace process); 

3.7.4.2.16 Primary lead smelters; 

3.7.4.2.17 Fuel conversion plants; 

3.7.4.2.18 Sintering plants; 

3.7.4.2.19 Secondary metal production plants; 

3.7.4.2.20 Chemical process plants; 

3.7.4.2.21 Fossil-fuel boilers (or combination thereof) totaling more than 250 million 

British thermal units per hour heat input: 

3.7.4.2.22 Petroleum storage and transfer units with a total storage capacity exceeding 

300,000 barrels; 

3.7.4.2.23 Taconite ore processing plants; 

3.7.4.2.24 Glass fiber processing plants; 

3.7.4.2.25 Charcoal production plants; 

3.7.4.2.26 Fossil fuel-fired steam electric plants of more than 250 million British thermal 

units per hour heat input; 

3.7.4.2.27 Any other stationary source category which, as of August 7, 1980, is being 

regulated under section 111 or 112 of the CM; or 

3.7.4.3 The source is a portable stationary source which has previously received a 

permit under 3.0 of this regulation, and, 

3.7.4.3.1 The owner or operator proposal to relocate the source and emissions of the 

source at the new location would be temporary; and 

3.7.4.3.2 The emissions from the source would not exceed its allowable emissions; 

and 

-··-··-·--------33-:T.7:4:3c3-i'he<lmissions-irom-tlie SOUice would impact 110 Class I alea alld 110 alea 

where an applicable increment is known to be violated; and 

3.7.4.3.4 Reasonable notice is given to the Department prior to the relocation 

identifying the proposed new location and the probable duration of operation 

at the new location. Such notice shall be given to the Department not less 

than 10 days in advance of the proposed relocation unless a different time 

duration is previously approved by the Department. 

3.7.5 The requirements of 3.8 through 3.15 of this regulation shall not apply to a major 

stationary source or major modification with respect to a particular pollutant if the owner 

or operator demonstrates that, as to that pollutant, the source or modification is located in 

an area designated as non-attainment. 

3.7.6 The requirements of 3.9, 3.11, and 3.13 of this regulation shall not apply to a major 

stationary source or major modification with respect to a particular pollutant, if the 

allowable emissions of that pollutant from the source, or the net emissions increase of 

that pollutant from the modification: 

3.7.6.1 Would impact no Class I area and no area where an applicable increment is 

known to be violated, and 

3.7.6.2 Would be temporary. 
3.7.7 . The Department may exempt a stationary source or modification from the requirements 

of 3.11 of this regulation with respect to monitoring for a particular pollutant if: 

3.7.7.1 The emissions increase of the pollutant from the new source or the net emissions 

increase of the pollutant from the modification would cause, in any area, air 

quality impacts less than the following amounts: 

Carbon monoxide: 575 ug/m3

, eight-hour average; 

Nitrogen dioxide: 14 ug/m3

, annual average; 

Total suspended particulate: 10 ug/m3

, 24-hour average; 

Sulfur dioxide: 13 ug/m3

, 24-hour average; 

Ozone: (See Note 1) 

Lead: 0.1 ug/m3

, 24-hour average; 

Mercury: 0.25 ug/m3

, 24-hour average; 

Beryllium: 0.0005 ug/m3

, 24-hour average; 

Fluorides: 0.25 ug/m3

, 24-hour average; 

Vinyl chloride: 15 ug/m3

, 24-hour average; 

Total reduced sulfur: 10 ug/m3

, one-hour average; 

Hydrogen sulfide: 0.04 ug/m3

, one-hour average; 

Reduced sulfur compounds: 10 ug/m3

, one-hour average; 

PMlO particulate: 10 ug/m3

, 24-hour average 

[Note 1: No de minimus air quality level is provided for ozone. However, any 

net increase of 100 tons per year or more of volatile organic compounds or 

nitrogen oxides subject to PSD would be required to perform an ambient 

impact analysis including the gathering of ambient air quality data.] 

3.7.7.2 The concentrations of the pollutant in the area that the source or modification 

would affect are less than the concentrations listed in 3.7.7.1 of this regulation, or 

--------------------~I~Ae~pOU~~~.1HO*f~I~Ai~s~re~g~~~la~l~io~R~.----------------

3.8 Control Technology Review 

3.8.1 A major stationary source or major modification shall meet each applicable emissions 

limitation of the State of Delaware's Air Pollution Control Regulations. 

3.8.2 A new major stationary source shall apply best available control technology for each 

pollutant subject to regulation under the CAA that it would have the potential to emit in 

significant amounts. 

3.8.3 A major modification shall apply best available control technology for each pollutant 

subject to regulation under the CAA for which it would result in a significant net emissions 

increase at the source. This requirement applies to each proposed emissions unit at 

which a net emissions increase in the pollutant would occur as a result of a physical 

change or change in the method of operation in the unit. 

3.8.4 For phase construction projects, the determination of best available control technology 

shall be reviewed and modified as appropriate at the latest reasonable time which occurs 

no later than 18 months prior to commencement of construction of each independent 

phase of the project. At such time, the owner or operator of the applicable stationary 

source may be required to demonstrate the adequacy of any previous determination of 

best available control technology for the source. 
• 

3.9 Source Impact Analysis. The owner or operator of the proposed source or modification shall 

demonstrate that allowable emission increases from the proposed source or modification, in 

conjunction with all other applicable emissions increases or reductions (including secondary 

emissions), would not cause or contribute to air pollution in violation of: 

3.9.1 Any national ambient air quality standard in any air quality control region; or 

3.9.2 Any applicable maximum allowable increase over the baseline concentration in any area. 

3.10 Air Quality Models. 

3.10.1 All estimates of ambient concentrations required under 3.0 of this regulation shall be 

based on the applicable air quality models, databases, and other requirements specified 

in the "Guideline on Air Quality Models" (OA-QPS 1.2-080, U.S. Environmental Protection 

Agency, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 

27711, April, 1978 or its subsequent revisions). This document is incorporated by 

reference. 

3.10.2 When an air quality impact model specified in the "Guideline on Air Quality Models" is 

inappropriate, the model may be modified or another model substituted. Such a change 

must be subject to the notice and opportunity for public comment under 3.15 of this 

regulation. Written approval of the Department must be obtained for any modification or 

substitution. Methods like those outlined in the 'Workbook for the Comparison of Air 

Quality Models" (U.S. Environmental Protection Agency, Office of Air Quality Planning 

and Standards, Research Triangle Park, N.C. 17711, May, 1978 or its subsequent 

revisions) should be used to determine the comparability of air quality models. 

3.11 Air Quality Analysis 

3.11.1 Preapplication Analysis. 

3.11.1.1 Any application for a permn under 3.0 of this regulation shall contain an analysis 

of ambient air quality in the area that the major stationary source or major 

modification would affect for each of the following pollutants: 

3.11.1.1.1 For the source, each pollutant that it would have the potential to emit in a 

significant amount; 

3.11.1.1.2 For the modification, each pollutant for which it would result in a significant 

ne/emissioAs iAcrease. . ... __ .-

3.11.1.2 With respect to any such pollutant for which no National Ambient Air Quality 

Standard exists, the analysis shall contain such air quality monitoring data as the 

Department determines is necessary to assess ambient air quality for that 

pollutant in any area that the emissions of that pollutant would affect. 

3.11.1.3 With respect to any such pollutant (other than non-methane hydrocarbons) for 

which such a standard does exist, the analysis shall contain continuous air 

quality monitoring data gathered for purposes of determining whether emissions 

of that pollutant would cause or contribute to a violation of the standard or any 

maximum allowable increase. 

3.11.1.4 In general, the continuous air quality monitoring data that is required shall have 

been gathered over a period of at least one year and shall represent at least the 

year preceding receipt of the application, except that, if the Department 

determines that a complete and adequate analysis can be accomplished with 

monitoring data gathered over a period shorter than one year (but not to be less 

than four months), the data that is required shall have been gathered over at 

least that shorter period. 

3.11.1.5 The owner or operator of a proposed stationary source or modification of volatile 

organic compounds or nitrogen oxides who satisfies all of the following conditions 
may provide post-approval monitoring data for ozone in lieu of providing 

preconstruction data as required under 3.11.1 of this regulation. 

Condition 1: The new source is required to meet an emission limitation which 

specifies the lowest achievable emission rate for such source. 

Condition 2: The applicant must certifY that all existing major sources owned or 

operated by the applicant (or any entity controlling, controlled by, or under 

common control with the applicant) in Delaware are in compliance with all 

applicable emission limitations and standards under the CAA (or are in 

compliance with an expeditious schedule approved by the Department). 

Condition 3: Emission reductions ("offsets") from existing sources in the area of the 

proposed source (whether or not under the same ownership) are required 

such that there will be reasonable progress toward attainment of the 

applicable NAAQS. Only intrapollutant emission offsets will be acceptable 

(e.g., hydrocarbon increases may not be offset against S02 (reductions)). 

Condition 4: The emission offsets will provide a positive net air quality benefit in the 

affected area (see 40 CFR Part 51 App. S). Atmospheric simulation modeling 

is not necessary for volatile organic compounds and NO •. Fulfillment of 

Condition 3 will be considered adequate to meet this condition for volatile 

organic compounds and NO •. 

3.11.2 Post-construction monitoring. The owner or operator of a major stationary source or 

major modification shall, after construction of the stationary source or modification 

conduct such ambient monitoring as the Department determines is necessary to 

determine the effect emissions from the stationary source or modification may have, or 

are having, on air quality in any area. 

3.11.3 Operations of monitoring stations. The owner or operator of a major stationary source or 

major modification shall meet the Quality Assurance Requirements for PSD Air 

Monitoring as preapproved by the Department during the operation of monitoring stations 

for purposes of satisfYing 3.11 of this regulation. 

3.12 Source Information. The owner or operator of proposed source or modification shall submit all 

information necessary to perform any analysis or make any determination required under 3.0 

.. .9Hbls1.egulation. 

3.12.1 With respect to a source or modification to which 3.9, 3.11, and 3.13 of this regulation 

apply, such information shall include but not be limited to: 

3.12.1.1 A description of the nature, location, design capacity and typical operating 

schedule of the source or modification, including specifications and drawings 

showing its design and plant layout; 

3.12.1.2 

3.12.1.3 

A detailed schedule for construction of the source or modification; 

A detailed description as to what system of continuous emission reduction is 

planned for the source or modification, emission estimates, and any other 

information necessary to determine that best available control technology would 

be applied. 

3.12.2 Upon request of the Department, the owner or operator shall also provide information on: 

3.12.2.1 The air quality impact of the source or modification, including meteorological and 

topographical data necessary to estimate such impact; and 

3.12.2.2 The air quality impacts, and the nature and extent of any or all general 

commercial, residential, industrial, and other growth which has occurred since 

August 7, 1977 or the applicable baseline date or dates, in the area the source or 

modification would affect. 
3.13 Additional Impact Analyses. 

3.13.1 The owner or operator shall provide an analysis of the impairment to visibility, soils and 

vegetation that would occur as a result of the source or modification and general 

commercial, residential, industrial and other growth associated with the source or 

modification. The owner or operator need not provide an analysis of the impact on 

vegetation having no significant commercial or recreational value. 

3.13.2 The owner or operator shall provide an analysis of the air quality impact projected for the 

area as a result of general commercial, residential, industrial and other growth associated 

with the source or modification. 

3.14 Public Participation 

---.--.-.~~~. 

3.14.1 Within 30 days after receipt of an application to construct, or any addition to such 

application, the Department shall advise the applicant of any deficiency in the application 

or in the information submitted. In the event of such a deficiency, the date of receipt of 

the application shall be, for the purpose of 3.0 of this regulation, the date on which the 

Department received all required information. 

3.14.2 Within one year after receipt of a complete application, the Department shall make a final 

determination on the application. This involves performing the following actions in a 

timely manner: 

3.14.2.1 

3.14.2.2 

Make a preliminary determination whether construction should be approved, 

approved with conditions, or disapproved. 

Make available a copy of all materials the applicant submitted, a copy of the 

preliminary determination, and a copy or summary of other materials, if any, 

considered in making the preliminary determination. 

3.14.2.3 Notify the public, by advertisement in a newspaper of general circulation in each 

region in which the proposed source or modification would be constructed, of the 

application, the preliminary determination, the degree of increment consumption 

that is expected from the source or modification, and the opportunity for comment 

at public hearing as well as written public comment. 

3.14.2.4 Send a copy of the notice of public comment to the applicant and to officials and 

agencies having cognizance over the location where the proposed construction 

----c=w"'o'"Cu:.:ldFoccur as follows: the chief execiilivesof the-City and county- where~th:'::e~-­

source or modification would be located and any comprehensive regional land 

use planning agency whose lands may be affected by emissions from the source 

or modification. Additionally, if the proposed source would have significant 

interstate impact, the Governor of that impacted state would be notified. 

3.14.2.5 Provide opportunity for a public hearing for interested persons to appear and 

submit written or oral comments on the air quality impact of the source or 

modification, alternatives to the source or modification, the control technology 

required, and other appropriate considerations. 

3.14.2.6 Consider all written comments submitted within a time specified in the notice of 

public comment and all comments received at any public hearing or hearings in 

making a final decision on the approvability of the application. No later than 10 

days after the close of the public comment period, the applicant may submit a 

written response to any comments submitted by the public. The Department shall 

consider the applicant's response in making a final decision. The Department 

shall make all comments available for public inspection in the same locations 

where the Department made available preconstruction information relating to the 

proposed source or modification. 

3.14.2.7 Make a final determination whether construction should be approved, approved 

with conditions, or disapproved pursuant to 3.0 of this regulation. 
3.14.2.8 Notify the applicant in writing of the final determination and make such 

notification available for public inspection at the same location where the 

Department made available preconstruction information and public comments 

relating to the source or modification. 

3.15 Source Obligation. 

3.15.1 Any owner or operator who constructs or operates a source or modification not in 

accordance with the application submitted pursuant to 3.0 of this regulation or with the 

terms of any approval to construct, or any owner or operator of a source or modification 

subject to 3.0 of this regulation who commences construction after the effective date of 

these regulations without applying for and receiving approval hereunder, shall be subject 

to appropriate enforcement action. 

3.15.2 Approval to construct shall become invalid if construction is not commenced within 18 

months after receipt of such approval, if construction is discontinued for a period of 18 

months or more, or if construction is not completed within a reasonable time. The 

Department may extend the 18-month period upon a satisfactory showing that an 

extension is justified. This provision does not apply to the time period between 

constructions of the approved phases of a phased construction project; each phase must 

commence construction within 18 months of the projected and approved commencement 

date. 

3.15.3 Approval to construct shall not relieve any owner or operator of the responsibility to 

comply fully with applicable provisions of any other requirements under local or Federal 

law. 

3.15.4 At such time that a particular source or modification becomes a major stationary source 

or major modification solely by virtue of a relaxation in any enforceable limitation which 

was established after August 7, 1980 on the capacity of the source or modification 

otherwise to emit a pollutant, such as a restriction on hours of operation, then the 

requirements of 3.8 through 3.15 of th.is regulation shall apply to the source or 

modification as though construction had not yet commenced on the source or 

modification. 

3.16 Innovative Control Technology. 

3 16 1 An owner or operator of a proposed majormationaI}LSOUrce or major modjfication may 

request the Department in writing no later than 30 days after the close of the public 

comment hearing to approve a system of innovative control technology. 

3.16.2 The Department shall, with the consent of the Governor of Delaware, determine that the 

source or modification may employ a system of innovative control technology, if: 

3.16.2.1 The proposed control system would not cause or contribute to an unreasonable 

risk to public health, welfare, or safety in its operation or function; 

3.16.2.2 The owner or operator agrees to achieve a level of continuous emissions 

reduction equivalent to that which would have been required under 3.8.2 of this 

regulation by a date specified by the Department. Such date shall not be later 

than four years from the time of startup or seven years from permit issuance; 

3.16.2.3 The source or modification would meet the requirements of 3.8 and 3.9 of this 

regulation based on the emissions rate that the stationary source employing the 

system of innovative control technology would be required to meet on the date 

specified by the Department; 

3.16.2.4 The source or modification would not be before the date speCified by the 

Department 

3.16.2.4.1 Cause or contribute to a violation of an applicable national ambient air quality 

standard; or 
3.16.2.4.2 Impact any Class I area; or 

3.16.2.4.3 Impact any area where an applicable increment is known to be violated; and 

3.16.2.5 All other applicable requirements including those for public participation have 

been met. 

3.16.3 The Department shall withdraw any approval to employ a system of innovative control 

technology made under 3.0 of this regulation, if: 

3.16.3.1 The proposed system fails before the speCified date to achieve the required 

continuous emisSions reduction rate; or 

3.16.3.2 The proposed system fails before the specified date so as to contribute to an 

unreasonable risk to public health, welfare, or safety; or 

3.16.3.3 The Department decides at any time that the proposed system is unlikely to 

achieve the required level of control or to protect the public health, welfare, or 

safety. 

3.16.4 If a source or modification fails to meet the required level of continuous emission 

reduction within the specified time period or the approval is withdrawn in accordance with 

3.16.3 of this regulation, the Department may allow the source or modification up to an 

additional three years to meet the requirement for the application of best available control 

technology through use of a demonstrated system of control. 

13 DE Reg. 1345 (04/01/10) 

0811112005 

4.0 Minor New Source Review (MNSR) 

4.1 Applicability. The requirements of 4.3 of this regulation shall apply to any person responsible 

for any proposed new stationary source, the construction of which: 

4.1.1 was applied for, pursuant to 11.0 of 7 DE Admin Code 1102, after August 11, 2005 and 

4.1.2 is subject to the construction, installation, or alteration requirements of 2.1.3 of 7 DE 

Admin Code 1102, and 

""--"-"""" ----;~~"C"" 

4.1.3 is not subject to the requirements of 2.0 or 3.0 of this regulation, and 

4.1.4 has a potential to emit of equal to or greater than five tons per year of volatile organic 

compounds (VOC's) or, nitrogen oxides (NOx), or sulfur dioxide (S02) or sulfur trioxide" 

(S03) or both [also termed sulfur oxides (Sax) lor, fine particulate matter (PM2.

5), or, the 

potential to emit of equal to or greater than five tone per year, in the aggregate, of any of 

the hazardous air pollutants (HAP's) listed in Section 112(b) of the federal Clean Air Act. 

4.1.5 Reserved. 

4.2 Record keeping. Any person exempted from the requirements of 4.3 of this regulation 

because the proposed source has emissions below the thresholds provided for in 4.1.4 of this 

regulation shall include with the application submitted pursuant to 11.1 of 7 DE Admin. Code 

1102, documentation that shows the proposed source is exempted. 

4.3 Conditions for Approval. Any person subject to the provisions of 4.3 of this regulation shall 

meet the appropriate requirements of 4.3.1 and 4.3.2 of this regulation: 

4.3.1 The new stationary source shall, relative to each pollutant identified in 4.1.4 of this 

regulation, be controlled by installing and operating emission control technology that 

limits emissions to the atmosphere by utilizing anyone of the following options listed 

below. The Department will assist in the development of appropriate emission control 

technology determinations if requested by the applicant. 
4.3.1.1 

4.3.1.2 

4.3.1.3 

Emission control technology that meets the LAER requirements of 2.0 of this 

regulation, or 

Emission control technology that meets the BACT requirements of 3.0 of this 

regulation, or 

Emission control technology approved in advance by the Department for the 

source type being Constructed (a listing and description of the approved 

technologies is available from the Department), or 

4.3.1.4 Emission control technology approved by the Department, on a case-by-case 

basis, pursuant to the following process: 

4.3.1.4.1 Identify and evaluate air pollution control technologies that may be applied to 

the source. The control alternatives need not be limited to existing controls 

for the source category. Consider controls applied to similar type of sources, 

innovative control technologies, modification of the process or process 

equipment, other pollution prevention measures, and combinations of these 

measures. 

4.3.1.4.2 List the control technologies identified in 4.3.1.4.1 of this regulation in 

descending order of air pollution control effectiveness. 

4.3.1.4.3 Either propose the most effective technology on the list generated under 

4.3.1.4.2 of this regulation for approval by the Department, or demonstrate, 

based on the criteria in 4.3.1.4.3.1 through 4.3.1.4.3.4 of this regulation 

below, that the most effective technology is infeasible or unreasonable. This 

process for evaluation shall be repeated relative to each emission control 

technology on the list generated under 4.3.1.4.2 of this regulation until an 

emission control technology is reached that is not eliminated. 

4.3.1.4.3.1 Technological Feasibility Assessment: A demonstration that the control 

technology is technically infeasible, based on physical, chemical, or 

engineering principles, that it is unproven technology, or that technical 

difficulties would prevent its successful application, or 

4.3.1.4.3.2 Environmental Impacts Assessment: A demonstration that the control 

technology should be eliminated from consideration based on its 

---'-----··---'---'e."nviromnental impacts. The demonstratioll lIIust sliow tllat Llie adverse 

environmental effects of the control technology (for example, effects on water 

or land, HAP emissions, or increased environmental hazards), when 

compared with its air contaminant emission reduction benefits, would make 

use of the technology unreasonable, or 

4.3.1.4.3.3 Economic Impacts Assessment: A demonstration that the technology 

should be eliminated from consideration based on its calculated economic 

impacts using the techniques in the latest edition of EPA's Control Cost 

Manual. The justification must show that the total and incremental costs of 

the control technology are greater than the total and incremental costs of the 

next less effective technology on the list generated under 4.3.1.4.2; and that 

the extra costs, when compared with the air contaminant emission reduction 

benefits resulting from the control technology, would make that measure 

unreasonable, or 

4.3.1.4.3.4 Energy Impacts Assessment: A demonstration that the control 

technology should be eliminated from consideration based on its energy 

impacts. The demonstration must show that this technology uses fuels that 

are not reliably available; or that the energy consumed by this technology is 

greater than the proposed technology or technologies, and that the extra 

energy used, when compared with the air contaminant emission reduction 
• 

benefits resulting from this technology, would make use of this technology 

unreasonable. 

4.3.2 All of the following information shall be submitted to the Department as part of the 

application submitted to the Department pursuant to 11.1 of 7 DE Admin. Code 1102: 

4.3.2.1 Control technology proposed to be installed and operated to meet the 

requirements of 4.3.1 of this regulation, and 

4.3.2.2 The list, if this method was chosen, generated pursuant to 4.3.1.4.2 of this 

regulation and 

4.3.2.3 Any demonstration or demonstrations performed pursuant to 4.3.1.4.3 of this 

regulation. 

2 DE Reg. 2148 (05/01/99) 

9 DE Reg. 246 (08/01/05) 

12 DE Reg. 347 (09/01/08) 

.~~ ... ---... ------'.~-' -~-------"'--"' ... -
• 

• 
• 

TO: 

FROM: 

RE: 

DATE: 

MEMORANDUM 

The Honorable CollinP. O'Mara 

Cabinet Secretary,. Dept. ofNatura1 Resources and Environmental Control 

Lisa A. vest~ Public Hearing Officer, Office of the Secretary 

Department ofNatura1 ResourCes and Environmental Control 

Proposed Amendments to 7 DE Admin. Code 1125, Requirements for 

PreconstructionReview, Section 3.0, "Prevention of Significant 

Deterioration of Air Quality", and 7 DE Admin. Code 1130, Title V State 

Operating Permit Program, Section 2.0, "Definitions": 

Greenhouse Gas (GHG) Emissions 

November 12,2010 

I. Background: 

A public hearing was held on Wednesday, November 10, 2010; at 6:00p.m. at the 

DNREC Delaware Energy Office, 1203 College Park Drive, Dover, Delaware, to receive 

comment on the Department's proposal to· amend 7 DE Admin. Code. 1125, 

Requirements for Preconstruction Review, Section 3.0, "Prevention of Significant 

Deterioration oEAir Quality" and 7 DE Admin. Code 1130, Title V State Operating 

Permit Program, Section 2.0,"Defmitions": Greenhouse Gas (GHG) Emissions. These 

amendments will conform to the. requirements of a recent federal rule, 75 FR 31514, 

"Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule" 

(June 3, 2010), providing for the regulation of certain greenhouse gases, including, but 

not limited to, carbon dioxide, which are considered pollutants under existing Delaware 

air quality regulations. 
The Department is proposing to amend existing Regulations 1125 and 1130 by 

adding definitions which describe greenhouse gases (GHG) as composed-of the aggregate 

group of six greenhouse gases: carbon dioxide (C02), nitrous oxide (N20), methane 

(CH4), hy<hofluorocarbons (HFC),perfluorocarbons (PFC), and sulfur hexafluoride 

(SF6), as well as for carbon dioxide equivalent emissions (C02e)l. These regulations also. 

will be amended to require consideration for permitting of certain GHG, emitting sources, 

under Title V (Reg. 1130) and new source review (Reg. 1125), beginning January 2, 

2011, that emit or have the pptential to emit, 75,000 tons per year, or, 100,000 tons per 

year of C02e. The Department is proposing to make these revisions. now to add the new 

threshold limits for regulating these emissions in these regulations as shown in the 

recently issued federal rule 75 FR 31514, "Prevention of Significant Deterioration and 

Title Y Greenhouse Gas Tailoring Rule", as noted above. 

Greenhouse gases in the earth's atmosphere (as the name implies) tend to allow 

the passage . of shortwave heating rays from the sun, which then warm the earth. The 

warm earth then radiates back some ofthls heat as longer-wave infrared. radiation. These 

same greenhouse gases tend to absorb some of the infrared radiation, thus preventing it 

from being radiated into space. The greater the atmospheric concentration of greenhouse 

gases, the more heat is trapped, the less heat is radiated into space, and the greater 

becomes the temperature of the earth. 

1 The tenn C02e is based upon taking the mass weight of each individual GHG and multiplying it by its global wanning potential as 

shown in Table A·I of 40 CFR Part 98 Global Warming Potential~ Then by summing all the numbers, one obtains the CO2 

equivalent of all the GHG in tons per year. 

2 

I-
Since the onset of the Industrial Revolution, the burning of fossil fuels like coal, 

oil and natural gas has increased the atmospheric concentration of C02. Other 

anthropogenic activities have given rise to the concentration of methane, nitrous oxide, 

hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. Each of these gases has a 

different potential to cause gl()bal warming and a different atmospheric lifetime before 

natural causes reduce their. concentrations. For example, the global warming potential 

(GWP) of CO2 is one, and its lifetime is 120 years, while sulfur hexafluoride has a GWP. 

of23,900, meaning that one pound of sulfur hexafluoride is equivalent in GWP to 23,900 

pounds of CO2, and a lifetime of3200 years.' 

The Environmental Protection Agency (EPA) has, in the past, taken several 

".cpositions on. their authority to regulate greenhouse gases. In 2006, several states and 

"environmental organizations brought the issue to the Supreme Court to require the EPA 

. ",to regulate emissions of CO2 and other greenhouse gases under the Clean AirAct (CAA), 

~.'Section202(a), which relates to motor vehicle emission standards for new motor vehicles 

or new motor vehicle engines. In April of 2007, in the matter of Massachusetts v. EPA, 

the Supreme Court decided that, under the CAA, EPA had the authority to regulate C02 

and other greenhouse gases. 

In December of 2009, EPA issued federal rule 74 FR 66496, "Endangerment and 

Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean 

Air Act" which showed; (l) there is a connection between the observed rising 

atmospheric concentration of greenhouse gases and a measurable increase in global 

warming; (2) the impact of this temperature rise has been recorded, in addition to other 

effects, in increasing arctic sea ice melting and an increase in global sea level; (3) 

3 
atmospheric concentrations of CO2, methane and nitrous oxide are the predominate 

contributors to global warming, but hydrofluorocarbons, perfluorocarbons and sulfur 

hexafluoride concentrations also exert a pronounced effect and their concentrations have 

been rising rapidly due to an increased use of these materials,and should be considered 

together as the pollutant greenhouse gases or GHG; (4) the observed impacts constitute 

an endangerment of public health and welfare; and (5) the combined emissions of CO2, 

methane, nitrous oxide andhydrofluorocarbons from new motor vehicles and new motor 

vehicle engines are contributing to thisrnix of greenhouse. gases in the atmosphere and 

thus to this endangerment of public health and welfare. 

The endangerment finding opened the way to establishing a rule regulating GHG 

emissions from motor vehicles. On May 10,2010, the federallight-duty vehicle rule,a 

joint effort by the EPA and the Department of TranSportation, 75FR 25324, was 

published for model year2012 through 2016 vehicles, regulating fuel economy and GHG 

emissions .. These vehicles emit four· of the sixGHG; namely, C02, CH4,N20 and certain 

hydrofluorocarbons as leakage from air-conditioning units. 

Since the earliest a model year 2012 vehicle could be sold was January 2, 2011, 

this was when GHG became subject to regulation under the CAA, and was the date that 

triggered wider application of regulating GHG. On that date, stationary sources emitting 

GHG would be subject to regulation under state new source review regulations (such as 

Delaware's Regulation 1125), and state Title V operating permit programs (such as 

Delaware's Regulation 1130). 

4 
EPA recognized that the existing federal regulations for the Prevention of 

Significant Deterioration of Air Quality and Title V, which were models for state 

regulations, were based upon emission thresholds of 100 and 250 tons of pollutants per 

year. For criteria pollutants like nitrogen oxides, carbon monoxide and volatile organic 

compounds, these threshold levels for determining what is and what is not a major source 

of the pollutant, at and above which the source may be subject to regulation, was 

satisfaetory. 

For GHG like CO2, these threshold levels were considered way too low for 

praeticality. A fuel-oil fired boiler operating at 140,000 BTU per hour will emit 100 tons 

per year of ~02. Using such a low threshold for Title V permitting or for source 

. categories in PSD (non-source categori~ would have a threshold of 250 tons ,per year of 

~02 or a firing rate of 350,000 BTU per hour) would bring in many more sources to be 

. permitted and overload state permitting systems. At a 1001250 tons per year emission 

'level, such sources as restaurants, schools, large residences, and heated swimming pools 

would need to be permitted, a large group of sources never before permitted and with 

owner/operators totally unfamiliar with the permitting process. An EPA study showed 

that, nationwide, Title V permits would increase from a current level of about 14,700 to 

6.1 million permits, and that the current level of PSD permitting of about 400 permits per 

year would increase to over 82,000 permits per year. Something needed to be done during 

the early years of GHG permitting to make the permitting burden fit what actually could 

be handled until means to improve the permitting process could be found. This was the 

genesis of the tailoring rule. 

5 
. EPA· determined that over 70 percent of GHG sources would be pennitted if the 

threshold level Was set at 100,000 tons per year of C02e and that only 1,000 additional 

Title' V pennits would be required nationally, an increase in pennitting that was 

reasonable, and that PSD pennitting would increase nationally by only 900 permits per 

year. To accommodate the PSD modifications, a significance level of 75,000 tons per . . 

year COle was selected. 

The final rule "Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule"75FR 31514 was published June 3, 2010. Delaware is in a position 

to regulate GHG, but decided to make several regulation revisions for clarity and to add 

the new threshold emission levels. Later, perhaps by 2016, EPA expects modifications to 

the tailoring rule to expand permitting activity to include smaller sources by reducing the 

threshold level to closer to or equal to 1001250 tons per year. 

The proposed amendments to existing Regulations 1125 and 1130 were published in 

the October 1, 2010 edition of the Delaware Register of Regulations. During both the 

pre-hearing phase of this promulgation and at the time of the hearing on November 10, 

2010, public comment was received by the Department, which will be addressed below. 

Proper notice of the hearing was provided as required by law. 

II. Summary of Hearing Record: 

At the time of the hearing on November 10, 2010, Gene Pettingill of the 

Department's Division of Air Quality offered the Department's seventeen (17) exhibits 

pertaining to this proposed amendment, and this Hearing Officer entered them into the 

formal hearing record developed in this matter. Included within those Departmental 

exhibits was a copy of the Start Action Notice for this promulgation (SAN No. 2010-19), 

6 
copies . of the legal notices regarding the holding· of this public hearing on 

November 10, 2010, copies of related EPA reference rules upon which the Department 

relied in the drafting of this proposed amendment, and copies of the actual proposed 

amendments to Regulations 1125 and 1130 as noted above. 

Prior to the public hearing of November 10,2010, public comment was received 

from both Robert A. Reich, P.E., Manager, Global Enviromnental Stewardship at 

DuPont, and Angela D. Marconi, P.E., Cherry Island Landfill Gas Manager, Delaware 

\ 

Solid Waste Authority (DSWA). Although the hearing record was closed with regard to 

receipt of any further comment at the conclusion of public hearing on November lOth, this 

Hearing Officer specifically noted that the record would remain open in order for the 

inclusion into the record of the Department's responses to the comments already received 

from both DuPont and DSW A. 

With regard to the comments presented by Mr. Reich dated October 22,2010, it 

was DuPont's position that the Department needed to add several additional definitions 

into Section 1.9 of Regulation 1125 and Section 2.0 of Regulation 1130 in order to clarify 

several categories ofGHGsthat are (I) not unique chemical compounds; and (2) are not 

defined in EPA's Tailoring Rule. Specifically, DuPont requested that Delaware's 

definitions for "hydrofluorocarbon" and ''perfluoiocarbons'' include restrictions that are 

not in the EPA implied definition of these terms. In response to this request, Mr. 

Pettingill advised DuPont on November 9, 2010 that DAQ believes that EPA has 

" ... implicitly defined HFC and PFC in the "Tailoring" rule by directing readers, on page 

31606, to the amendments under Part 51, such as 51.166(b)(48)(ii)(a) to Table A-I to 

Subpart A of Part 98 of this chapter - Global Warming Potentials, which Table is an 

7 
Appendix to the Mandatory Greenhouse Gas Reporting Rule". In Table A-I of the EPA 

rule (and Tables I-I and 2-1 of Delaware's &egulations 1125 and 1130, respectively), 

these compounds are defined or identified by chemical name, formula and Chemical 

Abstracts (CAS) number, which the Department believes is· a more than adequate 

definition for these two classes of compounds that are included in the term "GHG". Mr. 

Pettingill further advised Mr. Reich that the Department " ... believes it is essential to 

maintain consistency among all the states and the EPA in the definition of what is a 

GHG ... ", and thus DAQ is not agreeable to changing and/or adding any additional 

,r 

language to these proposed amendments, as it is believed that such action would 

" ... introduce confusion in the application of the full suite of EPA Greenhouse Gas rules." 

As further clarificatioll; in an email sent to Paul Jann (DuPont) by Mr. Pettingill on 

November 12, 2010,. the Department confirmed with DuPont that the HFC and PFC 

compounds listed in Table 1-1 is the all-inclusive list, and that no other fluorinated 

compounds would be subject to the Tailoring rule, nor were any other fluorinated 

compounds were included in Regulations 1125 and/orll30. 

With regard to the comment received from DSW A, the Department received 

correspondence from Angela D. Marconi, P.E., dated October 27, 2010. In this letter, 

DSWA wished to clarify several points with respect to Delaware's implementation of 

EPA's Tailoring Rule. In an email sent to Ms. f.1arconi by Mr. Pettingill on the afternoon 

ofNovefnber 10,2010 (just before the actna! public hearing held later that same night), 

DNREC responded to DSWA's comments as follows: 

8 
1. In response to DSWA's request that DNREC will "follow suit and exclude 

biogenic GHG emissions if EPA does so, the Department notes that it must 

adopt regulations that are either equal to or more stringent than the minimum 

federal requirements. Thus, if the EPA excludes biogenic GHG emissions, 

then DNREC would consider a corresponding change to its regulations, and 

any change would be subject to public notice and comment; 

2. In response to DSWA's request 1hat DNREC confirm that fugitive emissions 

from a landfill will not trigger inclusion in the rule, DNREC notes that, as 

shown in the cuttent language of Regulation 1125, fugitives are considered in 

determining a major source or major modification in any of the 28 source 

categories (see provision 3.7.4.2). If EPA, in the current reconsideration of 

this aspect of their NSR rule, decides something different from DNREC's 

current practice, then it will be given consideration. Ag.ain, any change to the 

current DNREC regulation would be subject to public notice and comment; 

3. In response to DSWA's recommendations concerning BACT for GHG, the 

Department notes 1hat BACT determinations in Delaware will be on a caseby-case basis when individual permits are prepared. The DSWA solution may 

be evaluated at 1hat time. In the meantime, DNREC suggests that DSWA 

follow developments on the EPA website (the link for which was provided for 

DSWA's review and convenience). 

In addition to the aforementioned written comments dated October 27, 2010, a 

representative from DSWA (Nicole Burkhardt) attended the hearing on November 10, 

2010, and offered additional comment for the record in this matter. Specifically, DSWA 

9 
requested that DNREC confIrm that, if the Obama administration preempts EPA's 

authority to regulate GHGs, then "DNREC will follow suit and hold on these greenhouse 

gas revisions until the Tailoring Rule (or its replacement) is enforced". In response to 

this comment, Mr. Pettingill forwarded an eniailto Ms. Burkhardt on November 11, 

2010, stating that if the Obama administration took such action, and the EPA was 

prevented from regulating greenhouse gases as described, then DNREC would cc;>nsider a 

corresponding change to Regulations 1125 and 1130, and such changes would be subject 

to public notice and comment It should be noted that no changes were made by the 

Department to these proposed regulation amendments as a result of any of the comments 

that were received in this matter. 

For the Secretary's review, and in order for the Secretary to gain a thorough 

understanding of this proposed promulgation, copies of the above-referenced proposed 

amendments are attached hereto as Appendix "A", and the same are expressly 

incorporated into this Hearing Officer's Report. 

It· should be noted that the Department adhered to all appropriate Delaware 

statutes and the regulatory development process in this matter, and that the Department 

h~met the required public notice obligations regarding this proposed amendment. It 

should also be noted that the Department has reviewed these proposed amendments in the 

light of the Regulatory Flexibility Act, and believes the same to be lawful, f~ible and 

desirable, and that the recommendations as proposed should be applicable to all Delaware 

citizens equally. 

10 
III. Conclusions and Recommendations: 

Based on the record developed in this matter, I conclude that the Department has 

provided appropriate reasoning regarding the need for the proposed amendments to 7 DE 

Admin. Code 1125, Requirements for Preconstruction Review, Section 3.0, "Prevention 

of Significant Deterioration of Air Quality", and 7 DE Admin. Code 1130, Title V State 

Operating Pennit Program, Section 2.0, "Definitions": Greenhouse Gas (GHG) 

Emissions. Accordingly, I recommend promulgation of these proposed amendments in 

the customary manner provided by law. 

Further, I recommend the following findings: 

1. The Department has jurisdiction undel; its statutory authority, 7 Del.C .• 

Chapter 60, to make a determination in this proceeding; 

2. The Department provided adequate public notice of the public hearing in a 

manner required. by the law and regulations; 

3. The. Department held a public hearing in a manner required by the law and 

regulations; 

4. The Department has reviewed these proposed amendments in the light of the 

Regulatory Flexibility Act, and believes the same to be lawful, feasible and 

desirable, and that the recommendations as proposed should be applicable to 

all Delaware citizens equally; 

5. Promulgation of the aforementioned proposed amendments to 7 DE Admin. 

Code 1125 and 1130 will enable Delaware to conform to the requirements of a 

recent federal rule, 75 FR 31514, "Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule" (June 3, 2010), providing for the 

11 
regillationof certain greenhouse gases which are considered pollutants under 

existing Delaware air quality regillations; 

6. The aforementioned proposed amendments to 7 DE Admin. Code 1125 and 

1130 will add definitions to the existing Delaware regillations, thus describing 

GHGs as composed of the aggregate group of six greenhouse gases: carbon 

dioxide (CO2), nitrous oxide (N20), methane· (CH4), hydrofluorocarbons 

(lIFC), perfluorocarbons (PFC); and sulfur hexafluoride (SF6), as well as for 

carbon dioxide equivalent emissions (C02e), which is obtained by multiplying 

the. mass weight of each individual greenhouse gaS by its global warming 

potential and summing the results for a particular emissions source; 

7. Additionally, the aforementioned proposed amendments to 7 DE Admin . 

. Code 1125 and 1130 will require consideration for permitting of certain GHG 

emitting sources, under Title V (Reg. IHO) and new source review (Reg. 

1125), beginning January 2, 2011, that.emit or have the potential to emit, 

75,000 tons per year, or, 100,000 tons per year of C02e. In making these 

revisions now, the new threshold limits will be added to enable Delaware to 

regulate these emissions in these regillations, as shown in the recently issued 

federal rule 75 FR 31514, "Prevention of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule"; 

8. The Department haS an adequate record for its decision, and no further public 

hearing is appropriate or necessary; 

12 
9. The Department's proposed amendments to this regulation, as published in the 

October I, 2010.Deiaware Register of Regulations and as set forth within 

Appendix "A" hereto, are adequately supported, not arbitrary or capricious, 

and are consistent with the applicable laws and regulations. Consequently, 

they should be approved as final regulation amendments, which shall go into 

effect ten days after their publication in the next available issue of the 

Delaware Register of Regulations; and 

10. The Department shall submit the proposed regulation amendments as final to 

the Delaware Register of Regulation for publication in its next available issue, 

and shall provide written notice to the persons affected by the Order. 

AhearlReg.1 125.1 130.Amndmts.201 0 

13 

ISAA. YES 

ublic Hearing Officer 

APPENDIX "A" 

TITLE 7 NATURAL RESOURCES & ENVIRONMENTAL CONTROL 

DELAWARE ADMINISTRATIVE CODE 1 

1100 Air Quality Management Section 

1125 Requirements for Preconstruction Review 

12111110 

1.9 Definitions - For the purposes of this regulation 

***************** 

"Greenhouse Gases (GHGr means an air pollutant composed of an aggregate group of six greenhouse 

gases; carbon dioxide (C02), nitrous oxide (N20), methane (CH.), hydrofluorocarbons(HFC), 

. perfluorocarbons (PFe), and sulfur hexafluoride (SFs). For the purposes of this regulation, the term 

C02equivalent emissions (CO,e) shall represent an amount of GHG emitted, and shall be computed as 

follows; . 

• Multiply the mass amount of emissions (tpy), for each of the. six greenhouse gases in the 

pollutant GHG by the gases associated global warming potential as shown in Table 1-1 

of this regulation. 

• Sum the resultant value for each gas to compute a tpy CO,e 

Table 1-1 

GLOBAL WARMING POTENTIALS 

Global warming 

potential 

(l~O yr.) 

1 

21 

310 

J ._ ........ _ ... . 11,700 
HFC-152a - HFC-161 

HFC-227ea 

HFC-236cb . 

_ l 

HFC-236ea 

HFC-236fa 

HFC-245ca J 

ID'C-245fa 

HFC-365mfc 

HFC-43-1Omee 

Sulfur hexafluoride 2551-62-4 SF6 

JI 

I - ~ 

650 -

150 

_ ___ _ _ 2,800 

1,000 

.. _. _ _),300 

300 

. 3,800 

53 

140 

12 

2,900 

1,340 

1,370 

6,300 

560 

1,030 

794 

1,300 

23,900 

PFC-14 (perflooromethane) 75 7'Lf1 rl<', i 6,500 

Perfluorocyclopropane 931-91-9!!C-C3F6 17,340 

7,500 

._ . 7,500 

*********** 

"Subject to Regulation" means, for any air pollutant, that the pollutant is subject to either a provision in 

the Clean Air Act, or a nationally-applicable regulation codified by EPA, that requires actual control of 

the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is 
".,-

operative to control, limit or restrict the quantity of emissions of that pollutant released from the 

regulated activity. Except that GHG shall not be subject to regulation except as follows: 

(a) Beginning January 2, 2011, the pollutant GHG shall be subject to regulation if: 

• The stationary source is a new major stationary source for any pollutant subject 

to regulation under the eM that is not GHG and also will emit or will have the 

potential to emit 75,000 tpv C02e or more; or 

• The stationary source is an existing major stationary source for any pollutant 

subject to regulation under the eM that is not GHG and also will have an 

. emissions increase of that pollutant and an emissions increase of 75,000 tpy 

C02e or more: and, in addition, 

(b) Beginning July 1, 2011, the pollutant GHG also shall be subject to regulation: 

• At a new stationary source that will emit or have the potential to emit 100,000 

tpy C02e: or 

• At an existing stationary source that emits or has the potential to emit 100,000 

tpy C02e when such stationary source undertakes a physical change or change in 

the method of operation that will result in an emissions increase of 75,000 tpy 

C02e or more. 

'The term emissions increase, as usedabove, shall mean that both a significant emissions increase and a 

. significant net emissions increase occur. 

".', 

*********** 

3.7.3 The requirements of 3.8 through 3.15 of this regulation apply to any major stationary 

source or major modification that would be constructed in an area designated as attainment or 

uncfassifiable. 

· Title 7 Natural Resources and Environmental Control 

1100 Air Quality Management Section 

1130 Title V State Operating Permit Program 

11115/199312111110 

*********** 

2.0 Definitions 

*********** 

"Major source" 

*********** 

(2) A major stationary source of air pollutants. as defined in section 302 (Title III -

General Definitions) of the Act. that directly emits or has the potential to emit. 100 tpy or 

more of any air pollutant subject to regulation (including any major source of fugitive 

emissions of any such pollutant. as determined by rule by the Administrator). The 

fugitive emissions of a stationary .source shall not be considered in determining whether 

it is a major stationary source for the purposes of section 3020) (Title III - General 

Definitions) of the Act. unless the source belongs to one of the following categories of 

stationary sources: 

************* 

"Subject to regulation" means. for any air pollutant. that the pollutant is subject to 

either a prOVision in the Clean Air Act, or a nationally-applicable regulation codified by 

the EPA. that requires actual control of the quantity of emissions of that pollutant. and 

that such a control requirement has taken effect and is operative to control, limit or 

restrict the quantity of emissions of that pollutant released from the regulated activity. 

Except that: 

.. (1)Greenhouse gases (GHG). the air pollutant defined in 40 CFR 86.1818 - 12(a) 

as the aggregate group of six greenhouse gases: carbon dioxide (COg), nitrous 

oxide (N20), methane (CH~), hydrofluorocarbons (HFC), perfluorocarbons (pFC). 

and sulfur hexafluoride {SF6>' shall not be subject to regulation unless, as of July 
1, 2011, the GHG emissions are at a stationary source emitting or having the 

potential to emit 100,000 tpy CO, equivalent emissions. 

(2) The term tpy CO? equivalent emissions (COz.el shall represent an amount of 

GHGemitted, and shall be computed by multiplying the mass amount of 

emissions (tPV, for each of the six greenhouse gases in the pollutant GHG, by the 

gas's associated global warming potential as shown in Table 2-1 of this 

regulation "Global Warming Potentials·, and summing the resultant value for 

each to compute a tpy COze. 

Table 2-1 

GLOBAL WARMING POTENTIALS 

- Global warming 

Name CAS No. Chemical formula )!otential 

I (100 vr.) 

~ ,J;n-,;,J, p" ~o n lCD, 1 

,K.:'-

~A O~~~ n 

~ ~~A n~ J)Jl 

- ~:::. 11.700 lJ-Wr_"I? @ 

HFC-41 593-53~ I .liQ 

HFC-125 "I"" ~~ ,HF. _ 

HFC-134 ~cn "1<;'_"1 1r',l-T,F4 ~ IHFC-134a 811-97.,..? "l-T~ 1 "lOll 

IHFC-143 4:1\ .:.: 1\ :C2H,h Jill) 

HFC--14"1~ 420- At: .., r~l-T,F, ~ Rnll 

HFC-152 624-72-<! ,FCH,F _ lJ~ 

'HFC-152a ~c ~~-f\ Irl-T1CHF~ _l1Q 

HFG,-lli 353-36-" :::H.rl-T,F , 11 

HFC..,.227ea 43J 00 2.900 

IHFc--:n,;,.h 677- c£ "- ICl-T? b 

'HFC-: 431-"'1-0 IrJ-W. " ~ -'~- 690--39-1 Ir.l-T~F6 ,; "Inll 

679- 0': 7 C,H3F, 2QQ-

:HFC-245fa , 460--73-1 ICHF,CH,CF, 1.030 .. 

HFC-31 -~, ICH.rF,( W ..... 

HFC-41·-1Omee .( 'tlC.l'.t1 ,CF, 1 "100 

"-
• 

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• 

ONREC, OlVIsIONCiF j%RQUAlrtY 

lEGALttOttCE 

PUBUCHEARINGS. 

reet Address: 

50 Wesl Basin Road 

ew Casile, DE 19720 

ailing Address: 

::>_ Box 15505 

"limington. DE 19850 

02) 324-2500 

001235-9100 

Nuonben: 

KJnting: 324-2554 

,lotion: 324-2945 

siEied: 32,(-55 II 

n Resaoas: 324-2578 

SyUems: 324-2969 

<eling: 324-2557 

.: 324-5509 

I: 324-5518 

The Newsjournal 

www_delawareonline.com 

Legal Desk 302-324-2676 

Legal Fax 302-324-2249 

AFFIDAVIT OF PUBLICATION 

state of Delaware 

Personally appeared before me this 7th day of october. 2010. 

I. Kristin Segner. of The News Journal Company. a daily newspaper printed and published 

in the County of New Castle County. State of Delaware. who. being duly sworn states that 

the advertisement of SID DNREC DIVISION OF AIR QUALITY - PUBLIC HEARINGS 

was published in The News Journal on October 7. 2010 

~ Name 

Legal Coordinator 

Title 

Sworn to before me this 1'" day of October. 2010 

Wanda James 

NOlary Public 

Slate of Delaware 

Commission expires 11/02/201y 



OFFICE OF THE 

SECRETARY 

STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

89 KINGS HIGHWAY 

DOVER, DELAWARE 19901 

Secretary's Order No.: 2010~A-0040 

RE: Approving Final Amendments to 7 DE Admin. Code 1125, 

Requirements forPreconstruction Review, Section 3.0, 

"Prevention of Significant Deterioration of Air Quality~' and 

7 DE Admin. Code 1130, Title V State Operating Permit Program, 

Section 2.0, "Definitions": Greenhouse .Gas (GHG) Emissions 

Date of Issuance: November 17,2010 

Effective Date oethe Amendment: December ll, 2010 

PHONE: (302) 739-9000 

FAX: (302) 739-6242 

Under the authority vested in the Secretary of the Department of Natural 

Resources and, Environmental Controi ("Department'" or "DNREC") the following 

findings, reasons and conclusions are entered as an Order o,ftlie Secretary in the abovereferenced rulemaking proceeding. 

Background lind Procf'dural Hastory 

This Order considers proposed regulatory amendments t,) 7 DE Admin. Code 

1125. &.ill!.irementsfGf Precqnstruction Rel'jew. Section 3.0, "Prevention of Significant 

Deterioration of Air Quality" and 7 DE Admin. Code 1130, Title V State Operating 

Permit Prog!am, Section :;!.O, "Detinitions": Greenhouse Gas jGHG) Emissions, to 

enable Delaware to conform to the requirements of a recent federal rule, 75 FR 31514, 

"Prevention of Significant Deterioration and Title V ~ouse6as Tailoring Rule" 
(June 3, 2010), providing for the regulation of certain green1J.0~egases, which are 

considered pollutants upder existing Delaware air quality regulations. . '. ' . 

The Department is proposing to amend existing Regulations 1125and 1130 by . '-, ." . , 

addin.g defInitions which desc;:ribe greenhouse gases (GHG) as cOl)1posed of the aggregate .- -' - ; . 

gro.up of six greenhouse gases:.carbondioxide (C02), nitrous oxide (N20)" methane . .' . 

(CH4), hydrofluoroc~rbons (HFC),. perfluorocarbons O'FC), and sulfur hexafluoride . . . 

(SF6), as well as for c;rrbon:dioxide .equivalent emissions (COle). These regul~tions also 

will. be amended to. reqmre cOllsideration for permitting of .certain. GHG emitting .sources, -. . .,. .. '... '. .. ., '. 

under Title V (Reg. 1130) and ne~ source reyiew (Reg. 1125), I;eginniilg January 2, . . . , . ."- " . - '. '" 

2011, that emit or have the potential to emit, 75,000 ton~ per year,.or, 100,000 tons per • , -. _ .' •••• _. of '. ) • 

. . year of C:0ze .. The-Department isproposin~ to make theserevisioJls;;now to add the new 

threshold limits for regulating these emissions in theseregulatj~)l!s· ~s shown in the 

recently issued federal. rule 75 FR 31514,. "Prevention of Significant ,Deterioration and , .. - . . . . - . ,- . 

TiJ!eV G,reenhouseOas Tailoring Rule", as noted above. 

On August 3!, 2010, the Department's Division of Air Quali!'j (DAQ) 

commenced t.1}e regulatory development process with Start Action Notice 2010-19. The 

Department published the proposed regulatory amendments in the October I, 2010 

Delaware Register of Regulations and held a pubiic hearing on Novemt-er 10,2010. The 

Department's presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer's 

Report dated November 12,2010 (Report). The Report recommends certain findings and 

the adoption of the proposed regulatory amendments as attached to the Report as 

AppendixA. 

2 
Findings and Discussion 

I find that the proposed Amendments are well-supported by the record developed 

by the Department, and adopt the Report to the extent it is consistent with this Order. 

The Department's experts developed the record and drafted the proposed Amendments. 

The Department received public comments from the regulated community, as noted in 

the Report, and considered and responded to all timely and relevant public comments in 

n:~g its determination. 

I fmd ,that the Department's experts in the Division of DAQ fully developed the 

,.record to support adoption of this Amendment. With the adoption of the regulatory 

.~ amendments to 7 DE Admin. Code. 1125, Requirements for Preconstruction Review, 

.~ Section 3.0, "Prevention of Significant Deterioration of Air Quality" and 7 DE Admin. 

~dil; Code 1130, Title V State Operating Permit Program, Section 2.0, "Definitions~': 

c. Greenhouse Gas (GHG) Emissions, Delaware .. will be enabled. to conform to the 

- requirements of a recent federal .rule, 75 FR 31514, '~Prevention of Significant 

.. peteriorationand Title V Greenhouse Gas Tailoring Rule".(June 3, 2010), providing for 

the regulation of certain greenhouse gases, 'whichare considered pollutants under existing 

Delaware air quality. regulations. AdditionallYl .these regulations are being amended at 

this~time to require conSideration fotpermitting of certain GHG emitting sources, under 

Title V (Reg. 1130) and new source review (Reg .. U25); beginning January, 2, 2011, that 

el)lit.or have the potential to emit, 75,OQOtons, per year, Or; 100,000 tons per. year of 

C02e. 

3. 
In conclusion, the following findings and conclusions are entered: 

1.) The Department has jurisdiction under its statutory authority to issue an 

Order adopting these proposed Amendments as final; 

2.) The Department provided adequate public notice of the proposed 

Amendments, and provided the public with an adequate opportunity to comment on the 

proposed Amendments, including at a public hearing; 

3.) The Department held a public hearing on November 10, 2010 on the 

proposed Amendments in order to consider public comments before making any final 

decision, and fully considered and responded to all timely and relevant comments 

received from the regulated community concerning this matter; 

4) The Department's Hearing Officer's Report, including its recommended 

record and the recommended Amendments as set forth in Appendix A, are adopted to 

provide additional reasons and findings for this Order; 

5.) The recommended Amendments do not reflect any substantive changes 

from the proposed regulation Amendments as published in the October I, 2010, 

Delaware Register of Regulations; 

6.) The recommended Amendments should be adopted as final regulation 

Amendments because (I) Delaware will be enabled to conform to the requirements of a 

recent federal rule, 75 FR 31514, "Prevention of Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule" (June 3, 2010), providing for the regulation of certain 

greenhouse gases, which are considered pollutants under existing Delaware air quality 

regulations; (2) consideration will now be required for permitting of certain GHG 

emitting sources, under Title V (Reg. 1130) and new source review (Reg. 1125), 

4 

'. 
• . 

beginning January 2, 20 I I, that emit or have the potential to emit, 75,000 tons per year, 

or, 100,000 tons per year of C02e; and (3) the regulation amendments are well supported 

by documents in the record; and 'that 

7.) The Department shall submit this Order approving the final regulations to 

the Delaware Register of Regulations for publication in its next available issue, and 

provide such other notice as the law and regulation require and the Department 

determines is appropriate. 

Secretary 

Ahearl Reg.1125.1130.Amndmts.201O.Ord. 

5 

STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

& ENVIRONMENTAl CONTROL 

DIVISION OF AIR QUALITY 

655 S. Bay Road, Suile 5N 

DOVER, DELAWARE 19901 

CERTIFICATION 

October II, 20 II 

Telephone: (302) 739 - 9402 

Fax No.: (302) 739 - 3106 

I hereby certifY that a public hearing was held October 28, 2010, on a revision to the State of 

Delaware State Implementation Plan. The revision amends 7 DE Admin. Code 1125 -

REQUIREMENTS FOR PRECONSTRUCTION REVIEW, by revising Section 3.0 - Prevention 

of Significant Deterioration of Air Quality. The amendments require permitting consideration of 

Greenhouse Gas (GHG) emitting sources beginning January 2,2011, that emit or have the 

potential to emit 75,000 tons per year or 100,000 tons per year of C02e. The effective date of 

this revision is December 11, 2010. 

I further certifY that the hearing was held in accordance with the notice required by Subsection 

51-.102 of 40 CFR 51. 

Printed on 

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