STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

OFFICE OF THE 

SECRETARY 

Mr. Shawn M. Garvin (3RAOO) 

Regional Administrator 

U. S. Environmenta l Protection Agency 

Region Ill 

1650 Arch Street 

Philade lphia, PA 19 103-2029 

Dear ._,. 

89 KINGS HIG HWAY 

DOVER, DELAWARE 19901 

October I 5, 20 I 3 

PHONE: (302) 739-9000 

FAX! (302) 739-6242 

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

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

REVIEW, Section 2.5 Emission Offset Provision The amendment will improve the ability of existing 

Delaware stationary sources and new sources to acquire required emissions offsets. This revision is 

effective September II , 20 13. 

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

hearing process established by the State of De laware with proper notification (3 0 days) prior to the 

convening of the public hearing. Attachments A and Bare copies of affidavits as proof of proper 

notification. It is the position of the State of De laware that all minimum requirements set forth in the 

1990 Clean Air Act Amendments have been met. 

Also enclosed with this submittal is a CD which contains an exact duplicate of the hard copy 

material submitted with this SIP revision package. 

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

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

(3 02) 739-9402, if you have any questions concerning the enclosed documents. 

Enc losures 

cc: Linda Miller, w/o encl. 

Diana Esher, EPA w/encl. 

Ali Mirzakha lili 
TITLE 7 NATURAL RESOURCES & ENVIRONMENTAL CONTROL

DELAWARE ADMINISTRATIVE CODE

1

1100 Air Quality Management Section

1125 Requirements for Preconstruction Review 

09/11/2013

2.0 Emission Offset Provisions (EOP)

********

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. For the purpose of 2.5.5, because the following states significantly 

contribute to non-attainment, or interfere with maintenance, of the ozone National Ambient Air Quality 

Standard in Delaware, the Department may consider any area in the following states as having the same 

nonattainment classification as the area of Delaware where the offsets are used: Connecticut, Delaware,

Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, 

Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin.

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 nonattainment area which the source is located. which shall specifically include any area in 

the States of Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, 

New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin. 

********
TITLE 7 NATURAL RESOURCES & ENVIRONMENTAL CONTROL

DELAWARE ADMINISTRATIVE CODE

1

1100 Air Quality Management Section

1125 Requirements for Preconstruction Review 

02/11/2012 FINAL

2.0 Emission Offset Provisions (EOP)

********

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. For the purpose of 2.5.5, because the following states significantly 

contribute to non-attainment, or interfere with maintenance, of the ozone National Ambient Air Quality 

Standard in Delaware, the Department may consider any area in the following states as having the same 

nonattainment classification as the area of Delaware where the offsets are used: [Connecticut], 

Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North 

Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin.

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 nonattainment area which the source is located. which shall specifically include any area in 

the States of [Connecticut], Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New 

Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin. 

********
OFFICE OF THE 

SECRETARY 

STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

AND ENVIRONMENTAL CONTROL 

89 KINGS HIGHWAY 

DOVER, DELAWARE 19901 

Secretary's Order No.: 2013-A-0031 

PHONE: (302) 739~9000 

FAX: (302) 739~6242 

RE: Approving Final Regulations to Amend 7 DE Admin. Code 1125, 

Requirements for Preconstruction Review, Section 2.5 ("Offsets") 

Date oflssuance: August 13, 2013 

Effective Date of the Amendment: September 11, 2013 

Under the authority vested in the Secretary of the Department of Natural 

Resources and Environmental Control ("Department" or "DNREC") the following 

findings, reasons and conclusions are entered as an Order of the Secretary in the abovereferenced rulemaking proceeding. 

Background and Procedural History 

This Order considers proposed regulations to amend 7 DE Admin. Code 1125, 

Requirements for Preconstruction Review: Section 2.5 ("Offsets"). The Department's 

Division of Air Quality commenced the regulatory development process with Start 

Action Notice 2012-12. The Department published its initial proposed Regulation 

Amendments in the September I, 2012 Delaware Register of Regulations, and held a 

public hearing on September 27, 2012. Public comment was received by the Department 

in this matter from three organizations, and the same was thoroughly addressed and 

responded to by the Department's Division of Air Quality in their Technical Response 

Memorandum of July 22,2013. 
Any significant increase in volatile organic compound (VOC) or nitrogen oxide 

(NOx) emissions (i.e., ozone precursors) from a new or modified major source is required 

to be "offset" by emission reductions from existing sources. Emission offset 

requirements apply only in non-attainment areas, and the primary reason Delaware is an 

ozone non-attainment area is emissions fi·om the States of Connecticut, Illinois, Indiana, 

Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, 

Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin. 7 DE Admin. Code 

1125 cmTently requires, among other things, that offsets be obtained from areas of equal 

to or higher non-attainment classification. However, while emission from all areas in the 

above referenced States are the primary reason Delaware is non-attainment, all such areas 

do not meet this criterion because they have not been appropriately classified as nonattainment by the EPA. 

Because Delaware sources are well regulated, there is little opportunity to 

generate offsets from within Delaware. This lack of opportunity, coupled with the large 

impact of upwind emissions that are not eligible to generate offsets, has a negative impact 

on Delaware's air quality and economy. Clean, new industry (which is desirable) cannot 

be permitted in Delaware because offsets are not available, and an oppminnity to reduce 

the upwind emissions that significantly impact Delaware is lost. The Department's 

revision to Section 2.5 of 7 DE Admin. Code 1125 will correct this by allowing Delaware 

to consider any area in the above mentioned states as having the same non-attainment 

classification as Delaware. 

The likely affected public with regard to this proposed promulgation will be any 

new or modified major stationary source in Delaware subject to VOC or NOx emission 

2 
offset requirements, as such entities would benefit from the proposed broad offset area. 

Additionally, the public would benefit from improved air quality, due to the reduction in 

upwind emissions. 

The Department's presiding hearing officer, Lisa A. Vest, prepared a Hearing 

Officer's Report dated August 8, 2013 (Report). The Report recommends certain findings 

and the adoption of the proposed Amendments as attached to the Report as Appendix A. 

Findings and Discussion 

I find that the proposed Amendments are well-supported by the record developed 

by the Department, and I adopt the Report to the extent it is consistent with this Order. 

The Department's experts developed the record and drafted the proposed Amendments. 

I find that the Department's experts in the Division of Air Quality fully developed the 

record to support adoption of these Amendments. With the adoption of this Order, 

Delaware will be enabled to broaden the geographic area from which Delaware stationary 

sources may obtain required emission offsets, specifically, allowing Delaware to consider 

any area in the States of Connecticut, Illinois, Indiana, Kentucky, Maryland, Michigan, 

Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, 

Virginia, West Virginia and Wisconsin as having the same non-attainment classification 

as Delaware, thereby providing greater opportunities for clean, new industry to be 

permitted in Delaware. 

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; 

3 
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 the public hearing held on September 27, 2012; 

3.) The Department held a public hearing on September 27, 2012 in order to 

consider public comment before making any final decision; 

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 should be adopted as final regulation 

Amendments because Delaware will be able to (1) broaden the geographic area from 

which Delaware stationary sources may obtain required emission offsets, specifically, 

allowing Delaware to consider any area in the States of Connecticut, Illinois, Indiana, 

Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, 

Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin as having the same 

non-attainment classification as Delaware, thereby providing greater opportunities for 

clean, new industry to be permitted in Delaware; (2) provide a more broad offset area for 

new or modified major stationmy source in Delaware subject to VOC or NOx emission 

offset requirements; (3) provide the public additional health benefits from improved air 

quality, due to the reduction in upwind emissions; and, lastly, because (4) the 

amendments are well supported by documents in the record; 

4 
6.) The Department shall submit this Order approving the final regulation 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. 

Ahear\ Reg. 1125 Sect 2.5 Offsets .. 2013 ORD 

5 

Collin P. O'Mara 

Secretary 

iifoEPENDENT NEWSPAPERS, INC. 

P. 0. Box 7001 • Dover, Delaware • 19903 • 1-800-282-8586 

State of Delaware: 

County of Kent: 

Before me, a Notary Public, for the County and State qforesaid, Edward Dulin, known 

to me to be such, who being sworn according tGJ la'W deposes and says that he is 

President of Independent Newspapers, Inc. I Delmarva, the publisher of The Delaware 

State News, a daily newspaper published at Dover, County of Kent, and State of 

Delaware, and that the notice, a copy 9~which &her~to attac.hed, as published in The 

Delaware State News in its issue of UA(f';[ · ( 9, flO ( J, . 

President 

Independent Newspapers, Inc. I Delmarva 

Sworn to and subscribed before me this 

Doy ot ___fly!! WJt._.,.'#'/'1"'""~ §-' ,,\\ ..... • :.Zf:'i --~ -"' ,r.·oTAt'> v, " '-' .. ~, •r ;.,.--- « !::} •'\-- r·-;. 

!§ / PUBLIC ·.. 'i: 

!E5 t : = :l ~MY COMMISSION: S 

~ 0):·. EXPIRES ON ,.~0 f ~ -fY:• •. 10-18-13 /"-0,$' "'-'<?' .. ..~,-,; ,,,,, Of i)i:\.~ ,,,,,, 11111Jt /IIlii\\\\\\ 

Sh ee! Add/'(~~.s: 

950 Wcs! Basin Rood 

Now Costlc,. DE 19720 

Moilinu Addrc~s: 

I' 0 llox 15505 

Wi!minuton, DE 19850 

(.102) 324·2500 

1800) 235-91 ()0 

h.1x Number~. 

A((:OUillin~J· ]74· 2.'>54 

Circulotion: 324-2945 

Clo~~ificd: 324·5511 

Hvmon Rr:sow.c~ 3?4·2578 

Info Sy~tem5: 324·2969 

Morkeling: 324·2557 

New> 324·5509 

f(P.!oi! 32k55l8 

The News journal 

iV\edio Group 

Legal Desk: 302-324-2676 

Legal Fax: 302-324-2249 

AFFIDAVIT OF PUBLICATION 

State of Delaware 

Personally appeared before me this 20"' day of August, 2012. 

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- 912712012 

was published in The News Journal on August 19,2012 

Title 

\'-t'.)~i.:ry 1-"'ub\ic 

· '.t: 11n of Ud<::t\:V<HL' 

. :: w I I /0//20 i? 
STATE OF DELAWARE 

DEPARTMENT OF NATURAL RESOURCES 

& ENVIRONMENTAL CONTROL 

D IVISION OF A IR QUALITY 

655 S. Bay Road, Suite 5N 

DOVER,DELAWARE19901 

CERTIFICATION 

October 10, 2013 

Telephone: (302) 739 - 9402 

Fax No.: (302) 739 - 3106 

I hereby certify that a public hearing was held September 27, 2012, on a revision to 7 DE Admin. 

Code 1125 - REQUIREMENTS FOR PRECONSTRUCTION REVIEW, Section 2.5 Emission 

Offset Provision The amendment to will improve the ability of existing Delaware stationary 

sources and new sources to acquire required emissions offsets. This revision is effective 

September 11 , 2013. 

I further certify that the hearing was held in accordance with the notice required by Subsection 

51. 1 02 of 40 CFR 51. 

Ali Jtiir~ili , P.E. 

Director 

Division of Air Quality 

Printed on 

Recycled Paper 
TO: 

FROM: 

RE: 

DATE: 

MEMORANDUM 

The Honorable Collin P. O'Mara 

ept. of Natural Resources and Environmental Control 

Public He ing Officer, Office of the Secretary 

Depmtment of Natural Resources and Environmental Control 

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

Preconstruction Review: Section 2.5 ("Offsets") 

August 8, 2013 

I. Background: 

A public hearing was held on Thursday, September 27, 2012, at 6:00p.m. at the 

Department of Natural Resources and Environmental Control ("DNREC", 

"Department"), 89 Kings Highway, Dover, Delaware to receive comment on proposed 

ainendments to 7 DE Admin. Code 1125, Requirements for Preconstruction Review: 

Section 2.5 ("Offsets"). The Department proposes to revise Section 2.5 of Regulation 

1125 to expand the geographical area from which Delaware stationary sources may 

obtain required emission offsets. 

Any significant increase in volatile organic compound (VOC) or nitrogen oxide 

(NOx) emissions (i.e., ozone precursors) from a new or modified major source is required 

to be "offset" by emission reductions from existing sources. Emission offset 

requirements apply only in non-attainment areas, and the primary reason Delaware is an 

ozone non-attainment area is emissions from the States of Connecticut, Illinois, Indiana, 

Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, 
Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin. 7 DE Admin. Code 

1125 currently requires, among other things, that off"Sets be obtained from areas of equal 

to or higher non-attaimnent classification. However, while emission from all areas in the 

above referenced States are the primary reason Delaware is non-attaimnent, all such areas 

do not meet this criterion because they have not been appropriately classified as nonattaimnent by the EPA. 

Because Delaware sources are well regulated, there is little opportunity to 

generate offsets from within Delaware. This lack of opportunity, coupled with the large 

impact of upwind emissions that are not eligible to generate offsets, has a negative impact 

on Delaware's air quality and economy. Clean, new industry (which is desirable) cannot 

be permitted in Delaware because offsets are not available, and an opportunity to reduce 

the upwind emissions that significantly impact Delaware is lost. The Department's 

proposed revision to 7 DE Admin. Code 1125 will correct this by allowing Delaware to 

consider any area in the above mentioned states as having the same non-attaimnent 

classification as Delaware. 

The likely affected public with regard to this proposed promulgation would be 

any new or modified major stationary source in Delaware subject to VOC or NOx 

emission offset requirements, as such entities would benefit from the proposed broad 

offset area. Additionally, the public would benefit from improved air quality, due to the 

reduction in upwind emissions. 

2 
As noted above, the Department held a public hearing to receive comment on this 

proposed promulgation on Thursday, September 27,2012. Comment was received by the 

Department concerning this matter at the time of the public hearing, and the same 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 aforementioned public hearing, Gene Pettingill, an 

Environmental Engineer in the Planning Branch of the Department's Division of Air 

Quality ("DAQ") offered the Department's fifteen (15) exhibits pertaining to these 

proposed amendments, and this Hearing Officer entered them into the formal hearing 

record developed in this matter. Those Departmental exhibits included, but was not 

limited to, a copy of the Start Action Notice for this promulgation (SAN2012-12), copies 

of the legal notices regarding the holding of this public hearing, copies of numerous 

documents from the EPA pertaining to recent various Federal Implementation Plans 

concerning Interstate Transport of Ozone, and copies of the actual proposed amendments 

to the aforementioned affected section of 7 DE Admin. Code 1125. 

Mr. Pettingill also offered a brief summary regarding this proposed promulgation 

at the time of the public hearing. As noted above, the nature of the Department's 

proposal at this time is to expand the geographical area from which Delaware stationary 

sources may obtain required emission offsets. The EPA has designated all of Delaware 

as non-attainment for one or more of the national an1bient air quality standards (NAAQS) 

for ozone. 7 DE Admin. Code 1125 requires any new or modified major stationary 

source in a non-attainment area to install lowest achievable emissions rate (LAER) 

3 
emission control technology, and to obtain emission offsets so that there is a net air 

quality benefit in the area where the new or modified source is constructed. 

Currently, emission offsets may be obtained from within Delaware, or from a 

limited area outside of Delaware. As a result of implementing and· enforcing state and 

federal regulations, Delaware sources are now well controlled, and obtaining offsets is 

increasingly costly and difficult. Moreover, Delaware has few, if any, remaining avenues 

to generate emission offsets. 

On August 8, 2011, EPA issued the Cross States Air Pollution Rule (CSAPR) (76 

FR 48208), which considered transport from upwind states of, among other things, 

ground-level ozone and a precursor, nitrogen oxides (NOx). NOx reacts in the 

atmosphere to form ground-level ozone and is transported long distances, making it 

difficult for a number of states (including Delaware) to meet the ground-level ozone 

NAAQS that Congress directed EPA to establish to protect public health. CSAPR 

quantified that Delaware sources contribute about 8% of Delaware's ozone air quality 

problems, and upwind sources contribute the remaining 92%. CSAPR underwent a series 

of minor conections as a result of stakeholder comments, resulting in the issuance of 76 

FR 80760 (12/27111), 77 FR 10324 (02/21112) and 77 FR 34830 (07/12/12). 

In support of their Cross-States Air Pollution Rule (CSAPR), the EPA determined 

that emissions of nitrogen dioxide (NOx), a ground-level ozone precursor, from 15 

upwind states significantly impacted Delaware's ability to attain and maintain the ozone 

NAAQS. Portions of these 15 upwind states are designated nonattainment, but 

inexplicably other portions are designated attainment, for the ozone NAAQS. Given that 

EPA has demonstrated that emission from all areas of these 15 upwind states 

4 
significantly impact Delaware, Delaware has proposed to revise 7 DE Admin. Code 1125 

to make it clear that emission offsets may be obtained from any area in the 15 states that 

significantly impact Delaware. 

It should be noted that, when Delaware initially analyzed the CSAPR to develop 

this proposal, the Department believed there were just 15 states that significantly 

contributed to Delaware's non-attainment status. A more thorough review indicated that 

Connecticut was included in the EPA list as well, bringing the total states to be 

considered in this revision to 7 DE Admin. Code 1125 to 16. Since the intent was to base 

our proposal on the already published EPA data showing which upwind states 

significantly contributed to Delaware's non-attainment status, the addition of Connecticut 

is non-substantive. If promulgated, the Department's final regulation will reflect this 

revision, and will be submitted to EPA as a revision to the Delaware State 

Implementation Plan. 

III. Public Comment/Department Response: 

Three organizations presented written comments before the close of the comment 

period on October 12, 2012, and one organization presented written and verbal comments 

at the September 27, 2012 hearing. These comments, along with the responses provided 

to this Hearing Officer in the Technical Response Memorandum dated July 22, 2013 

from the Department's Division of Air Quality (DAQ) are reviewed below. 

Comment 1: Delaware State Chamber of Commerce; Letter, Richard Heffron to Ali 

Mirzakhalili, dated September 24, 2012, "Proposed Amendments to Delaware 7 DE 

Admin. Code Regulation 1125 -Requirements for Preconstruction Review." (DNREC 

Public Record Exhibit 13): 

5 
The Chamber clearly supported the Department's proposed amendments to 7 DE 

Admin. Code 1125, and recognized that under the current situation, with wellcontrolled sources in Delaware, "much of the air quality concerns in Delaware 

come from out of state transported pollution, " and that "ERC [emission reduction 

credit} from a broader area must be considered." The Chamber added "On 

behalf of the 2400 members of the Delaware State Chamber of Commerce, we 

urge the Department to modifY existing Regulation Number 1125 to accommodate 

the use of ERC's by Delaware sources that were generated outside of Delaware 

that "significantly contribute" to Delaware's air quality non-attainment status. " 

DAQ Response to Comment 1: 

The Delaware State Chamber of Commerce was thanked by DAQ for their 

support on this issue. 

Comment 2: E. I. Dupont de Nemours and Company, Engineering; Letter, Thomas S. 

Webster, III to Ali Mirzakhalili, dated September 25, 2012, "Proposed Amendments to 

Delaware 7 DE Admin Code Regulation 1125 - Requirements for Preconstruction 

Review." (DNREC Public Record Exhibit 14): 

Dupont supports the proposed amendments and says, in part, " .... is in support of 

the proposed amendments which will allow Emission Reduction Credits (ERCs) 

fi'om 15 state areas to be utilized under Delaware's ?reconstruction Review 

Regulations. The proposed amendments will be an important consideration in the 

6 
future expansion plans for our operations in Delaware, as well as for other 

businesses. " 

DAQ Response to Comment 2: 

DAQ thanked Dupont for their support on this issue. 

Comment 3: Delaware City Refining Company; Letter, Herman Seedorf to David Fees, 

dated September 27, 2012, "7 DE Admin Code 1125, Requirements for Preconstruction 

Review Register Notice SAN 2012-18; SAN 2012-12." (Identified in the Public Record 

as DCR# 1): 

As shown, DCRC supports this proposal. They say in part, "The proposed 

revisions to Regulation 1125 will not only allow for greater flexibility for 

businesses, it supports emissions improvements in the state ... Additionally, the 

proposed regulations require offsets to be obtained from "upwind" states that 

contribute to non-attainment air quality concerns in Delaware ... Accordingly, the 

Delaware City Refining Company, LLC supports DNREC's revision to Delaware 

Air Regulation 1125 to allow existing and new businesses to acquire emissions 

offsets required by the Clean Air Act and by Delaware Regulation as proposed 

and it's submittal to US EPA as a revision to Delaware's State Implementation 

Plan." 

DAQ Response to Comment 3: 

DCRC was thanked by DAQ for their support on this issue. 

7 
Comment 4: Delaware City Refining Company: Verbal comments by Bob Muche as 

recorded in the transcript provided by Wilcox & Fetzer, starting on page 13. 

In summary, Mr. Muche was concerned that PM2.s offsets would be required for 

refinery expansions, and that such offsets will be difficult to acquire. Mr. Muche 

suggested that the new language did also cover emission offsets for P M2.s. and if 

not, then it should. 

DAQ Response tl~ Comment 4: 

As pointed out by DNREC's Mr. Amirikian at the hearing, this proposal was not 

intended to cover PM2.5 offsets. In crafting the proposed amendments to 7 DE Admin. 

Code 1125, DAQ focused entirely on NOx for ground-level ozone offsets, as supported 

by EPA's CASPR modeling. DNREC has submitted to the EPA redesignation requests 

and maintenance plan SIPs for PM2.5• Approval of these SIPs is anticipated in the fall of 

2013, and once approved, Delaware will be designated attainment for PM2.s, and PM2.s 

offsets will no longer be required. Once Delaware is designated attainment, this issue 

will be moot. 

Comment 5: U.S. Environmental Protection Agency; Letter, Kathleen Cox, to David 

Fees, dated October 3, 2012. 

The EPA comments, in part "According to the Clean Air Act Section 17 3 and 

codified in 40 CFR Part 51 Appendix S, Emission Offset interpretative Ruling, the 

8 
owner or operator of a new or modified major stationary source may comply with 

any offset requirement in effect under this part for increased emissions of any air 

pollutant only by obtaining emission reductions of such air pollutant from the 

same source or other sources in the same nonattainment area, except that the 

State may allow the owner or operator of a source to obtain such emission 

reductions in another nonattainment area if: 

• the other area has an equal or higher nonattainment classification than 

the area in which the source is located; and 

• emissions from such other area contribute to a violation of the national 

ambient air quality standard in the nonattainment area in which the 

source is located. 

The Environmental Protection Agency (EPA) Region III could not approve, as 

currently proposed, revisions to Section 2 of 7 DE Admin. Code 1125 if submitted 

as a revision to the State Implementation Plan (SIP). It is outside of the authority 

of Delaware to broadly designate the nonattainment classification of any state in 

order to use offiets created in those states; offiets can only be used in an area of 

equal or higher nonattainment classification than the area where the emissions 

reductions offsets are created. " 

DAQ Response to Comment 5: 

First, Delaware agrees with the EPA that it is outside of the authority of Delaware 

to broadly designate the nonattainment classification of any state. The intent of the 

Department's proposed revision to 7 DE Admin. Code 1125 is not to classify or change 

the nonattainment classification of any state. Delaware has reviewed its proposed 

9 
language and believes it is very clear as written, and that no change to the proposed 

language is needed. 

Second, Delaware does not agree with the EPA inference that it must adopt 

provisions identical to those of 40 CFR Part 51, Appendix S. This is because the 

requirements of 40 CFR 51.165, Requirements for Preparation, Adoption. and Submittal 

of Implementation Plans, Permit Requirements, allow a state to develop other procedures 

for locating offsetting emissions if the procedures are at least as stringent as the federal 

rule. 40 CFR 51.165, paragraph(a)(3)(ii)(F) requires Delaware to provide, "Procedures 

relating to the permissible location of offsetting emissions shall be followed which are at 

least as stringent as those set out in 40 CFR Part 51 Appendix S section IV. D. " Appendix 

S section IV (D) says "The owner or operator of a new or modified major stationary 

source may comply with any offset requirement in effect under this Ruling for increased 

emissions of any air pollutant only by obtaining emissions reductions of such air 

pollutant from the same source or other sources in the same nonattainment area, except 

that the reviewing authority may allow the owner or operator of a source to obtain such 

emissions reductions in another nonattainment area if the conditions in IV. D. I and 2 are 

met. 

1. The other area has an equal or higher nonattainment classification than 

the area in which the source is located. 

2. Emissions from such other area contribute to a violation of the national 

ambient air quality standard in the nonattainment area in which the source 

is located. 

10 
Similarly, the CAA, 42 USC§ 7416, provides, " .... nothing in this chapter shall 

preclude or deny the right of any State or political subdivision thereof to adopt or enforce 

(1) any standard or limitation respecting emissions of air pollutants or (2) any 

requirement respecting control or abatement of air pollution; except that if an emission 

standard or limitation is in effect under an applicable implementation plan or under 

section 7 411 or section 7 412 of this title, such State or political subdivision may not 

adopt or enforce any emission standard or limitation which is less stringent than the 

standard or limitation under such plan or section. " This indicates that Delaware may 

establish requirements different than the 40 CFR Part 51 Appendix S requirements, so 

long as Delaware's requirements are at least as stringent. 

The EPA has no published guidance on procedures for demonstrating that state 

specific provisions are at least as stringent as model federal provisions. However, it 

expressed the purpose of its interpretive ruling in the introduction to 40 CFR Part 51, 

Appendix S which states: "These conditions are designed to insure that the new source's 

emissions will be controlled to the greatest degree possible; that more than equivalent 

offsetting emission reductions (emission offsets) will be obtained from existing sources; 

and that there will be progress toward achievement of the NAAQS." Delaware believes 

that a demonstration that the implementation of a state provision results in an air quality 

benefit over a model federal provision that is designed to ensure new source emissions 

are controlled to the greatest degree possible, that more than equivalent offsetting 

emissions reductions will be obtained and that there will be more progress toward 

achievement of the NAAQS, provides a reasonable basis to conclude that the state 

provision is at least as stringent as the federal provision. Delaware has undertaken great 

11 
efforts to reduced its instate NOx and VOC emissions in order to make progress toward 

achieving the ground level ozone NAAQS. Its SIP controls range from its largest sources 

(electric generating units) to almost insignificant sources in an attempt to aggregate any 

potential benefits. At this point, all Delaware sources are well controlled and there are 

practically no offsets that can be achieved in state. Consequently, Delaware has 

undertaken this amendment to its offsetting regulation to provide for allowable offsets 

that will allow for growth that will ensure new source emissions are controlled to the 

greatest degree possible, that more than equivalent offsetting emissions reductions will be 

obtained and that will actually allow for additional progress toward achievement of the 

NAAQS in its rule. DAQ believes that this rule is at least as stringent as the federal rule 

because it will achieve more of those benefits than the federal rule. 

To demonstrate the air quality benefit attributable to the requirement of 40 CFR 

Part 51 Appendix S with that of the proposed revision to 7 DE Admin. Code 1125, 

paragraphs 2.5.5 and 2.5.6, consider the effects of construction of a new, 249 TPY NOx 

emitting source: 

40 CFR Part 51 Appendix S. The construction of a new, 249 TPY NOx 

source in Seaford, Delaware would trigger review under 7 DE Admin. 

Code 1125. 7 DE Admin. Code 1125 requires the installation of emission 

controls that meet Lowest Achievable Emission Rate (LAER) technology. 

The installation of LAER technology in this example reduces the 

emissions from 249 TPY down to 100 TPY. The 100 TPY source still 

triggers review under 7 DE Admin. Code 1125 so, in addition to LAER 

technology, emission offsets must be obtained. Delaware sources are well 

12 
controlled, and the cost of NOx offsets exceeds $10,000 per ton. This is 

deemed too costly by the source, so instead of constructing in Seaford the 

source is constructed across the Chesapeake Bay in a county designated 

attainment in Virginia. For example, construction in any one of such 

counties on or near the Chesapeake Bay, but not in the Ozone Transport 

Region, such as Northumberland, Richmond or Lancaster counties would 

be in an attainment area with a 250 TPY major source threshold. The 

result is a 249 TPY source that does not trigger new source review in 

Virginia, is constructed, and based on EPA CSAPR modeling, this new 

249 TPY NOx source will negatively impact Delaware's air quality. 

Proposed 7 DE Admin. Code 1125. The construction of a new, 249 TPY 

NOx source in Seaford, Delaware would trigger review under 7 DE 

Admin. Code 1125. 7 DE Admin. Code 1125 requires the installation of 

emission controls that meet Lowest Achievable Emission Rate (LAER) 

technology. The installation of LAER technology in this example would 

reduce the emissions from 249 TPY down to 100 TPY. The 100 TPY 

source still triggers review under 7 DE Admin. Code 1125, so in addition 

to LAER technology, emission offsets must be obtained. The cost ofNOx 

offsets in West Virginia is currently $500 per ton. This is deemed cost 

cffecti ve by the source, so the source secures the offsets from West 

Virginia and constructs in Delaware. The result is a well-controlled 100 

TPY source is constructed in Delaware, and the air quality is improved 

13 
because the upwind emissions that are causing high ozone concentration in 

Delaware have been reduced by 115 TPY. 

In the above example, proposed 7 DE Admin. Code 1125 is more stringent because it 

results in an air quality benefit over 40 CFR Part 51 (i.e., emissions that impact Delaware 

increase by 249 TPY, versus decrease by 15 TPY). Further analysis on the level of 

control and the reduction of emissions that significantly impact Delaware: 

• Regarding the Control level of a New/Modified Source: 

• Under proposed 7 DE Admin. Code 1125, for every possible case, any 

new source constructed in Delaware will have the best possible 

controls (i.e., LAER). 

• Under 40 CFR Part 51 requirements a source planning to construct in 

Delaware could be pushed fi·om Delaware to another area with lesser 

control requirements (as illustrated in the example above); and less 

control would be achieved. 

• The requirements are neutral for any source not constructing m 

Delaware that did not plan to construct in Delaware. 

Regarding the control level of a new/modified source, proposed 7 DE Admin. 

Code 1125 is more stringent than 40 CFR Part 51. 

14 
• Regarding upwind emissions that are causing Delaware's unhealthy ozone 

concentrations: 

• The new source obtains offsets from within Delaware. Under this case 

there is no difference between 40 CFR Part 51 and proposed 7 DE 

Admin. Code 1125. 

• The new source obtained offsets from an upwind nonattainment area in 

any of the states listed in proposed 7 DE Admin. Code 1125. Under 

this case there is no difference between 40 CFR Part 51 and proposed 

7 DE Admin. Code 1125. 

• All of Delaware is marginal nonattainment, so the case where an 

upwind area has a lower nonattainment classification than the 

corresponding areas in Delaware does not exist. 

• The new source obtained offsets from an upwind attainment area in 

any of the states listed in proposed 7 DE Admin. Code 1125. In this 

case 7 DE Admin. Code 1125 is more stringent (i.e., gets more air 

quality benefit) because reductions have occurred in an upwind state 

that significantly impacts Delaware. Under 40 CFR Part 51 these 

reductions would not occur. 

Looking at the purpose of the federal rule, Delaware can offer no scenario where 

the requirements of the proposed revisions to 7 DE Admin. Code 1125 would 

offer less air quality benefit/be less stringent than Appendix S. Indeed, Delaware 

has limited the area where offsets can be obtained to only those areas EPA has 

found to significantly contribute (i.e., contribute by more than l% of the ozone 

15 
NAAQS) to the unhealthy ozone concentration in Delaware's air. Thus, any 

offsets for Delaware emissions are only allowed in areas that EPA has found 

directly and significantly contribute to and cause Delaware's nonattaimnent 

problem (or meet the existing federal criteria). It is clearly beneficial to air 

quality to provide incentive to reduce upwind emissions that are causing 

downwind ozone problems than it is to not do so. Indeed, this may be one of the 

few remaining strategies Delaware has available to it to further reduce the 

emissions that cause Delaware's nonattaiim1ent problem. Indeed, Delaware 

believes the only way proposed changes to 7 DE Admin. Code 1125 can be 

viewed as Jess stringent than 40 CFR Part 51 Appendix S is if the science behind 

ozone and ozone transport fuat has been developed over the past 20 years is 

disregarded and the fact that the allowed offsets will directly reduce the pollution 

that is causing Delaware's nonattainmnent is disregarded. 

The proposed revisions to 7 DE Admin. Code 1125 are more stringent than those 

of 40 CFR Part 51, Appendix S. Since they are more stringent, Delaware does not agree 

with the EPA comment that the EPA could not approve, as currently proposed, revisions 

to Section2 of7 DE Admin. Code 1125 if submitted as a revision to the SIP. 

Based on the above discussion, DAQ finds no reason to further revise or modify 

the proposal to revise Section 2.5 of 7 DE Admin. Code 1125 as discussed at the 

September 27, 2012 public hearing. The DAQ recot1m1ends that the revisions to Section 

2.5 of7 DE Admin. Code 1125 be promulgated as proposed. 

16 
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. Additionally, the Division of Air 

Quality's Technical Response Memorandum of July 22, 2013, which identified each 

comment received by the Department in this matter, and addressed the same with a 

thorough and balanced discussion which accurately reflects the information contained 

within the record developed during this promulgation, is also attached herein as 

Appendix "B", and the same is 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 

has met the required public notice obligations regarding these proposed amendments. It 

should also be noted that the Department has reviewed this proposed promulgation 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. 

IV. 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 2.5 ("Offsets"). I 

also recommend the adoption of the proposed regulatory amendments, based upon the 

reasoning as set forth by the Department's Division of Air Quality. Accordingly, I 

17 
recommend promulgation of these proposed amendments in the customary manner 

provided by law. 

Further, I recommend the following findings: 

I. The Department has jurisdiction under its statutory authority, 7 Del.C., 

Chapter 60, to make a determination in this proceeding; 

2. The Department provided adequate public notice of the proceeding and the 

public hearing in a manner required by the law and regulations; 

3. The Department held a public hearing on September 27, 2012, 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. Subsequent to the public hearing held by the Department on September 27, 

2012, and following the close of the record with regard to public comment, 

the Department prepared a detailed and extensive Technical Response 

Memorandum, dated July 22, 2013, which addressed all comments received 

by the Department conceming this promulgation, and provided a thorough and 

rational discussion of the issues based upon the record developed in this 

matter; 

6. The aforementioned proposed amendments to Section 2.5 of 7 DE Admin. 

Code 1125 will enable Delaware to broaden the geographic area from which 

Delaware stationary sources may obtain required emission offsets, 

18 
specifically, allowing Delaware to consider any area in the States of 

Connecticut, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New 

Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, 

West Virginia and Wisconsin as having the same non-attainment classification 

as Delaware, thereby providing greater opportunities for clean, new industry 

to be permitted in Delaware; 

7. The Department has an adequate record for its decision, and no further public 

hearing is appropriate or necessary; 

8. The Department's proposed amendments to these regulations, as published in 

the September 1, 2012 Delaware Register of Regulations and 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 a final regulation, which shall go into effect ten 

days after their publication in the next available issue of the Delaware 

Register of Regulations; and 

9. The Department shall submit the proposed regulation amendments as final to 

the Delaware Register of Regulations for publication in its next available 

issue, and shall provide written notice to the persons affected by the Order. 

/ahcar/ Reg. ll25 Scct.2.5 Offscts.2013 

19 

APPENDIX "A" 

Phone: (302) 7 44-4700 

Fax: (302) 739-6659 

PROPOSED REGULATIONS 239 

*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 

regulation is available at: 

4459 Lead Based Paints Hazards 

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL 

CONTROL 

DIVISION OF AIR QUALITY 

Statutory Authority: 7 Delaware Code, Chapter 60; (7 Del. C., Ch. 60) 

7 DE Admin. Code 1125 

REGISTER NOTICE SAN 2012-18; SAN 2012-12 

1. TITLE OF THE REGULATION: 

7 DE Admin. Code 1125, Requirements for Preconstruction Review 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES: 

The Department proposes to revise Section 1.9, Definitions of 7 DE Admin. Code 1125, to include in the 

definition for "Greenhouse Gases (GHG)" that, prior to July 21, 2014, biogenic carbon dioxide (C02) emissions be 

excluded from consideration. This proposed change mirrors the federal rule at 76 FR 43490 (July 20, 2011) 

temporarily deferring for a period of three years the application of Prevention of Significant Deterioration (PSD) 

permitting requirements for C02 emissions from bioenergy and other biogenic stationary sources such as landfills. 

The Department also proposes to revise Section 2 of 7 DE Admin. Code 1125 to increase the availability of 

emission offsets. Under the new source review permitting program (7 DE Admin. Code 1125) for stationary 

sources located in non-attainment areas, a proposed new or modified source exceeding established emission 

thresholds of ground-level ozone precursors must meet requirements that include the requirement to obtain 

emission "offsets" in an amount greater than the projected source emissions. Since Delaware sources are now 

well-controlled, the availability of offsets is costly and limited. The purpose of this revision is to expand the area 

where offsets can be obtained to an area that encompasses the 15 states that significantly contribute to Delaware's 

ozone nonattainment problem. 

The Department will submit these changes to the Environmental Protection Agency as a revision to the State 

Implementation Plan (SIP), 

3. POSSIBLE TERMS OF THE AGENCY ACTION: 

None. 

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 

7 Delaware Code, Chapter 60 

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL: 

None. 

6. NOTICE OF PUBLIC COMMENT: 

The Department will hold a public hearing on these proposed amendments on Thursday, September 27, 2012, 

starting at 6:00 pm in the Richardson and Robbins Building auditorium, located at 89 King's Highway in Dover. 

Interested persons may submit comments in writing to David Fees, Division of Air Quality, 655 S. Bay Road, Suite 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
240 PROPOSED REGULATIONS 

5N, Dover, DE and/or statements and testimony may be presented either orally or in writing at the public hearing. 

7. PREPARED BY: 

David Fees (302-739-9402) 

August 6, 2012 

1125 Requirements for Preconstruction Review 

08/11/12 xx/)(){/)(){ 

1.0 General Provisions 

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

Regulations Governing the Control of Air Pollution. 

1.2 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). 

1.3 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). 

1.4 · 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. 

1.5 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 Governing the Control 

of Air Pollution. 

1.6 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 11 00, Regulations Governing 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 DE Admin. Code 1100 Regulations 

Governing the Control of 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. 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
PROPOSED REGULATIONS 241 

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 minor source 

baseline date would construct or would have an air quality impact of the pollutant for which the 

baseline date is established, as follows: equal to or greater than one (Jg/m3 (annual average). for 

S02, N02, or PM10; or equal to or greater than 0.3 (Jg/m3 (annual average) for PM2.

5. 

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

stationary source or major modification which: 

Establishes a minor source 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 minor source baseline date. A baseline concentration is 

determined for each pollutant for which a minor source baseline date is established and shall 

include: 

The actual emissions representative of sources in existence on the applicable minor source 

baseline date, except as listed under Exceptions below. 

The allowable emissions of major stationary sources which commenced construction before 

the major source baseline date; but were not in operation by the applicable minor source 

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 

the major source baseline date; and 

Actual emissions increases and decreases at any stationary source occurring after the 

baseline date. 

"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 CAA 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 

DELAWARE REGISTER OF REGULATIONS, VOL.16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
242 PROPOSED REGULATIONS 

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 emissions 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 by implementation of such design, 

equipment, work 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 contro! of the same person (or persons under common centro!). 

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. 

Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively). For 

purposes of 2.0 of this regulation for VOC and NOx pollutant-emitting activities, 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 

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. 

"Condensable Particulate Matter" means material that is vapor phase at stack conditions, but 

condenses and/or reacts upon cooling and dilution in the ambient air to form solid or liquid PM 

immediately after discharge from the stack. Note that all condensable PM is assumed to be in the 

PM2.

5 size fraction. 

"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. 

"Direct Particulate Matter" means particles that enter the atmosphere as a direct emission from 

a stack or an open source. Direct PM comprises two components: filterable PM and condensable 

PM. These two PM components have no upper particle size limit. 

"Direct PM2,

5" means combined filterable PM2.5 and condensable PM with an aerodynamic 

diameter less than or equal to 2.5 micrometers. These solid particles are emitted directly from an 

air emissions source or activity, or are the gaseous emissions or liquid droplets from an air 

emissions source or activity that condense to form PM at ambient temperatures. Direct PM2.

5 

emissions include elemental carbon, directly emitted organic carbon, directly emitted sulfate, 

directly emitted nitrate, and other inorganic particles (including but not limited to crustal material, 

metals, and sea salt). 

"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 CAA. 

"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. 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
PROPOSED REGULATIONS· 243 

"Filterable PM" means particles that are emitted directly by a source as a solid or liquid at stack 

or release conditions and captured on the filter of a stack test train. 

"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 (CH4), 

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

purposes of this regulation, the term C02equivalent 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. For the purooses of this computation, prior to July 21, 2014, the mass of 

the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting 

from the combustion or decomposition of non-fossilized and biodegradable organic 

material originating from plants, animals or micro-organisms !including products, residues 

and waste from agriculture forestrv and related industries as well as the non-fossilized 

and biodegradable organic fractions of industrial and municipal wastes, including gases 

and liquids recovered from the decomposition of non-fossilized and biodegradable organic 

material). 

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

(Break in Continuity Within Section) 

02/11/2012 

2.0 

2.1 

Emission Offset Provisions (EOP) 

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 

2.2.2.2 

2.2.2.3 

and located in the ozone transport region- 50 tons per year volatile organic compounds or 

100 tons per year of oxides of nitrogen, or 

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

compounds or oxides of nitrogen, or 

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. 

2.2.5 Nitrogen oxides and S02 shall be considered as precursors, and are considered nonattainment 

pollutants in any PM2.

5 nonattainment area. 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
244 PROPOSED REGULATIONS 

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, PM2.

5, or sulfur 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 or PM2.

5 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. 

2.4.3 The new or modified source must satisfy the 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. 

2.4.3.3 The ratio of total actual emissions reductions of sulfur dioxide, nitrogen oxides or PM2.

5 to 

total allowable increased emissions shall be 1:1. 

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. For the purpose of 2.5.5 because the 

following states significantly contribute to non-attainment or interfere with maintenance, of the 

ozone National Ambient Air Quality Standard in Delaware, the Department may consider any area 

in the following states as having the same nonattainment classification as the area of Delaware 

where the offsets are used: Delaware, Illinois. Indiana, Kentucky, Maryland, Michigan, Missouri, 

New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee Virginia, West Virginia 

and Wisconsin 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 
PROPOSED REGULATIONS 245 

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 nonattainment area which the source is located which shall 

specifically include any area in the States of Delaware. Illinois. Indiana. Kentucky Maryland. 

Michigan. Missouri. New Jersey, New York. North Carolina. Ohio, Pennsylvania. Tennessee 

Virginia. West Virginia. and Wisconsin. 

2.5.7 The Department may allow the offset requirement in 2.5 of this regulation for direct PM2.

5 

emissions or precursors of PM2.

5 (sulfur dioxide or NOx) to be satisfied by offsetting reductions in 

direct PM2.

5 emissions or emissions of sulfur dioxide or NOx using a ratio approved by the 

Department for the nonattainment area after public review and comment. Prior to making a final 

determination on the interpollutant trading ratios for a nonattainment area, the Department shall 

submit the interpollutant trading ratios and supporting information to the EPA for concurrence. 

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. 

16 DE Reg. 214 (08/01/12) 

*Please Note: As the rest of the sections were not amended they are not being published. A copy of the 

proposed regulation is available at: 

1125 Requirements for Preconstruction Review 

DIVISION OF FISH AND WILDLIFE 

Statutory Authority: 7 Delaware Code, Chapter 60; (7 Del. C., Ch. 60) 

1. TITLE OF THE REGULATIONS: 

3300 Non Tidal Finfish 

REGISTER NOTICE 

#2012-09 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES: 

The proposed actions are intended to: formally define designated trout ponds; prohibit the harvest of trout in 

designated trout ponds prior to the scheduled pond trout season; authorize the taking of northern and blotched 

snakehead (invasive species) by bow and arrow and spear; and, make a number of minor editorial corrections to 

the non-tidal regulations. 

Division regulations close fishing in stocked freshwater trout streams two weeks prior to the opening of trout 

season. This allows stocked trout to acclimate to their surroundings; become well dispersed; and, simplifies 

enforcement of the freshwater trout regulations. However, stocked trout ponds were not included in the definition of 

the trout streams and, therefore, similar closures to fishing prior to the opening of trout season cannot be 

adequately enforced. The Division has received numerous complaints from the angling public regarding stocked 

trout harvest prior to the season opening. The proposed amendments to §§3301 and 3304 seek to expressly 

define Newton and Tidbury Ponds as designated trout ponds, and establish closed and open seasons of same. 

The Division is also proposing to amend §3303 to allow the take of northern and blotched snakehead by hook 

and line; bow and arrow and spear in non-tidal waters. These species are han-native invasives which have the 

potential to cause ecological harm. Bow fishing is an effective harvesting technique that rnay diminish their 

numbers and slow or prevent their spread. Similar language exists for carp. 

Other proposed amendments are editorial in nature. These changes are intended to clarify awkwardly worded 

language (§3304 (4.0)) and make the non-tidal regulatory language consistent with the Delaware Administrative 

Code Drafting and Style Manual (September 2009 edition). They are not intended to change the meaning or intent. 

DELAWARE REGISTER OF REGULATIONS, VOL. 16, ISSUE 3, SATURDAY, SEPTEMBER 1, 2012 

APPENDIX "B" 

To: 

Through: 

From: 

Subject: 

Date: 

Lisa Vest 

Ali Mirzakhalili 

Ron Amirikian 

Gene Pettingill 

MEMORANDUM 

Technical Response Memorandum- September 27, 2012 Public Hearing on 

Revisions to 7 DE Admin. Code 1125, Requirements for Preconstruction 

Review - Offsets 

July 22, 2013 

This memorandum provides a response to comments received concerning a proposal to revise 

Section 2.5 of 7 DE Admin. Code 1125 "Requirements for Preconstruction Review," as 

discussed at a public hearing held on September 27, 2012. The nature of the proposal was to 

expand the geographic area from which Delaware stationary sources may obtain required 

emission offsets. In brief: 

• The EPA has designated all of Delaware as non-attainment for oue or more of the 

national ambient air quality standards (NAAQS) for ozone. 

• 7 DE Admin. Code 1125 requires any new or modified major stationary source in a nonattainment area to install lowest achievable emission rate (LAER) emission control 

technology and to obtain emission offsets so that there is a net air quality benefit in the 

area where the new or modified source is constructed. 

• Currently, emission offsets may be obtained from within Delaware or from a limited area 

outside of Delaware. As a result of implementing and enforcing state and federal 

regulations, Delaware sources are now well-controlled and obtaining offsets is 

increasingly costly and difficult. Moreover, Delaware has few, if any, remaining avenues 

to generate emission offsets. 

• In support of their Cross-States Air Pollution Rule (CSAPR), the EPA determined that 

emissions of nitrogen dioxide (NOx), a ground-level ozone precursor, from 15 upwind 

states significantly impacted Delaware's ability to attain and maintain the ozone NAAQS. 

Portions of these 15 upwind states are designated nonattainment, but inexplicably other 

portions are designated attainment, for the ozone NAAQS. 

• Given that EPA has demonstrated that emission from all areas of these 15 upwind states 

significantly impact Delaware, Delaware has proposed to revise 7 DE Admin. Code 1125 

to make it clear that emission offsets may be obtained from any area in the 15 states that 

significantly impact Delaware. 

1 
Three organizations presented written comments before the close of the comment period on 

October 12, 2012, and one organization presented written and verbal comments at the September 

27, 2012 hearing. Thesecomments and Division of Air Quality (DAQ) responses are reviewed 

below. 

Comment 1: Delaware State Chamber of Commerce; Letter, Richard Heffron to Ali 

Mirzakhalili, dated September 24, 2012, "Proposed Amendments to Delaware 7 DE 

Admin. Code Regulation 1125- Requirements for Preconstruction Review." DNREC 

Public Record Exhibit 13. 

The Chamber clearly supported these amendments and recognized that under the current 

situation, with well-controlled sources in Delaware, "much of the air quality concerns in 

Delaware come fi'om out of state transported pollution," and that "ERC [emission 

reduction credit} ji'Oin a broader area must be considered." The Chamber added "On 

behalf of the 2400 members of the Delaware State Chamber (](Commerce, we urge the 

Department to modifY existing Regulation Number 1125 to accommodate the use of 

ERC 's by Delaware sources that were generated outside of Delaware that "significantly 

contribute" to Delaware's air quality non-attainment status. " 

DAQ Response to Comment 1: We thank the Delaware State Chamber of Commerce 

for their support on this issue. 

Comment 2: E. I. Dupont de Nemours and Company, Engineering; Letter, Thomas S. 

Webster, III to Ali Mirzakhalili, dated September 25, 2012, "Proposed Amendments to 

Delaware 7 DE Admin Code Regulation 1125 - Requirements for Preconstruction 

Review." DNREC Public Record Exhibit 14. 

Dupont suppmts the proposed amendments and says, in part, " .... is in support of the 

proposed amendments which will allow Emission Reduction Credits (ERC~) fi'om 15 state 

areas to be utilized under Delaware's Preconstruct ion Review Regulations. The 

proposed amendments will be an important consideration in the future expansion plans 

for our operations in Delaware, as well as for other businesses. " 

DAQ Response to Comment 2: We thank Dupont for their support on this issue. 

Comment 3: Delaware City Refining Company; Letter, Herman Seedorf to David Fees, 

dated September 27, 2012, "7 DE Admin Code 1125, Requirements for Preconstruction 

Review Register Notice SAN 2012-18; SAN 2012-12." Identified in the Public Record 

as DCR# I. 

As shown, DCRC supports tl1is proposal. They say in part, "The proposed revisions to 

Regulation 1125 will not only allow for greater flexibility for businesses, it supports 

emissions improvements in the state ... Additionally, the proposed regulations require 

2 
offsets to be obtained from "upwind" states that contribute to non-attainment air quality 

concerns in Delaware ... Accordingly, the Delaware City Refining Company, LLC 

supports DNREC's revision to Delaware Air Regulation 1125 to allow existing and new 

businesses to acquire emissions ojjvets required by the Clean Air Act and by Delaware 

Regulation as proposed and it's submittal to US EPA as a revision to Delaware's State 

Implementation Plan. " 

DAQ Response to Comment 3: We thank DCRC for their support on this issue. 

Comment 4: Delaware City Refining Company: Verbal comments by Bob Muche as 

recorded in the transcript provided by Wilcox & Fetzer starting on page 13. 

In summary, Mr. Muehe was concerned that PM2.5 offsets would be required for refinery 

expansions and that such offsets will be difficult to acquire. Mr. Muche suggested that 

the new language did also cover emission offsets for PMzs, and if not then it should. 

DAQ Response to Comment 4: As pointed out by DNREC's Mr. Amirikian at the 

hearing, this proposal was not intended to cover PM2.5 offsets. We focused entirely on 

NOx for ground-level ozone offsets as supported by EPA's CASPR modeling. 

DNREC has submitted to the EPA redesignation requests and maintenance plan SIPs for 

PM25 • Approval of these SIPs is anticipated in the fall of 2013, and once approved 

Delaware will be designated attainment for PMz.s and PMz.s offsets will no longer be 

required. Once Delaware is designated attainment this issue will be moot. 

Comment 5: U.S. Enviroumental Protection Agency; Letter, Kathleen Cox, to David 

Fees, dated October 3, 2012. 

The EPA comments, in part "According to the Clean Air Act Section 173 and codified in 

40 CFR Part 51 Appendix S, Emission Offset Interpretative Ruling, the owner or 

operator of a new or mod{fied major stationary source may comply with any offset 

requirement in effect under this part for increased emissions of any air pollutant only by 

obtaining emission reductions of such air pollutant .ft·om the same source or other 

sources in the same nonattainment area, except that the State may allow the owner or 

operator of a source to obtain such emission reductions in another nonattainment area ij: 

• the other area has an equal or higher nonattainment classification than the area 

in which the source is located; and 

• emissions from such other area contribute to a violation of the national ambient 

air quality standard in the nonattainment area in which the source is located. 

The Environmental Protection Agency (EPA) Region III could not approve, as currently 

proposed, revisions to Section 2 of 7 DE Admin. Code 1125 if submitted as a revision to 

3 
the State Implementation Plan (SIP). It is outside of the authority of Delaware to broadly 

designate the nonattainment classification of any state in order to use offsets created in 

those states; ojj~·ets can only be used in an area of equal or higher nonattainment 

classification than the area where the emissions reductions offi·ets are created. " 

DAQ Response to Comment 5: 

First, Delaware agrees with the EPA that it is outside of the authority of Delaware to 

broadly designate the nonattainment classification of any state. The intent of this revision 

to 7 DE Admin. Code 1125 is not to classify or change the nonattainment classification of 

any state. Delaware has reviewed its proposed language and believes it is very clear as 

written and that no change to the proposed language is needed. 

Second, Delaware does not agree with the EPA inference that it must adopt provisions 

identical to those of 40 CFR Part 51, Appendix S. This is because the requirements of 40 

CFR 51.165, Requirements for Preparation, Adoption, and Submittal oflmplementation 

Plans, Permit Requirements, allow a state to develop other procedures for locating 

offsetting emissions if the procedures are at least as stringent as the federal rule. 40 CFR 

51.165, paragraph(a)(3)(ii)(F) requires Delaware to provide, "Procedures relating to the 

permissible location of offsetting emissions shall be followed which are at least as 

stringent as those set out in 40 CFR Part 51 Appendix S section IV.D. "Appendix S 

section IV (D) says "The owner or operator ()[a new or modified major stationary 

source may comply with any offset requirement in effect under this Ruling for increased 

emissions of any air pollutant only by obtaining emissions reductions ()[ such air 

pollutantjr'Oln the same source or other sources in the same nonattainment area, except 

that the reviewing authority may allow the owner or operator of a source to obtain such 

emissions reductions in another nonattainment area if the conditions in IV.D.J and 2 are 

met. 

I. The other area has an equal or higher nonattainment classification than the area 

in which the source is located. 

2. Emissions from such other area contribute to a violation ()[the national ambient 

air quality standard in the nonattaimnent area in which the source is located. 

Similarly, the CAA, 42 USC § 7416, provides, " .... nothing in this chapter shall 

preclude or deny the right of any State or political subdivision thereof to adopt or enforce 

(I) any standard or limitation respecting emissions of air pollutants or (2) any 

requirement respecting control or abatement ()[air pollution; except that if an emission 

standard or limitation is in effect under an applicable implementation plan or under 

section 7 411 or section 7 412 ()[this title, such State or political subdivision may not 

adopt or eJ?force any emission standard or limitation which is less stringent than the 

standard or limitation under such plan or section. " This indicates that Delaware may 

establish requirements different than the 40 CFR Part 51 Appendix S requirements, so 

long as Delaware's requirements are at least as stringent. 

4 
The EPA has no published guidance on procedures for demonstrating that state specific 

provisions are at least as stringent as model federal provisions. However, it expressed the 

purpose of its interpretive ruling in the introduction to 40 CFR Part 51, Appendix S 

which states: "These conditions are designed to insure that the new source 's emissions 

will be controlled to the greatest degree possible; that more than equivalent o.IJ~etting 

emission reductions (emission offSets) will be obtained from existing sources; and that 

there will be progress toward achievement of the NAAQS." Delaware believes that a 

demonstration that the implementation of a state provision results in an air quality benefit 

over a model federal provision that is designed to ensure new source emissions are 

controlled to the greatest degree possible, that more than equivalent offsetting emissions 

reductions will be obtained and that there will be more progress toward achievement of 

the NAAQS, provides a reasonable basis to conelude that the state provision is at least as 

stringent as the federal provision. Delaware has undertaken great efforts to reduced its 

instate NOx and VOC emissions in order to make progress toward achieving the ground 

level ozone NAAQS. Its SIP controls range from its largest sources (electric generating 

units) to almost insignificant sources in an attempt to aggregate any potential benefits. At 

this point, all Delaware sources are well controlled and there are practically no offsets 

that can be achieved in state. Consequently, Delaware has undertaken this amendment to 

its offsetting regulation to provide for allowable offsets that will allow for growth that 

will ensure new source emissions are controlled to the greatest degree possible, that more 

than equivalent offsetting emissions reductions will be obtained and that will actually 

allow for additional progress toward achievement of the NAAQS in its rule. This rule is 

at least as stringent as the federal rule because it will achieve more of those benefits than 

the federal rule. To demonstrate the air quality benefit attributable to the requirement of 

40 CFR Part 51 Appendix S with that of the proposed revision to 7 DE Admin. Code 

1125, paragraphs 2.5.5 and 2.5.6, consider the effects of constmction of a new, 249 TPY 

NOx emitting source: 

40 CFR Part 51 Aooendix S. The constmction of a new, 249 TPY NOx source in 

Seaford, Delaware would trigger review under 7 DE Admin. Code 1125. 7 DE 

Admin. Code 1125 requires the installation of emission controls that meet Lowest 

Achievable Emission Rate (LAER) technology. The installation of LAER 

technology in this example reduces the emissions from 249 TPY down to 100 

TPY. The 100 TPY source still triggers review under 7 DE Admin. Code 1125 

so, in addition to LAER technology, emission offsets must be obtained. Delaware 

sources are well controlled, and the cost of NOx offsets exceeds $10,000 per 

ton. This is deemed too costly by the source, so instead of constructing in Seaford 

the source is constructed across the Chesapeake Bay in a county designated 

attainment in Virginia. For example, construction in any one of such counties on 

or near the Chesapeake Bay, but not in the Ozone Transport Region, such as 

Northumberland, Richmond or Lancaster counties would be in an attainment area 

with a 250 TPY major source threshold. The result is a 249 TPY source that does 

not trigger new source review in Virginia, is constructed, and based on EPA 

CSAPR modeling, this new 249 TPY NOx source will negatively impact 

Delaware's air quality. 

5 
Proposed 7 DE Admin. Code 1125. The construction of a new, 249 TPY NOx 

source in Seaford, Delaware would trigger review under 7 DE Admin. Code 

1125. 7 DE Admin. Code 1125 requires the installation of emission controls that 

meet Lowest Achievable Emission Rate (LAER) technology. The installation of 

LAER technology in this example would reduce the emissions from 249 TPY 

down to 100 TPY. The 100 TPY source still triggers review under 7 DE Admin. 

Code 1125, so in addition to LAER technology, emission offsets must be 

obtained. The cost of NOx offsets in West Virginia is cuiTently $500 per 

ton. This is deemed cost effective by the source, so the source secures the offsets 

from West Virginia and constructs in Delaware. The result is a well-controlled 

1 00 TPY source is constructed in Delaware, and the air quality is improved 

because the upwind emissions that are causing high ozone concentration in 

Delaware have been reduced by 115 TPY. 

In this example, proposed 7 DE Admin. Code 1125 is more stringent because it results in 

an air quality benefit over 40 CFR Part 51 (i.e., emissions that impact Delaware increase 

by 249 TPY, versus decrease by 15 TPY). Further analysis on the level of control and 

the reduction of emissions that significantly impact Delaware: 

• Regarding the Control level of a New/Modified Source. 

• Under proposed 7 DE Admin. Code 1125, for every possible case, any new 

source constructed in Delaware will have the best possible controls (i.e., 

LAER). 

• Under 40 CFR Part 51 requirements a source planning to construct in 

Delaware could be pushed from Delaware to another area with lesser control 

requirements (as illustrated in the example above); and less control would be 

achieved. 

• The requirements are neutral for any source not constructing in Delaware that 

did not plan to construct in Delaware. 

Regarding the control level of a new/modified source, proposed 7 DE Admin. 

Code 1125 is more stringent than 40 CFR Part 51. 

• Regarding upwind emissions that are causing Delaware's unhealthy ozone 

concentrations. 

• The new source obtains offsets from within Delaware. Under this case there 

is no difference between 40 CFR Part 51 and proposed 7 DE Admin. Code 

1125. 

• The new source obtained offsets from an upwind nonattainment area in any of 

the states listed in proposed 7 DE Admin. Code 1125. Under this case there is 

no difference between40 CFR Part 51 and proposed 7 DE Admin. Code 1125. 

• All of Delaware is marginal nonattainment, so the case where an upwind area 

has a lower nonattainment classification than the coiTesponding areas in 

Delaware does not exist. 

6 
• The new source obtained offsets from an upwind attaimnent area in any of the 

states listed in proposed 7 DE Admin. Code 1125. In this case 7 DE Admin. 

Code 1125 is more stringent (i.e., gets more air quality benefit) because 

reductions have occurred in an upwind state that significantly impacts 

Delaware. Under 40 CFR Part 51 these reductions would not occur. 

Looking at the purpose of the federal rule, Delaware can offer no scenario where 

the requirements of the proposed revisions to 7 DE Admin. Code 1125 would 

offer less air quality benefit/be less stringent than Appendix S. Indeed, Delaware 

has limited the area where offsets can be obtained to only those areas EPA has 

found to significantly contribute (i.e., contribute by more than 1% of the ozone 

NAAQS) to the unhealthy ozone concentration in Delaware's air. Thus, any 

offsets for Delaware emissions are only allowed in areas that EPA has found 

directly and significantly contribute to and cause Delaware's nonattaimnent 

problem (or meet the existing federal criteria). It is clearly beneficial to air 

quality to provide incentive to reduce upwind emissions that are causing 

downwind ozone problems than it is to not do so. Indeed, this may be one of the 

few remaining strategies Delaware has available to it to further reduce the 

emissions that cause Delaware's nonattaimnent problem. Indeed, Delaware 

believes the only way proposed changes to 7 DE Admin. Code 1125 can be 

viewed as less stringent than 40 CFR Part 51 Appendix S is if the science behind 

ozone and ozone transport that has been developed over the past 20 years is 

disregarded and the fact that the allowed offsets will directly reduce the pollution 

that is causing Delaware's nonattainmnent is disregarded. 

The proposed revisions to 7 DE Admin. Code 1125 are more stringent than those of 40 

CFR Part 51, Appendix S. Since they are more stringent, Delaware does not agree with 

the EPA comment that the EPA could not approve, as currently proposed, revisions to 

Section 2 of7 DE Admin. Code 1125 if submitted as a revision to the SIP. 

Based on the above discussion, DAQ finds no reason to further revise or modify the proposal to 

revise Section 2.5 of 7 DE Admin. Code 1125 as discussed at the September 27, 2012 public 

hearing. The DAQ recommends that the revisions to 1125 be promulgated as proposed. 

7